.Love Thy Neighbor?

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

For quite some time now, Palomares Canyon, a normally bucolic enclave in unincorporated Castro Valley, has been a very unhappy place. Part of this has to do with a familiar story, an acrimonious dispute between those who like things as they are, and those who dream of how things could be. The other part is more unusual. It has to do with God, the Supreme Court, and a $30 million lawsuit.

Depending on where you stand, but not necessarily where you worship, what’s going on in the valley is either a brave struggle for religious freedom or a covert land-grab in the guise of a brave struggle for religious freedom. It has all the makings of a Supreme Court test case for a recent federal law called the Religious Land Use and Institutionalized Persons Act, legislation that pits the rights of houses of worship against those of people who own houses.

The story, naturally, begins with a piece of land, a small neighborhood framed by two roads that intersect to form a rough capital D. The main road, East Castro Valley Boulevard, which runs parallel to I-580, is the D’s spine. Its belly is Palo Verde Road, a much quieter two-lane road that runs along the base of a steep, wooded hillside.

The other side of the hill hosts a new housing development, scattered McMansions, and a few small wineries. But the landscape along Palo Verde hasn’t changed much in the last fifty years. It’s mostly pastureland and modest ranch-style homes, a place where most families have lived for several generations, and many keep livestock or maintain small orchards. The beloved neighborhood mascot is a donkey named Jackass. The local kids attend Palomares Elementary, a tiny public school, that, at the time our story begins in 1997, was maxed out at eighty students.

That was the year the property search team at Redwood Christian Schools Inc. began to pray for a new home.

Redwood Christian Schools has operated in Alameda County since 1970. It runs three private campuses — two elementary schools in Castro Valley and one junior/senior high in San Lorenzo. For $6,700 to $12,200 a year, depending on grade level and program, the private company promises a “Christ-centered education which is able to equip students for daily living and eternal life.” Redwood Christian is proud of its diversity. Its nearly eight hundred students hail from two hundred local churches and thirty denominations. Nearly half are ethnic minorities, and there’s a sizable program for students with learning disabilities. Its superintendent, Bruce Johnson, declined to be interviewed, or to allow his teachers to be interviewed for this story.

Redwood Christian has had trouble keeping its high school in one place for long. It leases space from the San Lorenzo Unified School District, and twice the district has terminated its leases because it wanted to reclaim the sites as public schools. Each time, the private high school had to abandon capital improvements it made to the properties. In 1997, after the second move, the school settled into what was once David E. Martin Elementary, a site that administrators now complain is small and outdated. The lease must be renewed every three years, and can be terminated with seven months’ notice. Fearing that another eviction would leave its high school homeless, Redwood Christian began shopping for land to build a permanent space.

School administrators envisioned a campus of up to 650 students, with substantial amenities: sports fields, tennis courts, a gym, a separate administrative building, parking lot, bus garage, science labs, choir room, a chapel large enough to fit all the students, a Christian library and media center, and a bookstore. As superintendent Johnson and board chairman Richard Short later wrote in an open letter to the school community, “Our facility should be a testimony to our students, our constituency, and our community of God’s faithfulness and His glory. It is to be a reminder to all of us that our God is the God who will provide (Jehovah-Jireh, Genesis 22:14). We believe that our God is not without resources. Psalm 50 tells us He owns the cattle on a thousand hills.”

The surroundings, in their view, were as important as the accommodations. “The facility should complement and enhance the natural beauty of the setting God has provided so as to have a positive impact on the beauty of the community,” Johnson and Short wrote. “We desire that our staff, our students, and our constituents would feel a sense of the awesomeness and majesty of the ‘God who provides’ and a pride of ownership and participation each time they enter the grounds.”

Palomares Canyon is certainly beautiful, and as the superintendent would repeatedly write on Redwood Christian’s “Property Updates” blog, school leaders felt God had led them directly to it. Each time the search committee would pray regarding a certain canyon property, Johnson wrote, it would either go on the market or the owner would be amenable to selling it when they approached him. Over the next several years, the school paid $3 million in cash to buy four parcels totaling 55 acres.

The first twelve acres, purchased in 1997, are smack in the middle of the D formed by the neighborhood’s main roads. They are also right next door to LeRoy Ginn. A mechanical contractor who grows grapes on his land for nearby wineries, Ginn was then head of the Palomares Canyon Homeowners Association. He first heard of the new high school, he recalls, when the seller of the neighboring land invited him over to speak with some of Redwood’s board members. Ginn was immediately alarmed, and not because he’s averse to religious neighbors. Indeed, he attends the same church as Richard Short, Redwood’s board chairman.

Ginn recalls warning the Redwood Christian people that an influx of 650 high schoolers, with all the consequent noise and traffic, would not be welcomed by neighbors accustomed to dealing with just eighty grade-school tykes. He also cautioned that the county was unlikely to approve such an ambitious project. The canyon is zoned for single-family homes and agriculture; anything else requires a county conditional use permit. Several plans to develop that same plot — townhomes, a plant nursery — had previously fallen by the wayside.

Besides, any private school built in the county requires a conditional use permit, regardless of neighborhood zoning. Redwood Christian should at least be sure it could secure one before laying its money down, Ginn advised. “Are you sure you know what you’re getting into?” he recalls saying. “We’re not going to support it.”

Nevertheless, Redwood Christian forged ahead.

That was the beginning, and it was not good.

As Ginn had predicted, residents loathed the idea. In addition to the usual worries about traffic, noise, and light pollution from the playing fields, they said the new school wouldn’t serve the locals, was out of character for the neighborhood, and would squeeze too many people onto a small plot of land.

François Koutchouk, a homeowners’ association board member who lives a few houses from the disputed site, launched a Web site and e-mail list to rally the opposition. He’s just the sort of hybrid — small-time farmer/tech professional — you might expect in rural Alameda County. He raises sheep and rabbits, and chickens that spend the day pecking at discarded computer parts from his at-home business designing electronic signs. His garden is a wild profusion of grapevines, blackberry brambles, and apple and pear trees. “All of us moved here for good reason — it’s the country,” he says.

The neighbors have no problem with schools or religious organizations, Koutchouk says. It’s a question of size, and of not disrupting the rural feel of a neighborhood where people ride bicycles down open roads and you can still see the stars at night. “It’s dropping seven hundred kids plus cooking staff, cleaning staff, the sporting activities, in the middle of an area that has a density of next to nothing,” he says. “I don’t think it makes any sense.”

Koutchouk suspects Redwood Christian’s administrators were led here by business acumen, not divine will. After all, he says, parents shelling out that kind of money expect a country-club setting. “It’s a private school that charges tuition that is looking to find a very stylish area,” he says, then shrugs. “Nobody invests three million bucks without making some kind of business decision.”

For several years, the proposal wound its way through the usual bureaucratic process, with foes and supporters turning out at public meetings in great numbers. But little was achieved in terms of rapprochement. The school offered to swap around positions of some of its buildings, but remained committed to bringing in 650 students. When Redwood Christian purchased two more parcels — across the street to the north and across the street to the south — it did less to assuage concerns about student overcrowding than make the neighbors feel surrounded.

As Ginn had predicted, county agencies did not embrace the proposal: In October 2000, the Castro Valley Municipal Advisory Council unanimously recommended against it. The next month, the county planning commission also rejected it, saying the plan was “inconsistent and incompatible with … development policies for the area.”

In 2001, after Redwood Christian appealed to the Board of Supervisors, Nate Miley stepped in as mediator. The supervisor hoped both sides could agree to a facility the size of the existing Palomares Elementary. No deal. “The school was intent on having a larger facility and the community was intent on, in some cases, not having anything out there at all, so they wanted to roll the dice with the Board of Supervisors as opposed to working on a compromise,” Miley recalls.

In another mediation attempt, supervisors made Redwood Christian provide some alternative designs. The school responded with plans for campuses of 650, 425, 225, or 80 students. Redwood Christian claims the board rejected all of them. The supes counter that they liked the smallest design, but that the school was intent on a larger campus and didn’t pursue it. In the end, the board denied the permit, concluding that the campus would be too big, too high-impact, and inappropriate for the neighborhood’s zoning.

Redwood Christian’s administrators felt stung and that they’d jumped through all the county’s hoops only to be repeatedly denied. The permitting standards, they complained, were so vague that the board was able to reject their plan without providing a good reason.

Why didn’t the company simply sell its land and start over elsewhere?

Two words: Measure D. In 2000, county voters approved the open-space initiative, which was designed to preserve agricultural space and limit urban sprawl. It created an urban growth boundary and put heavier development restrictions on land that fell outside of it. This included areas like Palomares Canyon, which the initiative called “environmentally fragile and valuable” and “vulnerable to intense development pressure that would be very destructive.” Zoning laws had already limited development options in the canyon, and Measure D diminished the resale value of Redwoods Christian’s land acquisitions.

The initiative also lessened its chance of finding a comparable, developable site elsewhere. The company claimed that despite an extensive search, it could identify no suitable alternatives within its service area. Even if it had, administrators argued, they’d have to go through the same process again with no guarantee of a better result.

“We believed at the beginning of the process — and still believe — that this is where the Lord would have us to build a campus to minister and educate the students in our classrooms for years to come.” Johnson wrote on the school’s blog. “We are now faced with three options: 1) try to sell this property, which Measure D has devalued, 2) swap the land with someone who can use it (e.g., local or county government); or 3) appeal to the federal court system.”

They went with option 3. But as things turned out, it was no ordinary lawsuit.

As one small indicator that Redwood Christian would play hardball, the school sued not just the county but every supervisor, planning commission member, and individual on the municipal advisory council, which consists of residents paid $20 per meeting to offer nonbinding advice to the county. Company lawyers went so far as to personally serve court papers on the supes during a staff retreat.

Redwood Christian seeks $30 million to cover lost tuition and increases in building costs since 2000, when it feels a permit should have been granted. The company’s main claim is that the county discriminates against private religious schools by always requiring a conditional use permit, and because that permit can be rejected in a way it deems “capricious and arbitrary.” The county’s “patently unreasonable” denial, the suit claims, has violated the First Amendment rights of Redwood Christian’s students, impeded its religious ministry, and possibly threatened its existence.

Specifically, the suit claims that Redwood Christian’s high school must now remain at the Martin site, which is inadequate “to carry out its religious exercise of fulfilling its ministry of providing students a Christian education.” Martin is too small, school administrators say, and lacks needed amenities, such as a chapel big enough for the entire student body, parents, and community members; science labs “to fully explore God’s creation”; and a choir room for “exalting God and spreading the Gospel message through music.”

Additional court documents blame the county for a 25 percent enrollment drop since the permit denial. They claim that parents concerned about the school’s future withdrew their children, which caused tuition losses and consequent layoffs. The high school has no place to go if evicted again, Redwood Christian’s lawyers argued. “It therefore faces a constant threat of imminent closure.”

In its jump to the courts, Redwood Christian pulled out some big artillery. The Religious Land Use and Institutionalized Persons Act of 2000, or RLUIPA, is the handiwork of a Senate odd couple: Orrin Hatch and Ted Kennedy. One portion of the legislation ensures that “institutionalized persons” such as prisoners and people in government mental hospitals can observe their religious practices. That part was upheld unanimously by the Supreme Court in 2005. But the act’s controversial land-use portion remains untested.

The federal law says a government body cannot impose land-use regulations that create a “substantial burden” on religious exercise unless it can prove it’s furthering a “compelling” government interest in the least restrictive manner possible. The idea is to prevent a very subtle kind of discrimination in which local authorities hamstring religious development by imposing conditions that are difficult or impossible to meet.

There’s a good reason for such legislation, says David Masci, a senior fellow at the Pew Forum on Religion and Public Life, who has been following litigation sparked by the law. Religious discrimination is very real in some communities, he says, and even when there’s no religious antipathy, governments sometimes favor secular land uses simply because churches don’t have to pay taxes.

Ensuring that religious communities get a fair shake resonates deeply with the public, Masci says. “Sixty percent of people go to church, and 94 percent say they believe in God or a higher power,” he says. “Religious freedom is extremely important to Americans — that’s why we came here.”

The federal law, in effect, bolstered the local bargaining power of religious landowners. “RLUIPA is not carte blanche to take any action that a church wants to, but it does give them a kind of preferential status,” Masci says. “The government can still get its way; it just has to meet a much, much higher threshold when dealing with a religious organization than when dealing with someone else.”

The law contained another twist in the plaintiff’s favor: Local governments that lose a suit brought under RLUIPA must pay the plaintiff’s legal fees. This provision, some legal critics argue, intimidates officials into settling suits despite the merits of a case, and encourages aggressive litigation by plaintiffs, who face no such penalty if their suits get thrown out.

Since the federal law passed in 2000, dozens of such cases have sprung up nationwide. At least 47, including Redwood Christian’s case, are being litigated by, or with help from, one organization: the Washington, DC-based Becket Fund for Religious Liberty. Indeed, Roger Gaither, the local attorney who originally filed Redwood Christian’s suit, referred all questions to Derek Gaubatz, the fund’s litigation director, who says his organization has defended the land rights of everyone “from Anglicans to Zoroastrians.”

In 2001, the Becket Fund joined forces with Redwood Christian. Gaubatz calls the school’s predicament “a paradigm of what Congress was after” when it passed its legislation, and calls land rights crucial to religious freedom. “When you take away the ability to have a place that’s your home to be able to engage in and practice your religion, it’s just a fundamental burden on religious exercise,” he says.

Here’s the biggest sticking point over the law’s interpretation: Does it merely compel public officials to treat religious and secular cases the same, or does it mandate preferential treatment for religious interests? “Yes, they actually do get different and preferred treatment, and they should,” Gaubatz says firmly. “There is no First Amendment for Wal-Mart, but there is a First Amendment protecting religious exercise.”

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.”

Should Redwood Christian prevail, county officials worry it will set a precedent that could force approval of religious projects that overwhelm their surroundings. Today a high school, they say; tomorrow a ten-thousand-congregant megachurch.

Before that happens, however, county lawyers will get to argue the particulars. In court papers filed this summer, they contend that that Redwood Christian is not nearly as imperiled as its lawsuit claims.

Even without the Palomares Canyon site, the county argues, Redwood Christian operates three other campuses where, by its own admission, it successfully provides religious education. Despite raising concerns about a constant threat of eviction from the Martin site, the school has been there nearly a decade. As for the adequacy of the site, county lawyers point out that Redwood Christian seems to have had a change of heart around the time it filed its lawsuit in 2001.

In applying for accreditation with the Association of Christian Schools the previous year, Redwood Christian praised the Martin site as “a new campus on old grounds. … The educational space and the layout of the campus feels right. The students love it. The faculty is pleased.”

And while Redwood Christian now attributes falling enrollment to the high school’s uncertain future, the county claims that documentation school administrators submitted to ASCI and the Western Association of Schools and Colleges over the past few years blamed the exodus on families moving out of the area, financial difficulties, the bad economy, and a lack of tuition assistance.

“[Redwood Christian] now takes the remarkable position that all of its previous sites over its thirty years of existence have been inadequate and that only the school it proposed for the Castro Valley property will allow it to fully exercise its religion,” the county states in court filings. “The absurdity of this position is obvious. Its belated attempt to characterize itself as substantially burdened over the course of its entire existence is a blatant attempt to rewrite history for the purpose of this lawsuit.”

County lawyers, in fact, note that county officials have helped the company grow, granting seven permits for improvements at the Martin site, and two to allow increases in the size of its student body. After the school fretted publicly about eviction worries, Miley and the San Lorenzo school district worked out a special offer of a 23-year extended lease on another site, but Redwood Christian did not bid on it.

In response to the claim that the supervisors were determined to reject all of Redwood Christian’s plans, the county responds that they would have approved the eighty-student design, but that Redwood Christian didn’t pursue a formal proposal and environmental review because it wanted something larger.

School officials “may prefer to have newer, larger, and finer facilities, in a more idyllic setting,” the county argues. “But RLUIPA notwithstanding, [the school’s] religious status is not entitlement to build what it wants, where it wants.” In fact, county lawyers plan to challenge the statute’s constitutionality in court. “The Becket Fund would have RLUIPA exempt religious activities from zoning laws,” Winnie says. “That creates a preference for religious activities over all others. Our Constitution is based on fairness and equal treatment of people regardless of their beliefs.”

So far, it’s hard to tell who’s ahead. In 2003, federal judge Samuel Conti dismissed the portion of the suit targeting individual county officials and advisory board members. In 2005, he ruled that the county had acted within the scope of its jurisdiction, held fair hearings, and hadn’t abused its discretion. However, he ruled in August that there’s enough to Redwood Christian’s RLUIPA claim to merit a trial, which is slated for February. A higher court may rule that although the county followed its own protocols, that isn’t enough to meet the federal standards.

To the Palomares Canyon neighbors, the fact that this dispute has lasted nearly a decade and now resides in federal court reeks of sour grapes. “It’s totally ridiculous that Redwood Christian School, who lost at every level and still can’t see that they’ve lost, has come up with this last-ditch effort of religious persecution, which has never been the case,” Ginn says.

Redwood Christian, meanwhile, views its battle as crucial for churches everywhere. “It is important to remember that there is much more at stake here than simply building a school,” Superintendent Johnson and Chairman Short wrote in their 2004 memo. “If Redwood Christian Schools receives a favorable ruling on RLUIPA from the federal court, other ministries in Alameda County will be positively protected. Many national leaders consider ours to be a classic case of RLUIPA not being honored by a local government. It is our responsibility to move ahead to ensure that another ministry does not have to address this issue in the future.”

This is exactly what worries the neighbors: the prospect of a broad federal statute overruling the interests and decision-making powers of people who actually live in the community. “The Becket Fund wants to make this a precedent-setting case in the court system all the way up to the Supreme Court,” Ginn says. “The Becket Fund could care less about Alameda County or Redwood Christian Schools.”

“I guess they found a horse to ride,” Koutchouk agrees. “It just happened to be us.”


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