The Academy of Our Lady of Peace (AOLP) has settled its lawsuit with the City of San Diego, effectively ending the nearly four yearlong dispute between San Diego’s oldest high school and the city in which it resides. The city has agreed to pay to relocate two homes on AOLP’s campus while razing a third by May 1, 2014, clearing the way for construction. The settlement also includes provisions limiting the total cost of all permits and inspections to $100,000, fast-track all permits for completion and a $500,000 cash settlement. Approved by city council on February 12, the settlement agreement replaces a previous jury verdict. With the lawsuit settled, AOLP can start construction plans and plans to break ground in June 2014.
AOLP was established by the Sisters of St. Joseph of Carondelet in San Diego in 1882 and has been located at its present campus in the Normal Heights neighborhood bordering North Park since 1925. Our Lady of Peace has, over its 130-year history, educated thousands of young women into national leaders by providing local, state and nationally award-winning curriculum. It evolved from a boarding school for grade school and high school students to a highly accredited all girls Catholic school that exemplifies the traditions and charisms of the Sisters of St. Joseph of Carandolet and the Roman Catholic Church. The school has eight buildings – some emblematic of the historic and elegant Italian Renaissance style – on the three acres of its 22-acre parcel that are not otherwise dominated by the steep slopes of Mission Valley. There is no available land on the existing campus to build a new building. The last classroom built on campus was constructed in 1965.
Beginning nearly two decades ago, Our Lady of Peace began to experience the limitations of its constrained spaces and nontraditional classroom layouts. The administration evaluated its existing buildings and converted its one-time dormitory into classrooms, renovated the administration building into classrooms, moved the library to renovated stables, and moved staff into the main Van Druff Estate home. However, as the expectations continue to rise for college preparatory education, Our Lady of Peace conducted an exhaustive analysis of its options and determined that it must modernize its largely 1920s-era campus to continue to fulfill the mission of the Sisters of Saint Joseph in providing a high quality college preparatory secondary Catholic education to young women of San Diego. As it stands now, many classrooms fail to meet minimum size requirements, and AOLP is unable to offer the needed number of advanced placement courses.
AOLP determined the best method to modernize while also complying with all of the City’s land use requirements was with its Modernization Plan. It was around this time that AOLP first realized it was in violation of its conditional use permit due to over enrollment. The City vigorously prosecuted AOLP, even though the City has a policy of not punishing self-disclosing permit violators. Within a month after self-disclosing the violation, the City prosecuted the school resulting in the largest fine levied against a property owner for a CUP violation in the history of the City. In addition, the City obtained an order requiring the school to immediately reduce the number of students from 750 to 640 and reduce staff from 61 to 46. Still, AOLP held more than thirty (30) community meetings with neighbors and adjusted the Modernization Plan as best it could before going to the Planning Commission in September 2008.
The Planning Commission members, all of whom are professionals appointed by the City Council based on their land use and development expertise, reviewed the plan and heard testimony. After the first Planning Commission meeting, school representatives met with the project opponents, who advised them that they would not approve any plan that called for the removal of the three homes AOLP owned but the neighbors thought were of historic relevance. At the second Planning Commission meeting, AOLP advised the Planning Commission that it simply could not work around the homes in their current locations and meet its space needs. However, as a significant compromise based on the additional expense, the school offered to relocate two of the three homes based on the study of this option in the Environmental Impact Report and the allowance of this under the City’s permitting process. The commissioners also agreed with the City planners and AOLP, finding that the existing campus structures could not be adaptively reused in a way that effectively met the school’s needs. The Planning Commission followed the repeated recommendation of the City planning staff and adopted the relocation proposal and unanimously approved the Modernization Plan and the four necessary permits.
The Elected Officials Illegally Reject the Modernization Plan
Within days of Planning Commission approval, neighbors irretrievably opposed to AOLP appealed the decision to the City Council, arguing that the approved Modernization Plan did not comply with the North Park Community Plan. However, City planning experts had found that the Modernization Plan did comply with the North Park plan. The City Council held a public hearing on the appeal on January 26, 2009. Prior to the hearing, newly elected Councilman Gloria met with the City Planning staff and prepared a written motion to deny the Modernization Plan based on inconsistency with the neighborhood plan — even though planning staff had determined the opposite to be true. At the January 26, 2009 meeting, after hearing “testimony,” Gloria moved to deny the Modernization Plan and allow the 750 students to remain on campus. City Council President Benjamin Hueso objected to the Gloria proposal, observing that the City would be putting an insurmountable burden on Our Lady of Peace to continue educating the girls in the Catholic faith, thereby violating RLUIPA. The City Council withheld a final decision.
Within days of the January 26 meeting, Gloria met with City staff to devise a plan to deny the Modernization Plan, allow the 750 students to remain on campus by granting a Conditional Use Permit, and find a way to stop the school from demolishing or relocating the three residential structures owned by the school and immediately adjacent to the campus. This required directing the City planner, who had found the Modernization Plan complied with the neighborhood plan, to reverse his findings to Gloria’s liking. For the first time in his career, the planner was directed to reverse his findings so as to accommodate Gloria’s plan. AOLP returned to the City Council on March 3, 2009, at which time Gloria indicated that his goal was to make sure the three homes would never be moved, thereby ensuring no project ever gets completed. A majority of the council voted to deny the Modernization Plan.
AOLP, left with no other option, filed this federal action. At trial, AOLP established that the City of San Diego violated the substantial burden prong of RLUIPA by imposing a substantial burden on the free exercise of religion. The Ninth Circuit defined the term “substantial burden” to include situations when the religious institution presented evidence that the proposed site for its place of worship was the only site that would accommodate its new building, and that the church either had “no ready alternatives” or the alternative requires “substantial delay, uncertainty and expense.” International Church of the Foursquare Gospel v. City of San Leandro, 673 F.3d 1060, 1067 (9th Cir. 2011). The Court further held that a “complete denial” of a religious institution’s land use application is indicative of a substantial burden, and a substantial burden arises when a church is forced to worship in multiple locations when its “unique core beliefs” require the church to meet in one place for “corporate worship.” Id. at 1068. More recently, in Guatay Christian Fellowship, the Court found that the cost of going through the permit process may constitute a substantial burden under RLUIPA. Guatay Christian Fellowship v. County of San Diego, 670 F.3d 957, 982 (9th Cir. 2011).
Applying these cases, Our Lady of Peace established a substantial burden under RLUIPA because:
Based on the above evidence, and under any method of determining a “substantial burden,” Our Lady of Peace demonstrated that it has “no ready alternatives” and “the alternative requires substantial delay, uncertainty and expense,” resulting in a “substantial burden” to the school.
As the City was unable to justify the substantial burden with a “compelling governmental interest” achieved through the “least restrictive means,” AOLP succeeded on its substantial burden claim and the jury awarded it $1,111,666 dollars in damages.
Thereafter, the parties entered into settlement negotiations wherein the Academy of Our Lady of Peace accepted less money in return of the City agreeing to pay to relocate two homes on AOLP’s campus while razing a third by May 1, 2014, clearing the way for construction. The settlement also includes provisions limiting the total cost of all permits and inspections to $100,000, fast-track all permits for completion and a $500,000 cash settlement. Approved by city council on February 12, 2013 the settlement agreement replaces a previous jury verdict. With the lawsuit settled, AOLP can start construction plans and plans to break ground in June 2014.
Dalton & Tomich, PLC is the national leader in successfully helping churches, other religious institutions and their insurers defend their rights in land use and zoning matters under RLUIPA, the Religious Land Use and Institutionalized Persons Act. We have helped clients win cases against municipalities and other local government bodies from coast to coast, with expertise serving both as general counsel and special litigation counsel.
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