The opinion
SILLS, P. J., Concurring.
I agree with and have signed the majority opinion. I write separately, however, to point out the interesting problem in land use law on which this case ultimately centers:
First, over this past decade churches and congregations have increasingly chosen to hold services in industrial parks. A small body of case law, of *1291 which today’s opinion now becomes a part, has grown out of that trend. 1 A federal statute also looms over such efforts, the Religious Land Use and Institutionalized Persons Act of 2000, often called RLUIPA. (42 U.S.C. § 2000cc et seq.)
Second, however, industrial parks also happen to be among the best places to locate adult businesses. (E.g., Gammoh v. City of Anaheim (1999) 73 Cal.App.4th 186, 189 [ 86 Cal.Rptr.2d 194 ] [“The plaintiff . . . leased property in an industrial section of Anaheim just off the Riverside Freeway .... In his reply brief he describes the area as a ‘God-forsaken industrial wasteland.’ ”]; see generally Renton v. Playtime Theatres, Inc. (1986) 475 U.S. 41, 47 [ 89 L.Ed.2d 29 , 106 S.Ct. 925 ] [emphasizing power of cities to use zoning rules to minimize “secondary effects” of adult businesses].)
Industrial parks are well suited for adult businesses because they are generally removed from places where children are likely to congregate. Places like housing tracts, schools, parks and ....
Churches. Or at least industrial parks used to be removed from churches.
Let me suggest that part of the problem is semantic. The English word “church” is ambiguous. The Oxford English Dictionary’s definition of “church” goes on for no less than three full pages and 11 columns of fine print. (3 Oxford English Diet. (2d ed. 1989) pp. 199-203.) The first definition refers to a building. 2 An example might be, “there’s a Methodist church on the comer of First and Main, and a Catholic church about two blocks north on Main.” The second definition, however, is more abstract, referring to a *1292 group, say a congregation or community or organization, not necessarily tethered to any given physical location. 3 The Greek word “ecclesia,” from which we get the churchy word “ecclesiastical,” was originally used to describe the Athenian democratic assembly. An example of the word “church” in this latter sense might be, and here I quote directly from Judge Huff’s opinion in the Grace Church case, 4 “For several years, beginning around the summer of 1997, the church met at Rancho Bernardo High School” (Grace Church of North County v. City of San Diego, supra, 555 F.Supp.2d at p. 1129.) The “church” referred to in the Grace Church opinion was obviously not the high school; it was a group of people temporarily meeting at the high school.
The ambiguity in the word “church” is at the center of the case before us. The problem is, Stanton’s ordinance (a “planned church” or, tracking the statute, a planned “religious institution” 5 ) crunches both meanings: The ordinance seems tailored for churches, religious institutions and “placets] of worship” in the brick-and-mortar sense. (Stanton Mun. Code, § 20.38.024, subd. A.l.b.) The idea is, don’t put an adult business close to where children might go to Sunday school.
Okay. It clearly makes sense to restrict adult businesses from areas which are an intrinsic draw for children. A permanent church building (e.g., St. Anthony’s Catholic Church on First and Main) may have a Sunday-school class, and have regularly organized youth groups other days of the week.
But the ordinance in this sense also seems to be spilling over into the more abstract, organizational sense of the word. Thus, in the case before us, the Branches Christian Church is able to pop up in any given “storefront,” proposing worship services as a “designated” use.
It makes far less sense, however, to restrict adult institutions from the one place in most urban areas where they are likely to have the least secondary effects—those beige satanic mills known as industrial parks. One imagines that most fleshly palaces of sin, like the proposed Avalon Show Girls, are not likely to be open for business on Sunday mornings.
*1293 Astute readers of the majority opinion may have noticed that part II (maj. opn., ante, at pp. 1286-1288) is dicta. It is not necessary for today’s decision, because part III proposes a self-contained rationale for our decision to reverse and remand.
That said, I think the dicta is correct under the facts of this case and given this particular record. As I read part II, it endorses the rule that, as between the putatively two mutually incompatible land uses of (1) worship services and (2) “adult” entertainment, 6 the side which gets to the window first with a permit application has priority, at least as long as the winner of the race to the window ultimately receives the permit and the city processes that permit in reasonable time and in good faith.
Qualifications to the rule are necessary because it doesn’t take much imagination—some of the alleged facts of this case are a good example—to recognize that a first-to-the-window rule might be “gamed,” perhaps by sham permit applications. If one way of keeping a pool hall out of River City is for the local First Anti-Billiard Church to open up a “storefront” auxiliary nearby, there is a tremendous temptation to file a permit application as a preemptive strike.
I must also register two cautionary notes as regards traditional land use law. The first is that the majority opinion should most definitely not be read for the proposition that something is “planned” just because someone applied for a permit for that something. That idea conflicts with the edifice of California land use law (see generally Gov. Code, § 65800 et seq.) which contemplates formal adoption of general plans and zoning laws by cities and counties.
The second cautionary note is along the same lines. This case should be limited to its facts. There may be land use issues lurking beneath the surface here which may have some bearing later in the remanded proceedings. For example, we don’t have the city’s general plan before us, and we cannot tell here to what degree the ordinance in question may operate as a de facto amendment to that plan. (Leaving aside, of course, the know-it-when-I-see-it problem of defining just precisely what an “adult-oriented business” is.)
*1294 It is enough here that the syntax of Stanton’s ordinance is not limited to traditional city plans and zoning ordinances. This ordinance also refers to places of worship “otherwise designated for such use.” (Stanton Mun. Code, § 20.38.024, subd. A.l.b.) Under the facts of this case and appeal, for such “otherwise” designations, the first-to-the-window dicta in part II seems the best we can do at this stage of the proceedings.
E.g., International Church of Foursquare Gospel v. City of San Leandro (N.D.Cal. 2008) 632 F.Supp.2d 925, 930 (noting that church found larger property located within an industrial park zoning district); Grace Church of North County v. City of San Diego (S.D.Cal. 2008) 555 F.Supp.2d 1126, 1130-1131 (recounting efforts of a nondenominational church to find space, first in a public high school, then it looked for a “property that had not been rented for some time and that had no viable short term prospects for new tenants” and found three sites within a local industrial park, one of which was “occupied by another religious institution preparing to move” and the third was “leased to a synagogue”); Western New York Dist., Inc. of Wesleyan Church v. Village of Lancaster (N.Y.Sup.Ct. 2007) 17 Misc.3d 798 [ 841 N.Y.S.2d 740 , 743-744] (“On February 27, 2007, the Church and its parent organization entered into a contract to purchase a parcel of land and industrial building owned by Sherex Industries, Inc. in the Village Industrial Park.”); Petra Presbyterian Church v. Village of Northbrook (N.D.Ill. 2006) 409 F.Supp.2d 1001, 1003 (“For the past ten years, Petra has been searching for a building of its own. Unable to find an existing church for sale in the right place and at the right price, in 2000 Petra settled on property in Northbrook’s Sky Harbor Industrial Park. Petra planned to convert an existing office building and warehouse into a church.”).
After a very long introduction about the derivation of the word, the Oxford lists as its first definition, “I. The building, the Lord’s house [¶] 1. a. A building for public Christian worship.” (3 Oxford English Diet., supra, p. 200.)
“II. The (or a) Christian community, and its ecclesiastical organization.” (3 Oxford English Diet., supra, p. 200.)
See footnote 1, ante.
“Institution,” alas, suffers from the same ambiguity as the word church: The Smithsonian Institution is a real brick-and-mortar place. But one could just as easily write, say, that “the Catholic Church is the dominant institution on the island.”
This is not ancient Samaria, where the two uses were often thought quite compatible indeed.