APPEAL from an order of the Superior Court of Los Angeles County, Jan A. Pluim, Judge. Affirmed. (Los Angeles County Super. Ct. No. GC042047).
The opinion of the court was delivered by: Turner, P. J.
CERTIFIED FOR PUBLICATION
Defendant, Sahag-Mesrob Armenian Christian School, has appealed from issuance of a May 29, 2009 preliminary injunction. The preliminary injunction was issued at the request of plaintiff, County of Los Angeles. Defendant argues the denial of its "clean hands waiver" application violates the land use provisions of the Religious Exercise of Land Use and By Institutionalized Persons Act (the act). (42 U.S.C. § 2000cc.) The act is commonly referred to by the ungainly acronym, RLUIPA. We affirm.
Plaintiff's complaint, filed on December 22, 2008, alleges: defendant owns two separate parcels in an area zoned R-1 (single-family residence zone); on May 28, 2008, defendant filed an application for a conditional use permit to operate "an 800-student kindergarten-through-12th grade private school" on the property; on September 12, 2008, plaintiff received a complaint that defendant was operating a school on the property which caused traffic and noise problems in the neighborhood; on September 15, 2008, a zoning inspector verified the school was operating on the properties without the required conditional use permit; and on September 16, 2008, a zoning inspector mailed a Notice of Violation to defendant giving it 15 days to cease operating the school.
On September 29, 2008, defendant applied for a "clean hands waiver" pursuant to Los Angeles County Zoning Code section 22.04.110 which would allow it to continue to operate a school while the conditional use permit application was processed. On October 14, 2008, defendant's clean hands waiver application was denied. On October 16, 2008, a zoning inspector mailed a Final Zoning Enforcement Order which gave defendant 15 days to cease school activities and explained the failure to do so would result in the imposition of a fine. On December 2, 2008, plaintiff denied defendant's appeal from the Final Zoning Enforcement Order. On November 12 and 13 and December 4, 2008, a zoning inspector verified that defendant continued to operate the school. Based on these factual allegations, plaintiff alleges causes of action for violations of Los Angeles County Zoning Code sections 22.20.015 and 22.60.330 and seeks: a declaration the properties existing use violates the aforementioned zoning code provisions; a determination the properties are a continuing nuisance pursuant to Los Angeles County Zoning Code section 22.60.350; that defendant and others be enjoined from maintaining a public nuisance; and that defendant be ordered to cease operating the school until the conditional use permit is secured.
On an unspecified date, defendant filed a "cross-complaint" in federal court. The cross-complaint recited defendant's purchase of the property, the submission of the conditional use permit application and the request for a clean hands waiver. The cross-complaint alleged causes of action for violations of the act and title 42 United States Code section 1983.
III. THE EVIDENCE AND THE TRIAL COURT'S RULING
On December 23, 2008, plaintiff filed a preliminary injunction motion. The preliminary injunction motion was supported by the declarations of Amir Bashar, a zoning enforcement inspector, and Oscar Gomez, a supervising regional planner. Mr. Bashar stated that on September 12, 2008, plaintiff's Department of Regional Planning received a complaint concerning defendant's school. Mr. Bashar determined that defendant applied on May 28, 2008, for a conditional use permit to operate a kindergarten through twelfth-grade school and the application was pending. Prior to defendant's purchase of the property on February 1, 2008, a facility which provided short term care for newborn through five-year children operated there under a conditional use permit. Mr. Bashar's inspection revealed the operation of a school for 240 students with 30 staffers.
On September 16, 2008, Mr. Bashar mailed a violation notice notifying defendant it was violating the zoning code. On September 23 and later November 14, 2008, Ara Assilian, chair of defendant's board of directors, admitted in two letters the school opened in September 2008 and operated without securing a conditional use permit.
On September 29, 2008, Mr. Assilian filed a clean hands waiver application pursuant to Los Angeles County Zoning Code section 22.04.110*fn1 requesting that the school be permitted to operate pending issuance of a conditional use permit. On October 14, 2008, the Department of Regional Planning denied defendant's clean hands waiver application and mailed a notice to that effect. On October 16, 2008, Mr. Bashar mailed and posted the Final Zoning Enforcement Order which advised defendant if the school did not cease operating within 15 days, a $654 noncompliance fee would be imposed and the case "referred" for further legal action. On November 12 and 13, 2008, Mr. Basher confirmed that school continued to operate. On November 14, 2008, defendant appealed the October 16, 2008 Final Zoning Enforcement Order. On December 2, 2008, a hearing officer sustained the finding of a zoning code violation and imposition of the noncompliance fee. On December 4, 2008, the school continued to operate.
Mr. Gomez's declaration focused on the clean hands waiver issue. Mr. Gomez was familiar with the processing of clean hands waiver applications. The primary factor in assessing a clean hands waiver application is the detrimental effect on the community. Between March 2004 and May 8, 2009, there were 73 clean hands waiver applications processed by Department of Regional Planning. Of the 73 applications, 22 were denied and 50 granted. In one instance, an extension was granted.
Of the 73 applications, excluding defendant, 6 were by religious institutions. Five of the applications were granted and one was denied. In all but one case, the common factors that weighed in favor of approval of the cleans hands waiver applications were: the property was located on a major commercial street or road; the property was not within a residential community; and the use did not involve a significant expansion from the prior use of the property. All of these cases involved little or no detriment to the surrounding community. One of the five approvals involved a Hindu temple which operated in a "multi-family residential/commercial" area within a residential community. However, the prior use of the property was a union meeting and assembly hall and was expected to generate a similar impact in the community. The only denial involved a newly established church in an agricultural zone abutting a residential street. In the case of the denial, it was determined the use as a church would cause traffic and parking problems and was inconsistent with the "public convenience" and welfare. In addition to addressing the clean hands waiver at issue, Mr. Gomez stated the "large" intensification of the property required proper review ...