July 29, 2010: This is sad & disturbing article
- Demolition of a$150.000 Gurdwara structure after neighbors John and Leslie Bollier contested an earlier decision- structure restrictions.
- It LOOKS the judge has not ordered religious services to cease on the property
- Building code defines a bedroom (at least in California) is a 9x9 room with a closet and smoke alarm.
- The 3rd Court overturned the trial court decision and ordered that the temple be removed. The deed restrictions say that only single-family dwellings with garages can be built on the lots, and the new temple lacks bedroom space and has separate men's and women's bathrooms, according to the appeals court opinion.
- Funny, surprise and amazing decision--Funny, since the court's opinion appears to move against a general trend by the Texas Supreme Court to side with religious groups in its rulings. …Just , wait. Does that greater legal protection not apply to Sikh groups? God bless you, Texas……..……Gary Singh
- Given that the City of Bee Cave Planning and Zoning Commission and City Council approved site plans, and that the Lake Travis Fire Rescue and Lower Colorado River Authority reviewed applications and issued permits, that the neighborhood association was notified five years ago, AND that the AGS has been meeting at the site for seven years, this seems a bit unreasonable……Lake Travis View………………………. Mike M says:
Appeal Court Overturns and ordered complete demolition of Gurudwara at Austin, Texas
Sikhs told to move new temple
Austin, Texas, July 25, 2010
Sant Singh/Gary Singh, CA/ D.Gill, New Delhi
Austin Gurdwara Sahib (AGS), the first and the only Sikh temple was established in Austin, Texas in 2003. This temple is holy place of worship for the Austin peaceful Sikh community from Punjab, India. It is a non profit organization registered with IRS and State of Texas.
Since 2003, Austin Gurdwara Sahib has been meeting in Bee Caves West subdivision, first in a mobile home and then in a $150,000 temple with a 200-person occupancy that it celebrated with an April 18 opening ceremony. Since then Kirtan Dabar is held from 11:30 Am to 1:30 PM every Sunday.
Austin Gurdwara Sahib (AGS) purchased lot 29 in the Subdivision in March 2003. At the time, the lot had a mobile home on it, which had been used by the prior owner for residential purposes. Shortly after purchasing the lot, AGS began holding Sikh religious services in the mobile home, which the parties refer to as the Mobile Home Temple.
In April 2003, AGS erected a permanent sign on the lot that read, "Austin Gurdwara Sahib," and also included a logo. Dr. Harnek Bains, the president of AGS's executive committee, testified that attendance at weekly Sunday services has been stable since AGS began holding services at the Mobile Home Temple in 2003, with roughly 20 to 25 people in attendance each week. Attendance is higher for special occasions, such as weddings, and at times attendance has exceeded the 53-person capacity of the Mobile Home Temple.
Nov, 2003: AGS obtained a certificate of occupancy from the City of Bee Cave for the Mobile Home Temple. In order to obtain the certificate, AGS was required to make several improvements to the property. Improvements included a gravel parking lot with 23 parking spaces, three parking spaces near the entrance to the Mobile Home Temple that comply with the Americans with Disabilities Act (ADA), an ADA-compliant entrance ramp and restrooms, and an improved septic system.
2005: AGS finalized plans to construct a new building in which to hold services, which the parties refer to as the New Temple. According to the testimony at trial, the New Temple was to be 21 feet in height with a square footage of between 3,800 and 4,600 square feet. (1) The New Temple would have a maximum occupancy of 200 people. The plans for the New Temple did not designate any areas as bedrooms, and included specifications for separate men's and women's restrooms, separate hand and mop sinks, and a grease trap to prevent kitchen grease from entering the septic system. In September 2005, AGS provided Penridge with plans for the New Temple. Penridge emailed information about the plans to the households in the Subdivision for which she had contact information. The site plans for the New Temple were approved at public meetings by the City of Bee Cave's Planning and Zoning Commission and City Council.
December 7, 2007: Construction of the New Temple began
February 2008: Leslie (who is an attorney) and John Bollier, who had purchased a lot in the Subdivision in March 2007 and later filed suit to enforce deed restrictions relating to the use of property in the Subdivision ---"The Use Restriction"/"the Structure Restriction"). It says:
- No lot shall be used for other than residential purposes, and no soil or trees shall be removed for any residential use.
- No building shall be erected other than single family dwellings with garage. The floor area of any dwelling shall be not less than 1050 square feet exclusive of garage, porches, and basement. This square footage requirement shall not apply to mobile homes. Moved-in structures other than new structures shall be permitted only with the express permission of the Developer or Property Owner's Association.
- Storage sheds, barns, pens, and similar structures shall be permitted provided they are at least 100 ft. from a street. All personal properties shall be kept in enclosed storage with the exception of operating vehicles. No vehicle in a non-operating condition shall be permitted to remain on any tract longer than 60 days.
After 8 days the court entered a temporary restraining order
The court entered a temporary restraining order enjoining further construction of the New Temple.
Leslie Bollier, then sent a letter to other residents of the subdivision indicating that she and her husband had filed suit to enforce the deed restrictions.
- The letter was co-signed by Misha Spiridonov- another lot owner in the Subdivision.
- AGS members claimed that they should be able to use the lot for "whatever purpose they chose," and warned, "if the restrictive covenants are amended to allow the Temple's construction, the flood gates will then be open for other non-residential uses of any variety, and our power will be stripped to oppose them and protect our properties."
- The letter encouraged residents not to sign any petitions seeking to amend the deed restrictions in the Subdivision.
On March 2, 2008, Leslie Bollier noticed AGS members driving slowly around the neighborhood for more than three hours.
- Bollier testified that, after three other neighbors called her to report similar behavior, including AGS members taking pictures and notes outside of other lots in the Subdivision, she called the police on a non-emergency number.
- Bollier testified that she was routed to 911, and though she specifically stated that her situation was not an emergency, a 911 operator took her statement. Bollier told the operator that members of AGS were "terrorizing" the neighborhood, and the operator told her he would dispatch an officer to her house.
- After she made the call, an AGS member and his wife stopped in front of her property and approached her, her husband John, and another Subdivision resident.
- She indicated she was frightened, the AGS member apologized, indicated that he should have approached her sooner to start a dialogue, and invited her to dinner.
- During this conversation, police arrived, but said little and did not arrest or detain anyone. Leslie Bollier testified that she told the police that she was no longer frightened and they are nice.
In 2009, trial started.
- The court concluded that, though construction of the New Temple violated the Structure and Use Restrictions, the Bolliers were barred from seeking injunctive relief due to the expiration of the statute of limitations for bringing a claim, waiver of their claim, and the doctrine of unclean hands.
- The trial court denied relief on AGS's defamation counterclaim, and assessed 80 percent of costs against the Bolliers.
Following the trial court's judgment, the Bolliers filed this appeal
On appeal, the Bolliers argue that the trial court erred in concluding that their claim for injunctive relief was barred by the defenses of limitations, waiver, and unclean hands, and that the trial court further erred in ordering the Bolliers to pay 80 percent of court costs and denying them attorney's fees.
The trial court found that the Bolliers "engaged in inequitable conduct in connection with Defendant's use of its property," noting three specific acts. First, "Plaintiff Leslie Bollier accused Defendant's agents of selfish and devious conduct for the purpose of discouraging support for an amendment of the Restrictive Covenants to allow Defendant's religious assembly use." Second, "Plaintiff Leslie Bollier summoned the police to detain Defendant's agents by falsely reporting to police that Defendant's agents were driving around the Subdivision in vehicles without license plates and terrorizing the residents of the Subdivision when such agents were visiting residents for the purpose of discussing an amendment of the Restrictive Covenants." Third, "Plaintiff Leslie Bollier encouraged a nonresidential use of property in the Subdivision."
The trial court's rulings on AGS's counterclaim for defamation suggests that Leslie Bollier's actions did not cause AGS serious harm. The trial court denied recovery on AGS's counterclaim, concluding, "Defendant is not entitled to recover damages on its claim for defamation." This conclusion follows from the trial court's finding that, "Defendant suffered no actual damages as a result of any statements made by Plaintiff, Leslie Bollier."
The Texas Third District Court of Appeals upheld the subdivision’s covenant July 9 when it overturned the district court’s ruling and ordered the removal of the temple.
Dr. Harnek Bains, president of Austin Gurdwara Sahib’s executive committee, said:
- Group members are in disbelief as they cope with the reversal.
- For us, it is very harsh. People are very angry
- The group is considering plans to hire a new attorney to file an appeal.
- We need justice. We are convinced we are right here. Freedom to worship is provided under the state Constitution. This is our own house.
- Colorado River Authority reviewed applications and issued permits.
- Lake Travis Fire Rescue officials said they approved building plans in August 2009, and the City of Bee Cave issued a temporary certificate of occupancy in April of this year and a final CO on May 28.
- We tried to meet every requirement in a professional manner.
- The Sikh group’s president told the court that he informed homeowners of the mobile home temple services at the first meeting of a new neighborhood association in November 2003. Five homeowners were represented at the meeting, according to court documents, and Bains was elected vice president at the meeting.
- The group did not meet regularly, but Bains testified that he presented plans for the new temple to neighborhood association President Nell Penridge in September 2005, which she e-mailed to homeowners whose contact information she had.
- The City of Bee Cave Planning and Zoning Commission and City Council then approved site plans for the new temple, which Bains testified “basically has all features of a residence” and could be modified to function as a residence,” court documents state.
- The structure was not residential, and “conceded that construction of the new temple would violate the structure restriction,” according to the court opinion
- A few days after the district court trial concluded, the Bolliers’ attorney at the time, Keith Ward, sent a letter to AGS’ attorney, Doug Young, that cautioned them against proceeding with construction.
- “Because your client is on notice of the violation of the deed restrictions, it is our position that any building during the appeal will be at your client’s peril,” Ward wrote. “In other words, while we have discussed this issue, I do not agree with your assessment that the court’s ruling gives your client the freedom to build their temple without fear of the ruling being overturned on appeal.”
The Sikhs resumed construction on the temple and opened it in April.
- The appeals court "did what had to be done, since Gurdwara proceeded with construction. Religious organizations are restricted by deed restrictions like everyone else, and they proceeded in the face of those anyway.
Leslie Bollier said Tuesday:
- Her intent in filing the suit was to remove an illegal structure from her neighborhood.
- “It completely flies in the face of the deed restrictions. It’s not legal
- She agreed completely with the appellate court’s decision and was surprised that AGS continued to build the temple.
- They built at their own peril. I couldn’t tell you why. They knew we were appealing. They could have saved themselves considerable cost.
- The decision was based on the law in Texas, and that's why I brought the lawsuit
The General opinion:
The opinion appears to move against a general trend by the Texas Supreme Court to side with religious groups in its rulings. The Texas Religious Freedom Restoration Act entitles faith-based operations to greater legal protection than similar secular operations……….Gary Singh