Forgive Me Father, for I Have Violated the Zoning Ordinance

By William W. Abbott

Divine purposes are not a free pass from local zoning regulations. In County of Los Angeles v. Sahag-Mesrob Armenian Christian School (2010) 188 Cal.App.4th 85, the Sahag-Mesrob Armenian Church owned two parcels zoned R-1, and on May 28, 2008, filed an application for a conditional use permit to operate an 800 student school. In September of the same year, the County received complaints that the school was operating in advance of the issuance of the conditional use permit. The County conducted an inspection, verified that the school was operating, and issued a Notice of Violation, giving the school 15 days to cease operation. Within this 15 day period, the Church applied for a “clean hands waiver” from the County, which would allow it to operate during the pendency of the use permit review and processing. The County denied the waiver request. The County then issued a final code enforcement order directing that the school cease operating within 15 days. This order was appealed and denied. Following subsequent verification that the school was still operating, the County filed a code enforcement action, and sought a preliminary injunction against the Church for operating the school illegally. The trial court granted the preliminary injunction and the church appealed.

The appellate decision concerns itself with the interface of local zoning regulation with the federal Religious Land Use and Institutionalized Persons Act (“RLUIPA”) (42 U.S.C. section 2000cc (a-b).) The first issue was whether or not the County’s requirement for a conditional use permit and the denial of the waiver violated the “substantial burden” test. Reviewing a number of decisions from other states, the appellate court concluded that the necessity for a conditional use permit and the denial of the clean hands waiver did not coerce or affect an individual’s practice of faith and therefore was not an unreasonable burden. The church also argued that the County’s denial of the clean hands waiver was improper, as a number of other faith and non-faith based waiver requests had been granted. The evidence supporting the preliminary injunction was the code enforcement action and waiver denial were land use neutral in character, in that the granted waivers were for activities in locations which would not have the same level of adverse impacts to surrounding uses as would the defendant’s school operation. On this basis, the County was able to argue that it had a sufficient factual basis upon which it could justify granting waivers to others, but denying this particular request.

The following website offers a comprehensive review of legal issues pertaining religious freedom and RLUIPA: http://www.rluipa.com/

William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship.

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