HOUSE JUDICIARY COMMITTEE

RABBI CHAIM BARUCH RUBIN

FEBRUARY 26, 1998

MR. CHAIRMAN AND HONORED MEMBERS OF THE COMMITTEE: GOOD MORNING.

MY NAME IS RABBI CHAIM BARUCH RUBIN AND I AM THE RABBI AND SPIRITUAL LEADER OF CONGREGATION ETZ CHAIM OF HANCOCK PARK IN LOS ANGELES, CALIFORNIA

FIRST, LET ME EXPRESS MY APPRECIATION TO YOU, MR. CHAIRMAN, FOR INVITING ME HERE TO TESTIFY BEFORE THIS HONORABLE COMMITTEE, AND GIVING ME THE OPPORTUNITY TO SHARE OUR STORY -- A STORY ABOUT A GROUP OF PEOPLE WHO TODAY, IN THE UNITED STATES OF AMERICA ARE FINDING IT VERY DIFFICULT TO BE ABLE TO FREELY PRACTICE THE DICTATES OF THEIR FAITH.

SOME THIRTY YEARS AGO, MY PARENTS, SURVIVORS OF THE NAZI HOLOCAUST, MOVED INTO THE HANCOCK PARK AREA OF LOS ANGELES. YEARS AGO, ALL DEEDS ON THE HOMES IN HANCOCK PARK CARRIED A RESTRICTIVE COVENANT, BARRING JEWS, AFRICAN AMERICANS, LATINOS AND OTHER MINORITIES FROM BUYING HOMES IN THE NEIGHBORHOOD.

FAIR HOUSING LEGISLATION MADE IT POSSIBLE FOR JEWS TO MOVE INTO HANCOCK PARK. HOWEVER, TODAY, LOCAL ZONING LAWS ARE BEING USED AS "LATTER DAY" RESTRICTIVE COVENANTS MAKING IT ESSENTIALLY IMPOSSIBLE FOR MANY ORTHODOX JEWS TO LIVE IN HANCOCK PARK. ALLOW ME TO EXPLAIN.

ONE OF THE MOST FUNDAMENTAL PRACTICES OF AN ORTHODOX JEW IS THE STRICT OBSERVANCE OF THE SABBATH. REFRAINING FROM USING ANY MECHANIZED MODES OF TRANSPORTATION IS A BASIC TENET OF OUR OBSERVANCE. CONSEQUENTLY, WHEREVER ONE SEES ORTHODOX JEWISH LIFE, ANYWHERE IN THE WORLD, HOMES AND HOUSES OF WORSHIP EXIST IN CLOSE PROXIMITY OF ONE ANOTHER.

SHORTLY AFTER MY PARENTS MOVED TO HANCOCK PARK, MY GRANDFATHER, WHO WAS IN HIS NINETIES AT THE TIME, CAME TO LIVE WITH US. AS HE WAS TOO ELDERLY TO MAKE THE LONG WALK TO ONE OF THE SYNAGOGUES ADJACENT TO THE AREA, A DISTANCE OF TWO OR THREE MILES, MY PARENTS INVITED SOME OF THEIR NEIGHBORS INTO THEIR HOME TO MAKE A QUORUM OF TEN MEN (A MINYAN) SO THAT MY GRANDFATHER COULD PRAY.

BY THE TIME MY GRANDFATHER PASSED AWAY, MORE ORTHODOX FAMILIES HAD MOVED INTO HANCOCK PARK AND MY PARENTS HAD THEMSELVES BECOME OLDER AND ALSO FOUND IT DIFFICULT TO WALK LONG DISTANCES ON THE SABBATH AND JEWISH HOLIDAYS AND SO THE SMALL MINYAN CONTINUED.

SEVERAL YEARS AGO, MY PARENTS, NOW IN THEIR EIGHTIES, FOUND IT INCREASINGLY DIFFICULT TO CONTINUE TO HOST THIS SMALL MINYAN AND I WAS FACED WITH A DILEMMA. DO I CLOSE THIS MINYAN, AND THEREFORE MAKE IT EXTREMELY DIFFICULT, IF NOT IMPOSSIBLE FOR MANY RESIDENTS OF HANCOCK PARK TO FULFILL THEIR RELIGIOUS OBLIGATIONS, OR DO I SIMPLY RELOCATE? AS A RABBI, I REALIZED THAT I HAD AN OBLIGATION TO MY CONGREGANTS, MANY OF WHOM HAD ALSO AGED OVER THE YEARS.

LET ME SAY FROM THE VERY START, THAT I WAS AWARE OF THE IMPORTANCE OF MAINTAINING OUR NEIGHBORHOOD AS THE PLEASANT PLACE THAT THIS IS TO LIVE. I MADE EVERY ATTEMPT POSSIBLE TO ENSURE THAT THE HOUSE OF WORSHIP WE OPENED WOULD CONFORM TO THE RESIDENTIAL CHARACTER OF OUR NEIGHBORHOOD AND WOULD BE AN ENHANCEMENT TO THE AREA. WE EVENTUALLY ACQUIRED A HOME, ACTUALLY ADJACENT TO HANCOCK PARK PROPER, AT THE CORNER OF TWO SECONDARY HIGHWAY THOROUGHFARES, TRAVELED BY SOME 84,000 CARS DAILY. OUR QUORUM OF TEN MEN (SOMETIMES UP TO 17 OR 18) MEETS EACH MORNING FOR ABOUT A HALF HOUR, AND AGAIN AT SUNDOWN FOR ANOTHER HALF HOUR FOR DAILY PRAYER. ON THE SABBATH, PERHAPS 40 OR 50 PEOPLE (GRANDFATHERS, FATHERS AND SONS, MOTHERS AND DAUGHTERS) WALK TO THE HOUSE, QUIETLY ENGAGED IN STUDY AND PRAYER AND THEN GO HOME. THAT IS ALL WE DO.

NEVERTHELESS, THE CITY OF LOS ANGELES HAS TAKEN THE POSITION THAT IT WILL NOT ALLOW ANY HOUSE OF WORSHIP ANYWHERE IN HANCOCK PARK, A VAST RESIDENTIAL AREA OF SOME 6 SQUARE MILES. THIS HAS BEEN AND CONTINUES TO BE THE UNCHANGING POSITION OF THE CITY.

WHAT I BELIEVE IS UNIQUE ABOUT OUR SITUATION IS THE FOLLOWING: WHILE SUCH A POSITION ON THE PART OF THE CITY OF LOS ANGELES WOULD NOT POSE A THREAT TO THE PRACTICE OF ANY OTHER RELIGION, IT EFFECTIVELY LOCKS THE ORTHODOX COMMUNITY OUT OF THE NEIGHBORHOOD, OR PLACES AN UNFAIR BURDEN ON MANY OF THOSE WHO CHOSE TO LIVE THERE. FULLY ONE-QUARTER OF MY CONGREGATION IS ELDERLY OR DISABLED. OUR REPEATED REQUESTS TO TALK, TO DIALOGUE, TO ENTERTAIN ANY MITIGATION PROPOSALS, TO DISCUSS CONCERNS OR ISSUES WERE GREETED WITH A RESOUNDING "NO" AND THE DECLARATION THAT THE LAW WAS ON THEIR SIDE, NOT OURS. THE DICTATES OF OUR RELIGION, OF OUR CONSCIENCE, WAS IRRELEVANT. OUR RIGHT TO PRAY IN OUR NEIGHBORHOOD HAS BEEN AT BEST IGNORED, BUT PROBABLY MORE ACCURATELY, TRAMPLED UPON.

PLEASE UNDERSTAND THAT OUR MINYAN DOES NOT IN ANY WAY NEGATIVELY IMPACT THE NEIGHBORHOOD, NOR WAS THERE ANY REASON WHATSOEVER FOR THE CITY TO DENY OUR REQUEST. THERE WAS NO PARKING IMPACT, NO NOISE IMPACT, NO POLLUTION OR TRAFFIC IMPLICATIONS. OUR IMMEDIATE AND ABUTTING NEIGHBORS WELCOMED US WITH OPEN ARMS, SO WHAT REASON, WHAT COMPELLING INTEREST WAS THERE, IS THERE, FOR THE CITY TO DENY OUR REQUEST FOR A CONDITIONAL USE PERMIT? AT THIS POINT, WE HAVE REACHED AN IMPASSE WITH THE CITY. THE POSITION OF THE CITY OF LOS ANGELES IS THAT THEY ARE UNDER NO OBLIGATION TO ACCOMMODATE FOR OUR RELIGIOUS NEEDS. YET, THEY MORE THAN WILLINGLY GRANT PERMITS AND MAKE ACCOMMODATIONS FOR MANY OTHER SECULAR USES IN THE AREA, RECREATIONAL ACTIVITIES, SCHOOLS, BOOK CLUBS, EMBASSY PARTIES, CHARITABLE EVENTS, MOTION PICTURE AND TELEVISION FILMING, ARE ALL WELCOMED AND PERMITTED. BUT A RELIGIOUS USE IS FORBIDDEN AND OUTLAWED. WHY IN THE UNITED STATES OF AMERICA, IN 1998, SHOULD I, A LAW ABIDING, G-D FEARING CITIZEN, LOOKING TO DO NO MORE THAN QUIETLY CONDUCT MY RELIGIOUS LIFE ACCORDING TO MY BELIEFS, BE UNDER THE THREAT AT THIS VERY MOMENT OF ARREST AND CRIMINAL PROSECUTION.

SADLY, THIS PAST WINTER I BECAME AWARE, AFTER ATTENDING A CONVENTION OF AGUDATH ISRAEL OF AMERICA, A MAJOR ORGANIZATION OF ORTHODOX JUDAISM, THAT THIS PROBLEM IS HAPPENING IN A NUMBER OF PLACES THROUGHOUT THE UNITED STATES -- A RELIGIOUS COMMUNITY IN CLEVELAND, OHIO, IN LAWRENCE, NEW YORK, AND ELSEWHERE ARE CONFRONTING SENSELESS OBSTACLES TO THE FREE PRACTICE OF THEIR FAITH.

WHEN I RETURN FROM THIS MAGNIFICENT CITY, WHERE I HAVE HAD THE OPPORTUNITY TO SPEAK WITH THIS DISTINGUISHED COMMITTEE, WHAT DO I TELL MY CONGREGANTS -- WHAT DO I TELL AN 84-YEAR OLD SURVIVOR OF AUSCHWITZ, A MAN WHO USED TO RISK HIS LIFE IN THE CONCENTRATION CAMP WHENEVER POSSIBLE TO GATHER TOGETHER A MINYAN TO PRAY -- DO I TELL HIM THAT BECAUSE HE IS OLD AND WEAK AND AN AMPUTEE, THAT HE MUST WALK AT LEAST A MILE AND A HALF TO PRAY, BECAUSE TO QUIETLY GATHER DOWN THE BLOCK IS ILLEGAL? WHAT DO I TELL MY FATHER, A RESIDENT OF HANCOCK PARK FOR THIRTY-FOUR YEARS, NOW THAT YOU ARE ELDERLY AND FRAIL YOU MUST EITHER ABANDON YOUR RELIGIOUS FAITH OR ABANDON YOUR HOME? AND WHAT ABOUT MY OWN YOUNG SON, BORN WITH A DISABILITY, FOR WHOM A LONG WALK IS IMPOSSIBLE. "SORRY, YOU CAN'T GO WITH THE REST OF THE FAMILY TO SYNAGOGUE, THERE IS NO PROTECTION OF YOUR RIGHT TO LIVE AS A JEW."

OUR FOUNDING FATHERS CAME TO THIS GREAT LAND WITH A VISION -- A VISION THAT IN THE UNITED STATES OF AMERICA EACH AND EVERY INDIVIDUAL WOULD HAVE THE INALIENABLE RIGHT TO PRACTICE HIS RELIGION AS HE OR SHE SAW FIT. THIS COUNTRY WAS FOUNDED ON THE PREMISE THAT THE UNITED STATES WOULD BE A COUNTRY WHERE THE OPPORTUNITY TO LIVE IN ACCORDANCE WITH ONE'S FAITH WOULD BE GUARANTEED BY THE CONSTITUTION. YEARS OF INTERPRETATION AND CHIPPING AWAY AT THIS FOUNDATION HAS LEFT US WITHOUT THE PROTECTION PROMISED US IN OUR CONSTITUTION. FREEDOM OF RELIGION IS THREATENED IN OUR COUNTRY TODAY. IT IS POSSIBLE TO SUFFER AN INSIDIOUS KIND OF RELIGIOUS PERSECUTION IN THE UNITED STATES TODAY. THE RELIGIOUS PERSECUTION OF TODAY HIDES BEHIND AN OVERLY SECULARIZED INTERPRETATION OF OUR CONSTITUTION. THE FOUNDATION OF RELIGIOUS FREEDOM IN THIS GREAT NATION MUST BE RESTORED!

ONCE AGAIN, I THANK THE COMMITTEE FOR GIVING ME THE OPPORTUNITY TO ADDRESS YOU TODAY.

SUBMISSION OF CONGREGATION ETZ CHAIM TO SUBCOMMITTEE ON THE CONSTITUTION, HOUSE OF REPRESENTATIVES COMMITTEE ON THE JUDICIARY

I. INTRODUCTION

Congregation Etz Chaim ("Congregation" or "Etz Chaim") is a small group of Orthodox Jewish residents of Hancock Park who, for the last 30 years, have gathered together in one of two residences in Hancock Park for communal prayer. Orthodox Judaism requires that worshipers pray together, and that they walk to services on the Sabbath and on other holy days. Thus, in order to comply with the dictates of their faith, Orthodox Jews must have a house of worship within walking distance of their homes. Over the years, Etz Chaim has come to serve the needs of many elderly and disabled Hancock Park residents, who, because of their disabilities, are physically unable to walk the mile or more round-trip to synagogues located in the commercial zone outside of Hancock Park. For years, these faithful congregants have attended services at Etz Chaim using their canes and walkers.

Now the City of Los Angeles seeks to shut down Etz Chaim -- not because of any adverse impacts created by the use of this residence for prayer services (it is clear that any minor impacts could be mitigated, and the Congregation repeatedly expressed its willingness to do so), but rather, because the City does not want "church uses" in Hancock Park, ever. Never mind that the City permits other group assembly uses with even greater impacts, such as schools, recreational facilities and private clubs in Hancock Park through conditional use permit. Never mind that the City allows similar secular uses such as book clubs, political and charitable fundraising events, estate sales and embassy affairs in Hancock Park as a matter of right.

If the City is permitted to shut Etz Chaim down, the elderly and disabled congregants, as well as those with young children who are unable to walk to more distant synagogues, will have nowhere else to go. The City will have substantially and irreparably harmed them, by forcing them to violate the most fundamental tenants of their religion -- that they gather together with others of their faith on the Sabbath and other holy days to pray. Once done, this injury cannot be repaired. As so eloquently described by the Rabbi of this Congregation, Rabbi Chaim Baruch Rubin, missing one day of communal prayer causes such harm to the congregants' spiritual growth that their physical being suffers. Missing one day of prayer cannot be "made up" by praying the next day or following week. There can be no restoration of the losses that each and every congregant will experience by not being allowed to pray with others of their faith as required by their religion.

In addition, under Jewish law, a Rabbi is prohibited from shutting down a "shul" or house of prayer without first establishing another shul to take its place. In other words, Rabbi Rubin has an obligation to ensure that his congregants have a place where they can fulfill the mandates of their religion and pray communally. He cannot under any circumstance simply allow some of his congregants to suffer the spiritual consequences of not being able to pray because of physical or other limitations.

The Congregation's prayer services are quiet and unobtrusive. They are held indoors, without music or amplification. The Congregation does not cause traffic congestion, parking problems or noise (indeed, the Congregation's adjacent neighbors support the Congregation's use of the house). Also, the house at which the Congregation prays (the "Highland Avenue residence"), is located on one of the busiest and noisiest intersections in the City of Los Angeles, Third Street and Highland Avenue -- a location where people praying indoors can hardly be noticed.

The City's refusal to allow the Congregation to pray anywhere in Hancock Park (and in effect, prohibiting churches from availing themselves of the conditional use process set forth in the zoning code) substantially burdens the congregant's free exercise of religion, freedom of speech, freedom of association, freedom of expressive association, freedom of assembly, and infringes on their fundamental right to direct the spiritual education of their minor children. The City's disfavored treatment of churches (complete exclusion) vis-à-vis other similar group associational uses such as schools, recreational facilities and private clubs (which the City has chosen not to exclude from Hancock Park) is neither a neutral application of the zoning ordinance, a legitimate state interest nor does it comply with the mandates of equal protection. In addition, the City's wholesale exclusion of church uses from Hancock Park violates the Congregation's civil rights under the Fair Housing Act, as it has a chilling effect on the ability of Orthodox Jews to reside in a large part of Hancock Park.

II. BACKGROUND

A. THE CONGREGATION

The act of gathering in communal prayer with others of the Orthodox faith is a fundamental tenet of the Orthodox Jewish religion, which has been practiced for thousands of years. Orthodox Jewish Law requires that families pray together three times on the Sabbath (Friday night and Saturday until sunset) and other holy days, and that a quorum of no less than ten men (or "minyan") gather each weekday morning and evening for prayer. Travel by car is permitted for weekday services, but Orthodox Jewish law does not permit worshipers to use or be transported by any mechanized form of transportation (for example cars or elevators) on the Sabbath or on other holy days. If congregants cannot get to prayer services under their own power on the Sabbath or other holy days, they are unable to pray communally as required by their religion. Thus, in order to fulfill their religious dictates and beliefs, worshipers must live within walking distance of their houses of prayer.

Since approximately 1970, the Congregation has been gathering for prayer in a residence in the Hancock Park area of Los Angeles. When the family of Rabbi Abraham Rubin moved to the family home at 415 South June Street, there were a handful of Orthodox Jews in the community in need of a place to gather and pray. Some of these people, because they were elderly, disabled or had small children, were unable to walk to the nearest synagogue, which was (and still is) over half a mile beyond the western boundary of Hancock Park. Rabbi Rubin thus invited friends and neighbors who shared the Orthodox faith to pray with him at his home. During the approximately 25 years that prayer services were held at Rabbi Rubin's home, the Congregation averaged forty (40) attendees for the Sabbath and holy day services (to which everyone walked) and ten to fifteen (10-15) attendees for week day services (to which driving was permitted). Rabbi Rubin's home was never used as a full-service synagogue. The only events held at his home were some weekday, Sabbath and holy day prayer services and occasional bar mitzvah services (always held on the Sabbath and thus required "walking days" for all attendees).

A substantial number of Etz Chaim's congregants, because of their physical limitations, depend greatly on the existence of a place near their homes where they may pray communally with others of their faith. For instance, congregant Joseph Siekerka is 84 years old and a survivor of Auschwitz. He had one leg amputated several years ago and his remaining leg suffers restricted use, preventing him from walking long distances. Ella Buchinger is 75 years old. She suffered a fractured spine resulting from osteoporosis she contracted in concentration camps during the Holocaust and is unable to walk long distances. Miriam Weiss is 72 years old and can only walk with the assistance of a walker and with great difficulty. In addition, there are a number of families with very young children who are physically unable to walk to services at more distant synagogues located outside of Hancock Park. For these individuals, Etz Chaim is more than a mere convenience; it provides them with the only opportunity they have to pray together as their faith requires.

B. THE SEARCH FOR A NEW LOCATION

In approximately 1990, Rabbi Rubin's health began to fail, and his son, Rabbi Chaim Baruch Rubin, took over the leadership of the Congregation. The younger Rabbi Rubin (hereinafter referred to as Rabbi Rubin) felt a spiritual obligation to provide a suitable house of prayer for the Congregation and thus began an eighteen-month search for a new location at which to hold prayer services. The objectives of the Congregation's search were threefold: first, to find a location within walking distance of the Congregation's residences, keeping in mind the walking distance limitations of the elderly, disabled and very young members; second, to find a location on the ground floor (to allow disabled and elderly members who cannot climb stairs and who cannot use elevators on Sabbaths and other holy days to attend services); and third, to find a location that would have the least possible impact on the Hancock Park community.

The Congregation explored the possibility of using space at Whittier Law School, which is located in Hancock Park and within walking distance for Congregation members. Although for the past several years the law school has permitted a group of about ten Orthodox Jewish worshipers to meet on the Sabbath for prayer services in a second-floor classroom, this location is unavailable to Etz Chaim for a number of reasons. First, the law school is in the process of being sold to Yavneh Hebrew Academy ("Yavneh"), which will take over the premises in September 1998. Yavneh has agreed to allow the current worshipers to continue to meet at the school, but it has indicated that it will not permit another congregation to commence services there. Second, the law school has allowed the use of a classroom on the second floor, which is not a feasible location for members who are elderly or have disabilities which prevent them from walking up a flight of stairs. Third, while this classroom may be sufficient for the ten current worshipers, it is unlikely that it could accommodate an additional forty worshipers on the Sabbath. Fourth, the services held at the law school are of a different "denomination" than that of Congregation Etz Chaim.⁽¹⁾ Fifth, Orthodox Jewish law requires men and women to be separated during prayer services, and the classroom does not allow for such separation. Sixth, the law school cannot accommodate weekday services. Finally, the law school is unsuitable for use by Etz Chaim because it does not provide the necessary religious setting and cannot accommodate the religious artifacts necessary for prayer by the Congregation.

The Congregation also sought out space in the commercial district south and west of Hancock Park but could find no suitable locations. As a practical matter, these locations are too far away from the congregants' homes to accommodate the needs of the members who are elderly, disabled or have young children. Moreover, because Orthodox Jews are forbidden to use any machines, including elevators, on the Sabbath and other holy days, only a first-floor location would be suitable. To the Congregation's knowledge, there are no first-floor locations in these commercial areas suitable for use as an Orthodox house of worship that are within reasonable walking distance from the congregants' homes.

After an eighteen-month search, the Congregation located the current residence at 303 South Highland Avenue (the "Highland Avenue residence"). The residence appeared ideal for prayer services, as it was within walking distance of the homes of the congregants, could accommodate prayer services on the ground floor, was close to the western-most edge of Hancock Park, was located on the corner of one of the busiest (and noisiest) intersections in Los Angeles (and likely the busiest in Hancock Park), and had ample on-street parking.

Once Etz Chaim located the Highland Avenue residence, the Congregation approached Los Angeles City Council President, John Ferraro, the councilman for the district, to inform him of its intention to purchase the residence for prayer services and to seek his advice. Councilman Ferraro advised the Congregation that while all of Hancock Park is zoned R1-1, and thus requires a conditional use permit for prayer gatherings, the Congregation would be better served by not seeking a conditional use permit, as the Congregation's use was unobtrusive and had been ongoing for nearly 25 years. The Councilman indicated that if the Congregation would get the signatures of all its abutting neighbors in support of the use, he would assist them in obtaining a conditional use permit without a hearing. Councilman Ferraro stated, however, that if neighborhood opposition to the use arose, he would not be in a position to support the granting

of a conditional use permit to Etz Chaim. Etz Chaim thus proceeded to obtain the signatures of its abutting neighbors approving the use of the Highland Avenue residence.

Etz Chaim purchased the Highland Avenue residence and began holding prayer services there in April 1995. The Highland Avenue residence was dilapidated and had features which were in violation of the residential zoning ordinance (a fully paved front area and large fence), and which had been constructed by the prior owner. Etz Chaim offered to remedy the nonconforming features in order to restore the beauty and full residential character of the house. The Congregation cleaned the front yard, which was filled with trash and junk cars, fixed broken windows, repaired leaking pipes and the ceiling which was falling apart, added lighting, installed air conditioning, repaired the fence in the rear, removed a rotting deck, removed a termite-infested garage which had become a safety hazard, added a bathroom, and painted and plastered. The cost of these repairs and improvements was approximately $50,000.

In approximately September 1995, the Congregation invited Councilman Ferraro and members of the Hancock Park Homeowners' Association (the "Association), including its president, James Wolfe, to visit the house in order to allow them to see first-hand the location and the activities of the Congregation. At that meeting, the Congregation assured the Association that it was willing to take all necessary steps to address any concerns the Association might have about the use of the property.

C. THE NATURE OF THE CONGREGATION'S ACTIVITIES

The religious practices of Etz Chaim are unobtrusive and do not disturb the peace and tranquillity of the neighborhood surrounding 303 South Highland Avenue. For the past two and a half years Etz Chaim has been meeting for prayer services in the Highland Avenue residence. During that time, the average Sabbath attendance (to which all congregants walk) has been forty (40) members (with a high of sixty (60) members). Weekday services (where driving is permitted) rarely exceeds ten to fifteen (10-15) members. Within this same time period, there have been four bar mitzvah ceremonies (the receptions are held elsewhere), which like all special services take place on the Sabbath, and, as with regular Sabbath services, all attendees are required to walk. Also, because of the strict dictates of the Orthodox Jewish religion, no musical instruments, amplification or other sound enhancements are used during any services (which are always held indoors). In addition, the residence is not operated as a full-service synagogue or temple, and the Congregation has no intention of operating it as such. Thus, there are no "community" services typically offered at a full-service synagogue such as community outreach, a Hebrew school, a social hall, after-school activities, bingo, and other programs. The only activities which take place at the residence are prayer services.

In addition, the location of the Highland Avenue residence makes the Congregation's prayer services even less imposing. The Highland Avenue residence is on the westernmost fringe of Hancock Park at the intersection of two of the busiest streets in Los Angeles. Nearly 80,000 cars a day drive past the residence. The noise from the traffic is so loud at times that one has to shout to be heard. It is also noteworthy that neither of the adjacent homeowners objects to the prayer services that have been held there for over 2-1/2 years.

D. OPPOSITION BY THE HANCOCK PARK HOMEOWNER'S ASSOCIATION

Several months after its September 1995 visit to the Highland Avenue residence, the Association voiced opposition to Etz Chaim's use of the property. The Association expressed concerns about a potential increase in traffic, potential noise problems, the aesthetically unappealing features installed by the previous owner which were in violation of the residential zoning ordinance (the paved front area and high fence), and worried that the exterior of the house would be altered in a way that would make it appear more commercial. As it had in the earlier meeting with the Association, the Congregation assured the Association that it was willing to address these concerns, including correcting the features which violated the zoning requirements and maintaining the house's character as a residence.

Ultimately, it became the Association's position that no location in Hancock Park would be suitable for the Congregation's prayer services. They reasoned that because there had never been any conditional use permits of this nature granted in Hancock Park's 75-year history, they did not want to "set a bad precedent" by allowing communal prayer services in their neighborhood. Indeed, as one Hancock Park resident testified before the City Council on July 8, 1997, "If you permit this illegal use, how can you rationally prevent Muslims from setting up their things, Buddhists from having their temples?" (See Jodi Wilgoren, "Troubled House of Worship," Los Angeles Times, July 9, 1997, at B1, B8, Exhibit A; see also City Council Hearing Transcript, Exhibit B at p. 22, lines 16-22).

E. THE ZONING LAW

The Highland Avenue residence is in an R1-1 Zone and as such is zoned for residential use under Los Angeles Municipal Code section 12.08. Under Municipal Code section 12.24(C)(46), use of the property for a house of worship is a permitted use, however, the Congregation first must obtain a conditional use permit.⁽²⁾ According to Municipal Code section 12.24(D)(4), before it grants a conditional use permit for a house of worship in an R1-1 Zone, the Associate Zoning Administrator ("AZA") must find that "the proposed location will be desirable to the public convenience or welfare, is proper in relation to adjacent uses or the development of the community, will not be materially detrimental to the character of development in the immediate neighborhood, and will be in harmony with the various elements and objectives of the General Plan."

F. ADMINISTRATIVE PROCEEDINGS

Hearings on Etz Chaim's conditional use application⁽³⁾ were held before the AZA, the Board of Zoning Appeals ("BZA"), the Planning and Land Use Management ("PLUM") Committee and the Los Angeles City Council. At each stage of the proceedings, the Congregation expressed its willingness to mitigate any potential minor impacts of its use of the Highland Avenue residence. Specifically, in response to minor potential impacts raised by the City, Etz Chaim responded:

Noise. The BZA worried that the house as designed does not provide a sufficient noise buffer for the two houses which neighbor it. Although the Congregation's prayer services are quiet and unobtrusive and do not involve the use of any amplification or other mechanized equipment, and although none of the neighbors has complained about a noise problem, the Congregation has indicated that it is willing to provide measures the City deems necessary to prevent any noise disruption to the community. These measures could include installing double-paned glass on the windows and/or erecting fences or landscaping to provide a sufficient noise buffer.

Parking. The BZA was concerned about the weekday parking of 10-15 individuals and parking for events not held on the Sabbath or holy days. As noted previously, the number of congregants is relatively small. Additional parking in the area is unnecessary on Sabbaths and other holy days, because religious doctrine requires the congregants to walk to services on these occasions. As for the daily prayer services, very little parking is needed to accommodate the 10 or so individuals who attend, and space is already available in the area to meet these modest needs. Also, as noted previously, the two special events held at the house of prayer within the last two years have been on the Sabbath where parking is not a concern. Nevertheless, the Congregation is prepared to enter into a lease for parking at the Whittier Law School which will accommodate the weekday and any special events parking needs of the congregants. The Congregation is also willing to condition the C.U.P. on the Congregation's ability to achieve sufficient alternative parking to address the BZA's concerns.

Traffic. There is simply no evidence of any traffic impacts arising from the use of the 303 South Highland Avenue property. The Third and Highland area has a daily traffic volume of 80,000 cars, and the addition of 10 or 20 cars is not significant. In fact, the Congregation's practices are such that passers-by are unlikely even to be aware that services are occurring inside the residence at 303 South Highland Avenue.

Aesthetics. The BZA felt that the use of 303 South Highland Avenue as a house of prayer would detract from the residential character of the neighborhood and set a precedent allowing other non-residential uses. However, the structure located at 303 South Highland Avenue looks like a residence, and although the previous owner made certain nonconforming modifications to the property (such as paving the front lawn area), the Congregation has pledged to restore the landscaping and fix all nonconforming features of the property so that it maintains its residential character. Moreover, while "precedent setting" is not proper grounds for denying a C.U.P., the C.U.P. could be conditioned to expire should the Congregation cease meeting there for prayer.

(Appeal Justification Submitted to the City Council, Exhibit C at 93-94; see also PLUM Committee Hearing Transcript, Exhibit D at pp. 9-10, 13, 20; City Council Hearing Transcript, Exh. B at pp. 8, 12).

1. THE HEARING BEFORE THE PLUM COMMITTEE

At the hearing of the PLUM Committee on June 3, 1997, testimony was given in support of and in opposition to the Congregation's request for a conditional use permit. (See generally PLUM Committee Meeting Transcript, Exh. D). Most, if not all, of the opposition to the conditional use permit was based on the position that no location in Hancock Park is suitable for the Congregation's prayer services, and that granting the permit would "set a bad precedent" in Hancock Park because there have never been any conditional use permits of this nature granted in Hancock Park's 75-year history. (See generally id.). Nonetheless, a member of the PLUM Committee, Councilwoman Laura Chick, found that none of the land use impacts of the prayer services at 303 South Highland Avenue were unmitigable, and that use of the residence could be conditioned in order to address these concerns. (Id. at 82-84). The PLUM Committee suggested that the Congregation meet with the Association and Councilman Ferraro to discuss possible measures to be taken by the Congregation to mitigate the land use impacts so that a compromise could be reached on the use of the Highland Avenue location. (Id. at 84).

Encouraged by the PLUM Committee's suggestion, the Congregation again communicated its desire to meet with the Councilman and the Association to discuss Etz Chaim's continued willingness to address their concerns and take any reasonable steps to mitigate the land use impacts at 303 South Highland. (Letter from T. Edward Smith, Exhibit E.) Although the Congregation attempted to schedule meetings, the Association and Councilman Ferraro refused to participate in any such discussions. Gail Gordon, counsel for the Association stated that the Board of the Association had decided that it would not meet with the Congregation to discuss mitigation measures because its position had not changed and a compromise with the Congregation was not possible. Similarly, Rene Weitzer, Chief Deputy to Councilman Ferraro, stated that because no set of conditions would allay the Councilman's concerns, he was unwilling to meet with Etz Chaim.

2. THE HEARING BEFORE THE FULL CITY COUNCIL

On July 8, 1997, the City Council conducted a hearing on Etz Chaim's conditional use application. The City Council heard testimony from the Congregation reiterating its willingness to address all of the City's land use concerns. (See City Council Hearing Transcript, Exh. B at pp. 8, 12). The City Council also heard testimony from those opposed to the granting of the conditional use permit. Those individuals again emphasized their central argument that granting a conditional use permit to the Congregation would set a bad precedent which would allow other houses of worship to be established in Hancock Park. The City Council refused to consider any of the Congregation's mitigation proposals and adopted the findings of the BZA. Specifically, the City Council found:

(a) [T]he existing change in character of this single-family residence - as converted and as used - currently detracts and diminishes the residential character and experienced quality of life of a significant number of the other residents of this long established single-family residential neighborhood; the neighborhood has a significant number of residents, including observant Orthodox Jews, that object to the establishment of this use at this location; the record and the facts as presented indicate there are alternatives for the location of the physical synagogue and/or the exercise of the members [sic] Orthodox faith; the physical site is small and does not permit adequate buffering from adjacent residential uses or the provision of required parking, as the request for the concurrent variances indicates; the most probable result of the continuation of this use is an exacerbation of the current infringement on the enjoyment of their property by the nearby residents and the existing parking and traffic congestion.

(b) [The residence] is located in a long established and well maintained single-family residential neighborhood consisting of lot sizes that can not and were not intended to accommodate institutional uses that require buffering and parking beyond the minimal requirements of a single-family residential zone; there is no precedent in the 75 years of the subdivision that supports the granting of this use - the historical planning of this subdivision, in the context of the time, recognized and planned for school sites and recreational uses within the neighborhood with church and commercial uses at the perimeter; the longevity, stability and quality of this single-family residential neighborhood sustains the long term intent and substance of this residential subdivision planning; this use compromises and is not in proper relation to the long established and maintained intent of the original subdivision planning.

(c) [T]here are no other church or institutional uses on the residentially zoned properties within the notice radius for this action; this use would be precedent setting and compromise the 75 year maintenance and recognized quality and sought after ambiance of this historical, residential neighborhood.

(d) [A]lthough the use is permitted by conditional use in the subject community plan designated Low II density residential classification (R1, RS and RD6 zones), the use is a precedent setting encroachment of an institutional use by conversion of an existing single-family residence located on a small lot; this could destabilize what has been a long standing, quality single-family residential neighborhood that has through constant efforts maintained its stable, high quality and verdant residential character despite its central urban location and the onslaught of high volume traffic, pollution and increasing crime; this use though seemingly benign and supportive of community values is, as a first institutional/commercial intrusion into a single-family residence, a potentially significant rent in the residential character of this neighborhood.

(BZA Findings 1(a) - (d), Exhibit F at 63-64; see July 10 1997 Decision of the City Council, Exhibit G at p. 1 (adopting the findings of the BZA)).

3. THE HARM TO THE CONGREGATION IF THE CITY IS PERMITTED TO PROHIBIT PRAYER IN HANCOCK PARK

If the City is permitted to close down prayer services at the Highland Avenue residence, the Congregation will suffer substantial and irreparable harm. Over its nearly 30-year history, Etz Chaim has come to serve a large number of elderly people, many of whom are afflicted with disabilities that limit their mobility. For these elderly and disabled residents of Hancock Park, Etz Chaim has become the only place where they can meet to pray in accordance with the requirements of their faith. Mr. Joseph Siekerka, for example, is 84 years old, a survivor of Auschwitz and an amputee. Every Saturday morning, he walks the three block distance from his home to the Highland Avenue residence to pray. The next place of worship nearest Mr. Siekerka's home is on La Brea, over 1/2 mile away. If the City closes the Highland Avenue residence to prayer, Mr. Siekerka will be unable to attend prayer services, because he is physically unable to make the trip to and from La Brea.

Likewise, Ella Buchinger, who is a 30-year resident of Hancock Park, has prayed with Etz Chaim for nearly 25 years. She is 75 years old and suffers from a fractured spine resulting from osteoporosis she contracted in concentration camps during the Holocaust. Every Friday evening and Saturday morning she walks from her home to the Highland Avenue residence to pray. There are no locations at which she can pray which are closer than the Highland Avenue residence and to which she is capable of walking. If the City shuts down the Highland Avenue residence, Mrs. Buchinger will have nowhere else to go.

Miriam Weiss, as well, has lived in Hancock Park for 30 years and prayed with Etz Chaim for nearly 20. She must use the assistance of a walker and is able to walk only with great difficulty. She walks to and from the Highland Avenue residence for services on every high holy day and frequently on the Sabbath. If the Highland Avenue residence is closed, she will be unable to attend services any longer.

For Mr. Siekerka, Mrs. Buchinger, Mrs. Weiss and many other congregants young and old alike, walking an additional mile or more round-trip to attend services at a synagogue located in the commercial zones west or south of Hancock Park is simply not an option. For them, if the Highland Avenue residence is shut down, there is nowhere else to go. The harm they will suffer is severe and irreparable. Because prayer is such an integral part of their daily lives and a fundamental element of their family and community lives, missing even one day of communal prayer can cause severe harm to spiritual growth. There can be no restoration of the losses that these congregants will suffer each and every day they are forbidden from praying together. Once inflicted, this damage simply cannot be undone.

Moreover, under Orthodox Jewish law, Rabbi Rubin is forbidden from disbanding the Congregation. (City Council Hearing Transcript, Exh. B at p. 12). If the Congregation cannot pray at the Highland Avenue residence, there is no other location available to the Congregation that is within walking distance for its elderly, disabled and very young members. Under Orthodox Jewish law, Rabbi Rubin cannot sacrifice the few for the many. If the City is permitted to enforce the zoning ordinance against the Congregation, the Rabbi will be forced to choose between violating the laws of the State or the laws of his faith.⁽⁴⁾

4. THE CITY'S ACTIONS VIOLATE THE CONGREGANTS' CONSTITUTIONAL RIGHT TO THE FREE EXERCISE OF RELIGION AND OTHER FUNDAMENTAL RIGHTS

The City's actions place a direct and substantial burden on the Congregation's ability to exercise their fundamental rights under the United States Constitution. The First Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, precludes local governments from "prohibiting the free exercise [of religion] or abridging the freedom of speech . . . or the right of the people peaceably to assemble." U.S. Const., amend. I.⁽⁵⁾ In adopting the findings of the BZA, the City has stated that as a matter of policy, houses of worship will not be permitted in Hancock Park. By prohibiting houses of worship in Hancock Park, the City has placed a substantial burden on the free exercise of religion and freedom of expressive association of the congregants, who must walk to services to comply with the dictates of their faith. For those congregants who are elderly, infirm or have young children, application of the zoning ordinance will prevent them from continuing to associate with other Orthodox Jewish residents of Hancock Park in the pursuit of their religion. This is because in order to freely practice their religion, these congregants can no longer live in the community. The burden on the congregants is especially severe, as they have been able to walk to services, in this very neighborhood, for many years, and in some cases, decades. In addition, the City's application of the Municipal Code to prevent prayer services in Hancock Park limits the congregants' ability to associate with others of similar beliefs as it has a chilling effect on the desire of the Orthodox to move to Hancock Park. They are thus deprived of the benefits that would accrue from living in a neighborhood where all people are welcome regardless of their color or faith.

The City's actions also violate the Free Speech Clause of the First Amendment to the United States Constitution. Prayer is, at its most basic, communicative activity between a believer and his or her God. In addition, prayer, as practiced by the Congregation, involves not only communication with God, but also with others who share a similar belief system. The congregants' Orthodox faith requires them, by their lifestyle, to be a people set apart from the surrounding community. Their difference, as expressed in their garb, hairstyles, and walking to "shul" to pray, are activities intended to communicate to observers the difference between Orthodox life and the life of the surrounding community. As such, the act of gathering together in the neighborhood where they live, which act is imbued with communicative content, is itself a form of speech entitled to protection under the First Amendment. By refusing to grant the Congregation a conditional use permit for the Highland Avenue residence (or any other location in Hancock Park), the City places a direct restriction on the congregants' ability to engage in the communicative act of gathering together in their neighborhood for worship, as well as the congregants' ability to engage in the speech of prayer once assembled.

The City's application of the zoning ordinance in this case is not content-neutral. If individuals choose to meet weekly in a residence in Hancock Park for the purpose of reading and discussing political treatises, they are not required to secure a conditional use permit.⁽⁶⁾ However, if the same group decides to meet weekly in a residence in Hancock Park for the purpose of reading and discussing the Torah, the City classifies this communicative activity as a "church use" and requires the individuals involved to obtain a conditional use permit. More fundamentally, in Hancock Park, the City, through its findings in this case, has stated that it will not grant a conditional use permit for "church uses" to anyone, anywhere, anytime. The City's rationale for this outright prohibition is that church uses have never been allowed in the 75-year history of Hancock Park, and to do so now would set a bad precedent.⁽⁷⁾

The City's actions also implicate the fundamental right of individual parents to direct the education and upbringing of their children recognized by the Supreme Court in a series of cases beginning with Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625 (1923), and Pierce v. Society of Sisters, 268 U.S. 510, 45 S. Ct. 571 (1925). Some of the congregants have small children who cannot walk the additional distance to synagogues located in the commercial districts on La Brea and Wilshire. For these individuals, the City's action prevents their young children from obtaining the same religious education as those of other faiths who may be transported to their churches by automobile. Parents are thus left with the choice of either abandoning the religious education of their young children as required by their faith, or selling their homes and moving out of Hancock Park to an area where they will be able to worship together as a family and inculcate their religious beliefs in their younger children. The City's action thus substantially interferes with the fundamental right of individual members of Congregation Etz Chaim to direct the religious upbringing and education of their children. The City's action simply does not withstand constitutional scrutiny.

a. ALL LEGITIMATE IMPACTS COULD BE MITIGATED TO INSIGNIFICANCE

The City's application of the zoning ordinance in this case fails under any constitutional scrutiny test. Although the City articulated generalized conclusions about increased noise, traffic, parking, and supposed aesthetic injury to the neighborhood, none of these supposed impacts was a legitimate basis for the application's denial. Specifically, with respect to the City's concern about noise, the Congregation proposed installing double-paned glass windows and landscaping measures to eliminate any potential noise impacts. (Appeal Justification, Exh. C at 93; see also City Council Hearing Transcript, Exh. B at p. 10). With respect to the City's concern about parking, the Congregation indicated its willingness to enter into a lease for any additional parking reasonably required by the City. (Appeal Justification, Exh. C at 94). Although the City cited traffic congestion as a potential impact, given that the traffic volume at the residence is 80,000 cars per day, the addition of 10 to 15 cars for weekday services could not be considered a legitimate impact. (Id.). In response to the City's concern that the use of the house would detract from the residential character of the neighborhood and set a precedent allowing other non-residential uses, the Congregation noted that the house at 303 South Highland is indistinguishable from other residences in the area. Moreover, although the prior owner had installed certain nonconforming modifications (such as paving the front lawn area), the Congregation pledged to restore the landscaping and fix all nonconforming features and to maintain the house's residential character. (Id.). Finally, in response to the City's concern that the use might be transferred to other religious groups, the Congregation suggested that the conditional use permit be conditioned to expire if the Congregation ceased meeting at the house for prayer. (Id.).

In short, the Congregation repeatedly expressed its willingness to "undertake any reasonable measure to alleviate any real concerns resulting from people praying at the house." (Id.; see also PLUM Committee Hearing Transcript, Exh. D at pp. 10, 13, 20; City Council Hearing Transcript, Exh. B at pp. 8, 12). Moreover, the Congregation repeatedly offered to sit down with City officials and the Hancock Park Homeowners Association to devise a set of conditions to the conditional use permit that would mitigate the land use impacts on the neighborhood to a level of insignificance. (City Council Hearing Transcript, Exh. B at pp. 8, 12). The response from both was the same -- a flat out refusal to listen or consider anything short of total denial of the Congregation's conditional use permit.

b. BAD PRECEDENT IS NOT A LEGITIMATE STATE INTEREST

In denying the Congregation's conditional use permit, the City found that if it allowed the Congregation to pray in Highland Avenue residence, it would be opening the floodgates to "commercial" and "industrial" uses in Hancock Park. The City's rationale, however, is fatally flawed. First, as acknowledged in its findings, the City already allows "commercial" uses in Hancock Park. In addition to churches, the Municipal Code classifies schools and recreational facilities as uses which may be permitted in R1-1 zones only through conditional use permit. Thus, while the City acknowledged that schools and recreational facilities are permitted in Hancock Park, it stated that churches and other "commercial uses" are not. (BZA Finding 1(b), Exh. F). The zoning ordinance makes no such distinction. The City's application of the zoning ordinance does not prohibit all "commercial" uses in Hancock Park, only churches. The exclusion of churches but not other similar group associational facilities is not a legitimate governmental interest, as the only factor which distinguishes the permitted from the non-permitted uses, is the religious nature of the use itself.

Second, the City's "floodgate" argument is belied by the conditional use process itself. The zoning ordinance, through the conditional use process, expressly permits the City to make a case-by-case determination of the impacts on the community of any proposed use. Thus, uses which will truly detract from the residential character of Hancock Park, through parking, noise, traffic, aesthetic or other legitimate impacts, can be excluded. It defies both logic and credulity to assert that permitting one use will open the floodgates to all.

Accordingly, the City has failed to advance even a rational state interest in support of its complete exclusion of the Congregation from Hancock Park. The City's reliance on noise, traffic, parking and aesthetics was irrational and an abuse of discretion, as the record reveals that those impacts had no basis in fact and could be wholly mitigated. Moreover, the City's purported reliance on bad "precedent" was nothing less than veiled hostility to minority religions, and as such, was irrational and an abuse of discretion. As the Supreme Court stated years ago in Yoder, the "essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion." Yoder, 406 U.S. at 215, 92 S. Ct. at 1533. In Smith II, the Court said that "if 'compelling interest' really means what it says . . . , many laws will not meet the test." Smith II, 494 U.S. at 888, 110 S. Ct. at 1605. Likewise, in City of Hialeah, the Court reaffirmed its commitment to the principle that only "interests of the highest order" will meet this rigorous test, stating that a "law that targets religious conduct for distinctive treatment or advances legitimate governmental interests only against conduct with a religious motivation will survive strict scrutiny only in rare cases." City of Hialeah, 508 U.S. at 546, 113 S. Ct. at 2233 (internal quotation marks and citation omitted) (emphasis added). This is not such a rare case.

5. THE CITY'S ACTION ALSO VIOLATES THE CONGREGATION'S RIGHT TO EQUAL PROTECTION

The Equal Protection Clause of the Fourteenth Amendment is essentially a direction that all persons similarly situated should be treated alike. The Supreme Court has treated as presumptively invidious those classifications that disadvantage a 'suspect class,' or that impinge upon the exercise of a 'fundamental right.' Here, the City's refusal to issue a conditional use permit to the Congregation fails even the rational basis test, as it was not justified by any legitimate state interest.

The City did not consider the Congregation's conditional use application in good faith. With respect to the minor impacts identified by the City and upon which the City purportedly based its denial of the conditional use application, the Congregation proposed mitigation measures which would have completely eliminated each and every legitimate impact. While one member of the City's PLUM Committee recognized that all of the impacts could be mitigated, the City refused to consider or even to acknowledge any of the Congregation's proposals. (See generally City Council Hearing Transcript, Exh. B).

Second, and perhaps more importantly, the City's findings make clear that the reason the Congregation's conditional use permit application was not considered (nor would one ever be considered for any location in Hancock Park) was that the City had not ever, nor would it ever, grant a conditional use permit to a church in Hancock Park. However, similar secular uses, such as schools and recreational facilities, are eligible for consideration in Hancock Park under the conditional use permit process. Specifically, the City found that "the historical planning of [Hancock Park] . . . recognized and planned for school sites and recreational uses within the neighborhood with church and commercial uses at the perimeter . . . ." (BZA Finding 1(b)) The City further found that "the use [by the Congregation for prayer services] is a precedent setting encroachment of an institutional use by conversion of a single-family residence . . . this use though seemingly benign and supportive of community values is, as a first institutional/commercial intrusion into a single-family residence, a potentially significant rent in the residential character of the neighborhood." (BZA Finding 1(d)); see also BZA Finding 1(c), id. ("[T]here are no other church or institutional uses on the residentially zoned properties within the notice radius for this action; this use would be precedent setting and compromise the 75 year maintenance and recognized quality and sought after ambiance of this historical, residential neighborhood.")).

The fact that church uses have never before been permitted in Hancock Park (although allowed by the zoning ordinance through the conditional use permit process) is not a legitimate basis upon which to deny a conditional use permit. The City's application of the zoning ordinance -- prohibiting church uses in Hancock Park on the basis of historical precedent (or lack thereof)-- amounts to a complete repudiation of the conditional use process for churches in Hancock Park. Such application not only impinges on the congregants' fundamental rights to associate freely to practice their religion,⁽⁸⁾ it singles out church uses for disparate treatment. Specifically, while no conditional use permit will be granted for church uses in Hancock Park, secular uses with even greater impacts, such as schools and recreational facilities, may avail themselves of the conditional use permit process in Hancock Park.⁽⁹⁾ Because there can be no rational (much less compelling) basis for believing that churches pose any special threat to the City's legitimate interests beyond those already implicated by schools and recreational facilities, the zoning ordinance as applied in this case violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

In addition to the City's blanket prohibition of churches in Hancock Park, the City also violated the congregants' equal protection rights by denying their conditional use permit under the factual circumstances of this case. The congregants do not seek to operate a full-service church or synagogue in Hancock Park.⁽¹⁰⁾ Rather, the only activity the congregants seek to undertake at the Highland Avenue residence is communal prayer. They operate no ancillary "church" activities, such as community outreach programs, adult education programs, homeless shelters, dance halls or bingo nights. The prayer services that are conducted at the home are quiet, and no amplification equipment is used or allowed. Thus, aside from the fact that the activity engaged in at the house is religious as opposed to secular, their use of the house is similar to other group activity uses allowed in Hancock Park without a conditional use permit.

If, for example, the congregants met at the Highland Avenue residence to discuss secular books instead of to pray, their use would be a permitted residential use (book club meetings). Likewise, if the Congregation met at the residence for secular events, such as for parties or charitable or political fundraisers, as many of the residents in Hancock Park regularly do, their use would also be permitted as a "residential use." It is thus the nature of their speech (prayer) that distinguishes the congregants from the multitude of other residents of Hancock Park who regularly invite people to their homes to engage in group activities. Indeed, for over 25 years, the Congregation openly and with the full knowledge of the City conducted the very same prayer services at the elder Rabbi Rubin's house on June Street on a quiet, interior street of Hancock Park. During that 25-year period, nobody from the City ever told the Congregation that the communal prayer services held at the elder Rabbi Rubin's house on June street were "church," "commercial" or "institutional" uses, and no enforcement action was ever taken against the Congregation or its members. Moreover, whether or not a resident lives at the house does not essentially change the residential character of the Congregation's activities.⁽¹¹⁾ Indeed, this was acknowledged by the City at the PLUM Committee hearing: "COUNCILMAN BERNSON: I think, Rabbi, if you hadn't applied for a CUP and continued to operate like your father did in his home, before, there probably would have been no problem. . . ." (PLUM Committee Meeting Transcript, Exh. D at 84).

The zoning ordinance as applied by the City prohibits the Congregation from engaging in communal prayer while permitting similar secular uses such as book clubs, parties and charitable and political fund-raising events, without a conditional use permit and schools, recreational facilities and private clubs with a conditional use permit. Because there is no rational, much less compelling, basis for burdening religious associational activities while not similarly burdening secular associational activities, the City's application on the zoning ordinance to prohibit prayer services in Hancock Park violates the Equal Protection Clause.

6. THE CITY'S ACTIONS ALSO VIOLATE THE FAIR HOUSING ACT

In 1968, Congress formally outlawed housing segregation on the basis of religion. Title VIII of the Civil Rights Act of 1968 (the "Fair Housing Act", or "FHA") makes it unlawful to "otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin." Courts have given the phrase "otherwise make unavailable" a broad reading to encompass a wide variety of discriminatory housing practices, including discriminatory zoning restrictions which have segregatory effects.

Here, the City's denial of a conditional use permit under Municipal Code section 12.24(C)(46) has a direct adverse impact on Orthodox Jews and harms the community of Hancock Park by denying Orthodox Jews the right to live in all but a small part of Hancock Park. The City's interpretation and application of the Municipal Code in this case effectively precludes the development of a house of worship on any available lot within the Hancock Park section of Los Angeles. Orthodox Jews will be disproportionately impacted by the City's actions because the dictates of their religion require them to walk to services on the Sabbath and other holy days. Having a house of worship within walking distance of their homes is therefore no mere convenience for Orthodox Jews, particularly the elderly, those with disabilities, and those with young children; instead, it is a prerequisite to their ability to live in particular neighborhoods in the City of Los Angeles. At worst, the City's decision will force the existing Orthodox Jewish population out of Hancock Park and serve notice to future generations of practicing Orthodox Jews that they are not welcome to live in Hancock Park. At best, the City's decision will segregate Hancock Park by forcing Orthodox Jews to the outskirts of the community in homes adjacent to commercial areas. Accordingly, the Fair Housing Act prohibits the City from enforcing the zoning code so as to segregate Hancock Park on the basis of religion.

Moreover, the City's application of the Municipal Code in this case undermines the principles of neutrality and open access to housing opportunities that animate the Fair Housing Act. The City's application of the zoning code prevents Orthodox Jews from gathering together to pray at the Highland Avenue residence based on purported land use concerns, while it tolerates objectively similar secular uses such as book clubs, political fund-raisers, adult education classes, location filming, and the yearly installation of Christmas and Halloween displays in the front yard of a home. These "permitted" uses raise the same or greater traffic and noise concerns as the activities at the Highland Avenue residence. Furthermore, the City discriminates against Orthodox Jews in Hancock Park by not permitting the Congregation and its members to avail themselves of the zoning ordinance's conditional use permit process for any location in Hancock Park, while allowing secular groups to do so freely.

Finally, even if the City could prove that its actions further, both in theory and in practice, a legitimate, bona fide governmental interest, the City has failed to show that no alternative would serve that interest with less discriminatory effect As stated previously, the Congregation has consistently and repeatedly expressed its willingness to address each and every concern raised by the City regarding the impact of the Congregation's activities on Hancock Park. Indeed, the Congregation proposed various mitigating actions it was willing to take in order to eliminate any potential impacts. The City not only failed to consider these proposals, but it never indicated why these proposals were inadequate or proposed other actions the Congregation could take in order to address the land use concerns. The City simply denied the Congregation's application for a conditional use permit without exploring alternatives which would have lessened the discriminatory effect of the zoning ordinance.

Finally, because the persons most burdened by the City's actions are the disabled members of the Congregation, it is also in the public interest (recognized by Congress in enacting the Americans with Disabilities Act of 1990), i.e. to fight against disparate treatment of the disabled and to eliminate discrimination against individuals with disabilities, to allow the Congregation to continue to pray in Hancock Park. The City has no legitimate justification for its violation of the Congregations' fundamental constitutional and civil rights.

III. CONCLUSION

Orthodox Jews have an obligation imposed by Jewish law to pray every day, on the Sabbath and on high holy days. This communal prayer is fundamental to the fabric of their family life, the raising of their children, and the existence of their community. If the congregants are not allowed to participate in communal prayer, their spiritual growth is disrupted and, as a result, their physical being suffers. Here, where the burden on religious beliefs and practice is substantial, while the accommodation by and impact upon the government are small, our laws should accommodate the free exercise of religion. It is the right thing to do. Unfortunately, politics and justice don't always coincide. (See Exhibit H) Governments should not be allowed to hide behind zoning laws to effectuate the prejudices of the politically powerful at the expense of religious minorities. The Congregation supports the enactment of new legislation to protect the fundamental rights of those who would otherwise remain unheard at City Hall.

Judiciary Homepage

1. ⁰ Congregation Etz Chaim is a Hassidic denomination of the Orthodox faith, which among other distinguishing characteristics, is a more "strict" denomination and conducts prayers in a different manner than other Orthodox denominations.

2. ⁰ In the Hancock Park area, other similar uses are allowed by conditional use permit, such as schools, private clubs, and recreation areas, under Municipal Code §§ 12.24(C)(15), (14), and (12), respectively.

3. ⁰ The Congregation also applied for a zoning variance with respect to setback and parking requirements. For the sake of simplicity, all references to the conditional use and variance requests will be referred to as the "conditional use application."

4. ⁰ If the City's is allowed to shut down prayer services at 303 South Highland, Rabbi Rubin personally will suffer immediate and substantial harm. He faces the choice between complying with the City's demand and discontinuing prayer services, which is contrary to his religious beliefs, and possibly paying fines at the rate of $1,000 per day and facing a possible jail sentence for a misdemeanor violation.

5. ⁰ Likewise, the California Constitution guarantees the "[F]ree exercise and enjoyment of religion," the "liberty of speech," and "the right to . . . assemble freely to consult for the common good." Cal. Const., Art. I §§ 2-4.

6. ⁰ Indeed, book clubs meet on a regular basis in Hancock Park, and City officials have not enjoined their use or tried to subject them to the burdensome conditional use permit process.

7. ⁰ Of course, the City's rationale is fundamentally flawed, as the conditional use process necessarily encompasses a case-by-case evaluation of the unique circumstances of each use. Thus, contrary to the City's argument, the act of granting one conditional use permit does not automatically require that all others be granted.

8. ⁰ As stated previously, Orthodox Jewish law commands that Congregation members come together to pray on the Sabbath and other holy days. On these days, however, they are prohibited from using any forms of mechanized transportation and thus must walk to services. Many of the Etz Chaim Congregants, however, are unable to walk to synagogue locations located a half mile or more beyond the 303 South Highland residence due to their age or physical disabilities. Thus, unless they are allowed to continue to gather together to pray at a location within reasonable walking distance from their homes in Hancock Park, they will be prevented from practicing their religion as required by Orthodox Jewish law.

9. ⁰ See City of Los Angeles Municipal Code § 12.24 (in addition to churches, permitting, among other things, child care facilities, nursery schools, recreational or community centers, private clubs and private schools in the R1-1 zone through conditional use permit)

10. ⁰ It is questionable whether their use should even be considered a "church use" for purposes of the zoning ordinance.

11. ⁰ It should be noted that in response to the City's suggestion, as of October 1, 1997, there will be a resident living at the 303 South Highland Avenue residence.