The Religous Land Use and Institutionalized Persons Act (RLUIPA) and Zoning in the Inland Empire

By Michael Reiter, Attorney at Law

What is the Religious Land Use and Institutionalized Persons Act (RLUIPA)?

RLUIPA was enacted by Congress in 2000.  RLUIPA states, regarding land use,  that the government may not “impose or implement a land use regulation in a manner that imposes a substantial burden” on religious exercise unless the government demonstrates that the imposition of that regulation (and its accompanying “burden”) is in furtherance of a compelling governmental interest,” and is the “least restrictive means of furthering that interest.”  42 United States Code section 2000cc.  RLUIPA broadly defines the term “religious exercise,” to include “the use, building, or conversion of real property for the purpose of religious exercise.”  42 United States Code section 2000cc-5(7)(B).   The Ninth Circuit Court of Appeals held that “for a land use regulation to impose a ‘substantial burden’ it must be ‘oppressive’ to a ‘significantly great’ extent.  That is, a ‘substantial burden’ on ‘religious exercise’ must impose a significantly great restriction or onus upon such exercise.”  San Jose Christian College v. City of Morgan Hill (9th Cir. 2004) 360 F.3d 1024, 1034.

RLUIPA also states that “no government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.”  42 United States Code section 2000cc(b)(1).  The “equal terms” section requires the government to treat religious assembly uses in the same way it would a non-religious use.

RLUIPA adds a layer of federal regulation to local Inland Empire government’s land use authority.  In discretionary land use decisions involving religious uses, local governments need to be familiar with the requirements of RLUIPA.  When I was Assistant City Attorney for the City of Redlands, RLUIPA was an issue that arose from time to time in City Council and Planning Commission land use decision-making.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog.  You should consult an attorney for advice regarding your individual situation.
A: 300 E. State St., Suite 517
Redlands, CA 92373-5235
T: (909) 296-6708

Inspection Warrant and Abatement Warrant Requirements for Inspecting Private Property in San Bernardino County, California

By Michael Reiter, Attorney at Law

Do code enforcement officers need a warrant to inspect private property in San Bernardino County (including incorporated cities and towns in San Bernardino)?  The best practice is to obtain an administrative warrant if the owner/occupant refuses consent to inspect.  Generally, an administrative warrant is not needed if the conditions can be observed from the public right-of-way, or an adjoining property (with permission), and no physical entry onto the property occurs.

When I was a Deputy City Attorney for the City of San Bernardino, California and the Assistant City Attorney for the City of Redlands, California, a good deal of my time was spent on code enforcement.  Both cities emphasized the need for a warrant to inspect and/or abate private property when permission to inspect was denied.  As a private attorney representing private citizens and business entities, some other Inland Empire cities are not as respectful of citizen’s constitutional rights.

Generally, if consent from the property owner and the occupant cannot be obtained before entering private property that is not open to the public, code enforcement officers should obtain an administrative inspection/abatement warrant from the San Bernardino County Superior Court.  Because the United States Constitution’s Fourth Amendment gives property owners and other occupants an expectation of privacy, an inspection warrant is needed.

The Ninth Circuit Court of Appeals, in Connor v. Santa Ana, held that police officers could not legally enter fenced, private property to abate a nuisance without a warrant, even though the property owner had been provided with extensive administrative hearings.  In the absence of a property owner’s and occupant’s consent, barring exigent (emergency) circumstances, government officials engaged in the inspection of private property or abatement of a public nuisance must have a warrant to enter that private property where such entry would invade a constitutionally protected privacy interest.

The Fourth Amendment provides a high degree of privacy protection to the “curtilage” of a residence, the land immediately surrounding and associated with the residence.  However, the United States Constitution allows authorities to inspect open fields at will.  The “open fields” exception only applies to completely unfenced, unimproved property.

Therefore, code enforcement officers may visually inspect private property from the public right-of-way, or from areas that are open to the public such as parking lots, or from private property upon which the officers have obtained consent from the property owner and/or the occupant, depending on the factual circumstances.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog.  You should consult an attorney for advice regarding your individual situation.
A: 300 E. State St., Suite 517
Redlands, CA 92373-5235
T: (909) 296-6708

California Public Records Act, How and Where to Make a Request in San Bernardino County and Riverside County

By Michael Reiter, Attorney at Law

The California Public Records Act is an invaluable tool for individuals, traditional and new media,  public interest groups, non-profits, business entities, and even lawyers and political groups to find out what local government is doing.  This first post has to do with a very brief overview of the Act, and how to make a Public Records Act request.  Private Attorneys especially do not use the Act efficiently, much to the delight of City Attorneys and much to the detriment of their clients.

I have handled Public Records Act Requests on behalf of local agencies, and I have made Public Records Act Requests to local agencies, so I have a good perspective about how the Act is handled on both sides of the counter.  Having an attorney knowledgeable about the California Public Records Act is important if a client is involved in a case against a City, County, or other local government agency.

The Public Records Act is found in the California Government Code.  A Requester can find the California Government Code here.  The version found here is unannotated.  If a Requester wants to see an annotated code, it can be found at most public libraries and law libraries.  The annotated version gives case law and secondary source references.  The Act is codified at Government Code, Title 1 “General”, Division 7 “Miscellaneous,” Chapter 3.5 “Inspection of Public Records”, Article 1, “General Provisions” and Article 2 “Other Exemptions From Disclosure.”   If a Requester is searching manually, the Act is found in Government Code section 6250 et seq.  [“Et seq.” is legal jargon from the Latin “et sequentia” meaning “and following.”  It is shorthand to tell a court, or others, the general location of an some amount of primary or secondary law.]

The California Legislature, in enacting the Act, found and declared  “that access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in” California.  Government Code section 6250.

While, there are generally two rights, to inspect and/or copy public records, this post will focus on how to make the request.

How and When to make a request to a local government agency in San Bernardino County and Riverside County:

The Act requires that records not subject to an exemption are to be made available “upon a request”  Government Code section 6253(b).  The Court of Appeal for the Second District of California found that the “California Public Records Act plainly does not require a written request.”  Los Angeles Times v. Alameda Corridor Transp. Authority (2001) 88 Cal.App. 4th 1381, 1392.

What does this mean, practically?  A Requester can ask the local government agency in person, or over the phone, to inspect or copy records.  However, the practical thing to do is to put it in writing so that there is a record of the request.  Local governments are collections of individuals, and if the individual employed by the government does not understand the request, or does not write the request down correctly, a Requester may not get to inspect the records in a timely fashion.  A Requester’s best practice is to put the Public Record Act request in writing and date it.  A Requester does not have to use a form provided by the local government agency, but sometimes it is easier to use their form.

Where and to whom should the Request be made?  Though the Act does not specify, local government agencies in Riverside and San Bernardino County usually have Departments that are responsible for responding to routine requests, such as for copies of ordinances or minutes.   In an incorporated city or town, the Requester can usually request the documents from the City Clerk, and it should be routed within the City to the right department if it is not the City Clerk .  In cities with in-house City Attorney’s Offices, such as the City of San Bernardino and the City of Riverside, a Requester can request the documents from the City Attorney.  Likewise, it will be routed to the correct department.

However, the best practice is to request from the specific department that has the records.  If the Requester is ling with a specific department, such as Planning or Code Enforcement, the Requester can make the request directly to the department who is likely to handle the request.  If the Requester is asking for records from different departments, the Requester might want to make the request to the City Manager or City Administrator.  A Requester should feel free to ask someone in the particular city, town or county.  Most local government entities understand their responsibilities under the Act, and want to help the public.  Some do not.

A later discussion with examine how to make a reasonably described record request.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

 

A: 300 E. State St., Suite 517
Redlands, CA 92373-5235
T: (909) 296-6708