In The League of Residential Neighborhood Advocates v. City of Los Angeles, No. 06-56211 (Aug. 21, 2007), which I first discussed here a few days ago, the Ninth Circuit invalidated an agreement between the city of Los Angeles and a congregation to settle the congregation’s federal RLUIPA claim. As part of the settlement, the city agreed to issue the congregation a Conditional Use Permit (CUP). The League objected, asserting its members had been deprived of their right to a public hearing on the CUP. More details on the case at Professor Patty Salkin’s Law of the Land blog here.
The Ninth invalidated the agreement because the usual procedure to issue a CUP under California law includes public hearings, which had not been held in this case due to the settlement agreement. While a federal district court has broad powers to settle litigation, those powers could not be invoked because the court had not found an “actual violation” of federal law, merely a “potential violation.” As is usual in settlement agreements, the city did not admit it had breached RLUIPA, or violated the congregation’s rights. The court found that fact dispositive.
However, this decision does not necessarily spell the end for settlement of federal land use litigation by procedures that may not conform precisely to state law. Federal courts have extensive authority to settle litigation, especially lawsuits involving federal constitutional issues by way of settlement agreements between the parties or consent decrees.
Under a federal court’s consent decree authority, its inherent supervisory powers, and its power to remedy constitutional violations, it may command a state or local government to do things that they could not do under their own laws (like issue CUP’s without a public hearing, for example).
I like to think of consent decrees as settlement agreements on constitutional steroids. The US Constitution’s Supremacy Clause is a very potent tool, after all. The seminal article on the subject was written by University of Hawaii Law School professor David Callies: The Use of Consent Decrees in Settling Land Use and Environmental Disputes, 21 Stetson L. Rev. 871 (1992). There are important differences between a settlement agreement and a consent decree that could distinguish League of Residential Neighborhood Advocates, and allow comprehensive (and creative) settlement of land use disputes.
First, settlement agreements are merely contracts to end litigation, while consent decrees are federal court judgments (albeit agreed to by the parties) over which the court retains jurisdiction to supervise and enforce. The fact that a consent decree is a judgment means that the limitation set forth in the Ninth Circuit decision — that the court finds an “actual violation” of federal law — is met.
Second, the due process undercurrents in the Ninth Circuit case may not be present in the consent decree process, as courts generally hold at least one hearing prior to entering a consent decree at which third parties who may be impacted may object.
Update 10/22/2007 – the Congregation has filed a petition for rehearing/en banc with the Ninth Circuit.