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RLUIPA trial begins October 9: the Academy of Our Lady of Peace v. City of San Diego

Written by Daniel P. Dalton on September 3, 2012 Category: RLUIPA
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San Diego – The Honorable Cathy Ann Bencivengo, United States District Court Judge for the Southern District of California, has set a trial date of October 9, 2012 in the case of Academy of Our Lady of Peace v. City of San Diego, a precedent-setting religious land use and zoning case. The law firm of Dalton & Tomich plc represents the Academy of Our Lady of Peace and will appear for trial on behalf of the school.

At issue in the case is the City’s refusal to approve the all-girls Catholic high school’s plan to modernize its campus and facilities, a step necessary to enable the continuation of a tradition inaugurated in 1882, of superior education for the region’s future female leaders. With no new school facilities built since 1965 and with all adaptive reuse possibilities for existing structures exhausted, the proposed modernization plan is critical to the school’s future and to the education of the region’s young women.

The proposed modernization plan includes the construction of one new school building and a parking structure on land the school already owns. These facilities would provide students with state-of-the-art science laboratories, an enhanced library and media center and additional classroom space, as well as off-street parking.

The Academy of Our Lady of Peace is located in San Diego’s North Park neighborhood. It is the city’s oldest high school, having graduated more than 7,800 alumnae in the course of its history. The private school is administered by the Sisters of St. Joseph of Carondelet.

Background information:

The school first proposed the plan to the City in May 2007. For five years since then, the Academy of Our Lady of Peace has sought approval to evolve as an educational institution to remain competitive with other private high schools and public schools in the area. Approval was attained from the City of San Diego Developmental Services Department and affirmed by the Planning Commission in 2008, but later rescinded by City Council.

“With political interests seemingly taking precedence over the well being of San Diego’s young women and jeopardizing the future of this historic institution, the school had no choice but to take the matter to court,” said the school’s attorney, Daniel Dalton of Dalton & Tomich plc. “The proposed modernization plan is the only way the Academy of Our Lady of Peace can continue upholding its mission to meet the educational needs of its students, the future leaders of the San Diego community. The Academy asks only that it be treated fairly under the law.”

2007 to 2008 – Early Case Developments, CEQA and Stall Tactics

After requesting a Conditional Use Permit from the City in September 2007, following the submission of the modernization plan in May 2007, the school waited more than a year while the City of San Diego’s Developmental Services Department evaluated the proposal. In the meantime, the school held meetings with others in the North Park community to explain the plans and solicit feedback. The modernization called for the removal of three homes owned by the school and adjacent to the campus. Due to the steep slopes and existing development of the campus, professional staff of the City and the school agreed that the only location the proposed buildings could be located was the location of the three homes.

Those in opposition to the school’s plan initially expressed concern over parking and traffic. Once these issues were addressed, they moved on to objecting over noise concerns. After the objecting neighbor’s noise concerns were addressed, the opposition group turned its attention to the removal of the three homes owned by the school and adjacent to the campus, claiming the homes were architecturally significant under the California Environmental Quality Act (CEQA). Upon analyzing the issue and determining the homes were not historic and therefore not architecturally significant, the City of San Diego Developmental Services Department affirmed that demolition of the three homes was appropriate, given in part, that there are more than 24,000 similarly styled homes in the North Park community.

Once approved by the City Developmental Services Department, the Academy of Our Lady of Peace sought approval from the Planning Commission, an appointed body of professionals who practice in the land development field. Due to the objections of the neighbors, the school agreed that it would not demolish the three homes, but would move them to another area in the community. The neighbors refused to agree to this accommodation, knowing the modernization plan could not be accomplished without the removal of the three homes.

“The abuse of CEQA as a stall tactic has gotten out of hand in recent years,” Dalton said. “The roadblock preventing the Academy of Our Lady of Peace’s modernization plan is just the latest example of CEQA being used inappropriately to advance ulterior motives.”

Fall 2008 to Spring 2011 – Approval then Politics. In October 2008, the City of San Diego’s Planning Commission voted unanimously to approve the Academy’s modernization plan. Members of the local planning group appealed the Planning Commission’s decision to the San Diego City Council, seeking further review.

The opposition group cited the preservation of the three homes at their existing locations on the Academy of Our Lady of Peace’s land as their primary concern. The group demanded that the school proceed with its plan only with the constraint that the school not expand beyond its current footprint, knowing that with adaptive reuse opportunities already exhausted and no other developable land on the property, this constraint effectively would destroy the plan.

Meanwhile, an election occurred for an open City Council seat in District 3, which includes the North Park neighborhood. Todd Gloria, who was elected as the councilmember, met with City staff days prior to the appeal hearing. Staff members would later state this meeting’s agenda included discussion of ways to block the modernization plan.

City Council met to hear the appeal of the Planning Commission’s approval in January 2009. At the hearing, Councilman Gloria contradicted the findings of the City’s own staff by reiterating the opposition group’s concerns over the destruction of what he called the “historic” homes, homes City staff had already determined not to be historic.

City Council met again in March 2009. At this meeting, then-Council President Ben Hueso objected to Councilman Gloria’s opposition to the plan, noting Council had approved hundreds of similar projects and expressing his concern that in denying the plan, Council would make it nearly impossible for the school to continue educating the region’s young women. Hueso also cited a recent lawsuit the City had lost under RLUIPA. Despite his counsel, a majority of the Council followed Gloria’s lead and denied the modernization plan

In April 2011, at the invitation of the City, the Academy of Our Lady of Peace agreed to a settlement proposal that included Council agreeing to reconsider its decision on the Academy’s modernization plan. However, Gloria led a movement to deny a motion to consider a Motion for Reconsideration. In failing to take all actions required to allow a reconsideration decision, Council breached this settlement agreement.

2011 to 2012 – Religious Rights Concerns, Other Recent Developments. From June 2011 to January 2012, the case proceeded through discovery, during which the city admitted:

• the Academy of Our Lady of Peace fully complied with state and local law in seeking approval of its modernization plan;

• the City professional staff approved and endorsed the modernization plan submitted by the school to the Planning Commission and the City Council;

• the City Planning Commission unanimously approved the modernization plan because it complied with state and local law;

• within three days of the January 26, 2009 City Council meeting, Gloria met with staff to devise a plan to deny the modernization effort.

Additionally, during the discovery process, a City staff member testified he was pressured to “reverse” his findings that Academy of Our Lady of Peace’s modernization plan was consistent with the neighborhood plan and that the “reverse findings” were not based on facts.

The Academy of Our Lady of Peace filed a federal lawsuit against the City of San Diego in May 2009. The suit alleges violation of the Religious Land Use and Institutionalized Persons Act of 2000, better known as RLUIPA, as well as violations of federal and state constitutional rights. The October trial may also explore possible abuse of the California Environmental Quality Act (CEQA) as a stall tactic.

The Academy has created an informational website about the modernization effort at It includes a timeline of events and an opportunity for alumnae, parents and community supporters to share their thoughts.

About Academy of Our Lady of Peace

The Academy of Our Lady of Peace curriculum develops young leaders guided by principles including dedication to “excellence tempered by gentleness, peace and joy,” focus on service to the “dear neighbor,” and commitment to furthering social justice. More than 7,800 young women have graduated under these principles since the school’s founding. Collectively, they have contributed more than 24,000 hours of community services to the San Diego community. For more information on the Academy, visit

For more information on the Academy’s modernization effort, visit

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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 experience serving both as general counsel and special litigation counsel.