Board of Zoning Appeals
Law Office of
Board of Zoning Appeals
Re: Case Number BZA 5344
To the Board:
My wife & I own and reside at XXX XXXXXXX, in Hancock Park, Los Angeles, California 90036, which is within 500 feet of 303 South Highland, (the Applicant herein).
We support Rabbi Chaim Baruch Rubin's application for a variance and conditional use permit to use the single family home as a synagogue, and were terribly disappointed when the Zoning Officer denied the application.
I. CONSTITUTIONAL ARGUMENTS
A. DENIAL OF THE ZONING VARIANCE VIOLATES THE RELIGIOUS FREEDOM RESTORATION ACT
It is my professional opinion1, that the Association & Zoning Board's actions in denying Rabbi Chaim Baruch Rubin's application for a variance and conditional use permit to use his single family home as a synagogue, violates the Religious Freedom Restoration Act, 42 U.S.C. 2000bb-2 (1994) (hereinafter "RFRA") and is therefore unconstitutional.
Under the RFRA, the government is prohibited from substantially burdening an individual's exercise of religion unless "it demonstrates that application of the burden to the person -
1. RABBI CHAIM BARUCH RUBIN'S FREE EXERCISE OF RELIGION HAS BEEN SUBSTANTIALLY BURDENED
To establish a substantial burden under the RFRA, Rabbi Rubin can demonstrate that:
See, Davidson v. R. Davis, 1995 WL 60732 at *5; see also Bryant v. Gomez, 46 F.3d 948, 949 (9th Cir. 1995). "This interference must be more than an inconvenience; the burden must be substantial and an interference with a tenet or belief that is central to religious doctrine." Id., at 949 (citation and quotation omitted).
Rabbi Rubin's particular orthodoxy requires its adherents to pray three times a day, in a synagogue, and in the presence of ten Jewish men. Such requirements are deemed necessary according to Jewish law (Halacha). Further, Orthodox Jews are prohibited by Jewish law to drive to synagogues on their Sabbath and Holidays, and must walk instead. Walking to synagogue is not a function of convenience - it is Halachically mandatory. In addition, Rabbi Rubin's stated mission, is to provide religious services to the elderly and to families with small children, who cannot walk to the further synagogues at La Brea and Beverly.
Having a place of worship within walking distance is no mere preference for Orthodox Jews; it is an absolute prerequisite. Worshiping with a particular rabbi is also no mere preference; it is a fundamental aspect of religious freedom to be able to choose clergyman under whose direction one wishes to worship and grow spiritually.
The Zoning Board denied Rabbi Rubin's application for a zoning variance to keep the synagogue where it is presently located. If Rabbi Rubin, and the elderly, and the families with small children, have to trek the long distances to the next available synagogue, they will be prevented from engaging in conduct which is mandated by their religious faith. Thus, Rabbi Rubin can demonstrate that the Zoning Board's action substantially burdens his free exercise of religion.
Once Rabbi Rubin has shown that the government's action substantially burdens his free exercise of religion, the government bears the burden of proving:
42 U.S.C. 2000bb-1; In re Young, 82 F.3d 1407, 1419 (8th Cir. 1996); Mack v. O'Leary, 80 F.3d 1175, 1180 (7th Cir. 1996). It is my opinion that the strict zoning law fails on that account as well.
2. THE ZONING BOARD IS NOT FURTHERING A COMPELLING GOVERNMENTAL INTEREST
The Zoning Board will not be able to demonstrate that its denying of Rabbi Rubin's application for a zoning variance advanced a compelling governmental interest.
I support the formulation advanced by New York Chief Judge Breitel, concurring in Jewish Reconstructionist Synagogue of North Shore v. Incorporated Village of Rosalyn Harbor, 38 N.Y. 2d 283, 291-92 (1975):
Those, I agree, are compelling governmental interests. Not so is the Association's interest in safeguarding neighbors against the minor inconvenience and disruptions (if any) of having a synagogue in the neighborhood.
Rabbi Rubin's primary antagonist, the Hancock Park Homeowners Association (hereinafter the Association), opposed the synagogue because:
A true and correct copy of the Association's letter is attached hereto and is incorporated herein by this reference.
In other words, the Association asserted that a grant of Rabbi Rubin's request to use his single family home as a synagogue will open the proverbial floodgates to others and thus, will result in countless similar requests.
While this Zoning Board may defer to the judgment and experience of the Association, unfettered discretion must not be allowed. The Association cannot simply announce a vague and ambiguous interest, no matter how "compelling" such interest might be, without illustrating how such an interest is furthered by substantially burdening Rabbi Rubin's religious rights.
In enacting the RFRA, Congress clearly articulated this idea by stating that ...
S.Rep.No.111, 103rd Sess., reprinted in 1993 U.S.C.C.A.N. pp. 1892, 1899-1900 (footnote omitted). Rather, there must be, at minimum, a reasonable relationship between the governmental interest to be furthered and the government action restricting the individual's free exercise of religion. See Whitney v Brown, 882 F.2d 1068 (6th Cir. 1989). In the present case, the Zoning Board has failed to identify this critical nexus.
The Association's belief that it will be flooded with similar applications for zoning variances is inherently flawed because it fails to look at the circumstances of this particular synagogue and of this particular Orthodox Jewish community. Rabbi Rubin is requesting that he be permitted to keep his Orthodox synagogue in his single-family home, at the corner of a busy intersection at the corner of Third and Highland in Hancock Park, an area which is now predominantly Jewish, and in fact, it is predominantly Orthodox.
A church of any other religious persuasion requesting an accommodation similar to Rabbi Rubin would have to do so in conjunction with its surrounding religious community. Similarly, other religious denominations who may, at some future time, request accommodations will also be required to illustrate a sincerity and strength of faith similar to Rabbi Rubin, and most importantly, a substantial community of similar worshipers, in order to justify their demands/requests2. Such a showing is required by the RFRA which mandates that an individual must first illustrate that his right to free exercise is being substantially burdened before the protection of the statute apply.
The anticipated flood of requests cited by the Association is mere speculation without justification3.
Thus, the Association has failed to satisfy its burden of showing that the substantial burdens imposed by its actions are in furtherance of a compelling governmental interest, and this Zoning Appeals Board must find the Association to be in violation of the RFRA.
B. ANTI-ORTHODOX JEWISH DISCRIMINATION, WHETHER UNDER THE DOCTRINE OF DISPARATE IMPACT OR THROUGH DIRECT EVIDENCE OF ANIMUS, MIGHT BE PRESENT IN THIS CASE
In Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926 (2nd Cir. 1988), the court held that a municipality's housing policies that have a disparate adverse impact on a particular group establish a prima facie case of Fair Housing discrimination even absent evidence of intentional discrimination.
The precise motivation of those who founded the Hancock Park community and enacted its strict zoning laws is beyond my knowledge and experience. Whether they sought to enforce "strict zoning" specifically because they hoped to discourage Orthodox Jews from moving into the community, or because they sought to take steps to preserve the character of the community4, is legally beside the point. The bottom line remains that "strict zoning" with respect to houses of worship -- zoning laws that prohibit the use of private residences as houses of worship -- has a disparate impact upon religious practitioners, and especially Orthodox Jews.
I submit, moreover, that there might be intentional discrimination present here. The Association's adamant refusal to negotiate in good faith with Rabbi Rubin, and to allow him to make whatever changes are necessary to comply with local zoning rules, and only consider shutting the synagogue down as its position, is not a mere zoning dispute, but evidence of an anti-Orthodox animus.
The Association's opposition of Rabbi Rubin's application is thus not only wrong as a matter of law; it is hurtful and offensive. The Association's position appears to be infected with a lack of sensitivity toward Orthodox Jews and their religious needs -- a lack of sensitivity bordering on outright animus.
II. FURTHER PROBLEMS WITH THE ASSOCIATION'S OPPOSITION
A. THE ASSOCIATION DOES NOT REPRESENT THE INTERESTS OF ALL HANCOCK PARK HOMEOWNERS
The current Hancock Park Homeowners Association does not represent our interests, nor does it represent the interests of the many prominent Orthodox Jews in Hancock Park. I strongly oppose the Hancock Park Homeowners Association's position, and I object to its urging all of its members to oppose the synagogue (assuming that all homeowners oppose it). I do not recall being invited to an Association Board meeting where this issue was placed to a vote.
Like any "cause" the Association represents the voices of a few dissidents and disgruntled homeowners and does represent the many voices of the Orthodox Jewish community. Hence, the Association does not speak for me on this issue.
B. THE ASSOCIATION IS OUT OF TOUCH WITH THE CHANGING DEMOGRAPHICS OF HANCOCK PARK
The Association's hard-line opposition to the synagogue demonstrates that it is out of touch with the changing demographics of Hancock Park. It is an inescapable reality that the immediate area (6th to Melrose and Highland to Hudson) in Hancock Park - once notorious for its restrictive covenants prohibiting Jews from residing there - is now predominantly Jewish, and in fact, it is predominantly Orthodox. Ask any real estate broker in this specified area to confirm that Orthodox Jews are rapidly purchasing the available homes in this immediate Hancock Park area.
It is unthinkable for a vibrant Orthodox Jewish community such as ours to be without a synagogue within walking distance from our homes. This issue is of paramount importance to us, and it supersedes all others. One would expect the Association to understand the gravity of this situation and the importance of this local synagogue to us and accommodate the sensitivities of its constituents.
Yet, the Association's opposition seems to treat the Orthodox Jewish community in Hancock Park as a fringe minority element that has to ask permission from others to co-exist. But the uncomfortable reality is that we are a growing majority of distinguished citizens who hold powerful positions as business and communal leaders. We serve with distinction across the professional spectrum, in classrooms, courtrooms, board rooms, and operating rooms throughout Los Angeles.
Orthodox Jews are not second-class American citizens, nor are we second-class Hancock Park citizens, and we have the right to be represented by an association that is in tune, that is in sync, and is responsive to our religious needs. The current Association is not.
It is only a matter of time before Orthodox Jews assume positions of influence and power within the Hancock Park Homeowners Association, and work with the Orthodox community instead of against it.
C. THE SYNAGOGUE "ADVERSELY" AFFECTS THE "QUALITY OF LIFE" IN HANCOCK PARK"[!?!]
The Association claims that permitting the synagogue to remain inside Rabbi Rubin's single-family house would:
For Jews, especially Orthodox Jews, a local synagogue in general, enhances the "quality of life" in our community. This is of significant and critical importance, as communal prayer is an integral part of Orthodox Jewish religious observance, and synagogues must be within walking distance for it is prohibited to travel by car on the Sabbath or Holidays. This can be evidenced by the fact that there are no Orthodox synagogues east of Rossmore, and therefore virtually no Orthodox Jews live east of Rossmore, the reason being that observant Jews must live within walking distance to their synagogues.
Further, Rabbi Rubin and his family, in particular, have generated a genuine warmth and friendly environment in our community. Jewish families walk together on Saturdays and on Jewish holidays to and from the synagogue. It is unique in its service to the elderly and to families with small children, who cannot walk to the synagogues at La Brea and Beverly. How can this tiny synagogue possibly affect "adversely" the quality of life?
Yet, there is a something uncomfortable, something unsettling, and something even insidious about the Association's opposition (that a synagogue adversely affects the quality of life) - that I find terribly offensive as a Jew. Whose "quality of life" would be adversely affected by a synagogue? Certainly not Jews. So who then? Whose values is the Association advocating?
I cannot help but think that the Association's opposition reverberates with undertones of old time anti-Semitic prejudices of what was and what wasn't allowed in Hancock Park. It sounds like the "old guard" who cannot let go of that restrictive covenant and cannot stand to see his wholesome Hancock Park community permeated with Orthodox Jews. So he accomplishes through enactment and enforcement of strict zoning laws what he could not accomplish through his anti-Semitic covenants - to keep the [Orthodox] Jew (and his synagogue) out of Hancock Park. The discriminatory message seems to still be there, it's just packaged in a more politically correct manner - in the guise of a strict zoning ordinance.
D. THE ASSOCIATION DISCRIMINATES POLICING ZONING VIOLATIONS IN HANCOCK PARK
The implication of the Association's opposition is that the synagogue is the first zoning issue of its kind in Hancock Park, and if the Association allows this, then who knows what will follow? One can only imagine what horror and terror the Association envisions that the synagogue and perhaps another like it may bring to the Hancock Park community.
The truth of the matter is that the synagogue is not the first zoning issue to affect our community. There are many others, yet the Association prefers to remain silent by turning a blind eye to blatant community-wide zoning violations, and chooses to pick on the easy target: the Jew, the Rabbi and his tiny synagogue.
One wonders why the Association is not equally concerned about "precedent" when it comes to its Christian neighbors?
For months before and after Halloween and Christmas, Mr. Kang adorns his Hancock Park property at the corner of Third and Rimpau, with garish displays of ghouls, goblins, skeletons, tombstones and dismembered tortured bodies, and then with Christian nativity scenes and blaring Christmas lights and ornaments of every conceivable size and color that have become a traditional eyesore to many (Jewish) residents of Hancock Park, and have become a driving and parking public nuisance to the community. No parking permits are issued to accommodate the hundreds of visitors, tourists, and residents from other communities who gawk for hours late into the night at the displays. The media trucks camp out at the corner for days on end, making it virtually impossible to drive through the intersection.
Is Mr. Kang's house at the corner of Third and Rimpau zoned for such outrageous, public, paganistic and religious displays? Is it zoned for all of the people parking their cars? Has the Hancock Park Homeowners Association expressed concern about the "quality of life" and how it may be "adversely affected?" It has not.
I cannot understand why the ever-vigilant Association is so terrified of a quiet little synagogue on the outskirts of Hancock Park that conducts its prayers indoors, yet simultaneously feigns ignorance to the outlandish displays of Halloween and Christmas, several blocks deeper in the heart of Hancock Park? If the Association is so concerned about "precedent" and "quality of life" how come they are not challenging the morbid images of Halloween and of the Christian and his nativity scenes?
The Association's message seems to be that when a Christian transforms his front yard and the exterior of his house into a garish Halloween and Christian amusement park for months at a time - that's ok. But should a Jew use his living room and dining room within his house to pray to God - that's intolerable, and the Association must rally its troops to stop the Jew from jeopardizing the "values" of our community. This is a very dangerous message.
The Orthodox Jews of Hancock Park should not have to suffer the indignities of responding to and defending meritless attacks by the Association while our Christian brothers and sisters remain unchallenged and unscathed for engaging in more profound and pronounced conduct.
The Association's vocal opposition to the synagogue and its eerie silence as to the zoning violations of its Christian neighbors demonstrate that it seems to be protecting the "quality of life" of some, but not all, of its constituents.
I am ashamed of the Association's apparent hypocrisy and bias.
A. A ZONING VARIANCE IS JUSTIFIED AND SHOULD BE GRANTED
When one drives by the synagogue at the corner of Third and Highland, one has no idea that it's a synagogue. It looks like an ordinary single family house. The outside has no sign, and the windows are almost always closed. The prayers are always done inside the house. It bothers absolutely no one. Had the Association not caused the public outcry by opposing the synagogue, its neighbors probably would not have even realized that there was a synagogue therein.
I recognize that zoning rules are meant to be kept, and in this instance, a zoning variance is justified and should be granted.
The time has come for the Zoning Appellate Board to see through the Association's spurious and hypocritical opposition and to recognize the religious needs of our residents.
Your Appellate Board is being given a historic opportunity to strike a blow for religious liberty, and against religious intolerance.
For all of the reasons stated above, please reverse the Zoning Officer's denial of the application for a variance and conditional use permit, and allow Rabbi Rubin to use his single family home as a synagogue.
cc: Rabbi Chaim Baruch Rubin, Councilman John Ferraro, Los Angeles Times, The Jewish Journal, The Los Angeles Jewish Times, The Jewish Heritage, The Jewish Press, The Larchmont Chronicle, The Park La Brea News
Copyright © 1997-2008 by Ira Kasdan. All rights reserved.