County of Los Angeles v. Sahag-Mesrob Armenian Christian School (188 Cal. App. 4th 851, 2010)

Opinion

TURNER, P. J.

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 Code section 22.60.350; that defendant and others be enjoined from maintaining a public nuisance; and that defendant be ordered to cease operating the school until the conditional use permit is secured.

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 requesting that the school be permitted to operate pending issuance of a conditional use permit. On October 14, 2008, the Department of Regional Planning denied defendant’s clean hands waiver application and mailed a notice to that effect. On October 16, 2008, Mr. Bashar mailed and posted the Final Zoning Enforcement Order which advised defendant if the school did not cease operating within 15 days, a $654 noncompliance fee would be imposed and the case “referred” for further legal action. On November 12 and 13, 2008, Mr. Bashar confirmed that the school continued to operate. On November 14, 2008, defendant appealed the October 16, 2008 Final Zoning Enforcement Order. On December 2, 2008, a hearing officer sustained the finding of a zoning code violation and imposition of the noncompliance fee. On December 4, 2008, the school continued to operate.

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 with the Armenian Missionary Association. The bylaws required that the school operate as a Christian high school; provide a “Christ centered education”; and acquaint students with Christian teaching and the Armenian language. The school’s “Statement of Faith” expressly stated their beliefs; that the Bible was the inspired word of God; in the Trinity; in the pure life and divinity of Jesus Christ; in the resurrection of the dead; and in the necessity of rebirth through salvation.

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 did not constitute a substantial burden on the exercise of religious beliefs within the meaning of the act. Defendant was enjoined from using the premises unless all of the necessary permits had been secured and were in full force and effect. The trial court denied defendant’s stay request. After initially issuing a temporary stay, we denied defendant’s supersedeas petition. (County of Los Angeles v. Sahag-Mesrob Armenian Christian School (July 8, 2009, B216888) [petn. dism.].)

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) 14 Cal.4th 1090, 1109 [60 Cal.Rptr.2d 277, 929 P.2d 596]: “At this initial stage in the proceeding, the scope of our inquiry is narrow. We review an order granting a preliminary injunction under an abuse of discretion standard. [Citations.] Review is confined, in other words, to a consideration whether the trial court abused its discretion in ‘ “evaluating] two interrelated factors when deciding whether or not to issue a preliminary injunction. The first is the likelihood that the plaintiff will prevail on the merits at trial. The second is the interim harm that the plaintiff is likely to sustain if the injunction were denied as compared to the harm the defendant is likely to suffer if the preliminary injunction were issued.” ’ [Citation.]” (See People ex rel. Reisig v. Acuna (2010) 182 Cal.App.4th 866, 872-873 [106 Cal.Rptr.3d 560].) We apply a separate standard of review, though, to legal and factual issues. (Bullock v. City and County of San Francisco (1990) 221 Cal.App.3d 1072, 1094 [271 Cal.Rptr. 44] [“ ‘the standard of review [for issues of pure law] is not abuse of discretion but whether statutory or constitutional law was correctly interpreted and applied by the trial court’ ”]; see California Assn. of Dispensing Opticians v. Pearle Vision Center, Inc. (1983) 143 Cal.App.3d 419, 426 [191 Cal.Rptr. 762].)

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 portions of the act as it relates to land use regulation which are pertinent to this case state: “(a) Substantial burdens. [][] (1) General rule. 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—[f] (A) is in furtherance of a compelling governmental interest; and [