City to Take Faith Fellowship Case to Supreme Court

The City of San Leandro is taking its with Faith Fellowship Foursquare Church to the U.S. Supreme Court. 

The City Council voted Thursday night in closed session to petition the nation's highest court to review the case, in which the church alleges the city violated a federal law by denying it permits to relocate to a larger building in the city's industrial zone. The vote was 5-2, with Mayor Stephen Cassidy and Councilmember Pauline Cutter voting 'nay.' 

The City Council also decided to retain as co-counsel in the case Marci Hamilton, a professor at Benjamin N. Cardozo School of Law and an expert in the Religious Land Use and Institutionalized Persons Act, or RLUIPA, the law at the heart of the lawsuit.

Hamilton, who clerked for Supreme Court Justice Sandra Day O'Conner in 1989 and has represented many municipalities in religious land use cases, will join the city's legal team from Oakland-based firm Meyers Nave. 

Hamilton said she was optimistic about the Supreme Court's interest in reviewing the case, saying the religious land use issues raised in Faith Fellowship's lawsuit "have been percolating for a decade." 

“The issues in the case are prime for a Supreme Court review," Hamilton said. "This is a national issue. It’s important to cities all over the country. That’s the kind of issue the Supreme Court is interested in," she said. 

Taking the case to the Supreme Court could also be less expensive for the city than going to trial, Hamilton said.

Nevertheless, Mayor Stephen Cassidy said in an email to Patch that he opposed the decision because he is concerned the litigation could go on for several more years. "I believe the city should seek to resolve the dispute through good faith settlement negotiations," he said. 

, which has more than 2,000 members, filed suit against the city in July 2007 after the city denied it permission to open a new church in an industrial area not zoned for such uses. The church had purchased a property in the area and was forced to sell it at a  loss after the city denied the proper zoning and use permits. 

To date, Faith Fellowship claims it has lost $3.7 million in the ordeal.

Under the federal religious land use act, which was passed by Congress in 2000, governments are prohibited from imposing or implementing overly burdensome land use regulations on religious institutions unless there’s a “compelling governmental interest” for the regulation, and it’s the “least restrictive means” of furthering that interest.

A federal district court judge originally granted the city summary judgment in the case. However, the Ninth Circuit Court of Appeals in San Francisco  in February, saying the issue of whether or not the city imposed a "substantial burden" on the Church’s religious exercise under the law should be decided in court. The appeals court has since upheld that decision, following a petition for reconsideration filed by the city in March.

Hamilton said the appeals court's ruling in the case "was not persuasive" and said the court had taken an overly broad interpretation of the "substantial burden" threshold of the federal law. 

The city has until July 21 to file its petition with the Supreme Court. Hamilton said the court would likely decide whether to review the case sometime in October. If the court does decide to take the case, oral arguments could begin in early 2012.