Metropolitan News-Enterprise
http://www.metnews.com/articles/2008/conf010708.htm

Supreme Court Turns Down Bid to Reopen Scottish Rite Cathedral

Ruling That Revocation of Occupancy Permit Did Not Violate Masons’ Religious Freedom Left Standing

Monday, January 7, 2008

Page 1

By KENNETH OFGANG, Staff Writer

A Court of Appeal ruling that has complicated the reopening of the Scottish Rite Cathedral in Los Angeles has been left standing by the California Supreme Court.

The justices, at their weekly conference Thursday in San Francisco, denied review of an Oct. 3 ruling by Div. Seven of this district’s Court of Appeal. The panel held that the property owner’s inability to maintain religious use of its facilities without revenues generated by non-religious activities due to zoning restrictions did not subject the restriction to heightened scrutiny under federal law.

The vote to deny review of the petition by the Scottish Rite Cathedral Association was 6-0, with Justice Kathryn M. Wedegar absent and not participating.

Div. Seven affirmed a ruling by retired Los Angeles Superior Court Judge Robert H. O’Brien, who sits on assignment, denying a petition for writ of mandate brought by the Scottish Rite Cathedral Association of Los Angeles and the Los Angeles Scottish Rite Center, LLC..

The cathedral association is a nonprofit Masonic organization that built and owns the cathedral, located in the mid-Wilshire area of Los Angeles. The limited liability company is a private entity that operates the cathedral under a lease with the cathedral association.

Complicated Issue

Roger Jon Diamond, a Santa Monica attorney who represents the limited liability company, said Friday it was possible the cathedral association could seek a new certificate of occupancy. The issue is complicated, however, because of a dispute between the association and his client, which agreed to lease the premises without knowledge of the restrictions, Diamond said.

The cathedral association obtained city approvals in the 1950s to build a four-story Masonic temple and parking lot on the property. In 1963, the city issued a certificate of occupancy for the new cathedral, including an auditorium and assembly room with capacity of more than 1,800 persons each, a dining room accommodating 860 people, and several smaller rooms.

The city approved the project with only 259 parking spaces, about half the requirement for a commercial development of similar size, apparently based on the cathedral association’s representations that only charitable and nonprofit organizations would use the facilities.

As Masonic membership began to decline in the 1970s, the number of non-Masonic events at the location, including those sponsored by for-profit organizations, increased, despite occasional warnings by the city that such uses were inconsistent with the applicable land use restrictions.

Nuisance Abatement

In 1993, the city initiated nuisance abatement proceedings, citing complaints of parking, noise, and trash problems. Following administrative hearings and appeals, the mayor and council made a finding of public nuisance and restricted future use of the cathedral to Masonic or “related” activities.

The cathedral association determined that it could not afford to operate the building under the city’s restrictions, and closed it for nearly 10 years before entering into a lease with the limited liability company, which refurbished it and subsequently held several events there, leading to further complaints from Hancock Park neighbors and further hearings.

Eventually, the mayor and council ordered that future use of the building be limited to Masonic organizations, specifically barring non-Masonic activities even if philanthropic or religious, and prohibited charges for parking.

But after further complaints from neighbors that non-Masonic events—including a boxing card for which tickets were sold by TicketMaster and at which alcohol was sold without a conditional use permit—were being staged, the city revoked the certificate of occupancy.

Diamond told the MetNews that the real problem was parking, and that his client tried to resolve the matter by offering to pay for the creation of a permit parking district that would have guaranteed sufficient parking for neighborhood residents. But critics, including City Councilman Tom LaBonge and the Windsor Square Association, could not be placated, he said.

The result, he added, is that the cathedral, “a beautiful building” that is “just gorgeous inside,” and was the scene of many events, including bar functions, is again in disuse.

In petitioning for a writ of administrative mandate, the cathedral association and the limited liability company argued that the city was violating their rights under the Religious Land Use and Institutionalized Persons Act of 2000.

RLUIPA, a federal statute enacted in response to a Supreme Court decision striking down the Religious Freedom Restoration Act of 1988, limits the extent to which local entities that receive federal funds may impose land use restrictions on the use of property for religious purposes. Such restrictions must be non-discriminatory and must be no more intrusive than necessary to vindicate compelling governmental interests.

O’Brien denied the petition on the ground that Freemasonry is not a religion.

The Court of Appeal, in an opinion by Presiding Justice Dennis Perluss, disagreed to the extent that RLUIPA protects religious exercise “whether or not compelled by, or central to, a system of religious belief.”

The stated principles and practices of Freemasonry clearly qualify as “religious exercise,” Perluss said. He noted that Masons aspire to achieve higher “degrees,” conferred in rituals involving acceptance of moral principles, including the importance of religion and ethical behavior; that one may receive a degree only upon professing a belief in God; that members are encouraged to live their lives according to religious belief; that a Bible is required to be present at every meeting; and that the Masons adhere to a philosophy largely rooted in Judaism and Christianity.

The panel held, however, that the writ was correctly denied because the use of the facility for non-Masonic purposes is not protected by RLUIPA.

Perluss explained that while RLUIPA’s “broad sweep...has been applied to activities as divergent as religiously affiliated schools...nonprofit hospitals...and faith-based crisis centers,” it does not protect non-religious uses of facilities owned by religious institutions.

“Specifically, a burden on a commercial enterprise used to fund a religious organization does not constitute a substantial burden on ‘religious exercise’ within the meaning of RLUIPA,” the jurist wrote.

The legislative history and case law in other states, Perluss wrote, make clear that RLUIPA does not require strict scrutiny of a restriction on the secular uses of religious organizations’ facilities. He cited a Pennsylvania case holding that RLUIPA did not protect a church’s right to operate a day care facility because “lack of a daycare only had a +de minimis+ impact on the Church’s opportunity to engage in fundamental religious activities.”

The cathedral association, Perluss noted, acknowledged that it closed the facilities “not because of any animus toward its form of religious exercise but because the Cathedral was no longer financially viable limited to use as a nonprofit Masonic lodge and could not survive without being marketed for non-conforming public auditorium uses that exacerbated parking impacts on the neighborhood.”

To the extent that the association had any rights to continue to use the facilities under the First Amendment or RLUIPA, Perluss said, it gave up those rights when it “[i]n effect...ceded its right to operate the Cathedral to...a commercial entity with no apparent relationship to Masonic practices other than its name, which then marketed the Cathedral as a venue for all events, commercial events included.”

He cited a 2004 declaration by the president of the cathedral association saying the association had not conducted any Masonic functions at the location since 1993 and had no intentions of holding any in the future.

In other conference actions, the Supreme Court:

•Left standing the dismissal of a suit by heirs of the man who acquired American merchandising rights to Winnie the Pooh from the character’s creator, who claim the Walt Disney Company owes them millions of dollars.

Los Angeles Superior Court Judge Charles W. McCoy held that the plaintiffs in +Stephen Slesinger, Inc. v. The Walt Disney Company+ engaged in deliberate and egregious misconduct by hiring an unlicensed investigator who stole confidential documents, and that any sanction other than dismissal would be inadequate to ensure a fair trial.

The Court of Appeal held that McCoy acted within his inherent authority to protect the integrity of the judicial process.

•Agreed to decide whether the California Safe Drinking Water Act imposes a mandatory duty on counties to periodically review and respond to water quality monitoring reports submitted by water systems for which the county is responsible. The Sixth District Court of Appeal answered that question in the affirmative in +Guzman v. County of Monterey+, H030647, holding that 80 men, women, and children who were residents of a mobilehome park where the water was allegedly contaminated with dangerously high levels of naturally occurring fluoride for at least eight years before they were told of the contamination can sue the county.

•Agreed to decide whether a trial judge properly excluded evidence regarding a DUI defendant’s “partition ratio”—the ratio of breath-alcohol concentration to blood-alcohol concentration.

The Fourth District’s Div. Two, in People v. McNeal, E041226, held that evidence of a defendant’s personal partition ratio may be offered to show that the defendant was not under the influence of alcohol, even though evidence regarding the general variability of personal partition ratios from the standard ratio that breath-testing machines use to convert breath-alcohol readings into blood-alcohol equivalents is inadmissible under a prior Supreme Court decision.

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