Int'l Church of the Foursquare Gospel v. City of San Leandro

• Decision Date: 22 April 2011
• Docket Number: No. 09–15163.,09–15163.
• Citation: 2011 Daily Journal D.A.R. 5693,673 F.3d 1059
• Parties: INTERNATIONAL CHURCH OF the FOURSQUARE GOSPEL, Plaintiff–Appellant, v. CITY OF SAN LEANDRO; Tony Santos; Surlene G. Grant; Diana M. Souza; Joyce R. Starosciack; Bill Stephens; Jim Prola, in their official capacities; John Jermanis; Debbie Pollart, in their official and individual capacities, Defendants–Appellees, v. Faith Fellowship Foursquare Church, Real–Party–in–Interest–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

2011 Daily Journal D.A.R. 5693

673 F.3d 1059

INTERNATIONAL CHURCH OF the FOURSQUARE GOSPEL, Plaintiff–Appellant,

v.CITY OF SAN LEANDRO; Tony Santos; Surlene G. Grant; Diana M. Souza; Joyce R. Starosciack; Bill Stephens; Jim Prola, in their official capacities; John Jermanis; Debbie Pollart, in their official and individual capacities, Defendants–Appellees,

v.Faith Fellowship Foursquare Church, Real–Party–in–Interest–Appellant.

No. 09–15163.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 3, 2010.Filed Feb. 15, 2011.Amended April 22, 2011.

Kevin T. Snider and Matthew B. McReynolds, Pacific Justice Institute, Sacramento, CA, for plaintiff-appellant International Church of the Foursquare Gospel and real party in interest-appellant Faith Fellowship Foursquare Church.

Jayne W. Williams, Deborah J. Fox, and Philip A. Seymour, Meyers, Nave, Riback, Silver & Wilson, Los Angeles, CA, for defendant-appellee City of San Leandro.

Daniel P. Dalton, Royal Oak, MI, Amicus Counsel for the Church State Council and Cavalry Chapel in Support of plaintiff-appellant International Church of the Foursquare Gospel.Jennifer McGrath and Scott F. Field, Huntington Beach, CA, Amicus Counsel for the League of California Cities in Support of defendant-appellee City of San Leandro.Appeal from the United States District Court for the Northern District of California, Phyllis J. Hamilton, District Judge, Presiding. D.C. No. 3:07–cv–03605–PJH.Before: JOHN T. NOONAN and RICHARD A. PAEZ, Circuit Judges, and KEVIN THOMAS DUFFY, District Judge.^*

ORDER

The Opinion, filed on February 15, 2011, and reported at 634 F.3d 1037 (9th Cir.2011), is amended as follows:

At Slip Op. 2447, 634 F.3d at 1043, the sentence: “individualized assessment.”> is deleted and replaced with the sentence: “individualized assessment.” Guru Nanak Sikh Society of Yuba City v. County of Sutter, 456 F.3d 978, 987 (9th Cir.2006).>

In the following sentence at Slip Op. 2447, 634 F.3d at 1043, the words are deleted and replaced with .

At Slip Op. 2247, 634 F.3d at 1044, the full cite to Guru Nanak Sikh Society of Yuba City v. County of Sutter, 456 F.3d 978, 985–86 (9th Cir.2006).> is deleted and replaced with the short cite: Guru Nanak, 456 F.3d at 985–86.>.

At Slip Op. 2247, 634 F.3d at 1044, the word is deleted and replaced with .

An Amended Opinion is filed concurrently with this Order.

With these amendments, the panel has voted to DENY the petition for panel rehearing. The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35. The petition for rehearing en banc is DENIED.

No further Petitions for Rehearing shall be filed.

OPINION

DUFFY, District Judge:

International Church of the Foursquare Gospel (“ICFG”) appeals the grant of summary judgment in favor of the City of San Leandro (the “City”). ICFG alleges violations of the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc (“RLUIPA”), and asserts claims under 42 U.S.C. § 1983 for First and Fourteenth Amendment violations. ICFG contends that the City violated its rights by denying a rezoning application and a conditional use permit (“CUP”) to its local affiliate, Faith Fellowship Foursquare Church (“the Church”), to build new church facilities on certain industrial land in the City, and that such a denial violated the “substantial burden” and “equal terms” provisions under RLUIPA.

We find that there is a triable issue of material fact regarding whether the City imposed a substantial burden on the Church's religious exercise under RLUIPA. We also decide that the City failed as a matter of law to prove a compelling interest for its actions. Accordingly, we reverse the judgment of the district court and remand for further proceedings consistent with this opinion.¹

I. Background ²

The Church is a congregation affiliated with ICFG and located in San Leandro. Over the last fifteen years, the Church's membership has increased dramatically, and since 2005, the Church's present location has been too small to support its large congregation and its many activities.

In January 2006, the Church began to look for a larger property. In February 2006, the Church found a site located on two parcels at 14600 and 14850 Catalina Street in San Leandro (“the Catalina property”). The Catalina property is located in San Leandro's Industrial Park (“IP”) zoning district and is situated in the “West San Leandro Focus Area.” The area was set aside in the City's General Plan ³ to preserve an environment for industrial and technological activity. The property is adjacent to several manufacturing plants and is surrounded by numerous other industrial and light-industrial uses.

ICFG asserts that moving the Church to the Catalina property would allow the congregation to more fully follow their sincerely held beliefs. In particular, the Catalina property could accommodate 1,100 people in the sanctuary and an additional 500 people in other activities (such as Sunday school) during each service. The Catalina property would also offer substantial parking space and a much larger kitchen facility. On March 24, 2006, the Church signed a purchase and sale agreement for the property.

At the time that the Church identified the Catalina property as a potential site for the Church, the San Leandro Zoning Code (“the Zoning Code”) did not allow “assembly uses”—churches and private or non-profit clubs, lodges, and organizations—to locate in the IP district or other industrial or commercial districts of the City, but did allow them to locate in districts zoned Residential (“R”), provided the assembly use obtained a conditional use permit.

In May 2006, representatives of the Church met with City Planning staff to discuss the acquisition of the Catalina property. According to Debbie Pollart, the City's then Planning Director, staff advised the Church that religious assembly uses were conditionally permitted uses in the City's R zoning district only, and that the Zoning Code did not permit assembly uses within the IP district. However, “entertainment activities” and “commercial recreation” were conditionally permitted within the IP district. The Planning staff further advised the Church that in order for it to relocate to the Catalina property, two changes to the Zoning Code would be needed: (1) an amendment of the Zoning Code to make assembly a conditionally permitted use in the Industrial Limited (“IL”) zoning district; and (2) an amendment of the zoning map to designate the Catalina property as IL. Following these instructions, the Church filed an application for a zoning map amendment, asking for the Catalina property to be rezoned from IP to IL and asking for assembly use to be permitted on IL properties in the City.

Although the Planning staff advised the Church to apply for an amendment to the Zoning Code to make assembly a conditionally permitted use in IL districts, the Planning staff soon realized that such an amendment would have city-wide ramifications. The Planning staff discussed these policy concerns after the Church applied for rezoning of the Catalina property. Pollart was particularly concerned about the potential for conflict between industrial and assembly uses. She felt there was a need to protect assembly uses from unacceptable impacts such as noise, dust, or constant truck traffic. Pollart similarly wanted to protect industrial uses from complaints by assembly uses. Pollart was equally concerned that industrial and commercial uses could be displaced by assembly uses, which could hurt the City's industrial and economic base.

On June 8, 2006, the City Council's Business Development Subcommittee (comprised of the Mayor of San Leandro plus two members of the San Leandro City Council) met and discussed the Church's application to use the Catalina property. They expressed concerns over the policy implications of allowing an assembly use in an industrial zone.

Planning staff therefore advised the Church by letter that the Church's request would require careful analysis by Staff and would be considered at public hearings by numerous civic advisory bodies, the Planning Commission, the Board of Zoning Adjustments, and, ultimately, the City Council to ensure that any such change was consistent with the City's General Plan. The letter further advised that the Planning Staff anticipated that these hearings would take place in the Fall of 2006.

In October 2006, Church representatives addressed the City Council during the “public comment” portion of the Council meeting, informing the Council about the proposed purchase of the Catalina property and the delays that the City had allegedly caused in the review process. At this point, the Planning staff had developed two legislative options by which the City could expand the accommodation of assembly uses in non-residential districts. Option 1 would make assembly use a conditionally permitted use in all areas zoned IL, which would increase the area in which assemblies were allowed by about 94 acres. Option 2 would create a new “Assembly Use Overlay District,” which, when applied to any non-residential property, would make assemblies an allowable use in addition to those allowed under the pre-existing zoning. Option 2 would also apply the Assembly Use (“AU”) Overlay designation to certain non-residential properties identified by Planning Staff as suitable for assembly use, according to criteria staff had developed from the City's General Plan. Option 2 would increase the area in which assemblies are allowed by over 200 acres.

On October 12, 2006, the City Council's Business Development Subcommittee met and discussed the Church's application. Church representatives attended the meeting, and the two options were presented. After the presentation, the members of the Subcommittee expressed a strong preference for the second alternative—the overlay zoning...