Free Motion for Preliminary Injunction - District Court of California - California

Case 3:08-cv-01406-JM-CAB

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PETER D. LEPISCOPO, ESQ. C.S.B. #139583 Counsel of Record BILL MORROW, ESQ. C.S.B. #140772

LEPISCOPO & MORROW, LLP

2635 Camino del Rio South, Suite 109 San Diego, California 92108 Telephone: (619) 299-5343 Facsimile: (619) 299-4767 Lead Attorneys for Plaintiff, GUATAY CHRISTIAN FELLOWSHIP DEAN R. BROYLES, ESQ. C.S.B. #179535 JAMES M. GRIFFITHS, ESQ. C.S.B. # 228467 THE WESTERN CENTER FOR LAW & POLICY 539 West Grand Avenue Escondido, California 92025 Telephone: (760) 747-4549; Facsimile: (760) 747-4505 Attorneys for Plaintiff, GUATAY CHRISTIAN FELLOWSHIP

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA GUATAY CHRISTIAN FELLOWSHIP, ) ) ) Plaintiff, ) ) ) ) v. ) ) ) ) COUNTY OF SAN DIEGO, ) ) ) Defendant. ) ) ) Case No. 08-CV-01406-JM-CAB DECLARATION OF MIKE STEVENS IN SUPPORT OF GUATAY CHRISTIAN F L O H PSMO I NF R E L WS I' TO O PRELIMINARY INJUNCTION [F.R.Civ.P. Rule 65] DATE: September 25, 2008 TIME: 3:30 p.m. COURTROOM: 16 COURTROOM: 16 JUDGE: HON. JEFFREY T. MILLER TRIAL DATE: None set

I, MIKE STEVENS, hereby declare and state as follows:

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DECLARATION OF MIKE STEVENS IN SUPPORT O G A A C R S I NF L O H PS F U T Y H IT A E L WS I' MOTION FOR PRELIMINARY INJUNCTION

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1.

I am the President of Stevens Planning Group, Inc. and I am not a party to this

action. I am over the age of eighteen and have personal knowledge of the herein stated matters, and, if called upon as a witness, could and would testify competently and accurately to the herein stated matters.

5 6 7 8 9 10 (participated in Community Environmental Project--focused on land use planning and 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Project Advisory Committee (served as Chair for two years); Board Member of California Association of Subdivision Consultants; Board Member of Lindbergh Field Master Plan Citizens Committee; Member of North Bay and Beach Area Transit Committee; appointee to Naval Training Center Reuse Plan Advisory Committee; and Member of American Planning Association.
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2. 3.

A true and correct copy of my most recent resume is filed as Exhibit 22. My educational background can be summarized as follows: University of

Missouri--BA in Political Science with honors (1973); United States International University-- MS in Urban Studies; Fellowship in the U.S. Department of Health, Education, and Welfare

environmental issues); continuing education course at University of California, Riverside, and University of Nevada, Las Vegas--planning law, general plan preparation, site design, and cost estimating. 4. I have the following certifications and professional licenses: California Real Estate

License; County of San Diego Certified Environmental Consultant. 5. I am involved in associations, organizations, and committees and have served on

the following boards: appointee to the County of San Diego Health Services Department Advisory Board (land use and environmental programs); elected member of the City of San DeosPn sl C m ui Pan gB a ; e gt t t N r B yR dvl m n i ' ei u o m n y l i or dl a o h ot a eee p et g n a t nn d e e e h o

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6.

For more than 25 years I have designed and managed multidisciplinary land use

projects as a professional planner in the public and private sectors. Stevens Planning Group, Inc. was incorporated in 1984 and emphasizes a sound basis for land development design coupled with a clear understanding of all governmental regulations and environmental sensitivities.

5 6 7 8 8. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Plant expansion; Alpine Highlands Specific Plan; Rancho Jamul Estates, and Monte Vista 26 27 28 Borrow Pit.
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7.

I have assisted land use attorneys, municipalities, and special districts with expert

testimony, research, and graphics for trial. Highlights of my professional career include the following. I was employed in San Diego County Planning Department from 1975 to 1980;

9.

from 1980 to 1983 I worked for Rick Engineering Company as a project manager/designer. 10. During my tenure with the County I presented staff reports and advising the San Diego County Planning Commission and San Diego County Board of Supervisors on issues relating to code and ordinance provisions, design solutions, and conditions of approval. I was the managing planner for a comprehensive revision to the San Dieguito Community Plan to i p m n t R g nl rwhMaae et l ( a Deu oPo c )T e a Deu o m l eth ei a G o t ngm n Pa " n i i rj t . h Sn i i e e o n S gt e" gt Project was extensive from a land use perspective, requiring over 400 land use category changes. In regulatory planning I had responsibility for major project design review, codes conformance, utility and service assurances, and staff reports. 11. For example, I have also been the project planner on the following projects: L w ec We ' C ut Cu Vlg; a MeaC ut Cu R sr R nh SnDeo a r e l s on y l iae Pl s on y l eot aco a i n k r b l a r b ; g (Newton) rezone and employment center; Cottonwood Village; San Elijo Sewage Treatment

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12. In January 1983 I formed Michael D. Stevens and Associates, which in December 1984 was reorganized to a corporation, Stevens Planning Group, Inc. 13. In my duties as president of Stevens Planning Group, I manage and participate in a o t fm sad l n g osln sri swhich include project design, management of l fh i 'l p ni cnu i e c , l er n a n tg v e multi-discipline submittals, financial/feasibility analysis, and environmental impact reports. Stevens Planning Group also provides 14. Stevens Planning Group has successfully planned and participated in more than 400

9 10 11 12 13 14 15 16 17 18 19 20 21 management, and cost scheduling. 22 23 24 25 Exhibit 23: Notice of Approval of Major Use Permit No. P71-104 (March 26, 1971) 26 27 28 Exhibit 24: Modification of Major Use Permit No. P71-104W (February 2, 1979)
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projects, including for example: Big Country Ranch (large estate community); East County Square (mixed-use large-box retail and residential with habitat community), Oak Creek Recreational Vehicle Park; Radio Q AM (radio station); Alta Del Mar (coastal bluffs singlefamily home community); Warren-Walker School (private); Mission Bay Montessori School; National University (campus plan); Las Brias Pacificas (planned mobilehome community); Stallion Oaks Ranch (destination resort); Encinitas Ranch Golf Course; and Vallecito Specific Plan (mixed-use resort/commercial project with clean fueled transit system to Yosemite National Park. 15. Stevens Planning Group also provides final plan and map processing services such as: easement preparation, agreement negotiations, subcontractor administration, work program

16. In providing the opinions set forth in this declaration I have reviewed the following documents, true and correct copies of which are filed as the following exhibit numbers:

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Exhibit 25: Modification of Major Use Permit No. P71-104W2 (July 16, 1982) Exhibit 26: Notice of Approval of Major Use Permit No. P71-104W2 (August 20, 1982) Exhibit 27: Plot Plan for MUP No. P71-104 (Approved: September 20, 1978) Exhibit 28: Plot Map for MUP No. P71-104 (Approved: September 20, 1978) Exhibit 29: Plot Plan for MUP No. P71-104 (Approved: February 2, 1979) Exhibit 30: Plot Map for MUP No. P71-104 (Approved: February 2, 1979) 17. In addition, in providing the opinions set forth in this declaration I have reviewed,

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considered, and relied upon the following California and San Diego County Building and Zoning Codes (true and copies of which are filed collectively as Exhibit 35): Exhibit 35, p1: S.D. County Zoning Ordinance (SDCZO) Article XXVII-A " C LMIE L I TD
C N R LZ N "Sco 41 ( m . r.58 N ) -14-70); O T O O E , et n 5 A dO d38 ( S 7 i

Exhibit 35, p. 1: S C O A tl X X I " E E A P O E U EP O II N "Sco D Z rc X I G N R L R C D R R V SO S et n ie I i
801. Application for Variance or Special Use Permit (Amd. Ord. 3420 (NS) 9-29-69);

Exhibit 35, p. 2: S C OSco 27 " ss uj to Ma r s Pr i ( te 8 Lm t D Z et n 85 U e S b ct a j ue e t i h S 7 i id i e o m .n e
C n oU e eu t n Z n) ( m . r.58 NS) -16-79); ot l s R gli (oe " A dO d50 ( ..5 r ao )

Exhibit 35, pp. 3-5: S C O Sco 60 e sq " eot ev e, er t nl eiePr D Z et n 40 t e, R srSri sR c aoa V h l a i c ei c k
R gli s ( m . r.96 NS 1 eu t n" A dO d57 ( .. -28-81); ao )

Exhibit 35, p. 6: S C O Sco 77 " plao fr d i t no aU ePr i ( m . D Z et n 38 A p ct n o Moic i f s e t A d i i i f ao m"
Ord. 7048 (N.S.) 10-09-85).

18. As an initial matter it is worth while to provide historical context.

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19.

The 1971 special use permit in this case was adopted within about 10 years of the

first effort to zone and regulate land uses in the rural back country area of San Diego County. Z n gi t s r w scld" I T D C N R L (C adt Z n gO d ac i oi n h a a a ae LMIE O T O " L ) n h oi ri ne n n i e l e n n these areas provided that the County could approve any and all uses that were not specifically

5 6 7 8 9 10 11 12 13 14 15 16 17 sewer and potable water systems, a fire protection plan, protection of natural water courses, and 18 19 20 21 22 23 24 further memorialized in the required approval findings and the facts supporting them, such as 25 26 27 28 "ee p eto t s se a a r r t nlcm gon wl e et e peetft e dvl m n f h i s o i t e e i a a prud i f cvl r n u r c ao l f i y v u udsalepni o si cm e i dvl m n " nei b xas n ftp o m r a ee p et r e o r cl o .
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stated in the underlying zone by issuing a special use permit. (See Exh. 35, p. 1: TZO Sect. 41 . T e on '17 apoaof P71-104W carried forward the permissive framework or 5.) h C ut s 99 prvl 3 y regulating this property under new ZO Section 2875 (Exh. 35, p. 2) udr h h" other Use ne w i all c Types are permitted by the S87 (Limited Control) Use Regulations upon issuance of a Major Use Permit" B 18 i apoing P71-104W2 the County had begun calling the project a . y 92 n prv " c aoa cm gon" u t C ut dcndt i ps t m r r i s na s f O r r t nl a prud bth on el e o m oe h oe i d t dr o Z eei e y i e g a d Section 6400, et seq. (Exh. 35, pp. 3-5),ie " eot e i s R c aoa V h l Pr tl R sr Sr c , er t nl eie a td ve ei c k Regulations. My review of the documents regarding this property demonstrate that the County obtained (from the project proponent) beneficial public health improvements, such as regulation of septic

limitation on operations that would protect the quiet enjoyment of neighboring properties (e.g., noise, light glare, landscape maintenance, etc.). The County also secured and completed desired expansion of public road right of way, physical road improvements, including roadside drainage and bikeway improvements, and even a covenant agreeing to perform future road improvements plus security provisions. The benefits to the community and to local planning efforts were

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20. Based upon my reviewed of the documents (Exhs. 23-30), review of California and San Diego County Building Codes, review of San Diego County regulations in effect at the time the permit and use modifications were approved, and my knowledge and experience in handling issues and projects relating to land use, and am providing separate but related opinions with

5 6 7 8 9 10 Plot Map (Exhs. 27 and 28) and 1979 Plot Plan and Plot Map (Exhs. 29 and 30). Specifically, in 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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respect to the allowance of a religious assembly use in conjunction with the Major Use Permit #P71-104W and all modifications thereto (see Exhs. 23-26). 21. First, use of the Recreation Center as a church for religious assembly and religious worship was fully acknowledged and approved in 1978 as set forth in the 1978 Plot Plan and

the 1978 and 1979 Plot Maps and Plo Past cuc i i n f da fl w : EXIST. t l h hr s d ti s o o s " n e h e ie l BLDG. (CHURCH).(e E h. 28, 29, and 30; emphasis added.) In this grant of use there " Se xs27, were no restrictions attached. In this regard, it is my opinion that from the outset the Recreation Center was clearly permitted to be utilized as church for religious assembly and religious worship. (Exhs. 27-30.) 22. Second, in addition to the fact that the County had approved the building as a church (which already existed) as early as 1978, the County acknowledged and further approved this use in 1988. Specifically, in 1988 the County Health Department received written concurrence from the Department of Planning and Land Use ( P U )in the conclusions " L" D reached by C ut s ea m n o E on 'D pr et f nvironmental Health ( E " which were reflected in the y t " H) D , November 30, 1988 letter (Exh. 1) t totnd h s t etexisting wells and reservoir are h cn i t te n " a a e e am adequate for current domestic needs which include the use of the recreation building for a 200 person church..."

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It is clear that DEH sent the 11/30/88 letter (Exh. 1) approving religious assembly and religious worship in the recreation building to Benjamin F. Grame, Jr., the Deputy who signed the notice of approval of the second modification, P71-104W2, on behalf of DPLU. Ben Grame was known as an extremely thorough senior planner/section chief who, in my opinion, would

5 6 7 8 9 10 or nothing to do with the typical operation of the recreational camping park. Ben Grame was the 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 amplified sound) in the original 1971 permit (Exh. 23) was superseded in the first modification on 2/2/79 (Exh. 24) by Cod i " ." nio C This condition made an exception to the amplified sound tn limitation, w i r d " h h e s except for an electric bell or chime system which may be sounded c a between 9:00 am and sunset one day per week and on religious holidays.(Exh. 24, p. 3, ¶C.) "
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not have hesitated to disagree with DEH if there were any deficiencies in the DEH letter. It is also germane to my opinion that the recreation hall structure, in which occasional religious service were held, was approved for continuous public uses, i.e., a tavern/bar with live music, dancing, other non-specified forms of live and other forms of entertainment having little

chief County planner in charge of a team that revised all zoning codes for the County at that t e I 17,h oi nl sei"uepr iw s r t udrhnSection 451.3 for a i . n 91 t r i "pc l s e t a ga e ne t m e ga a m nd e recreational campground in what was then, I believe, the LC (" i idC n o ) zone. At that Lm t ot l e r" time, anything could be approved by special use permit and it was not uncommon for the County to approve religious retreat campgrounds in that area (e.g., Unity Retreat in nearby Descanso). 23. Third, a cuc" reg u asm l "hr o r i os s b h li e yand worship are allowed as a primary use pursuant to issuance of a special use permit (later major use permit) since the first adoption of zoning in the County, w i ocr ddr gt 16' T e h h cur ui h 90s h first two versions of the special c e n e . use permit approved in 1978 and 1979 indicated by label on the plot plan that the recreation hall was also approved as a " hr " se xs2-30). F r e oeC nio "" pr i n t C uc ( E h.7 h e ut r r od i F (e a i o hm , tn tn g

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E e t uht "hurch"label was dropped in 1982, the church-bell condition clearly vn h g h c o e remained in the permit as Condition C (see Exh. 24): " conditions of the Major Use permit All P71-104 and previous modification P71-104W shall be complied with.(Exh. 25, p. 3, ¶C.) " Also in conjunction with the 1982 expansion of the recreation hall, the County made

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specific findings that the nature of the property had changed into a joint use public/private facility with adoption of Finding (a-1) as follows: " building is already existing and used for The recreational purposes. Alteration of the building to allow joint use by the community and recreational campground would not effect (sic.) the above.(Exh. 25, p. 3, ¶a.1.) This refers to " the mandatory finding required by County Zoning Ordinance Section 7358, which reads: " The location, size, design and operating characteristics of the proposed use will be compatible with and will not adversely affect or be materially detrimental to adjacent uses, residents, buildings, structures, or natural resources . . ." It is not possible for the County to name and regulate all uses that can take place within a recreation building, such as arts and crafts, banquets, town meetings, polling location for election, etc. However, in this case the last modification of the major permit gave clear guidance as to how uses in this building can operate without further regulation. It is conspicuous that none of the customary operating conditions were imposed in conjunction with the allowance in 1982 to convert the existing recreation hall to a facility with public beer and wine sales plus live music and entertainment. In other words no limits were set on hours of operation, numbers of patrons, etc. beyond those already included in the 1971 and 1979 permit approvals, which included standard limitation on amplified music being heard beyond site boundaries. It is very clear that incidental religious assembly within these operating controls would be less intensive and cause less impact to a community than a public tavern with live music and entertainment. Stated differently, the use of the recreation center for religious assembly and worship is a lesser included use--that is, since the recreation center existed and was in use at the time the original Plot Plan and Maps were approved in 1978 and 1979 (Exhs. 27-30), use as a place for religious assembly and worship is clearly included. This is further supported by the fact
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t tnt C ut s 1 0 8lt (x. ) l r ako l g G a yC rtnFl w h ' h i h on ' 1/ / ee E h 1 c a y cnwe e ut hii eo si s a e y 3 8 tr el d a sa l p use of the recreation center for religious assembly and religious worship. Finally, it should also go without saying that bars of this kind in remote areas are much more high intensive use as they create far more demand on normal law enforcement services, public utilities, public health facilities, and even emergency services than would normal operation of a religious assembly use. 24. Fourth, my final opinion relates to an area more commonly known as the " grandfathered right" r r i s cnom n ue i ti.t b r u t udr oe t t o pe o l ofr i s r h .,o e e le ne cdsh v uy g g ,e g ad a applied earlier (provided a particular use was lawfully established in accordance with all thenapplicable laws). It is my opinion that the church was lawfully established in 1971, its

11 12 13 14 15 16 25. Based on all of the foregoing, it is clear that a lawful use of the recreation center 17 18 19 20 21 22 23 24 25 26 27 28
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recognition was restated in 1979, and its continued use was allowed even after 1982 as one of svr "o m n y oi t ue t tol r a o b add o h r r t n ee lcm ui " r n d ssh cu e i r e de t t e e i building. This a t ee a d m n e c ao is especially true since the County reaffirmed this in its November 30, 1988 letter (Exh. 1), w e iis t t th r r t n et 'ue s 20 e br hr w s u oi d hr n tte h t e e i cn r s a a 0 m m ecuc a at r e. e a d a e c ao es h h z

since at least 1978 (Exhs. 27-28), including the entire 22-year time-frame of Guatay Christian Fl w h 'ue18-2008), necessarily includes religious assembly and religious worship. eo si s s (96 l p I declare under the penalty of perjury under the laws of the United States of America and the State of California that the foregoing is true and correct. Executed on this 28th August, 2008, at San Diego, California. day of

_________________________________ MIKE STEVENS

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CASE NAME: GUATAY CHRISTIAN FELLOWSHIP v. COUNTY OF SAN DIEGO CASE NO.: 08-CV-01406-JM-CAB

CERTIFICATE OF PERSONAL SERVICE

STATE OF CALIFORNIA, COUNTY OF SAN DIEGO: I am over the age of eighteen years, and not party to this action. My business address is 2635 Camino del Rio South, Suite 109, San Diego, California 92108. I, the undersigned, declare under the penalty of perjury that I served the below name person(s) the following documents: 1. DECLARATION OF MIKE STEVENS IN SUPPORT OF GUATAY CHRISTIAN F L O H PSMO I NF RP E I N R I J N T O E L WS I' T O O R L MI A Y N U C I N in the following manner:

By personal service by delivery to ABC ATTORNEY SERVICES, INC. for personal service on August 29, 2008 to the following person(s):

THOMAS D. BUNTON, ESQ. SENIOR DEPUTY COUNTY COUNSEL County of San Diego County Administration Center 1600 Pacific Highway, Room 355 San Diego, California 92101-2469

Attorneys for County of San Diego

I certify and declare under penalty of perjury under the laws of the United States of America and the State of California that the foregoing is true and correct. Executed on this 29TH day of August, 2008.

__/s/_Peter D. Lepiscopo_______ Peter D. Lepiscopo, Esq.

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DECLARATION OF MIKE STEVENS IN SUPPORT O G A A C R S I NF L O H PS F U T Y H IT A E L WS I' MOTION FOR PRELIMINARY INJUNCTION

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