Real Property: How to Turn an Old Church into New Condos

doug-039-2-255x255

Partner

A little known secret about California law allows religious organiazations to tear down and sell their real estate without much of the process incumbent on other property owners.

By invoking a statutory exemption, churches – in conjunction with developers, if desired – can develop their property and ultimately sell their property following its development for profit and avoid the application of landmark preservation restrictions that can make the expensive land use entitlement process drag on for many years.  However, certain requirements regarding prior, noncommercial use of the property and objections to the application of landmark preservation restrictions must first be met.

Firm Successfully Represents Developer Against City and Beats Historic Landmark Designation

One of the firm’s focus areas is representing developers who are having trouble getting permits from the San Francisco Planning Commission.  Land use firms from all over the Bay Area refer their clients to us when they’ve hit a brick wall.  That is exactly what happened in the case of the United Methodist Church at 1601 Larkin St., now under construction into 27 luxury condominiums.

In that case, the developer filed applications for conditional use and building permits in 2004.  The Board of Supervisors deemed the dilapidated and abandoned church on the site a historic landmark thereby prohibiting its demolition and ultimate development.  Wood Robbins was hired to fight the landmarking decision.

We beat the City at the San Francisco Superior Court, arguing the landmarking decision violated California state law prohibiting local land use restrictions on religious organization owned property.  The City appealed, but the Court of Appeal agreed with the Superior Court and affirmed in a unanimous vote.  The decision was of sufficient import to warrant publication in the Court of Appeal reporter at 173 Cal. App. 4th 1559.

But that was not the end of the story. Reacting poorly to the ruling, the Planning Commission brought the 2004 environmental and CUP permit applications up for hearing and summarily denied both.  The firm then filed action in federal court alleging violations of the Religious Land Use and Institutionalized Persons Act aka RLUIPA.  That Act requires City undertake to consider and weigh the right of religious organizations when debating land use actions.  Faced with another loss, the City settled with the developer and the site is now under construction. The case was featured on the front page of the leading San Francisco legal newspaper, The Recorder.

State Law Exemption from Application of Landmark Preservation

 State law prohibits local governments from applying landmark preservation restrictions to noncommercial property owned by religiously affiliated organizations.

Two California statutes – California Government Code §§ 25373 and 37361 allow religiously affiliated organizations to exempt their noncommercial property from landmarking restrictions that otherwise might be imposed by local entities like cities.[1]  The California Supreme Court has upheld the constitutionality of these exemptions.[2]

These statutes permit a religiously affiliated, nonprofit property owner to exempt its property if the owner: (1) objects to the application of the law; and (2) determines in a public forum that application of the law will cause substantial hardship that is likely to deny the owner economic return on the property, or deprive the owner of reasonable or appropriate use of its property in furthering the owner’s religious mission.[3]  Courts have recognized that historic preservation ordinances may impose significant financial burdens on the owner of the property: “Any significant financial burden, or simply the inability to demolish or alter a structure that is no longer suited to the needs of the owner, could affect the ability of many owners to carry out their religious missions.”[4]  The statutes “[p]ermit[] a religious body to use its noncommercial property in the manner it did before a restrictive law was imposed on it.”[5]  Therefore, the impact of the exemptions is that the owner may “continue to use the property as it sees fit . . . to further its religious mission unrestricted by the historic preservation law.”[6]

The statutes exempt only “noncommercial property” from the application of the landmark preservation laws.  To invoke these exemptions, it is permissible for the religious organization to have a “profit-making purpose.”[7]  In a case in which the Firm represented the developer (discussed in more detail below), the California Court of Appeal noted that the “whole point” of these exemptions is “to allow religious institutions to sell their dilapidated churches for a profit.”[8]  The court’s opinion defined noncommercial property as property “that is no longer used or capable of being used for a religious purpose but which may be sold and demolished for a profit.”[9]

 However, a property will not qualify for an exemption for noncommercial property unless it was used for the religious institution’s mission and not for profit before the religious institution seeks to invoke the exemption.[10]  The exemption cannot be invoked for property that was never used for noncommercial or nonprofit purposes and never related to the religious entity’s mission until after the landmark designation process commenced.[11]

Therefore, if your religious organization’s property is not presently being used as a church or for any other religious purpose, but has been used previously for religious purposes, the statutory exemption may still apply as long as the procedural requirements discussed below are met.[12]

Federal Protections Under RLUIPA

The Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000cc et seq., is a federal law that prohibits the government from substantially burdening a person’s exerercise of religion guaranteed by the First Amendment.[13]

RLUIPA prohibits the government from imposing “substantial burdens” on “religious exercise,” unless there exists a compelling governmental interest and the burden is the least restrictive means of satisfying the governmental interest.[14]  Specifically, RLUIPA[15] provides that:

No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution–

(A) is in furtherance of a compelling governmental interest; and
(B) is the least restrictive means of furthering that compelling governmental interest.

“Religious exercise” is defined by RLUIPA[16] as encompassing the use, building, or conversion of real property for the purpose of religious exercise:

(A) In general

The term “religious exercise” includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.

(B) Rule

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.

RLUIPA applies in any case in which “the substantial burden is imposed in the implementation of a land use regulation or system of land use regulations, under which a government makes, or has in place formal or informal procedures or practices that permit the government to make, individualized assessments of the proposed uses for the property involved.”[17]  “Land use regulations” are defined as: “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.”[18]

The Ninth Circuit has recognized that the “right to build, buy, or rent [a place of worship] is an indispensable adjunct of the core First Amendment right to assemble for religious purposes.”[19]  RLUIPA has been held to apply to cases where the government takes into account the particular details of an applicant’s proposed use of land when deciding to permit or deny that use.[20]  In such cases, the religious entity has the burden of persuasion on whether zoning laws, or the application of those zoning laws to a particular party, “substantially burdens” its “exercise of religion.[21]

The Ninth Circuit has proscribed a two-step analysis of RLUIPA claims: (1) the plaintiff must demonstrate that a government action has imposed a substantial burden on the plaintiff’s religious exercise; and (2) once the plaintiff has shown a substantial burden, the government must show that its action was the “least restrictive means” of furthering a “compelling governmental interest.”[22]  A substantial burden must place more than “inconvenience on religious exercise”; it must be “oppressive” to a “significantly great extent.”[23]

 However, a religious organization’s commercial endeavors, such as a sale of property for a secular use, do not constitute “religious exercise” protected by RLUIPA, even if undertaken in order to fund the organization’s religious mission.[24]

As such, RLUIPA may be applicable to your church’s plans to develop its noncommercial property.  However, if the proposed use of the development is not for the purpose of religious exercise, the federal protections will not be available.

Conclusion

 We hope this summary of California law regarding exemptions for noncommercial property owned by religiously affiliated, nonprofit organizations and federal law prohibiting the government from imposing “substantial burdens” on “religious exercise” through land use regulations is helpful to your consideration of whether church property can acquire the protections of the exemption and then developed and sold for profit.  Our firm has previously successfully represented a developer against the City of San Francisco’s efforts to apply historic landmark designation of church property that had been sold to a developer. (Note, past experience is no guarantee of future success).


 

[1] California-Nevada Annual Conference of United Methodist Church v. City and County of San Francisco, 173 Cal. App. 4th 1559, 1563 (2009); Cal. Gov’t Code §§ 25373, 37361.

[2] East Bay Asian Local Dev. Corp. v. State of California, 24 Cal. 4th 693, 721 (2000).

[3] California-Nevada Annual Conference, 173 Cal. App. 4th at 1565; Cal. Gov’t Code §§ 25373, 37361.

[4] California-Nevada Annual Conference, 173 Cal. App. 4th at 1565; East Bay, 24 Cal. 4th at 713.

[5] East Bay, 24 Cal. 4th at 714. 

[6] Id. 

[7] California-Nevada Annual Conference, 173 Cal. App. 4th at 1565.  This viewpoint of the Court of Appeal does vary from the earlier California Supreme Court opinion in East Bay, in which the majority construed “noncommercial” property as referring to “property whose use is related to the religious entity’s fulfillment of the owner’s religious mission but is not used for profit making purposes.”  See, e.g., East Bay, 24 Cal. 4th at 715 (emphasis added); Or Khaim Hashalom v. City of Santa Monica, 190 Cal. App. 4th 375, 382 (2010).

[8] Id.

[9] Id. at 1566.

[10] Or Khaim, 190 Cal. App. 4th at 384 (property at issue did not qualify for exemption because it had always been a commercial enterprise, at the time the religious organization purchased it and at the time the religious organization sought the exemption) (emphasis added).

[11] Id. at 385 (emphasis added).

[12] California-Nevada Annual Conference, 173 Cal. App. 4th at 1567.

[13] Guru Nank Sikh Soc’y v. Cnty. of Sutter, 456 F.3d 978, 985 (9th Cir. 2006).

[14] California-Nevada Annual Conference of the Methodist Church v. City and Cnty. of San Francisco, 74 F. Supp. 3d 1144, 1151 (N.D. Cal. 2014).

[15] 42 U.S.C. § 2000cc.

[16] 42 U.S.C. § 2000cc-5.

[17] 42 U.S.C. § 2000cc-(a)(2)(C).

[18] 42 U.S.C. § 2000cc-5.

[19] Int’l Church of Foursquare Church v. City of San Leandro, 673 F. 3d 1059, 1069 (9th Cir. 2011).

[20] Guru Nank Sikh Soc’y, 456 F.3d at 986.

[21] California-Nevada Annual Conference, 74 F. Supp. 3d at 1153.

[22] Id. at 1154.

[23] Int’l Church of Foursquare Church, 673 F. 3d at 1067.

[24] California-Nevada Annual Conference, 74 F. Supp. 3d at 1151, 1154.

Prior Restraints

Gregory-J.-WoodThe law against preliminary injunctions restricting speech is nothing short of brutal:

“The right to free speech is … one of the cornerstones of our society,” and is protected under the First Amendment of the United States Constitution and under an “even broader” provision of the California Constitution. (Hurvitz v. Hoefflin (2000) 84 Cal.App.4th 1232, 1241, 101 Cal.Rptr.2d 558; see Cal. Const., art. I, § 2, subd. (a).) An injunction that forbids a citizen from speaking in advance of the time the communication is to occur is known as a “prior restraint.” (DVD Copy, supra, 31 Cal.4th at p. 886, 4 Cal.Rptr.3d 69, 75 P.3d 1; Hurvitz v. Hoefflin, supra, 84 Cal.App.4th at p. 1241, 101 Cal.Rptr.2d 558.) A prior restraint is “ ‘the most serious and the least tolerable infringement on First Amendment  *1167 rights.’ ” (DVD Copy, supra, 31 Cal.4th at p. 886, 4 Cal.Rptr.3d 69, 75 P.3d 1; Near v. Minnesota (1931) 283 U.S. 697, 713, 51 S.Ct. 625, 75 L.Ed. 1357.) Prior restraints are highly disfavored and presumptively violate the First Amendment. (Maggi v. Superior Court (2004) 119 Cal.App.4th 1218, 1225, 15 Cal.Rptr.3d 161; Hurvitz v. Hoefflin, supra, 84 Cal.App.4th at p. 1241, 101 Cal.Rptr.2d 558.) This is true even when the speech is expected to be of the type that is not constitutionally protected. (See Near v. Minnesota, supra, 283 U.S. at pp. 704–705, 51 S.Ct. 625 [rejecting restraint on publication of any periodical containing “malicious, scandalous and defamatory” matter].)67 To establish a valid prior restraint under the federal Constitution, a proponent has a heavy burden to show the countervailing interest is compelling, the prior restraint is necessary and would be effective in promoting this interest, and less extreme measures are unavailable. (See Hobbs v. County of Westchester (2d Cir.2005) 397 F.3d 133, 149; see also Nebraska Press Assn. v. Stuart (1976) 427 U.S. 539, 562–568, 96 S.Ct. 2791, 49 L.Ed.2d 683.) Further, any permissible order “must be couched in the narrowest terms that will accomplish the pin-pointed objective permitted by constitutional mandate and the essential needs of the public order….” (Carroll v. Princess Anne (1968) 393 U.S. 175, 183–184, 89 S.Ct. 347, 21 L.Ed.2d 325.)89 Even if an injunction does not impermissibly constitute a prior restraint, the injunction must be sufficiently precise to provide “a person of ordinary intelligence fair notice that his contemplated conduct is forbidden.” (United States v. Harriss (1954) 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989; see also People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1115, 60 Cal.Rptr.2d 277, 929 P.2d 596.) An injunction is unconstitutionally vague if it does not clearly define the persons protected and the conduct prohibited.

Evans v. Evans, 162 Cal. App. 4th 1157, 1166-67, 76 Cal. Rptr. 3d 859, 867 (2008)

CLOSE
Summary Judgment Motion

Gregory-J.-WoodThere are a few different tools defense lawyers can use to defend a case.  One tool is the motion for summary judgment and/or motion for summary adjudication (“MSJ/MSA”).

A MSJ/MSA says two things to the Court.  It first says that the material facts of the case are undisputed.  There is no need for a trial.  The Court can decide this one on the papers.  The Motion then says: under these undisputed facts and the applicable law, moving party should win the case.

Motions for summary judgment and/or summary adjudication of causes of action are weapons of mass destruction that rarely detonate.  There is strong public policy in favor of giving plaintiffs their day in Court.  So, judges are reluctant to grant MSJ/MSA’s.  Judges can usually find at least one or more material facts in dispute to support a denial.  At the firm, we tell our clients that the best MSJ/MSA ever written in the history of time had a 50% of winning.

That said, the potency of the motion makes it worth filing if there are grounds to do so.  Trial is absurdly expensive.  Defeating a claim – or even reducing it in scope – can save the client hundreds of thousands of dollars in fees and costs alone, not to mention resolve the dispute favorably.

CLOSE
Contractors licensing law 7031

Gregory-J.-WoodUnder the Contractors’ State Licensing Law, “no person engaged in the business or acting in the capacity of a contractor, may bring or maintain any action, or recover in law or equity in any action, in any court of this state for the collection of compensation for the performance of any act or contract where a license is required by this chapter…”  Further, “A person who utilizes the services of an unlicensed contractor may bring an action in any court of competent jurisdiction in this state to recover all compensation paid to the unlicensed contractor for performance of any act or contract.”

Being able to claw back fees paid to someone that has done the work may seem like a draconian rule.  California Courts have said, however, regardless of the equities, section 7031 bars all actions, however they are characterized, which effectively seek “compensation” for illegal unlicensed contract work. (Lewis & Queen, 48 Cal.2d at pp. 150-152, 308 P.2d 713.)  Thus, an unlicensed contractor cannot recover either for the agreed contract price or for the reasonable value of labor and materials.  (See Davis Co. v. Superior Court (1969) 1 Cal.App.3d 156, 159, 81 Cal.Rptr. 453; Grant v. Weatherholt (1954) 123 Cal.App.2d 34, 41-42, 266 P.2d 185.)  The statutory prohibition operates where the person for whom the work was performed knew the contractor was unlicensed.  (Pickens, 269 Cal.App.2d at p. 302, 74 Cal.Rptr. 788; Cash v. Blackett (1948) 87 Cal.App.2d 233, 196 P.2d 585.)  The statutory prohibition even operates where the person for whom the work was performed engaged in fraud.  (Hydrotech Systems, Ltd. v. Oasis Waterpark (1991) 52 Cal.3d 988, 803 P.2d 370.

The appellate court in Pacific Custom Pools, Inc. v. Turner Construction Co. (2000) 79 Cal.App.4th at p. 1262, 94 Cal.Rptr.2d 756, stated the rule and then provided its explanation for the basis thereof as follows.  “ ‘Because of the strength and clarity of this policy, it is well settled that section 7031 applies despite injustice to the unlicensed contractor. “Section 7031 represents a legislative determination that the importance of deterring unlicensed persons from engaging in the contracting business outweighs any harshness between the parties, and that such deterrence can best be realized by denying violators the right to maintain any action for compensation in the courts of this state.” ‘ “ (79 Cal.App.4th at p. 1261, 94 Cal.Rptr.2d 756; citations omitted.

CLOSE
Independent contractor versus employee

doug-039-2-255x255Whether a worker is an independent contractor or an employee largely turns on whether the employer “has the right to control the manner and means by which the worker accomplishes the work.”  Estrada v. FedEx Ground Package System, Inc., 154 Cal. App. 4th 1, 10 (2007); see Cal. Lab. Code § 3353 (defining independent contractor as “any person who renders service for a specified recompense for a specified result, under the control of his principal as to the result of his work only and not as to the means by which such result is accomplished”); S.G. Borello & Sons, Inc. v. Department of Indus. Relations, 48 Cal. 3d 341, 350 (1989) (noting that “[the] principal test of an employment relationship is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired”); see also In re Brown, 743 F.2d 664, 667 (9th Cir. 1984) (stating that, under California law, “the most significant factor is the right to control the means by which the work is accomplished”).  Even the trial court in our case agreed that this factor is the “most significant question in the independent contractor/employee determination.”  (6 AA at 1728.)

“While . . . the right to control work details is the ‘most important’ or ‘most significant’ consideration, the authorities also endorse several ‘secondary’ indicia of the nature of a service relationship.”  S.G. Borello & Sons, Inc., 48 Cal. 3d at 350.  Those “secondary indicia” “have been derived principally from the Restatement Second of Agency.”  Id. at 351.  They include,

(1) whether the worker is engaged in a distinct occupation or business, (2) whether, considering the kind of occupation and locality, the work is usually done under the principal’s direction or by a specialist without supervision, (3) the skill required, (4) whether the principal or worker supplies the instrumentalities, tools, and place of work, (5) the length of time for which the services are to be performed, (6) the method of payment, whether by time or by job, (7) whether the work is part of the principal’s regular business, and (8) whether the parties believe they are creating an employer-employee relationship.

Estrada, 154 Cal. App. 4th at 10; see Antelope Valley Press, 162 Cal. App. 4th at 852-53.  Additionally, S.G. Borello & Sons Inc. also

noted with approval the six-factor test developed by other jurisdictions [which b]esides the right to control the work . . . include[s] (1) the alleged employee’s opportunity for profit or loss depending on his managerial skill; (2) the alleged employee’s investment in equipment or materials required for his task, or his employment of helpers; (3) whether the service rendered requires a special skill; (4) the degree of permanence of the working relationship; and (5) whether the service rendered is an integral part of the alleged employer’s business.

Bowman v. Wyatt, 186 Cal. App. 4th 286, 301 (2010) (internal quotation marks omitted) (citing S.G. Borello & Sons, Inc., 48 Cal. 3d at 354–55).  If these were not enough criteria to consider, the courts have found that the “the right to discharge at will without cause” is yet another “secondary factor . . . constituting strong evidence in support of an employment relationship” and against a contractor relationship.  Angelotti v. Walt Disney Co., 192 Cal. App. 4th 1394, 1404 (2011); see S.G. Borello & Sons, Inc., 48 Cal. 3d at 350; Kowalski v. Shell Oil Co., 23 Cal. 3d 168, 177 (1979).  Failure to consider these secondary factors is considered error.  See Bowman, 186 Cal. App. at 303-304 (holding that CACI jury instruction did not articulate a “correct statement of the law” because it failed to “instruct the jury that it must weigh all of [the secondary] factors”); Messenger Courier Assn. of Americas v. Cal. Unemployment Ins. Appeals Bd.,175 Cal. App. 4th 1074, 1095 (2009).

The fact that there is a contract between the parties that characterizes the relationship between the Parties as contractor/client or employee/employer is of limited relevance in determining a worker’s proper classification under law:  “The agreement characterizing the relationship as one of client – independent contractor will be ignored if the parties, by their actual conduct, act like employer – employee.”  Toyota Motor Sales U.S.A., Inc. v. Superior Court, 220 Cal. App. 3d 864, 877 (1990) (internal quotations omitted); see Tieberg v. Unemployment Ins. App. Bd., 2 Cal. 3d 943, 952 (1970).  “Indeed, attempts to conceal employment by formal documents purporting to create other relationships have led the courts to disregard such terms whenever the acts and declarations of the parties are inconsistent therewith.”  Toyota Motor Sales U.S.A., Inc., 220 Cal. App. 3d at 877; see, e.g., Pacific Lbr. Co. v. Ind. Acc. Com., 22 Cal. 2d 410, 422 (1943); White v. Uniroyal, Inc., 155 Cal. App. 3d 1, 27 (1984); Bemis v. People, 109 Cal. App. 2d 253, 266 (1952); Lewis v. Constitution Life Co., 96 Cal. App. 2d 191, 194 (1950).  As a matter of law it is not particularly relevant what an agreement might say about labor classification between the parties.

CLOSE
Religious Land Use and Institutionalized Persons Act aka RLUIPA

doug-039-2-255x255“RLUIPA is the latest skirmish in a tug of war between Congress and the Supreme Court over the meaning and application of the Free Exercise Clause of the United States Constitution.” (Lennington,Thou Shalt Not Zone: The Overbroad Applications and Troubling Implications of RLUIPA’s Land Use Provisions (2006) 29 Seattle U. L.Rev. 805, 806–807.) Adopted in response to the Supreme Court’s partial invalidation of the Religious Freedom Restoration Act, title 42 United States Code section 2000bb (RFRA), in City of Boerne v. Flores (1997) 521 U.S. 507 [117 S.Ct. 2157, 138 L.Ed.2d 624], RLUIPA applies to a government’s implementation of land use regulations so long as the government makes, or has in place procedures allowing it to make, “individualized assessments of the proposed uses for the property involved.” (42 U.S.C. § 2000cc (a)(2)(C).) If applicable, RLUIPA prohibits a government from implementing a land use regulation in a way that “imposes a substantial burden” on one’s “religious exercise” unless the burden satisfies strict scrutiny.8 In passing the Act, Congress intended to relax the requirement under First Amendment jurisprudence that the “religious exercise” be central to the individual’s religion. Under RLUIPA, free 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).) *118 Particularly relevant to our inquiry here, RLUIPA provides that “[t]he 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).)

A RLUIPA substantial burden analysis proceeds in sequential steps.  First we look, as a threshold question, to determine if the government has made an “individualized assessment” in its implementation of laws affecting land.  42 U.S.C. § 2000cc(a)(2)(C).  Second, “the plaintiff must demonstrate that a government action has imposed a substantial burden on the plaintiff’s religious exercise.”  Int’l Church of Foursquare Gospel v. City of San Leandro, 673 F.3d 1059, 1066 (9th Cir. 2011) [hereinafter Foursquare Gospel]; see 42 U.S.C. § 2000cc(a)(1) (providing that a land-use regulation “impos[ing] a substantial burden on the religious exercise of a . . . religious assembly or institution” is unlawful).  Finally, “once the plaintiff has shown a substantial burden, the government must show that its action was the least restrictive means of further[ing] a compelling governmental interest.”  Id.

In the United Methodist Church case, we argued the pending demolition and CUP permits qualified for RLUIPA protection.  Courts have repeatedly held that a city’s “treatment of [a] Church’s [CUP] applications” which include a demolition permit “constitutes an ‘individualized assessment’” subject to RLUIPA.  Foursquare Gospel, 673 F.3d at 1066; see Guru Nanak, 456 F.3d at 987 (same); Acad. of Our Lady of Peace v. City of San Diego, 09-CV962 (WQH) (AJB), 2010 WL 1329014, at *10 (S.D. Cal. Apr. 1, 2010) (examining whether a CUP that included a demolition permit was subject to RLUIPA and “conclude[ing] that RLUIPA applies in this case”).

We further argued the second part of the test, a substantial burden existed because, as a consequence of a city’s denial of a CUP—a CUP which includes a demolition permit—the religious organization suffered the “ultimate burden on the use of the [affected] land,” the burden of effective non-use of that land, quoting:

The burden on the Church’s use of land in this case is not only substantial, but entire. By denying the conditional use permit, the City has effectively barred any use by the Church of the real property in question. This is not a case where the Church’s proposed use of land—equated with “religious exercise” by RLUIPA—is restricted in a minor or “unsubstantial” way (e.g., by limiting a building’s size or occupancy). Rather, the denial of the CUP bars the Church’s use altogether, thereby imposing the ultimate burden on the use of that land.

Elsinore Christian Ctr. v. City of Lake Elsinore, 291 F. Supp. 2d 1083, 1090 (C.D. Cal. 2003), reversed on other grounds, Elsinore Christian Ctr. v. City of Lake Elsinore, 197 Fed. Appx. 718, 719 (9th Cir. 2006) (reversing the district court’s holding that RLUIPA was unconstitutional but affirming the district court’s holding that the City violated RLUIPA).

CLOSE
California State Law

Gregory-J.-Wood

In 1963, the State of California enacted Government Code sections 25373 and 37361.  Section 25373 provides in pertinent part:

(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.
§ 37361 is identical and applies to cities.

In enacting subsection (b), the State Legislature expressly granted to cities and counties broad powers to regulate and protect all kinds of structures.  (Cal. Govt. Code §§ 25737 and 37361.)

The broad power granted by subsection (b) encompasses not only landmarking but all manner of preservation.  In fact, the word “landmark” is not used.  (Cal. Govt. Code §§ 25737(b) and 37361(b).)

In 1994, by Assembly Bill No. 133, the broad powers granted to cities and counties by subsection (b) were expressly taken away from cities and counties with respect to noncommercial property held by religious organizations.  The Legislature amended both statutes to allow religiously affiliated organizations to exempt their noncommercial property (“exempt property”) from the placement of any condition, or any regulation, for the protection, enhancement, perpetuation, or use of said property.  Subsection (d) provides:

Subdivision (b) shall not apply to noncommercial property owned by any association or corporation that is religiously affiliated and not organized for private profit …

(Cal. Govt. Code § 25737(d).)

Thus, in 1963, the State of California expressly granted to local governments broad powers to regulate and protect all kinds of structures and, in 1994, expressly took that power away from local governments with respect to exempt property.  The result is that local governments are without power to place any “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.”  (Cal. Govt. Code §§ 25737 and 37361.)

The California Supreme Court has discussed the purpose of the Government Code exemptions, which is to protect religious freedom:

An explanation of the purpose of the exemption subdivisions was included in Senate Bill No. 1185 (1993–1994 Reg. Sess.), the 1993 legislation, and in Assembly Bill No. 133 (1993–1994 Reg. Sess.), the 1994 bill (hereafter Assembly Bill No. 133), each of which, after noting that historic landmark restrictions were not related to or compelled by public health or safety concerns, stated: “Sections 1 and 2 of this act ensure the protection of religious freedom guaranteed by Section 4 of Article I of the California Constitution and by the First Amendment to the United States Constitution.” (Stats.1993, ch. 419, § 7, p. 2388; see Stats.1994, ch. 1199, § 3 [substantially identical].)

East Bay Asian Local Dev. Corp. v. State of Cal., 24 Cal.4th 693, 702 (2000) (East Bay).

The legislative history is even more specific.  With respect to the Senate bill, Section 7 of Stats.1993, c. 419 (S.B.1185), provides:

“(a) The Legislature hereby finds and declares that Section 2 of this act addresses a matter of statewide interest and concern… (b) Sections 1 and 2 of this act ensure the protection of religious freedom guaranteed by Section 4 of Article I of the California Constitution and by the First Amendment to the United States Constitution.”

(West’s Ann. Cal. Govt. Code § 25373.)

With respect to the Assembly bill, Section 3 of Stats.1994, c. 1199 (A.B.133), provides:

“Sections 1 and 2 of this act address a matter of statewide interest and concern…

Therefore, Sections 1 and 2 of this act ensure the protection of religious freedom guaranteed by Section 4 of Article I of the California Constitution, and by the First Amendment to the United States Constitution.”

(West’s Ann. Cal. Govt. Code § 25373.)

CLOSE
Disclaimer

Every legal dispute is infinitely different.  Successes in other cases are not a guarantee or prediction of success in your case.

The articles and information on this site are based on California law at the time they were written. They are informational only and should not be relied upon except in conjunction with the advice and counsel of an attorney licensed to practice law. Everyone’s situation is different and general advice, as is discussed here, is not helpful in a particular case.

If you are in the process of making decisions that may have legal consequences, you must contact a lawyer to update you on the current law and apply it to your specific facts. If you are interested is discussing potential representation by Wood Robbins, LLP, call for a free consultation (415) 247-7900. Your communications may be privileged, but the firm does not represent you as your lawyer unless and until a written fee agreement is signed and in effect.

CLOSE