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California-Nevada Annual Conference of United Methodist Church v. City and County of San Francisco

United States District Court, Ninth Circuit

January 8, 2014

CALIFORNIA-NEVADA ANNUAL CONFERENCE OF THE UNITED METHODIST CHURCH, a California religious corporation, Plaintiff,
v.
CITY AND COUNTY OF SAN FRANCISCO, a chartered California city and county; and DOES 1-100, inclusive, Defendants. PACIFIC POLK PROPERTIES, LLC, a Delaware limited liability corporation,

DENNIS J. HERRERA, State Bar #139669 City Attorney, KRISTEN A. JENSEN, State Bar #130196 THOMAS S. LAKRITZ, State Bar #161234 JAMES M. EMERY, State Bar #153630 Deputy City Attorneys San Francisco, California, Attorneys for Defendant CITY AND COUNTY OF SAN FRANCISCO

Gordon W. Egan (111470) SIGNATURE LAW GROUP LLP, Sacramento, CA, ATTORNEYS FOR CALIFORNIA-NEVADA ANNUAL CONFERENCE OF THE UNITED METHODIST CHURCH

B. Douglas Robbins (219413) Gregory J. Wood (200780) WOOD ROBBINS LLP San Francisco, CA, ATTORNEYS FOR INTERVENER PACIFIC POLK PROPERTIES, LLC

JOINT STATUS CONFERENCE STATEMENT AND [PROPOSED] SCHEDULING ORDER

YVONNE GONZALEZ ROGERS, District Judge.

Plaintiff California-Nevada Annual Conference of the United Methodist Church ("Conference"), Plaintiff-in-Intervention, Pacific Polk Properties, LLC ("Pacific Polk"), and the City and County of San Francisco (the "City") referred herein collectively as the "Parties" respectfully submit this Joint Status Conference Statement and Proposed Scheduling Order pursuant to the Joint Stipulation And Order dated December 12, 2013, ECF No. 129, in advance of the case management conference set for January 13, 2014 at 2:00 p.m.

I. BRIEF PROCEDURAL HISTORY

The City brought a Rule 12(c) Motion for Judgment on the Pleadings, heard by the Court on February 12, 2013. After the Motion was heard, Plaintiffs voluntarily dismissed certain claims with prejudice. Pacific Polk dismissed the following claims: (1) First Cause of Action for Violation of RLUIPA; (2) the Second Cause of Action for Violation of RLUIPA; (3) the Third Cause of Action for Violation of First Amendment to U.S. Constitution; (4) the Fifth Cause of Action for Procedural Due Process; and (5) the Sixth Cause of Action for Substantive Due Process. The Conference dismissed the following claim: the Second Cause of Action for Violation of RFRA.

On September 30, 2013, the Court terminated the City's Rule 12(c) Motion without prejudice. A few days later, on October 3, 2013, the San Francisco's Planning Commission approved the Conditional Use authorization for the project that Pacific Polk proposed for 1601 Larkin Street in San Francisco. On November 4, 2013, Judy Berkowitz, Hiroshi Fukuda, and Linda Chapman appealed the CUP to the San Francisco Board of Supervisors. The appeal was rejected by the Clerk of the Board, on November 13, 2013, for failure to meet the statutory requirements. The Zoning Administrator issued a written Variance for the project on November 15, 2013. On November 25, 2013, that variance was appealed by members of a group calling themselves the Nob Hill Neighbors. The Board of Appeals hearing on the variance appeal is set for January 29, 2014, at 5:00 p.m. The City has suspended issuance of the variance pending the Board of Appeals' determination of the variance appeal by the Nob Hill Neighbors. Likewise, the City has not issued a site permit for the project or a demolition permit, while the variance appeal remains pending.

Discovery here has been stayed during the entire pendency of the action. Discovery is currently still stayed.

II. SETTLEMENT

With the aid of Magistrate Judge Laurel Beeler, the Parties have been actively involved in the settlement process. The Parties continue to be interested in pursuing settlement options in order to avoid further litigation. From Plaintiffs' perspective no resolution is possible unless and until a demolition permit issues and the Church Structure has been leveled. From the City's perspective, the City's issuance of the Conditional Use authorization moots all injunctive aspects of this action. If plaintiffs intend to pursue claims for attorneys fees and damages, then the City believes it will be necessary for the Court to restore the City's 12(c) motion to the calendar. In the interim the Parties intend to continue working with Judge Beeler to resolve all remaining aspects of this action.

III. PRETRIAL SCHEDULE

In view of the scheduled January 29, 2014 hearing on the Nob Hill Neighbors' variance appeal, the parties jointly request that the Court reset the case management conference in this case to February 24, 2014, or the next date thereafter convenient to the Court. Such a continuance will give the parties an opportunity to consult after the Board of Appeal decides the pending variance appeal and to report the settlement status.

ORDER

After considering the stipulation of the parties, and good cause appearing, IT IS HEREBY ORDERED AS FOLLOWS: The Status Conference Hearing set for January 13, 2014 at 2:00 p.m. is continued to March 3, 2014 at 2:00 p.m., in Courtroom Five of the Oakland Federal Building. The parties shall submit a Joint Status Conference Statement and Proposed Scheduling Order by February 24, 2014. This Order terminates Docket No. 130.

IT IS SO ORDERED.


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