670 F.3d 957 (9th Cir. 2011), 09-56541, Guatay Christian Fellowship v. County of San Diego

Docket Nº:09-56541.
Citation:670 F.3d 957
Opinion Judge:HAWKINS, Senior Circuit Judge:
Party Name:GUATAY CHRISTIAN FELLOWSHIP, Plaintiff-Appellant, v. COUNTY OF SAN DIEGO, Defendant-Appellee.
Attorney:Peter D. Lepiscopo, Lepiscopo & Morrow, San Diego, CA, for the appellant. Thomas D. Bunton, Senior Deputy, County of San Diego, San Diego, CA, for the appellee.
Judge Panel:Before: MICHAEL DALY HAWKINS and RAYMOND C. FISHER, Circuit Judges, and MARK L. WOLF, Chief District Judge.[*]
Case Date:December 23, 2011
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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670 F.3d 957 (9th Cir. 2011)



COUNTY OF SAN DIEGO, Defendant-Appellee.

No. 09-56541.

United States Court of Appeals, Ninth Circuit.

December 23, 2011

Argued and Submitted Feb. 10, 2011.

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[Copyrighted Material Omitted]

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Peter D. Lepiscopo, Lepiscopo & Morrow, San Diego, CA, for the appellant.

Thomas D. Bunton, Senior Deputy, County of San Diego, San Diego, CA, for the appellee.

Appeal from the United States District Court for the Southern District of California, Jeffrey T. Miller, Senior District Judge, Presiding. D.C. No. 3:08-cv-01406-JM-CAB.

Before: MICHAEL DALY HAWKINS and RAYMOND C. FISHER, Circuit Judges, and MARK L. WOLF, Chief District Judge.[*]


HAWKINS, Senior Circuit Judge:

The Guatay Christian Fellowship (" Church" ) appeals the adverse grant of summary judgment on the Church's claim that San Diego County (" County" ) enforced a land use regulation in violation of the Church's constitutional and statutory rights under 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc (" RLUIPA" ). The district court determined the Church's constitutional and statutory claims were not ripe for review because the Church failed to apply for the required land use permit both during the twenty-two years it inhabited the property prior to enforcement efforts and after the district court ordered it to do so as a condition of proceeding with its suit. The district court also rejected the Church's claim that equitable estoppel should apply to bar the County's enforcement efforts. We have jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.

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The history of the property and of the dispute between the Church and the County is lengthy, but necessary to our analysis. We summarize the most salient points here.

A. Facts

1. The Church

The Church was founded by Pastor Stan Peterson and his wife Brenda in 1986. It originally held services in the Petersons' home. Soon after its establishment, the Church moved to its current location, a recreation building located in Guatay, California, in the unincorporated portion of San Diego County, on the grounds of the Pine Valley Trailer Park (" Park" ), to accommodate the congregation's rapid growth. The first services in the building were held that year and the Church has conducted services on Sundays and Wednesdays since then.

2. Zoning and Pre-Church Use of Land

The entire parcel of land on which the building in question stands, including the Park, is zoned " rural residential" under the County's zoning ordinance. Land use permits 1 are required for many uses of the property, including religious assembly, group residences, cultural exhibits and library services, child care services, community recreation, civic assembly, postal services, outdoor sports recreation, camping, and law enforcement services. Before any permit may be granted or modified for these uses, the County must hold a public hearing and make findings on several factors, such as traffic generation, effects on neighborhood character, and the suitability of the site for the type and intensity of the proposed use. The County must also ensure that applicants meet California Environmental Quality Act (" CEQA" ) requirements. Use Permits are not required for religious assembly in five of the County's twelve commercial zones and in one of the County's residential zones, where such assembly is permitted as of right, but this building is not located within such a zone.

Built in 1940, and prior to the Church's tenancy, the building it occupies was originally used as a general store and post office but various property owners have submitted applications to change the property's use over the years. The building also fell into several periods of disuse during the forty-six years before the Church moved in. In 1966, appraisers described the building as " [a]ll open, vacant, in bad condition as to useability without extensive [remodeling]." In 1971 the property owner applied for a Use Permit to convert the property into a recreational campground, proposing to use the existing building as a recreation hall. The third sheet of the plot plan submitted with the 1971 Use Permit application appears to label the building " Exist. Bldg. Rec Hall & Chapel," although the property owner did not submit the application for any purpose related to religious use. The Planning Commission's written approval of the Use Permit refers to the recreation building but does not mention any use as a church or chapel. In September 1978, a new owner, La France L. Bragg (" Bragg" ), applied for a minor deviation from the 1971 permit in order to sell a small portion of the land. The second and third pages of the plot plans submitted with this application labeled the recreation hall building as " Exist. Church" and " Exist Bldg (Church)." The plot plan shows a stamp indicating that the

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plan was initially approved, but the application was ultimately denied because Bragg had pursued the wrong modification process.

Bragg reapplied in December 1978 for modification of the 1971 Use Permit. It appears that the same plot plans and maps submitted with Bragg's initial minor deviation application were submitted again, so the references to " Exist. Church" and " Exist Bldg (Church)" reappear. In 1979, the County's Planning Commission granted this application " as per plot plan," noting that the modification would " serve to constrict, rather than expand, the uses presently on this site," and that the " action will provide a more cohesive use of the existing site." The Commission did not mention including church services among the building's permitted uses. It did, however, expressly state that the modification would expire on February 2, 1980, unless construction or reliance thereon started prior to that date.

Bragg testified that from 1977-80, the recreation building was used as an office, kitchen, and recreation hall for Park guests and was also sometimes rented out for local meetings, but that it was never used as a church during these years. Bragg also testified that before he purchased the property, the recreation hall building " just looked like a— sort of an abandoned building.... [I]t didn't seem like it was really used for anything." He confirmed that there was no church in the building when he submitted the plot plans that labeled the hall as an existing church, explaining that his engineers had used the old plot plans to draw up new plans, so the references to a church must have been in error. Bragg stated that the plans he submitted should not have included a reference to the building's use as a church, because " [t]here was no sign of a church when we bought it. It was sold to us as a rec hall, and that's how we treated it."

In 1981, new owners of the property applied for another modification of the Use Permit to expand the recreation building's permitted uses to include live country western music and beer and wine sales. The plot plan and map submitted with this application identified the building as " Existing Rec. Hall," but did not mention a church or chapel. The Planning Commission approved the application in 1982, granting, " as per plot plan dated November 3, 1981 ... to allow for the conversion of the existing recreational hall for on and off site sale of beer and wine, and allow live music and entertainment." The Commission required the owner to submit a Department of Planning and Land Use compliance survey, proof of water and sanitation tests, and evidence of permits for construction. It also noted that the permit would expire on July 16, 1984 " unless construction or use in reliance on this major use permit modification has commenced" prior to that date.

However, it appears that the building was never used as a country western bar, as the permit modification stipulated. Cheryl Rice (" Rice" ), the Church's secretary, testified that in 1986, when the Church first began meeting in the building, the building was empty and " very filthy, a lot of junk in it, falling apart." It needed painting and repairs, and someone from the Park told Rice that the building had not been used for ten years. Cheryl Rice's husband, Charles Rice, testified that the recreation hall was " unfinished, very dirty, [had] been empty a long time" by 1986. Pastor Peterson testified that the building was in dilapidated condition when he first saw it, and the Church had to complete many repairs to the building to prepare it for use, including finishing some of the walls. Consistent with Rice's testimony,

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Pastor Peterson also testified that the building had not been used for anything, to his knowledge, for ten years before the Church moved in.

Other than the plot plans submitted with applications for non-religious uses labeling the building as an existing church, there was no testimony or evidence from any party establishing that the recreation hall had actually been used for religious purposes prior to the start of the Church's tenancy in 1986.

3. Church Use, Repairs, and Taxes

Over the years, the Church made significant repairs and renovations to the recreation building and surrounding area, replacing roofs, enlarging an existing bathroom, erecting a parking barrier, painting inside and out, paving the parking lot area, and pouring cement for a basketball court. It also installed air conditioning, heating units, drywall, lighting systems, a new electrical system, sound-proofing, a sound system, and new flooring. The Church also took over and renovated other buildings at the Park in order to establish a main office and a children's classroom...

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