Vantage Point: Zoning: Taking Sides

A 2.989Mb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE

Aside from the intrigue of what could possibly trigger million-dollar-plus awards, land use and zoning cases are interesting because of the variety of arguments presented for and against particular projects and developments, many of which can inform surveyors of possible scenarios we may face in our own careers. These cases tell us what kinds of protests we may face from the community and provide some insight as to various counters to those protests.

Sometimes the court opinions read like soap operas, sometimes like good guy-bad guy melodramas, but in every instance there is more than one version of the story. That’s why they ended up in court in the first place, but sifting through the facts, or what is presented as being factual and may or may not be, is not for the faint of heart. By the time we read these opinions, "facts" have been determined in the lower courts so that the appellate, superior, and supreme courts (depending upon the jurisdiction’s nomenclature) will address only the law, sending a case back to trial if factual questions remain.

One particular land use case in San Diego has just resulted in a record award to a Catholic school after years of chasing community support and city approval for improvements to its campus. After winding its way up and down the court system, on October 19, 2012 the jury in the remanded case decided that damages to the Academy of Our Lady of Peace had been so extensive as to be worth $1,111,662.00. What makes this remarkable is that it is the largest ever award based on Religious Land Use and Institutionalized Persons Act (RLUIPA, 2000) arguments. RLUIPA is a federal law (42 USC §2000cc et seq., Protection of Religious Exercise in Land Use and by Institutionalized Persons) intended to prevent discrimination and to counteract common "not in our neighborhood" arguments that hinder proper operation for the named purposes. For surveyors, the case addresses that tricky balance between the responsibilities of local governments and the desires of their residents. But we should start at the beginning of the story.

The Academy of Our Lady of Peace (OLP) is now a 501(c)3 non-profit operating Catholic liberal arts high school for girls. OLP was established in 1882 and moved to what is currently known as the North Park area of San Diego in southern California in 1925, establishing its campus there in 1926. Over the years, OLP had adapted its buildings to be more appropriate for modern educational needs, but the last new building was erected in 1965.

Like any business, OLP recognized its need to upgrade and expand its facilities if it were to remain competitive, and developed a Modernization Plan to accomplish those goals. In particular it wanted state of the art science laboratories, an enhanced library and media center, additional classroom space, and off-street parking, specifically resulting in a new two-story classroom building and a parking garage. This sounds innocuous enough, except that the Modernization Plan included demolishing three residences owned by OLP that were not suitable for adaptive reuse. That became the rallying point for opposition from the North Park community surrounding OLP’s campus.

OLP submitted its Modernization Plan to San Diego’s Planning Commission in May of 2007 for review and approval. Its application noted unusual site constraints, including sleep slopes, restricted fire access, and historic, architecturally valuable buildings. It also submitted an architect’s evaluation stating that its existing buildings did not meet current structural standards for the proposed reuse, including ceiling heights in classrooms, ventilation, load bearing capability, and compliance with disabled access requirements. A year-long review by the City’s Planning Commission resulted in determination that OLP needed four use permits. OLP met with North Park residents several times to try to engage the community in revising its plans, resulting in the City’s staff forwarding its unanimous recommendation for approval of the Modernization Plan to San Diego’s City Council in September of 2008.

But then the story becomes complicated. The Urban Design/Project Review Subcommittee of the North Park Planning Committee (a community organization) loudly expressed concerns about parking and vehement opposition to demolition of the three houses, two of which it characterized as "locally significant based on their architectural features." The removal of these architecturally (not historically) significant structures would conflict with community plans to preserve architectural variety and the residential nature of Greater North Park.

Locals found a friend in one City Council member, who spearheaded the move to deny OLP necessary permits that would allow it to become a competitive educational facility in compliance with current codes. A split vote denied Planned Development and Site Development permits but granted Conditional Use and Neighborhood Development permits with terms and conditions, City Council offered no alternative solutions to OLP in its denial of permits beyond telling it to keep working on its plans.

And so the suits began. OLP alleged ten violations of state and federal constitutional rights relating to free exercise of religion, freedom of speech, equal protection and due process of law, claimed one RLUIPA violation, requested invalidation of City Council’s decision, and sought to overturn penalties assessed against OLP by an Administrative Law Judge employed by the City who had found OLP in violation of its then current Conditional Use Permit. OLP also presented testimony regarding financial hardships that would be incurred by relocating the houses in contention and the infeasibility of converting them to educational uses–conversions that would destroy their residential nature in the process.

The four publicly reported court opinions (trial court reports are not so readily distributed) cover the period from April 2010 to August 2012. The first two deny OLP’s requests for summary judgment.

The third opinion notes that the parties had not yet reached a settlement (a website maintained by OLP states that an agreement to settle was breached by City Council’s failure to uphold the first of its required actions) so the suit will proceed. This court report illustrates common stalling and irritating tactics during discovery, the fact and information exchange process prior to trial. Most of the City’s requests for documents were categorized as overbroad, irrelevant, vague, ambiguous, and in some instances were for materials it had supplied to OLP in the first place.

The fourth brief opinion refuses OLP’s request to add to the record a summary of a full document already included.

All of this leads up to the October 2012 federal trial with the precedent-setting outcome. The $1.1 million award by a unanimous jury was based on increased cost of construction from March 2009 when City Council rescinded the Planning Commission’s unanimous approval of the project until the start of this trial. Local government discrimination in violation of RLUIPA had kept OLP from gaining the same approvals as other public and private schools wishing to expand and rebuild throughout San Diego.

What does this mean? First and foremost, the details tell us that local politics can alter what should happen if going by the rules. I’m sure we can each come up with our own local examples. Elected officials are not immune to the pleas of their constituents. But if an applicant has run the obstacle course successfully, and the local government staff has approved a project as compliant, should poli
tics now come into the picture? And if so, how far can that advocacy bend legal rules? It’s not an easy question, because we have all been in situations where we would prefer either strict adherence or a little leeway. It’s when bending results in breaking the rules that the trouble begins.

Note: The actual court case can be downloaded from

Wendy Lathrop is licensed as a Professional Land Surveyor in NJ, PA, DE, and MD, and has been involved since 1974 in surveying projects ranging from construction to boundary to environmental land use disputes. She is a Professional Planner in NJ, and a Certified Floodplain Manager through ASFPM.

A 2.989Mb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE