May 6, 2011

City to Appeal Faith Fellowship Case to US Supreme Court

At a closed session meeting of the San Leandro City Council on May 5, 2011, the City Council voted 5 to 2 to appeal the Faith Fellowship case to the U.S. Supreme Court. Councilmember Pauline Cutter and Mayor Stephen Cassidy voted against appealing the decision.

The U.S. Supreme Court has denied hearing similar cases involving land use and the Religious Land Use and Institutionalized Persons Act (RLUIPA) in Board of County Commissioners v. Rocky Mountain Christian Church,( Docket No. 10-521, cert. denied 1/10/2011), Lighthouse Institute for Evangelism v. Long Branch, NJ, (Case No. 07-1111), and Greater Bible Way Temple v. City of Jackson, MI, (Case No. 07-1080). Steve Clowney at the PropertyProf Blog speculated that the reason the US Supreme Court is declining to hear these cases is because they may not believe that "land use rules need to be consistent from state to state."

thumb_hamilton_marci.jpg The San Leandro City Council also decided to retain Professor Marci Hamilton to assist with the appeal to the US Supreme Court. Hamilton successfully challenged the Religious Freedom Restoration Act (RFRA), has written extensively about RLUIPA (see The Circus That is RLUIPA) and believes that RLUIPA is unconstitutional. A video interview of Ms. Hamilton can be found on YouTube. Hamilton represented the Borough of Roosevelt at the United States Court of Appeals for the Third Circuit and New Milford at the Second Circuit. Hamilton won both of these cases because the religious institutions had not gone through all of the procedures and appeals before they filed a lawsuit. Hamilton is also assisting the Borough of Litchfield (Connecticut) in an RLUIPA lawsuit, in which the US Department of Justice has sided with Chabad Lubavich of Litchfield County, a conservative Hasidic group.

When asked by San Leandro Bytes why the Supreme Court would hear San Leandro's case, when so many other cases have been denied certiorari, Hamilton replied, "The issues in this case are ripe for Supreme Court review, because they have been percolating for a number of years, there is a split among courts over the issues, and the issues are very important to every city and land use authority." Hamilton also said that she handled other relevant RLUIPA cases, including League of Residential Neighborhood Advocates v. City of Los Angeles, 498 F.3d 1052 (9th Cir. 2007), Grace United Methodist Church v. Cheyenne, 451 F.3d 643 (2006) and Congregation Kol Ami v. Abington Township, 309 F.3d 120 (3rd Cir. 2002). In Volume 2 of the 2009 Albany Government Law Review, Hamilton penned an article entitled, "The Constitutional Limitations of Congress's Power Over Local Land Use: Why the Religious Land Use and Institutionalized Persons Act is Unconstitutional," in which she concludes, "Section 2(a) of RLUIPA is a repudiation of the Supreme Court's jurisprudence of respectful deference to state and local land use decisions in the absence of discrimination and a takeover of the states' well developed systems of judicial review of local land use decisions."

If the US Supreme Court decides to hear the case, San Leandro will become part of a landmark decision, but that may be a long shot, since the Supreme Court accepts less than 1% of appeals.

The report out of closed session is as follows:

At its closed session meeting on Thursday, May 5, 2011, the San Leandro City Council authorized the City Attorney to file a petition for certiorari to the United States Supreme Court on behalf of the City in the matter of International Church of Foursquare Gospel v. City of San Leandro.
(vote: 5 ayes- Councilmembers Starosciak, Reed, Prola, Souza and Vice Mayor Gregory. 2 nays: Mayor Cassidy and Councilmember Cutter)
The Council further authorized the retention of Professor Marci Hamilton of Benjamin N. Cardozo School of Law to provide specialized legal services in connection with the Petition.
(vote: 5 ayes- Councilmembers Starosciak, Reed, Prola, Souza and Vice Mayor Gregory. 2 nays: Mayor Cassidy and Councilmember Cutter)

In addition, the City also issued background on the case, which can be found after the break:

Source: City of San Leandro

Church of the Foursquare Gospel v. City of San Leandro
FACTUAL BACKGROUND

Case Background:

In June 2007, the International Church of the Foursquare Gospel (Faith Fellowship Church) filed a lawsuit against the City and individual named City officials contending that the City violated the federal Religious Land Use and Institutionalized Persons Act (RLUIPA) and the Church’s constitutional rights by not agreeing to rezone certain industrial land in San Leandro as a relocation site for the Church in a community where it has resided and thrived for several decades.

U.S. District Court Judge Phyllis Hamilton granted the City’s motion for summary judgment and rejected all of the Church’s claims and found that the City had acted fairly and lawfully in all of its actions. The District Court held that “RLUIPA does not require cities to grant churches preferential rights over other property owners;” and further noted that the City had expanded the areas zoned to allow church uses and found no evidence of religious discrimination on the part of the City.

The Church appealed the District Court decision to the Ninth Circuit Court of Appeals. The appeal was heard by a three judge panel consisting of Judge Noonan, Judge Paez and Judge Duffy, a District Court judge sitting by assignment from the Southern District of New York. This past February 2011, in a published opinion authored by Judge Duffy, the Court reversed the granting of summary judgment by interpreting RLUIPA broadly and in conflict with other circuit courts addressing similar issues. The appellate court did NOT find that the City had violated RLUIPA but only that the District Court should reexamine whether the City’s denial of the Church’s rezoning request placed a “substantial burden” on the Church under the federal land use law, which provides benefits solely to religious landowners.

On March 15, 2011, the City filed a petition for rehearing which was denied on April 22, 2011. The City has ninety (90) days from that date in which to file a Petition for Certiorari (review) to the United States Supreme Court. After careful consideration, on May 5, 2011, the San Leandro City Council authorized the City Attorney to seek review by the United States Supreme Court on what the City believes to be an incorrect interpretation and application of RLUIPA with respect to San Leandro’s land use policies.

In addition, the City Council authorized the retention and association as co-counsel of Professor Marci Hamilton. Professor Hamilton is a constitutional law scholar and member of the faculty of Benjamin N. Cardozo School of Law, Yeshiva University, where she holds the Paul R. Verkuil Chair in Public Law and specializes in church/state issues, particularly issues involving religious organizations and individuals in conflict with the law. During the Court’s 1989 Term, Professor Hamilton clerked for United States Supreme Court Justice Sandra Day O’Connor. Professor Hamilton represented the City of Boerne, Texas, in its successful constitutional challenge of the Religious Freedom Restoration Act (“RFRA”), which is the statutory predecessor of RLUIPA. She has successfully represented many cities, towns, and neighborhoods in important religious land use litigation. Prof. Hamilton will join the City’s legal team led by Meyers Nave principal and litigation specialist, Deborah Fox.

Case History and Timeline:

June 12, 2007 - Original Complaint filed against City alleging RLUIPA/civil rights violations

June 30, 2007 - ICFG seeks Preliminary Injunction against the City on asserted RLUIPA/civil rights violations

October 2, 2007 - U.S. District Court Judge Phyllis Hamilton denies requested preliminary injunction

October 26, 2007 - Plaintiff files Amended Complaint alleging RLUIPA, 1st Amendment and civil rights violations

December 12, 2008 - Judge Phyllis Hamilton grants City’s request for Summary Judgment on all claims

July 7, 2009 - ICFG files appeal to the Ninth Circuit Court of Appeal

February 15, 2011 - Ninth Circuit reverses and remands case to District Court for trial on “substantial burden” issue

March 15, 2011 - City filed a petition for rehearing and rehearing en banc to the Ninth Circuit Court of Appeal

April 22, 2011 - Ninth Circuit Court of Appeal issued Order and Amended Opinion denying City’s petition for rehearing and rehearing en banc

May 5, 2011 - City Council authorizes filing of a Petition for Certiorari to the United States Supreme Court

July 21, 2011 - Deadline for filing Petition for Certiorari

Posted by Mike Katz-Lacabe at May 6, 2011 12:18 PM | TrackBack
Comments

I attend Faith Fellowship Church as a member. Today at services, Pastor Gary Mortara informed the membership that the Supreme Court did not accept the City of San Leandro's pettition for certiorari.

In effect SL has exhaused its appeals. The City will now have to settle with Faith Fellowship according to the prior ruling of the Court of Appeals.

Five long years in the making this situation has placed a large burdon on the pastoral staff and volunteers who must support three Sunday services to accomodate the growth of the congregation. Faith Fellowship purchased a facility that would have allowed the entire membership to felloship en mass.

Had the City allowed the church to use the new facility which was purchased, non of this would have been necessary.

I congratulate Pastor Gary Mortara, and the Board of Faith Fellowship and Pacific Justice Institute for perservering through these many years to achieve a substantial outcome in this matter.

Councilmember Pauline Cutter and Mayor Stephen Cassidy, who voted against appealing the decision, are to be lauded for serving the taxpayers of the City of San Leandro who will undoubtedby have to pay for the churches losses over the real estate issues.

Kevin Wood.

Posted by: Kevin Wood at October 9, 2011 10:45 PM
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