Love Thy Neighbor? 

Not likely in rural Alameda County, where federal law may let a religious school circumvent local zoning rules.

Page 4 of 5

Discrimination, the lawyer points out, can occur even when the official action isn't obviously religiously motivated. In fact, Gaubatz says, "raw NIMBYism" and abuse of power by local authorities, not outright bigotry, frequently drive RLUIPA cases. "Governments seem to have this myopic view that RLUIPA is only about discrimination, so if I don't hate the person applying for a permit or the religion, it's okay to still deny them the permit, but that's not true," he says. If the government denies a religious land use without proving a compelling community interest, that's enough.

That may well be the case in Alameda County, Gaubatz argues. Redwood Christian, he says, did its best to accommodate the county's concerns: It drafted alternative designs, bought additional property to address density issues, and even arranged a carpool system to reduce traffic. "We did everything we could in this process and were left with nothing," he says.

"There's no public safety issue here; things like a little extra noise or traffic aren't compelling government issues," the lawyer adds. "I'm as interested in the next person in seeing what do they try to gin up to say what's so important that they can't build this school. It seems like right now it's just bowing to the NIMBY wishes of a few neighbors."

The Becket Fund makes no bones about the fact that it is actively looking for more RLUIPA complaints to add to its caseload. "There will continue to be more cases as long as officials like the county don't get the message: Religion is different, it's not the ordinary application where you get to apply these mushy criteria and get to do what you want," the group's litigation director promises. "They don't like having someone tell them that you have to obey a higher standard than your local parochial standard, you have to comply with federal law and the Constitution."

Richard Winnie would beg to differ. Alameda County's top lawyer believes the lawsuit really has nothing to do with religion; it's an attempt to recoup losses from its bad investment.

The county indeed had a compelling interest in denying a permit, Winnie says: to preserve open space. Palomares Canyon is zoned for agriculture, and Redwood Christian officials, he notes, "knew that their project was completely inconsistent with the regulations that were in effect when they purchased it." When Measure D passed, he says, it underscored the community's desire to prevent urban sprawl.

In other words, the county counsel argues, Redwood Christian bought undevelopable rural land at bargain prices and is now alleging religious discrimination to strong-arm local officials into letting it develop the land anyway. "They took advantage of what would be probably a price that would not be obtainable in an urban area," Winnie says. "They would have had to have done that in the belief that they could bully their way, or sue their way, into the right to build this property."

Both Winnie and Supervisor Miley say the federal law is being misapplied in this case, and that the permit denial was due to the school's size, not religion. "Had some independent school that was nonreligious tried to do the same thing, we would have opposed it," Miley says.

In fact, Alameda County's legal team argues that the county has a solid track record of approving religious land uses: From 1989 through 2005, the county considered nineteen conditional use permit applications from private religious schools, and denied only Redwood Christian's. During the same period, it also denied only one of 133 permits or variances requested by other types of religious institutions.

County officials say they'd warned the company early and often that its chances of getting a permit for a 650-student school were small, and that other large projects proposed for the site had failed. Nevertheless, when school administrators persisted, officials bent over backward to give them fair hearings and encourage compromise, the county claims. "They just plain refused to negotiate," Winnie says. Although Redwood Christian did buy additional land and proffer alternative designs, Winnie says they were "simply moving the buildings around" and refused to reduce the student body size, which was the main issue.

Unlike his counterpart at the Becket Fund, Winnie believes RLUIPA is intended to prevent discrimination, not give preference. "I think if it is interpreted [as Gaubatz says], then it basically installs a sort of different kind of discrimination, one that favors religious use and overrides local zoning controls," he says. "That means that certain groups, in this case Redwood Christian Schools, are exempted from the rules. I think that causes resentment and circumvents the process that is very basic to land use, which is that people need to work together and respect each other."

Indeed, RLUIPA's critics say it has spawned a particularly divisive wave of litigation — in cases involving quotidian planning issues such as traffic, noise, and neighborhood design, it has allowed plaintiffs to tar their opponents as antireligious bigots.

With the Becket Fund involved, county officials say, the conflict's focus has shifted from trying to build a school to trying to find a test case for the federal law. "The Becket Fund truly believes that RLUIPA is intended to override local planning controls, and is clearly not interested in the agricultural or open space or aesthetic values of Alameda County," Winnie says.

Miley concurs: "They have the deep pockets to finance something like this and the motivation to want to set precedent nationally. They're quite prepared to take something like this all the way to the United States Supreme Court."


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