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Board of Zoning Adjustments Regular Meeting December 6, 2007 Minute No. 2007-23 Page 10 of 16 Chair Goldt called the meeting back to order at 8:40 p.m. Chair Goldt announced that the environmental impact discussion would be held after the Public Hearing was closed. Pastor Mortara closed by stating that if a timely hearing had been held (even if the application had been denied) they would have been able to move forward knowing where they stood. He stated they were in the City to serve the community and he felt it was rude for the City to suggest the church consider relocating to another city, as it made him feel like his church was an enemy. He believed the church had not received due process and the law protected them. Mr. MacDonald gave an example of a possible discrimination. He quoted, "It is unlawful for a government to impose or implement a land use regulation in a manner that treats a religious assembly on less than equal terms with a nonreligious assembly." When the Zoning Code violated both the principles of the Constitution but also a specific statute, the BZA had the right to decide that this church was being treated unequally to other assembly uses under the definition of Entertainment. Excluding churches in the definition of Entertainment was not legal. He suggested that the Board should make its decision based upon his interpretation and upon the First Amendment to the Constitution. The following questions were asked of Mr. MacDonald: • Member Daly asked if the speaker was asserting that the church was not an assembly use. The church was an assembly use. However, other assembly uses had been allowed at the site and equal treatment of religious uses required that religious assembly be used there. He read the quote, above, again. • Member Daly asked what other assembly uses were being allowed there, at this time. MDL was located therefor years and had 300 employees there every single day. That had been an assembly use. • Member Daly asked if San Leandro High School would be considered an assembly use, because 2,400 students there. And Nordstrom's Rack? They could be. • Member Daly asked what was the use of having a Zoning Code if assembly applied to every use of more than 50 people? Assembly use in the Zoning Code was defined discriminately and differently than it was defined in the Building Code. He read, "Assembly Building: A building or a portion of a building used for the gathering together of 50 or more persons at one time for such purposes as deliberation, education, worship, entertainment, amusement, drinking or dining, or waiting for transportation. " • Member Daly asked what authority the BZA had to ignore the San Leandro Building Code. Some issues were more important than the legality. The legality here was the First Amendment to the Constitution, which guaranteed freedom of expression and freedom of religion and the equal protection clause of the 14th and 5th Amendments stated that religions and those kinds of activities were not legal