East Bay Asian Local Development Corp. v. State of California

Citation81 Cal.Rptr.2d 908,69 Cal.App.4th 1033
Decision Date04 February 1999
Docket NumberNo. C024192,C024192
CourtCalifornia Court of Appeals
PartiesPreviously published at 69 Cal.App.4th 1033 69 Cal.App.4th 1033, 99 Cal. Daily Op. Serv. 1001, 1999 Daily Journal D.A.R. 1235 EAST BAY ASIAN LOCAL DEVELOPMENT CORP., et al., Plaintiffs and Respondents, v. STATE OF CALIFORNIA, Defendant and Appellant.

Review Granted May 26, 1999.

Daniel E. Lungren, Attorney General, Roderick E. Walston, Chief Assistant Attorney General, Carole R. Kornblum, Senior Assistant Attorney General, Louis Verdugo, Jr., Supervising Deputy Attorney General, Kelvin G. Gong and Kathleen W. Mikkelson, Deputy Attorneys General, for Defendant and Appellant.

Zane O. Gresham, J. Edgar Pew, Olive L. Thaler, Morrison & Forester, San Francisco, Louis H. Renne, City Attorney, Kate H. Stacy, William Fleishhacker, Deputy City Attorneys, for Plaintiff and Respondent.

Susan L. Trevarthen, Nancy E. Stroud, Burke, Weaver & Prell, Boca Raton, FL, Amicus Curiae, American Planning Association in support of Plaintiff and Respondent.


We consider whether a statutory exemption from local landmark preservation laws for noncommercial property owned by religious organizations violates the state or federal constitutions, specifically the establishment and equal protection clauses. Plaintiffs, the City and County of San Francisco and several organizations concerned with landmark preservation, brought this action against the State of California to enjoin enforcement of the religious exemption. The trial court concluded the religious exemption is unconstitutional and granted plaintiffs' motion for summary judgment. We shall reverse.


In 1957, the Legislature added section 37361 to the Government Code, authorizing cities to acquire real property for the preservation or development of historic landmarks. (Stats.1957, ch. 864, § 1, p.2078; statutory references to sections of an undesignated code are to the Government Code.) This section was amended two years later to permit the imposition of "special conditions or regulations" for the protection of historic places or structures. (Stats.1959, ch.2015, § 1, p. 4655.) In 1963, the Legislature enacted section 25373, granting essentially the same powers to county governments. (Stats.1963, ch. 987, § 1, p. 2249.)

Pursuant to sections 25373 and 37361, dozens of California cities and counties enacted ordinances for the protection of historically and aesthetically valuable structures within their jurisdictions. These ordinances have since been utilized to designate scores of historic districts and hundreds of landmarks, including structures owned by religious organizations.

In 1993, the Legislature amended sections 25373 and 37361 to provide a temporary exemption from historic landmark designation for noncommercial property owned by religious organizations. (Stats.1993, ch. 419, §§ 1, 2.) The following year, this exemption was made permanent by the enactment of AB 133. (Stats.1994, ch. 1199; hereafter AB 133.) AB 133 added subdivisions (d) and (e) to section 25373, which now reads:

(a) The board of supervisors may acquire property for the preservation or development of a historical landmark. The board of supervisors may also acquire property for development for recreational purposes and for development of facilities in connection therewith.

(b) The board may, by ordinance, provide special conditions or regulations for the protection, enhancement, perpetuation, or use of places, sites, buildings, structures, works of art and other objects having a special character or special historical or aesthetic interest or value. These special conditions and regulations may include appropriate and reasonable control of the appearance of neighboring private property within public view.

(c) Until January 1, 1995, subdivision (b) shall not apply to noncommercial property owned by a religiously affiliated association or corporation not organized for private profit, whether incorporated as a religious or public benefit corporation, unless the owner of the property does not object to its application. Nothing in this subdivision shall be construed to infringe on the authority of the board of supervisors to enforce special conditions and regulations on any property designated prior to January 1, 1994.

(d) Subdivision (b) shall not apply to noncommercial property owned by any association or corporation that is religiously affiliated and not organized for private profit, whether the corporation is organized as a religious corporation, or as a public benefit corporation, provided that both of the following occur:

(1) The association or corporation objects to the application of the subdivision to its property.

(2) The association or corporation determines in a public forum that it will suffer substantial hardship, which is likely to deprive the association or corporation of economic return on its property, the reasonable use of its property, or the appropriate use of its property in the furtherance of its religious mission, if the application is approved.

(e) Nothing in this subdivision shall be construed to infringe on the authority of any legislative body to enforce special conditions and regulations on any property designated prior to January 1, 1994, or to authorize any legislative body to override the determination made pursuant to paragraph (2) of subdivision (d).

Section 37361, as amended, reads substantially the same, except that the text of subdivisions (c) and (d) of section 25373, has been combined in section 37361 as subdivision (c). 1

Plaintiffs are the City and County of San Francisco and various private, nonprofit organizations concerned with the preservation of historic landmarks throughout the state. They initiated this action against the state seeking a declaration that AB 133 is unconstitutional. Plaintiffs' complaint alleges, principally, that AB 133 violates the state and federal establishment clauses and equal protection guaranties and the state constitutional prohibition against delegating municipal functions to private persons or entities. (Cal. Const., art. XI, § 11.)

The parties filed cross-motions for summary judgment. The court granted plaintiffs' motion and denied that of the state. The court concluded AB 133 violates the state and federal establishment clauses and is an unconstitutional delegation of governmental powers to private entities. The court entered judgment declaring AB 133 unconstitutional and enjoining the state from enforcing sections 25373 and 37361 as amended by AB 133.


The First Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment (Everson v. Board of Education of Ewing Tp. (1946) 330 U.S. 1, 8, 67 S.Ct. 504, 508, 91 L.Ed. 711, 719), forbids any laws "respecting an establishment of religion, or prohibiting the free exercise thereof." The establishment clause of the First Amendment prohibits such government action as "sponsorship, financial support, and active involvement of the sovereign in religious activity." (Walz v. Tax Commission of the City of New York (1970) 397 U.S. 664, 668, 90 S.Ct. 1409, 1411, 25 L.Ed.2d 697, 701.) The free exercise clause prohibits government from compelling one to do or refrain from doing that which is forbidden or compelled by one's religion. (School Dist. of Abington Tp., Pa. v. Schempp (1963) 374 U.S. 203, 222-223, 83 S.Ct. 1560, 1571-1572, 10 L.Ed.2d 844, 858.)

Courts have struggled to chart a neutral course between the two religion clauses, "both of which are cast in absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other." (Walz v. Tax Commission of the City of New York, supra, 397 U.S. at pp. 668-669, 90 S.Ct. at pp. 1411-1412, 25 L.Ed.2d at p. 701.) A conflict may arise, for example, where a neutral, generally applicable law nevertheless impairs the free exercise of religion. If this impairment is severe, the free exercise clause may be implicated. (See Hobbie v. Unemployment Appeals Comm'n of Florida (1987) 480 U.S. 136, 146, 107 S.Ct. 1046, 1052, 94 L.Ed.2d 190, 200; Wisconsin v. Yoder (1972) 406 U.S. 205, 220, 92 S.Ct. 1526, 1535, 32 L.Ed.2d 15, 27.) Yet the grant of a religious exemption from the ordinary requirements of such a law may, if overly generous, be subject to attack under the establishment clause. (See Texas Monthly, Inc. v. Bullock (1989) 489 U.S. 1, 17-18, 109 S.Ct. 890, 900-901, 103 L.Ed.2d 1, 15.)

In recent years, establishment clause jurisprudence has drifted far from its historic moorings. As Justice Scalia remarked: "Our Religion Clause jurisprudence has become bedeviled (so to speak) by reliance on formulaic abstractions that are not derived from, but positively conflict with, our long-accepted constitutional traditions." (Lee v. Weisman (1992) 505 U.S. 577, 644, 112 S.Ct. 2649, 2685, 120 L.Ed.2d 467, 517 (dis. opn. of Scalia, J.).) 2 The establishment clause we necessarily apply to this controversy is the product of decades of judicial exegesis.

"Although Establishment Clause jurisprudence is characterized by few absolutes, the Clause does absolutely prohibit government-financed or government-sponsored indoctrination into the beliefs of a particular religious faith. [Citations.]" (School Dist. of Grand Rapids v. Ball (1985) 473 U.S. 373, 385, 105 S.Ct. 3216, 3223, 87 L.Ed.2d 267, 278.) "[G]overnment may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which 'establishes a [state] religion or religious faith, or tends to do so.' [Citations.]" (Lee v. Weisman, supra, 505 U.S. at p. 587, 112 S.Ct. at p. 2655, 120 L.Ed.2d at pp. 480-481.)

In addition to requiring neutrality in respect to religious faiths, the establishment clause protects the right to choose no religion at all. (Wallace v. Jaffree, supra, 472 U.S. at p. 53, 105 S.Ct. at p. 2487, 86 L.Ed.2d at p. 41.) These protections derive from a...

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1 cases
  • East Bay Asian Local Development Corp. v. State, S077396
    • United States
    • United States State Supreme Court (California)
    • 26 Mayo 1999
    ...et al., Respondents, v. STATE of California, Appellant. No. S077396. Supreme Court of California May 26, 1999. Prior report: Cal.App., 81 Cal.Rptr.2d 908. Respondents' petition for review GEORGE, C.J., and KENNARD, CHIN and BROWN, JJ., concur. ...

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