A southern California city has filed its response to a lawsuit alleging it violated a church’s right to relocate within the city.

Foothills Christian Fellowship, a congregation of about 2,500, is in the process of purchasing a downtown mall, which is situated on the city of El Cajon’s largest piece of commercial property. But the City Council voted 3-2 to shoot down the church’s conditional-use permit, saying the church would be incompatible with the area.

Siding with business interests over church supporters, the council majority believes the seven-acre El Cajon Towne Center shopping plaza is best suited for redevelopment that would draw shoppers and businesses downtown. A revived retail-shopping area could provide the city with more sales-tax revenue.

But while the City Council may want more shoppers downtown, redeveloping the mall is not the answer, say church supporters. John Gibson, a member of FCF who heads the church’s search team for a new facility, said activity at the mall has dwindled over the last several years.

“The mall sits in a depressed downtown area that long since lost its retail identity, and they’re trying to bring it back. It hasn’t happened yet. They’re requiring the owners of this property to demolish their buildings in order to do something else with it,” said Gibson, adding he believes demolishing the buildings doesn’t make sense. “These are the newest buildings in the entire development area.”

The mall’s facilities are 12 years old, he noted. Surrounding buildings are about 50 years old. FCF plans to use the shopping center’s 72,000 square feet for office space, a gym and classrooms, and the mall’s movie theater would be converted into a sanctuary. FCF has been under contract with the mall’s owners since January to purchase the property for $4.7 million.

A veteran commercial developer and El Cajon native, Gibson has assisted in the relocation of several churches – a project he considers his “specialty.” When searching for new facilities, said Gibson, “the bigger the church, the more difficult the job becomes.” Comparable square footage in another part of the city and building from the ground up would double the church’s relocation costs, he said. The church has outgrown its present facility and, according to Gibson, there are no other alternative sites available that would allow the church to continue to serve the City of El Cajon.

FCF now occupies roughly 64,000 square feet in four buildings located in three separate locations. All three sites are within a five miles of each other. Should the church be allowed to move into the mall, it would maintain two of the three currently used facilities, which include a school and a youth center that provides after-school programs to latch-key kids. After the city turned down FCF’s school permit more than two years ago, the church went to a nearby community where it converted an old church and added temporary classrooms for a K-12 school. If the church occupies the mall, the high school would be moved into the new facilities.

“To say that they’re going to lose sales-tax revenue, you would have to say that there’s somebody that wants to be there,” remarked Gibson.

The property FCF has its sights set on has been marketed for three years, and in that time, Wal-Mart and Home Depot expressed interest in the facilities. But the mega-stores were turned down by the city. Council members don’t want “big box” retailers in the area, but would prefer smaller establishments that generate “foot traffic” to other downtown shops.

Allowing the church to move in would provide 2,500 weekly visitors to the area plus more throughout the week for other church-related functions, argued church supporters. In addition, the church is willing to allow the city use of the mall parking lot during the week.

To counter claims that the city was discriminating against churches, Planning Director Jim Griffin said that over the last 45 years, 215 of 230 permit requests from religious facilities had been granted.

Nevertheless, FCF filed suit against the City of El Cajon on July 3. The church is represented by attorney Bob Tyler, who is affiliated with the Pacific Justice Institute, a non-profit legal-defense organization that specializes in civil-liberties cases.

The lawsuit is based on a 10-month-old federal law that holds local governments to the highest legal standard when evaluating land-use permits for religious organizations.

The Religious Land Use and Institutionalized Persons Act, or RLUIPA, signed by President Bill Clinton in September, requires cities to demonstrate a compelling state interest for any substantial burden they place upon any church’s usage of its property. It also prohibits selective discrimination against churches regarding zoning policies.

The law is intended to replace the Religious Freedom Restoration Act of 1993, or RFRA, which was struck down by the Supreme Court in 1997 as unconstitutional because it attempted to tell the federal courts how they must interpret and apply the First Amendment when scrutinizing state and local laws. RFRA violated the separation of powers set forth in the Constitution. Critics of RLUIPA say the new law may be struck down for the same reason.

In the meantime, Christian organizations are using the law to combat an increasingly common occurrence: Denial of zoning rights to Christian organizations.

City Attorney Morgan Foley said the new law does not preclude cities from making land-use decisions based on economics, compatibility and consistency. RLUIPA preserves cities’ rights to make land-use decisions within their normal regulatory authority, he said.

“It’s clear from the legislative history that the Congress did not intend to simply disregard everything that has to do with land-use controls,” Foley said. “The church or their council has a different opinion about that.”

That conflict will have to be settled either in or out of court. As part of its defense, the city is challenging RLUIPA on constitutional grounds, alleging the law violates the First Amendment.

“There is a strong idea from the other side of RLUIPA that it is unconstitutional. In fact, by forcing the cities to disregard their discretionary actions in these cases creates a conflict with the Establishment Clause,” said Foley. “RLUIPA is a very unique piece of legislation that’s going to take somebody to challenge it or to challenge a decision under RLUIPA to a higher authority than what we’ve seen so far.”

The first case decided in favor of a religious institution under RLUIPA was on Dec. 20, when a U.S. district judge in Michigan agreed that the Haven Shores Community Church could occupy storefront property. The church had been holding Sunday services temporarily at a local high school while seeking a permanent home. Haven Shores signed a lease for the property at the end of May 1999. But when Rev. David Bailey went in to apply for a building permit to modify the space, he was told by city officials that religious meetings and worship were not permitted at that location under city zoning laws.

In fact, Grand Haven’s zoning ordinance for the “B-1 Community Business District” specifically allows “private clubs,” “fraternal organizations,” “lodge halls,” “funeral homes,” “theaters,” and “assembly halls, concert halls or similar places of public assembly.”

Bailey tried every available avenue in an attempt to persuade the city that a church was obviously a “place of public assembly” that could occupy property in the B-1 district, but his arguments were rejected by the Office of Public Safety, the Zoning Board of Appeals, the Planning Commission and finally, the City Council. The Becket Fund successfully represented the church in its RLUIPA lawsuit against the city.

In the case of Foothills Christian Fellowship, Foley said the city is not “out to get churches.”

“I don’t doubt that their ministry is important to them. And it’s important to our community,” he remarked, saying the City Council agreed. The disagreement in FCF’s case is only over where the church should relocate, he explained. The church simply didn’t fit into what the council thought was an appropriate downtown plan, which, he added, never included ‘bringing in as many tax dollars as possible.”

“Otherwise, we would have gone with Wal-Mart,” the city attorney said.

But Gibson claims the city’s assertion that the church would be out of place downtown is unfounded. Surrounding the mall are a funeral hall, a Chaldean-American social club that seats 500, a civic center, a performing arts center that seats 1,100 and a school. All are general-assembly facilities, he noted.

Pacific Justice Institute President Brad Dacus believes FCF exhausted all its options before filing the lawsuit.

“It is only after the church had done everything possible to resolve this matter that we had to file this suit,” he said. “We are committed to representing this church without charge for as long as it is necessary to ensure their right to fulfill their ministry and calling. We expect to help many more churches in situations like this in the future.”

Interestingly, around the time the church filed suit, it was cited by city officials for illegally displaying a temporary sign announcing the church’s upcoming vacation Bible school. Temporary signs require special permits, and in the 10 years FCF has hosted a VBS, it had never obtained one. But it was not alone – of the secular businesses in the area displaying a total of approximately 30 temporary signs, only one permit has even been requested this year, according to a local television news station. Out of the entire city, only three organizations were cited for illegal displays. All three were cited this summer, and all were churches with VBS advertisements.

“The City of El Cajon is quickly deserving a reputation of outright hostile discrimination toward local ministries,” said Dacus.

Since the City Council’s decision to deny FCF’s conditional-use permit, one of the three councilmen opposed to the permit resigned, effective Aug. 27. California law allows city councils to appoint a replacement if a majority of the members agree. Otherwise, the decision goes to voters in a special election. In this case, that election would take place in March. The city council is currently accepting applications for potential replacements. Anyone can be chosen to fill the seat as long as the person would otherwise qualified as a candidate for the position. Should the FCF land-use issue come before the council again, the new member could be crucial to the church’s success since the four remaining members are split 2-2.

In the meantime, the church waits. Escrow on its property will close immediately upon issuance of a conditional-use permit or in the event a judge gives the church permission to occupy the shopping mall.

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Christian college to sue over zoning

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