Calvary Church Gets Another Chance To Sue Council

Fredericksburg Circuit Court Judge Gordon F. Willis gave attorneys for Calvary Christian Church another chance to rewrite their lawsuit charging the City Council acted arbitrary and capricious when it denied the church's special use permit for a day school for the disabled last September.

Cavalry Christian Church Pastor Michael Hirsch was back in Fredericksburg Circuit Court today trying to get a reversal on City Council's decision last September to deny his special-use permit application to operate a school for disabled and special needs children in his church. Hirsch's efforts to have a special needs/disabled student school in his church have been going on for almost two years, and . In his lawsuit, he asks the court to rule the city's decision was unwarranted, arbitrary and capricious.

Jennifer Parrish, the attorney representing the city, denied these claims, saying that the council's decision was reasonable because of concerns of the safety and welfare of others and that because of Hirsch's conduct at an August public hearing, there was doubt the city could get him to comply with the conditions in the permit. Councilman Fred Howe's private business Utility Pros is directly next door to Calvary Christian Church, and although he abstained from voting, he was strongly against the application, which pitted him directly against Hirsch in what were some testy exchanges with other council members.

Erik Stanley, with the Alliance Defense Fund, argued that City Council turned down Hirsch's application only because they didn't like his conduct or him as a person and council members provided no reason for why they made the decision.

"That is what the issue is in this complaint," he said. "Just because the [council and staff] don't like his conduct doesn't mean they can deny his special use permit."

But Willis said Stanley's accusation isn't specifically written in his court filing.

"Well, maybe it should have been said that way," Stanley replied to the judge.

Parrish argued that the plaintiffs didn't include all of the city documents, including a resolution that clearly stated reasons why the city was denying the special use permit. The city was successful in arguing what is called a "craving oyer." Parrish argued that the plaintiffs were citing only portions of public documents that support their positions, and not disclosing all of the documents. Stanley argued that at this stage of the case they only have to provide some evidence that the City Council decision was unreasonable, and the rest of the documents can come out at trial. But the judge disagreed with Stanley and wants the entire record brought into the case if they refile the lawsuit.

The judge ruled in favor of the city on all arguments and said the plaintiff's case lacked standing, but gave Hirsch's team 21 days to rewrite the lawsuit. After the order is entered, Parrish gets 21 days to respond. If Calvary refiles the lawsuit and the city rebuts it, the judge will take these arguments and decide if this case will go to a trial.

The big question is can Hirsch's legal team prove that council members denied the application because they did not like his conduct or him as a person, instead of basing their decision on the merits of his application and if it met the zoning requirements and the comprehensive plan?

The Background

According to the Calvary court records, on Aug. 9, 2010, Hirsch applied for a special use permit to operate a day school for children with disabilities in his church. A Sept. 8, 2010, memo from Planning Director Ray Ocel stated the project was in harmony with the comprehensive plan and existing uses nearby. He recommended approval of the special use permit.

On Sept. 8, 2010, the Planning Commission had a public hearing and no one spoke for or against Hirsch's permit. But some commissioners had additional questions and the public hearing was closed and tabled. On Sept 29, 2010, the Planning Commission voted unanimously to approve the special use permit.

On Oct. 26, 2010, some council members raised concerns, including Kerry Devine, who said that Fredericksburg may be struggling to be a host to what appeared to be an abundance of group homes. Devine and Councilman Brad Ellis also questioned the church hosting students from outside of the area. Ellis, who has endorsed Howe's mayoral campaign, questioned the need for such a facility when there appeared to be plenty of places that work with disabled and special needs in the city. No one spoke against the application, but City Council tabled the decision.

On Nov. 9, 2010, Ocel still provided his report that recommended approving the special use permit. But a majority of council members were not budging. Ellis questioned if it was safe to have a special needs school with a daycare. Council again tabled the special use permit decision.

At its Nov. 23, 2010, council meeting, Ellis' concerns were attached to Ocel's memo recommending approval, along with a rebuttal from Hirsch that said there was a time buffer for the daycare and the special needs school so they would not occupy the school at the same time. Hirsch and Council members went back and forth with arguments and in the end City Council voted 3-3 and a tie meant Hirsch's permit was denied. City Council members told Hirsch to give up the special use permit for his daycare if he wanted to have one for a day school.

On July 19, 2011, Hirsch resubmitted the special use permit application. The Planning Commission had a public hearing for the application on Aug. 10, 2011, and Ocel's recommended approval again. At this hearing, one neighbor opposed the project. The Planning Commission tabled its decision.

Council members had a public hearing on the application on Aug. 23, 2011, and also wanted to know if Hirsch had all of the proper licenses to operate the schools, and his attorney supplied them to city officials. Ellis also asked where the funding for the school would come from and how much revenue the city would get from its operation.

Tempers Flare

At the Aug. 23, 2011, one neighbor opposed the project. . Fair Winds Day School would have ran the school, but Hirsch and others didn't want to reveal that because of the school's Hirsch said in later interviews that he feared council would've denied his application if they revealed Fair Winds was running the school. Howe's attorney, Charles Payne, questioned if this project was consistent with the comprehensive plan and zoning ordinance.

Hirsch and his wife, Susan, invoked God's name several times during the hearing.

"This is actually a God use issue, you do not want to mess with him," Susan Hirsch said. "I admonish you not to come against his purposes. Either you are working with God and his purposes or against him."

All of the bitter back and forth ended with a remark from Solley to Hirsch: "Nobody has come close to being as smugly self righteously patronistic and insulting as you have to this body tonight."

City Council again took no action on the application and sent it back to the Planning Commission for an Aug. 31, 2011, meeting. This time, Ocel's report recommended denial of the application, citing the Hirsches' conduct at the prior meeting led city staff to believe they would not be able to get them to cooperate with the city on the conditions in the permit. Some of those conditions included hours of operation, licensing requirements, restrictions on the number of students and separating the daycare from the day school. The Planning Commission recommended denying the application.

On Sept. 13, 2011, the City Council also unanimously denied the application, which set off a series of legal battles between Hirsch and the city.

City's Argument For Denial

The city argues that Michael and Susan Hirsch's conduct at the Aug. 23, 2011, meeting casts widespread doubt with council members that they could get them to comply with the conditions. The city's court responses say Hirsch and his wife were defiant and refused to answer pertinent questions, and that their behavior indicates there is a safety and welfare risk to approving their application. The city argued that Hirsch apologized for his conduct at a Sept. 13, 2011, City Council meeting and said he would commit to the conditions in the special use permit and commit to being transparent with city officials and council members. City Council still denied the application. The city argues that the concerns about the welfare and safety of the daycare children mingling with the special needs children was real and is enough to show that the council made a reasonable decision in denying the application.The city also argues that it had no evidence that Hirsch was operating his daycare properly and safely, so if City Council granted his permit for a day school, he could essentially be operating two facilities in the church without showing any evidence that he has done so safely and in accordance with the zoning rules.

Hirsch argued that he supplied the city with all of the certifications and licenses he needed to run the schools.

Parrish argued that the plaintiffs have no evidence that City Council acted unreasonable when it denied the special use permit. She said as long as the City Council decision is fairly debatable, the courts will uphold it because it will not substitute a judgement for that of City Council.

Stanley said city staff supported this special use permit until the Aug. 23, 2011, meeting when there was high tension and arguments about the case. After that hearing, Ocel changed his staff report to recommend denial and mentioned Hirsch's conduct at that meeting. Stanley said City Council cannot make decisions on zoning and special use permits based on someone's conduct, but only on the merit of the application and if it meets the city's zoning rules and comprehensive plan.

Fair Winds Background

Fredericksburg Patch filed a Freedom of Information Act earlier this year with the city for all records of zoning and code violations for places Fair Winds was operating. Records show that Fredericksburg Zoning Administrator Raymond Ocel Jr. wrote to Pastor Richard Dunk of Living World Fellowship Church on Stafford Avenue on May 17, 2010, and June 9, 2010, warning him that the church did not have the proper zoning approval to operate a school, and that if Dunk did not file for a special use permit by June 18, 2010, the school would have to cease operating.

On June 15, 2010, Fredericksburg Director of Building and Development Services wrote Dunk that the church had not undergone proper change of use to operate an educational facility in the church and that the occupancy permit would be revoked.

There's no record that Dunk every responded, and Fair Winds moved out of Living World Fellowship Church and into St. Mary's Catholic Church. On Aug. 2, 2010, Ocel noted that Fair Winds' Ed Murphy wrote the city on July 30, 2010, asking if it could operate at Calvary Christian Church prior to obtaining a special use permit, but Ocel declined. He said that the special use permit is necessary and that Fair Winds was in violation for operating the school in St. Mary's Catholic Church.

Since then, Fair Winds and Calvary have tried to convince the city, but have failed.