t first, it was a tussle between a Christian group that wants to build a private school campus in Castro Valley and neighbors who want to keep the hilly property untouched.
Now, the dispute has snowballed into a federal lawsuit against Alameda County and various public officials that claims religious freedoms are at stake. What's more, the legal team working on behalf of the school is now led by an East Coast public interest law firm that is pursuing about a dozen similar challenges across the country, including one in Los Angeles.
That could put the Alameda County case in the national spotlight as a test of the federal Religious Land Use and Institutionalized Persons Act, a 2000 law that gives religious groups legal recourse if they feel unduly burdened by local land-use laws.
Redwood Christian Schools says county officials violated their rights under the new act and the U.S. Constitution by refusing to let it build a 650-student campus in an undeveloped area near Interstate 580. The school has hired the Becket Fund for Religious Liberty, a Washington, D.C.-based firm that handles cases involving clashes over religious rights. Also working on the case locally is a father-son team from San Ramon, Mark and Roger Gaither.
One of those attorneys, Roger Gaither, said Redwood Christian Schools is protecting its constitutional rights after a three-year battle with bureaucracy. "Is our inability to build and operate a school a substantial burden to our religious exercise?" asked Gaither, the elder half of the San Ramon team.
"We think it is," he said.
MARK GAITHER: The 1980 alum of Redwood Christian's high school has joined with his father in representing the school.
Photo: Shelley Eades
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Alameda County Counsel Richard Winnie praised the school. "This is a really good school. They are dedicated to education." However, he added, the Becket Fund has "led the local applicant into the extreme."
"Christian" was not one of the words that Winnie used to describe the D.C. firm. "They have engaged in tactics that are coercive and thug-like," Winnie said.
In the beginning, the issue wasn't about the Constitution or the Ten Commandments -- it was about real estate.
Redwood Christian Schools was established in 1970 and serves 1,130 students at two elementary schools and a combined junior high/high school. Many students' families attend Castro Valley's Redwood Chapel Community Church, but the student body hails from more than 85 churches, said Mark Gaither, a 1980 alum of Redwood Christian's high school.
The younger Gaither, a former Commerce One corporate attorney, left his in-house job last year to work on the case full-time. His five children attend the private school.
"It is personal," Gaither said of the dispute.
Back when the lawyer was in high school, classes were held at the church. Since 1980, the combined junior high and high school has operated at three different buildings that the private school leased from the San Lorenzo Unified School District. The district terminated the leases twice, so it could meet state class-size reduction goals, Gaither said.
In 1997, the school group bought a 12.5-acre lot on East Castro Valley Blvd. to build its campus, and it applied for a conditional use permit. Redwood Christian eventually acquired three more nearby lots, spending more than $3 million on 55 acres.
The school's proposal faced stiff opposition. A small school not affiliated with Redwood Christian exists across the street from the proposed campus and a vocal group of neighbors has organized against past attempts to develop the area.
According to the complaint, the project's fate was largely left to a residents' advisory council, which two years ago unanimously recommended that the county planning commission reject the project. The commission did, and it denied Redwood Christian's conditional use permit. County Supervisor Nate Miley's attempt to mediate the dispute and Redwood Christian's appeal to the Board of Supervisors fell flat.
"The community would like it to remain a rural community," said Miley, who called the area "horse country."
Redwood Christian filed suit last year. It alleges that the Religious Land Use and Institutionalized Persons Act and its constitutional rights were violated.
Congress crafted the 2-year-old act (its acronym, RLUIPA, is pronounced "RAY-lupa") to give religious entities a legal recourse against restrictive local building rules. The U.S. Supreme Court found a similar, more sweeping 1993 law, the Religious Freedom Restoration Act, was unconstitutional in City of Boerne v. Flores, 521 U.S. 507.
Since the religious land use act became law, some groups have successfully sued in federal courts, but no such case has gone to trial in California.
The Becket Fund's lawyers stop short of saying that they're looking for a test case, but they note that there is no federal appellate decision on the land use act.
"We certainly want to be involved in significant cases," said Roman Storzer, the Becket Fund's director of litigation who is working on the Castro Valley case. "We are litigating a number of cases, any of which one could be a test case."
The Becket Fund is named after Thomas Becket, Archbishop of Canterbury, who was killed in 1170 on the steps of his altar. Becket had fought to keep King James II from controlling the church.
The Fund is pursuing about a dozen land use cases nationally, Storzer said, including suits in Texas, Pennsylvania and Hawaii.
This week, the Fund announced that it was joining the Missionaries of Charity -- the Catholic mission founded by Mother Teresa -- which has made a RLUIPA challenge against Los Angeles County. That trial began this week.
In the past, the firm helped represent Muslim police officers in Newark who successfully challenged the department's no-beards rule in the 1999 Third Circuit U.S. Court of Appeals case, Fraternal Order of Police v. City of Newark, 170 F.3d 359.
In the Castro Valley case, the school group alleges that a public school could build with fewer hurdles, but religious groups are part of a handful of organizations that must seek a conditional use permit.
Plus, after the project is complete, the organization must periodically renew the permit, Roger Gaither said.
"You must go back again and again to say, 'Mother, may I practice my religion?' " he said.
If the school claims that the conditional use permit rule is illegal, that is not a fair reading of RLUIPA, said Winnie, the county counsel.
"This project was taken seriously. We considered RLUIPA. We complied with the obligations that it entails," he said.
The county's outside counsel, Meyers Nave Riback Silver & Wilson partner Benjamin Fay, argues in court papers that the religious land use act is unconstitutional.
The RLUIPA would allow Redwood Christian to build simply because it's a religious organization, Winnie later explained. Such a rule would discriminate against secular private schools, he said.
Since the Becket Fund has been in the picture, Redwood Christian has damaged important relationships, Winnie said.
As a scare tactic, he said, plaintiffs' lawyers named local residents on the Castro Valley advisory council as defendants in the suit. The planning commission made the decision, but the firm named the council members in their individual capacities -- which puts members' personal assets on the line, Winnie said.
The Redwood Christian lawyers tried to serve the county supervisors -- who are also named in the suit -- at a breakfast meeting, Winnie said. Instead they should have simply sent the documents to his office, he contends.
"They go through theatrics," said Winnie. "They rely on the hope that this will never reach the courts."
Redwood Christian lawyers say it's common practice to name public officials in lawsuits.
Mark Gaither said he tried to serve the advisory council members through the county counsel's office. At first, the office wasn't sure if it would represent the council members, so he served the members in person. Winnie didn't agree to accept service for all of the parties until after he showed up at the supervisors' gathering, Gaither said.
"How is that a thug tactic?" he asked. "That's what I have to do under law."
The planned Redwood Christian campus remains in limbo. Both sides say that they are willing to negotiate, but no talks have taken place yet.
Gaither says that it may be difficult to settle the case since county supervisors, unlike a company, can't craft a deal behind closed doors but instead must have a public vote on the permit.
