I. INTRODUCTION
Defendant, Sahag-Mesrob Armenian Christian School, has appealed from issuance of a May 29, 2009 preliminary injunction. The preliminary injunction was issued at the request of plaintiff, County of Los Angeles. Defendant argues the denial of its “clean hands waiver” application violates the land use provisions of the Religious Land Use and Institutionalized Persons Act of 2000 (the act). (42 U.S.C. § 2000cc.) The act is commonly referred to by the ungainly acronym, RLUIPA. We affirm.
II. THE PLEADINGS
Plaintiff’s complaint, filed on December 22, 2008, alleges defendant owns two separate parcels in an area zoned R-l (single-family residence zone); on May 28, 2008, defendant filed an application for a conditional use permit to operate “an 800-student kindergarten-through-12th grade private school” on the property; on September 12, 2008, plaintiff received a complaint that defendant was operating a school on the property which caused traffic and noise problems in the neighborhood; on September 15, 2008, a zoning inspector verified the school was operating on the properties without the required conditional use permit; and on September 16, 2008, a zoning inspector mailed a notice of violation to defendant giving it 15 days to cease operating the school.
On September 29, 2008, defendant applied for a “clean hands waiver” pursuant to Los Angeles County Zoning Code section 22.04.110, which would allow it to continue to operate a school while the conditional use permit application was processed. On October 14, 2008, defendant’s clean hands waiver application was denied. On October 16, 2008, a zoning inspector mailed a “Final Zoning Enforcement Order” which gave defendant 15 days to cease school activities and explained the failure to do so would result in the imposition of a fine. On December 2, 2008, plaintiff denied defendant’s appeal from the Final Zoning Enforcement Order. On November 12 and 13 and December 4, 2008, a zoning inspector verified that defendant continued to operate the school. Based on these factual allegations, plaintiff alleges causes of action for violations of Los Angeles County Zoning Code sections 22.20.015 and 22.60.330 and seeks a declaration the properties’ existing use violates the aforementioned zoning code provisions; a determination the properties are a continuing nuisance pursuant to Los Angeles County Zoning
On an unspecified date, defendant filed a “cross-complaint” in federal court. The cross-complaint recited defendant’s purchase of the property, the submission of the conditional use permit application and the request for a clean hands waiver. The cross-complaint alleged causes of action for violations of the act and title 42 United States Code section 1983.
in. THE EVIDENCE AND THE TRIAL COURT’S RULING
On December 23, 2008, plaintiff filed a preliminary injunction motion. The preliminary injunction motion was supported by the declarations of Amir Bashar, a zoning enforcement inspector, and Oscar Gomez, a supervising regional planner. Mr. Bashar stated that on September 12, 2008, plaintiffs Department of Regional Planning received a complaint concerning defendant’s school. Mr. Bashar determined that defendant applied on May 28, 2008, for a conditional use permit to operate a kindergarten through 12th-grade school and the application was pending. Prior to defendant’s purchase of the property on February 1, 2008, a facility which provided short-term care for newborn through five-year-old children operated there under a conditional use permit. Mr. Bashar’s inspection revealed the operation of a school for 240 students with 30 staffers.
On September 16, 2008, Mr. Bashar mailed a violation notice notifying defendant it was violating the zoning code. On September 23 and November 14, 2008, Ara Assilian, chair of defendant’s board of directors, admitted in two letters the school opened in September 2008 and operated without securing a conditional use permit.
On September 29, 2008, Mr. Assilian filed a clean hands waiver application pursuant to Los Angeles County Zoning Code section 22.04.110
1
requesting that the school be permitted to operate pending issuance of a conditional use
Mr. Gomez’s declaration focused on the clean hands waiver issue. Mr. Gomez was familiar with the processing of clean hands waiver applications. The primary factor in assessing a clean hands waiver application is the detrimental effect on the community. Between March 2004 and May 8, 2009, there were 73 clean hands waiver applications processed by the Department of Regional Planning. Of the 73 applications, 22 were denied and 50 granted. In one instance, an extension was granted.
Of the 73 applications, excluding defendant, six were by religious institutions. Five of the applications were granted and one was denied. In all but one case, the common factors that weighed in favor of approval of the clean hands waiver applications were that the property was located on a major commercial street or road; the property was not within a residential community; and the use did not involve a significant expansion from the prior use of the property. All of these cases involved little or no detriment to the surrounding community. One of the five approvals involved a Hindu temple which operated in a “multi-family residential/commercial” area within a residential community. However, the prior use of the property was as a union meeting and assembly hall and this was expected to generate a similar impact in the community. The only denial involved a newly established church in an agricultural zone abutting a residential street. In the case of the denial, it was determined the use as a church would cause traffic and parking problems and was inconsistent with the “public convenience” and welfare. In addition to addressing the clean hands waiver at issue, Mr. Gomez stated the “large” intensification of the property required proper review via the conditional use permit process and pursuant to the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.). Further, Mr. Gomez, an experienced urban planner, indicated the property did not have sufficient area to accommodate the “incoming/outgoing” traffic generated by the school operating with between 240 and 800 students.
Defendant opposed plaintiff’s preliminary injunction motion. Shahe Garabedian, the principal, declared that the school operated in association
After acquiring the property, defendant retained Hampo Nazerian and his company, HEC Engineers & Contractors, to secure the necessary permits. On May 28, 2008, the conditional use permit application was submitted which was supported by thousands of pages of documents. On September 29, 2008, a clean hands waiver application was submitted upon the recommendation of an employee of the Department of Regional Planning. According to Mr. Nazerian at no time had any employee of plaintiff identified a problem with the school that needed correction; the school would suffer irreparable harm and its First Amendment rights would be violated if the injunction were issued; the school had paid $15,000 in filing and consultant fees; and the school was paying a mortgage of $22,000 per month.
Mr. Nazerian identified the lengthy written submissions, including the clean hands waiver, and calculated the fees paid in connection with the conditional use permit application. Mr. Nazerian believed all necessary documents had been filed and no employee of the Department of Regional Planning had raised any issue in connection with the conditional use permit application. Mr. Assilian, the school’s board of directors chair, indicated the fire department had issued its permit which indicated the school met all fire code requirements.
According to Mr. Assilian, the denial of the clean hands waiver application was motivated by political considerations. Paul Novak, the “Planning Deputy” for Supervisor Mike Antonovich, discussed the clean hands waiver application with Mr. Gomez. Mr. Novak supported the denial of defendant’s clean hands waiver application. Defendant’s attorney, Richard J. Kahdeman, identified three examples where a clean hands waiver was granted by plaintiff while conditional use permit issues were resolved; the “L&J Ballroom Dance Center; a ‘ “dog ranch” ’ in Topanga Canyon; and the Agua Dulce Winery.” Mr. Kahdeman also identified a newspaper article which indicated a director of the Department of Regional Planning was terminated three months after defendant’s clean hands waiver application was denied. The article indicated the fired director complained about political influence in zoning decisions by the board of supervisors and their staffs.
The trial court granted plaintiffs preliminary injunction request. The trial court found plaintiff’s denial of defendant’s clean hands waiver application
IV. DISCUSSION
A. Standards of Review
We apply the following standards of review. As our Supreme Court explained in
People ex rel Gallo
v.
Acuna
(1997)
B. Relevant Provisions of the Act
The act covers two areas of religious activity. The first area involves the imposition or implementation of land use regulations on religious institutions. (42 U.S.C. § 2000cc(a)-(b).) The second aspect restricts governmental regulation of the exercise of religious activities by institutionalized persons. The institutionalized person provision is not before us. The land use regulation has two aspects. The first is the substantial burden rule. (42 U.S.C. § 2000cc(a).) The second aspect is the so-called “equal terms” provision. (42 U.S.C. § 2000cc(b).)
The term “land use regulation,” as pertinent to this case, is defined in title 42 United States Code section 2000cc-5(5): “The term ‘land use regulation’ means a zoning or landmarking law, or the application of such a law, that limits or restricts a claimant’s use or development of land (including a structure affixed to land), if the claimant has an ownership, leasehold, easement, servitude, or other property interest in the regulated land or a contract or option to acquire such an interest.” A violation of these provisions of the act may be asserted as a defense in civil litigation. (42 U.S.C. § 2000cc-2(a).) The term “claimant” includes a litigant asserting the act’s provisions as a defense. (42 U.S.C. § 2000cc-5(l).) The term “religious exercise” is defined: “The term ‘religious exercise’ includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” (42 U.S.C. § 2000cc-5(7)(A).) In terms of an entity’s use of a building for the exercise of religious beliefs, the act states, “The use, building, or conversion of real property for the purpose of religious exercise shall be considered to be religious exercise of the person or entity that uses or intends to use the property for that purpose.” (42 U.S.C. § 2000cc-5(7)(B).) The substantial burden and equal terms provisions are to be broadly construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of the act and the Constitution. (42 U.S.C. § 2000cc-3(g).)
As explained by Associate Justice Ruth Bader Ginsburg in
Cutter v. Wilkinson
(2005)
Unsuccessful efforts were then made in Congress to enact federal legislation that would provide greater protections for those engaging in the exercise of religious freedoms. The act was introduced in the Senate on July 13, 2000. Supporters of the legislation provided numerous examples of where local agencies, municipalities and counties refused to accommodate religious activities by enforcement of neutral zoning policies. (Remarks of Sen. Hatch on Sen. No. 2869, 106th Cong., 2d Sess. (2000) 106 Cong. Rec. S6689-S6690; extensions of remarks of Rep. Hyde on Sen. No. 2869, 106th Cong., 2d Sess. (2000) 106 Cong. Rec. E1564-E1567.) One of the authors, Senator Orin Hatch, explained on July 13, 2000: “I rise today to introduce a narrowly focused bill that protects religious liberty from unnecessary governmental interference. ...[!] Seven years ago, recognizing the need to strengthen the fundamental right of religious liberty, Congress overwhelmingly passed the Religious Freedom Restoration Act (RFRA). Unfortunately, in 1997, in the case of City of Boeme v. Flores, the Supreme Court held that Congress lacked the authority to enact RFRA as applied to state and local governments. In an attempt to respond to the Boeme decision, I introduced S. 2081 earlier this year. Legislation similar to S. 2081 passed the House of Representatives. Yet, concerns were raised by some regarding the scope of S. 2081, and I undertook an effort to seek out a consensus approach. The legislation I am introducing today, which maintains certain provisions of S. 2081, is a tailored version which represents the product of our efforts.” (Remarks of Sen. Hatch on Sen. No. 2869, 106th Cong., 2d Sess. (2000) 106 Cong. Rec. S6687-S6688.)
On July 27, 2000, the act was passed by both houses. (Sen. unanimous consent order on Sen. No. 2869, 106th Cong., 2d Sess. (2000) 106 Cong. Rec.
D. The Substantial Burden Portion of the Act Is Not Violated
As noted, title 42 United States Code section 2000cc(a)(l) prohibits governmental imposition or implementation of a land use regulation in a manner that imposes a substantial burden on the exercise of religious beliefs without complying with enumerated criteria. Senators Hatch and Kennedy made it clear the act does not obviate the obligations of religious institutions to apply for variances, special permits or exceptions, hardship approval, or other relief provisions in land use regulations. (Joint Statement of Sen. Hatch and Sen. Kennedy on Sen. No. 2869, 106th Cong., 2d Sess. (2000) 106 Cong. Rec. S7776.) The parties do not dispute that apart from the act, defendant was required by plaintiff’s ordinances to secure a conditional use permit to operate the school.
The requirement the school secure a conditional use permit and comply with the California Environmental Quality Act does not constitute a substantial burden on the exercise of religious freedom under the act. In applying the act, courts are expected to rely on United States Supreme Court analysis as to what is a substantial burden on the exercise of religious beliefs. The joint managers’ statement of Senators Hatch and Kennedy states: “The Act does not include a definition of the term ‘substantial burden’ because it is not the intent of this Act to create a new standard for the definition of ‘substantial burden’ on religious exercise. Instead, that term as used in the Act should be interpreted by reference to Supreme Court jurisprudence. Nothing in this Act, including the requirement in Section 5(g) that its terms be broadly construed, is intended to change that principle. The term ‘substantial burden’ as used in this Act is not intended to be given any broader interpretation than the Supreme Court’s articulation of the concept of substantial burden or religious exercise.” (Joint Statement of Sen. Hatch and Sen. Kennedy on Sen. No. 2869, 106th Cong., 2d Sess. (2000) 106 Cong. Rec. S7776; see
Abdulhaseeb v. Calbone
(10th Cir. 2010)
Several circuit court decisions have synthesized the United States Supreme Court jurisprudence which discusses a substantial burden on the exercise of
The requirement that an entity subject to the act apply for a conditional use permit and comply with the California Environmental Quality Act is not a substantial burden on the exercise of religion within the meaning of the act. In
Konikov v. Orange County
(11th Cir. 2005)
The Eleventh Circuit panel held that the plaintiff failed to prove a violation of the substantial burdens portion of the act. (42 U.S.C. § 2000cc(a)(l).) Referring to its prior decision in
Midrash Sephardi, Inc. v. Town of Surfside, supra,
The Eleventh Circuit analysis in Konikov is applicable here. Defendant was required to secure a conditional use permit to operate the school. Defendant began operating the school without the conditional use permit. The trial court found defendant failed to secure the conditional use permit and, as a result, there was no violation of the act. Requiring defendant to comply with a neutral conditional use permit application process is not a substantial burden on the practice of defendant’s religious practices within the meaning of the act. No Supreme Court case holds the failure to comply with a neutral zoning application process is a substantial burden on the exercise of religious freedoms. This is entirely consistent with the joint managers’ statement of Senators Hatch and Kennedy.
The same is true of defendant’s clean hands waiver request. The denial of defendant’s clean hands waiver request did not substantially burden its exercise of religious practices within the meaning of the act. The denial of defendant’s clean hands waiver application does not coerce it to conform to anybody’s religious belief. Given our analysis, we need not address the issue of whether failure to comply with the California Environmental Quality Act is “a zoning . . . law, or the application of such a law, that limits or restricts a claimant’s use or development of land” within the meaning of title 42 United States Code section 2000cc-5(5). (See
St. John’s United Church of Christ v. City of Chicago
(7th Cir. 2007)
E. The Equal Terms Portion of the Act Is Not Violated
Defendant argues plaintiff violated the act’s equal terms provision in title 42 United States Code section 2000cc(b) by refusing to grant the clean hands waiver application when similar requests by a dance studio, winery and ranch had previously been approved. The federal Courts of Appeals are in disagreement as to the exact standard to be applied in evaluating the act’s equal terms provision. (Compare
Midrash Sephardi, Inc. v. Town of Surfside, supra,
366 F.3d at pp. 1231-1232 with
Lighthouse Institute for Evangelism, Inc. v. City of Long Branch
(3d Cir. 2007)
The trial court implicitly relied on Mr. Gomez’s declaration that neutral zoning considerations had been utilized in denying clean hands waiver applications by other religious institutions in the past. As noted, in the preceding five years, only six clean hands waiver applications had been submitted by religious groups. Five were granted. In all but one case, the common factors that weighed in favor of approval of the clean hands waiver applications were that the property was located on a major commercial street or road; the property was not within a residential community; and the use did not involve a significant expansion for the prior use of the property. All of these cases involved little or no detriment to the surrounding community. One of the five approvals involved a Hindu temple which operates in a “multifamily residential/commercial” area within a residential community. However, the prior use of the property was as a union meeting and assembly hall and this was expected to generate a similar impact in the community. The only denial involved a newly established church in an agricultural zone abutting a residential street. In the case of that denial of the clean hands waiver application, it was determined the use as a church would cause traffic and parking problems and was inconsistent with the “public convenience” and welfare. Thus, the clean hands waiver application in this case could be denied without violating the act. There is no evidence any other entity seeking to use the property would be treated any differently. Further, Mr. Gomez has explained there are unresolved California Environmental Quality Act issues raised by defendant’s conditional use permit application. The trial court did not abuse its discretion in granting plaintiff’s preliminary injunction motion.
The order granting the preliminary injunction request is affirmed. Plaintiff, County of Los Angeles, shall recover its costs incurred on appeal from defendant, Sahag-Mesrob Armenian Christian School.
Kriegler, J., and Ferns, J., * concurred.
Appellant’s petition for review by the Supreme Court was denied January 12, 2011, S187801.
Notes
Los Angeles County Zoning Code section 22.04.110 states: “No application for any permit required pursuant to this title shall be accepted for processing or approved where an existing land use, not previously authorized by any statute or ordinance, is being maintained or operated in violation of any applicable provision of this title, or any condition of approval of a land use permit. This provision applies to the operation of land uses only, and does not affect buildings or structures which do not conform to development standards, [ID Where in his sole discretion the director, whose determination shall be final, determines that the use in question is consistent with the objectives, goals and policies of the General Plan, or that the continuation of said use is essential or desirable to the public convenience or welfare, this provision shall not apply.”
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.