Tuesday, May 22, 2007

Mix a little church/state conflict, some lawyers, and a little surrender...

Nobody came out of last night's (5/21/2007) meeting of the Scottsdale City Council looking good.

In front of yet another full house, though the crowd was probably a fraction of the size of the one that will attend the Chaparral Road widening special meeting next week, on Tuesday night the Scottsdale City Council discussed and voted on a controversial issue.

On the agenda for the meeting? Consideration of a settlement of a lawsuit by the SonRise Community Church against the City over the City's 2005 refusal to approve a Conditional Use Permit (CUP) for a private school on the Church's property in north Scottsdale.

The City Council Report concerning the agenda item that was prepared by city staff is here; be aware, however, that the .pdf format document is 40MB (734 pages!). Even with a high-speed connection, downloading it will take a while.

A very brief history -

In 2004, the Church applied for a CUP for a school; on September 29 of that year, the City's Planning Commission denied the application.

In June of 2005, the Planning Commission considered and denied a revised CUP application.

In July of 2005, the City Council also denied the CUP application.

In November of 2005, SonRise sued the City. Their complaint, among other things, was that the Council's refusal to approve the permit constituted a violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA). That law, passed in 2000, has been interpreted to mean that local governments can't do anything that restricts the activities of a church.

Anyway, last night's meeting started off with a staff presentation about the history of the case, a few questions from the Council, and then public comment.

A *lot* of public comment.

The policy of the Scottsdale City Council is that people who want to speak at a meeting have to fill out a comment card before doing so.

According to City Clerk Carolyn Jagger, more than 60! cards had been handed out before the start of the meeting.

The first speaker was Mike Allen, representing the Church. Mr. Allen is the president of the board of Paradise Valley Christian Preparatory.

He keyed on a talking point that was echoed by most of the other speakers that rose in support of the Church and the proposed settlement, saying the Council should do "what is in the best interests of the children."

A number of members of SonRise spoke in favor of settlement; like Allen, they emphasized the educational, "do it for the kids" aspect.

There was also support from other denominations. The Phoenix Catholic Diocese sent a letter; a pastor from another north Scottsdale church spoke of how "churches are here to bless the community"; the assistant principal of the King David Center (a school) based at the Jewish Community Center also expressed support for the proposal.

There were also a large group of critics present. They spoke of how the current proposal isn't substantively different from the one that the Council disapproved in 2005; John Washington, a member of the Coalition of Greater Scottsdale (COGS), said that the proposal wasn't a settlement, but a "capitulation."

Another speaker observed that this "was never a religious issue" until SonRise's lawyers made it one when they claimed a violation of RLUIPA.

Still others spoke of concerns about the impact of the school on traffic in the area and said that the concessions stipulated in the agreement to address the issues (staggered school times) were of questionable viability; Howard Myers, a north Scottsdale activist, said that "all the planets have to be aligned for this to work."

Once the Council started debating the question among themselves, it was clear to the onlookers that the settlement would pass; in a bit of a surprise, by this council's standards anyway, the final vote would be 5 - 2 instead of the usual 4 - 3.

Vice-Mayor Tony Nelssen stated that the settlement amounted to an "affirmative preference" for "self-proclaimed" churches in land-use issues.

Councilwoman Betty Drake didn't immediately express support or opposition to the settlement. However, the fact that her questions and comments were focused on fine tuning the agreement shed light on her position.

Councilman Jim Lane called the whole thing a "terribly unfortunate situation" and expressed support for the settlement due to the potential costs of losing the lawsuit.

Note: estimates of costs of taking the litigation to trial ranged from $350,000 to a couple of million dollars.

Councilmen Wayne Ecton and Ron McCullagh were also very concerned about the potential to lose the lawsuit.

Councilman Bob Littlefield observed, in opposition to the settlement, that "this isn't about being even-handed, it's about being sued."

Drake responded that "this whole thing is about RLUIPA."

Mayor Mary Manross was the final one to speak on the issue; like the others, she expressed the sentiment that while she didn't like the settlement, voting for it was the right thing to do, both to minimize the financial risk to the city and because the modifications were enough of an improvement to merit approval of the CUP.

In the end, 3 votes were taken. The first one rescinded the original Council action (from 2005) to disapprove the CUP; the second then approved the modified CUP application; and the third accepted the settlement.

All three passed by a 5 - 2 margin; Manross, Drake, Ecton, McCullagh, and Lane voting 'aye'; Littlefield and Nelssen voting 'nay.'

Now for a few personal observations (and you knew there were going to be a few of those :) ):

Prior to the meeting, I had no firm opinion on this subject. I wasn't an observer of local politics during 2005, so I wasn't familiar with the case. In addition, I'm not a member of the church, nor am I a resident of north Scottsdale.

Not being a fan of the Scottsdale City Council or of overbearing churches, I didn't know who to root for in this conflict.

As it turned out, both sides were wrong.

...While the church had a number of supporters present, with few exceptions, they were all from outside of Scottsdale. In addition, most of the exceptions were employees of the church; they had a strong financial interest in the approval of the CUP.

For an organization that professes to just want to be a part of the community, they exhibit no community involvement or support.

...As for the City Council, one of the points that the supporters of the settlement stressed was that the risks of the lawsuit was that a loss would permanently undermine the effectiveness of the CUP and review process.

Lost on them: the fact that their abject surrender does the same thing.

One of the three flags that is displayed in the council kiva is composed of a blue City of Scottsdale logo on a white field.

At this point, it would be appropriate to remove the logo and leave the white field. It's a more appropriate symbol of the Council's actions.

...It may take a few months or a few years, but inevitably someone else in that area of north Scottsdale is going to propose developing some land in a way that the leaders of the church won't like.

When a church leader or lawyer rises in opposition and urges the Council to disapprove the development, I expect that someone who was at last night's meeting will gently (or not-so-gently) remind them of their actions of the last couple of years.

See: hoist by their own petard.

AZ Rep coverage of last night's meeting is here.

I'll be skipping tonight's regular meeting; however, next Tuesday's special meeting is a 'must-see."


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