Tree of Life Christian Schools v. City of Upper Arlington

TREE LIFE OF CHRISTIAN

SCHOOLS, Plaintiff-

Appellant, ARLINGTON, OF

CITY UPPER

Defendant-Appellee.

No. 14-3469. of Appeals,

United States Court

Sixth Circuit.

Argued: April 2015. May

Decided and Filed: 2016.

Rehearing July En Banc Denied

Ohio, the use of land owned regulated Plaintiff-Appellant Tree of Life Christian (TOL Schools). Christian As a Schools regulation, TOL Christian result this a operate could not use its land to Schools, religious school. TOL Christian corresponding applying after with and government proposals, ap- on related to rezone the to allow use plied government school. The because such a use application denied the aspects accord with certain would not government’s Master Plan. In its de- nial, government focused on the Mas- government that the provision ter Plan’s in commercial uses maintain for Stanley, Alliance Erik W. ARGUED: income-tax revenue. order to maximize its Arizona, Freedom, Scottsdale, Defending denial, After the TOL Christian Schools Landes, Isaac, Mark D. Appellant. for claims, primarily filed this suit. The suit Teetor, Columbus, Wiles, & Burkholder Land and Institu- Religious under the Use Ohio, BRIEF: Erik W. Appellee. for ON (RLUIPA), 42 Act tionalized Persons Freedom, Defending Stanley, Alliance 2000cc-5, gov- §§ that the U.S.C. 2000cc— Arizona, Gerth, Scottsdale, Philip Daniel J. failed to treat TOL illegally ernment Skinner, A. Fiehtenberg, Todd Gerth & equal terms with non- Christian Schools LLC, Columbus, Ohio, Skinner, Appel- or institutions. After religious assemblies Landes, Craig Mayton, D. R. lant. Mark parties summary judg- both moved for Anderson, Wiles, Isaac, Scyld Burk- D. ment, summary granted the district court Teetor, Columbus, Ohio, Ap- holder & This was judgment government. Hartman, Philip K. Yazan S. Ash- pellee. error. Todd, LLC, Columbus, rawi, Brown Frost Becker, Columbus, Ohio, Ohio, in Although James C. the record this case is com- briefly. our plex, for Amici Curiae. we can summarize view purchased larg- TOL Christian Schools BOGGS, SUHRHEINRICH, Before: Arlington, in un- building Upper est office WHITE, Judges. Circuit and purchase, used at the time of attempted negotiate govern- with the BOGGS, J., opinion delivered the open religious gov- ment to school. The SUHRHEINRICH, J., court in which ernment refused to strike a deal with TOL WHITE, J., joined in joined, part. un- hopes, apparently Christian Schools 373-82), WHITE, (pp. J. delivered founded, former occu- property’s that the concurring part separate opinion (or equiva- pant, Warner AOL/Time part. dissenting result, lent), would- return. Such a further hoped, officials would OPINION plan to increase step mark the first BOGGS, Judge. Circuit by increasing personal-income-tax services allowing multifamily, re- revenues without Defendant-Appellee Upper (the Columbus, tail, currently of land or commercial use government), a suburb of only single-family residential I zoned for use. Warner, a media AOL/Time company party litigation, to this vacat- controversies similar to this Anticipating an building ed office located at 5000 Ar- one, affirming pro- its commitment lington in Upper Arling- Centre Boulevard freedom, tecting religious Congress enact- year, ton. The same TOL Christian RLUIPA, other provides, among which ed Schools, a campuses school with several impose things, government that shall “[n]o supported by across the area Columbus regulation a implement land use churches, began negotiations local religious assembly manner that treats in August would conclude 2010 with its equal on less than terms with a institution at purchase property Arlington of the nonreligious assembly or institution.” Centre Boulevard. 2000cc(b)(l). § Different circuits U.S.C. Upper primarily is residen- differently. interpret provision this Some It tial suburb. has assembled various regula- that a circuits have held land-use regulations land-use and economic in the “similarly treat situated” reli- tion must (UDO). Development Unified Ordinance gious nonreligious assemblies and in- Upper Arlington. The UDO zones The equally. stitutions The Eleventh Circuit provides UDO for criteria to seven “be regu- that a government has held land-use approving zoning map followed in amend- against lation that discriminates 4.04(C). § ments to the UDO.” UDO One assembly in comparison or institution provides pro- of those criteria “[t]hat any nonreligious assembly or institution is posed zoning district and use classification narrowly invalid unless it is tailored to generally of the land conform will with the compelling government achieve a interest. 4.04(C)(5). § plan.” master Id. The Master Plan focuses on regulating any approach, Under the issue in gov- uses land order increase the government this case is whether the treats ernment’s income-tax revenues. For this nonreligious assemblies or institutions that reason, emphasizes importance it

would fail to maximize income-tax revenue using certain non-residential land as office way pro the same it has treated the space.1 government The theorized factual, posed religious school. That is a attract high-income pro- such land use will legal, question. may not a Federal courts fessionals, government whose income the genuine not resolve issues of material fact use, can tax. The zone office under the summary judgment, on motions for even UDO, is the “ORC Office and Research So, proceedings equitable relief. (ORC District). According District” to the grant summary judg district court’s UDO, purpose of the ORC District is government ment to the was error. We to allow offices and research facilities judgment reverse the of the district court City’s physical that will contribute to explain fully safe, and remand. We more our healthy, pattern planned, reasoning neighborhoods. below. The ORC attractive language implies 1. The Plan’s different un- the Master from Master purpose straightforward unitary. Plan’s derstandings what conform. Such uses deciding. We assume as much without But compliance difference would make consistent that, pages we note even on the few provisions difficult in- with the relevant UDO record, might Master Plan submitted in the deed. possible for reasonable minds to derive Gibson, job Ar- provide opportu- Report Upper also Chad Staff should district (Nov. 2013) (em- lington to residents and con- Council nities and services added). addition, stability. phasis economic Attor- to the tribute Council, ney spoke focusing in the ORC district are: uses Permitted offices, rezoning fact “that re- to eliminate com- professional business peri- mercially zoned con- development, book and would be search and carriers, trary plan.” to the master Tree insurance publishing, odical of Life Schs., centers, survey at F.Supp.3d research Christian data corporate centers, firms, surgery report Based on Gibson’s and the outpatient [and] comments, Attorney’s “the Council denied hospitals.... rezoning [TOL Schools]’s Christian re- 5.03(A)(6). District in- § ORC UDO quest” on December 2013. Ibid. Arlington Centre Boulevard. cludes 5000 11, 2014, February On TOL Christian negotiation between TOL Extended judgment for summary Schools moved on government pre- and the Schools Christian its claims the district court. On March 5, 2011, January after this case. On ceded 6, 2014, Upper submitted both failed, had TOL Christian negotiations opposing memorandum the motion of TOL case, alleging filed this federal Schools and a cross-motion for Christian Schools Arlington had violated RLUIPA’s Upper 18, 2014, summary judgment. April On Provision, seeking in- Equal Terms summary granted judg- the district court procedural After junctive develop- relief. to government, reasoning along ment case, including previous ments in this report. the lines of TOL Gibson’s Chris- court, relevant, this not now appeal to timely appealed. tian Schools “submitted ... a[n] TOL Christian to rezone application [Government] to (cid:127) II .... from ORC Office and residential,” in District to which Research A government allows land to be zone matter, general municipalities reg- As a schools, religious used for or otherwise. government, ulate land use. The Tree Christian Schs. federal of Life of contrast, by generally regulate does not 883, F.Supp.3d Upper Arlington, Congress long local land use. But has added). (S.D.Ohio 2014) (emphasis In re- protection concerned itself with the of reli- sponse to this amendment gious Department freedom. As the of Jus- gov- proposed, TOL Christian Schools observed, tice has officer, planning Chad ernment’s senior Gibson, despite guarantee religious free- reported to the Council documents, founding dom our individ- he groups have discrimina- uals and faced proposed rezoning that the believe[d] religion throughout tion our based opposition in direct numerous core history. throughout history, And our goals objectives. plan master Congress and the federal zoning change would eliminate proposed repeatedly protect have acted to Ameri- nearly extremely 16 acres of limited cans from such discrimination.... ground, which will reduce ORC-zoned space example, passed of office and research For while it was amount City.... ]pproving largely response ongoing within the such a racial ten- [A sions, Act rezoning contrary Rights would be the landmark Civil race religion along 1964 included long-term interests. financial persons governmental ... in which categories actions.” Hobby Burwell v. — Stores, Inc., protected against discrimination Lobby —, U.S.

host of areas.... 2751, (2014).2 2761, S.Ct. 189 L.Ed.2d 675 RLUIPA, By enacting Congress Justice, directed Dep’t Report on the Tenth U.S. federal municipal courts to scrutinize Anniversary Religious land- Land Use use regulations that function (Sept. and Institutionalized Persons Act 1 to exclude religious disfavored groups like TOL 2010). Christian Schools. “RLUIPA’s land-use long-running “RLUIPA is the latest of provide sections important protections for congressional religious efforts to accord the religious persons, freedom of places of heightened protection exercise gov from ” schools, worship, religious and other reli ernment-imposed burdens.... Cutter v. gious assemblies and Wilkinson, institutions.” 709, 714, U.S. 544 U.S. 125 S.Ct. (2005). Justice, Dep’t of supra at 4 (emphasis 161 L.Ed.2d 1020 added). Congress Religious enacted the Freedom (RFRA). Act Congress Restoration protects RLUIPA religious land use as sought justify regulation RFRA’s ways. exercise in several example, For states its Fourteenth pow Amendment government’s limits ability impose But, er to enforce the First Amendment. regulation imposes land-use “that a sub- held, Supreme “Congress Court had stantial burden on” exercise. 42 authority exceeded” its to “enforce consti 2000cc(a)(l). addition, § U.S.C. RLUI- rights pursuant § tutional 5 of the PA prohibits regulation land-use that “dis- Fourteenth Amendment” when it endeav against any assembly criminates or institu- rights ored to. those “defin[e] instead of tion on religion,” the basis of id. simply enforcing them.” Sephar Midrash 2000cc(b)(2), § “unreasonably limits re- di, side, 1214, Inc. v. Town 366 F.3d of Surf assemblies, ligious institutions, or struc- (11th Cir.2004) omitted) (emphasis 1236 jurisdiction,” tures a within id. Flores, (discussing City Boerne v. 521 of 2000ec(b)(3)(B). § The provision RLUIPA 507, 2157, U.S. 117 S.Ct. 138 L.Ed.2d 624 here, at Equal issue often called the Terms (1997)). Because, in the Supreme Court’s Provision, provides government that “[n]o

view, “RFRA vital princi contradicted] impose implement regu- shall a land use ples necessary maintain separation of religious lation a manner that treats a balance,” powers and the federal the Court assembly equal or institution on less than RFRA, states, held that applied as a nonreligious assembly terms with or in- Boerne, City was unconstitutional. 521 of 2000cc(b)(l). § stitution.” Id. 536, U.S. at 117 S.Ct. Boeme, After Congress passed of B RLUIPA, RLUIPA. “enacted under Con- All gress’s Commerce and of our sister circuits that Spending Clause have inter- powers, imposes general preted Equal the same as test Terms Provision have RFRA but on a more category glossed statutory language way limited of in a RFRA, "RLUIPA, 2. Unlike provides in an obvious ef PA that it “shall be construed in complete separation protection fort to effect a religious from First favor of a broad exer- law,” Hobby 2000cc-3(g). § Amendment case Burwell v. Lob 42 cise....” U.S.C. The " Stores, Inc., 6th Cir. - U.S. -, 2751, by acknowledged phrase 134 S.Ct. Court has that the ‘ex- 2761-62, 675, RLUIPA, religion,' appears 189 L.Ed.2d omitted “the refer ercise of as it Amendment,” ence interpreted broadly...." Hobby to the First id. at must be Lob- addition, present by, that was in RFRA. In RLUI- 134 S.Ct. at 2762 n. 5. 370 assembly] religious some situated governments [to defendant

that allows regu- regulatory purpose.” Lighthouse land-use Inst. permissible for safe harbor Long the “non- v. disagree Evangelism, about Inc. they But lation. (3d Cir.2007). Branch, institution” whose assembly or 510 F.3d religious should be by compares plaintiff Circuit The Second treatment treat- government’s religious assembly nonreligious to a assem compared assembly or institution. religious bly “similarly a for all functional ment of situated purposes regulation.” intents and of the Circuit’s test Midrash Eleventh Elijah Grp., Valley, Inc. Leon v. Town is the Inc. Sephardi, of Surfside (5th Cir.2011) (internal plaintiff-friendly. most oldest and omitted) (discussing marks quotation Cir.2004). (11th The Eleventh F.3d Christ, Scientist, Third Church of reading a literal begins with Circuit York, N.Y.C. v. New 626 F.3d 667 A language: Provision’s valid Terms Equal (2d Cir.2010)); Inc., Elijah Grp., see also any nonreligious as- could comparator 422-24 (describing 643 F.3d at how It is this under- institution. sembly or “similarly lan using various tests situated” i.e., comparator, is a of what standing differ, declining to guage while choose situ- land which secular users them).3 among institution, assembly or ated to compen- To plaintiff-friendly. is so among definitively need not choose We consideration, sate, off-setting an and as circuits in the various tests used other borrows from the Su- Circuit the Eleventh Granting sum- order to resolve this case. jurispru- Free Exercise preme Court’s government is mary judgment to the erro- striet-scrutiny analysis: a land-use dence test, any “summary because neous under Equal not violate the regulation does proceeding judgment must be denied narrowly if it is tailored Provision Terms genuine ... is- equitable relief where compelling government inter- to further sues of material fact exist.” Hasan v. est. Inv’rs, 372, Realty Clevetrust 729 F.2d 374 (6th Cir.1984); Schlesinger, contrast, Hess v. 486 circuits, require that Other cf. (D.C.Cir.1973) (holding F.2d 1313 “similarly situated” to the a comparator that, seeking injunction an assembly plaintiff when religious or institution plaintiff genuine issue of fact material to regulation the at issue or to raises regard with to instance, government’s regard- the claim For the Third Cir- defendant purpose. its summary ing justification policy, for a comparison to “secular as- cuit restricts Windsurfing similarly judgment inappropriate); that are or institutions semblies (4)"makes meaning 'equal that the Third the terms’ Seventh Circuit observed 3. The 'regulatory purpose' as a depend "use of Circuit’s federal statute on the intentions of presents prac- guide interpretation” several to government local officials.” Kingdom problems. River Minis- tical of Life Ibid. Crest, 611 F.3d 371 tries v. Vill. Hazel Nonetheless, adopted Circuit the Seventh Cir.2010) (en banc). (7th regulatory-pur- The Second, Third, test closer to that of the pose test: Eleventh, Fifth Circuits than that of the al- (1) concerning speculation the rea- "invites regulatory pur- though it focus “shift[ed] from churches”; the exclusion of son behind Ibid.; pose accepted zoning criteria." see to (2) self-serving testimony by zoning "invites also Centro Familiar Cristiano Buenas Nuevas witnesses”; expert hired officials and Yuma, (9th 1172-73 (3) thinly zoning classifications "facilitates Cir.2011) (following the Seventh- Circuit's systemat- actually disguised as neutral but test). zoning "accepted criteria” churches”; ically unfavorable to Int’l, Ostermann, Inc. v. F.Supp. regulatory purpose, similarly ment’s (S.D.N.Y.1982) that, Schools, i.e., (holding they where defen- TOL Christian would fail to maximize income-tax revenue. See depends proof to be dant’s assertion Ver- ¶¶ trial, summary judgment Compl. (identifying is in- ified 60-65 permit- offered at centers, day ted child appropriate). uses of care ho- tels/motels, hospitals, outpatient surgery Ill centers, professional and business and of- fices). allegations genuine These create a Do TOL Christian Schools and issue of fact government as whether the government genuinely dispute the whether favorably treats more assemblies or insti- government favorably the treated more similarly respect tutions situated that, any assembly other or institution like revenue, maximizing govern- unless the Schools, failed to maximize TOL Christian ment can that demonstrate no assemblies govern The government’s income? institutions could be situated. (in fact, ment’s current law allows or in encourages) nonreligious assemblies The land use that TOL Chris- Arlington stitutions to use 5000 Centre is, tian proposes we assume with- obviously, Boulevard: businesses most out deciding, purpose deleterious to the nonprofit organizations hospi also such as (which regulation at issue we assume tals, centers, outpatient daycare care revenue). increasing to be income-tax But centers.4 nonreligious government uses that the concedes it would allow seem to be similar- government deny that does Indeed, ly regulation. situated to the allow these other assem UDO would comparisons government invites Arlington blies or institutions to use 5000 conclusion, compel opposite seem to remaining Centre Boulevard.5 So the even on casual review. question is whether these other assemblies institutions, instance, favorably, treated more For suggested similarly situated. at oral argument prefer TOL Christian Schools that would pled allege has facts sufficient at Centre Boulevard be used ambulatory outpa- least some of these assemblies or institu for an care center or situated, center. But we cannot as- govern- surgery tions are relative to the tient Here, zone, formerly daycares per- daycares 4. The UDO allowed the removal of from the mitted uses in ORC Office and Residential injunction prevent an that would their absent chose, Upper during District. the alleged permitting, remedy the would not pendency litigation, daycares the of to exclude problem; Upper Arlington always could from the ORC District. See Ordinance 52- again daycares the amend UDO once to allow voluntary "[a] 2011. But defendant's cessa- Depo., in the ORC district. See Gibson R. 55 allegedly ordinarily tion unlawful of conduct (explicitly admitting Upper Arling- at 66 that does not suffice to moot a case.” Ohio Citi- any ton could return to the earlier UDO at City Englewood, Action v. zen of time). (6th Cir.2012) (quoting Friends the of Earth, (TOC), Inc. v. Laidlaw Envt’l Servs. general government's anti- 5. A small size or Inc., 167, 174, 528 U.S. 120 S.Ct. development regulations political or culture (2000)); L.Ed.2d 610 see also Ohio Citizen protect cannot it from valid RLUIPA claims Action, (observing 671 F.3d at 583 that "the govern- summary judgment: A on motions for ‘the defendant bears formidable burden of regulatory system provides ment's for showing alleged- absolutely that it is the clear unequal treatment violates RLUIPA even if no ly wrongful reasonably behavior could not be practical comparator has arisen. expected (quoting to recur” Friends Earth, 693)). U.S. at 120 S.Ct. sume fact, government cer- the government’s a maximize income-tax show, judgment no evidence to revenue. The standard for is tainly has offered (or objective: Are other ambulatory care center an out- assemblies that an center, they situated or are not? It is not for us or a data and call patient surgery question, ques- to decide this because the center, not-for-profit a space office Taking position tion is factual. does daycare) employ would organization, or imply acceptance not our of the Eleventh than workers TOL Chris- higher-income strict-scrutiny (or Circuit’s standard. Nor result in less traffic tian would Schools imply scrutiny does it intermediate or ra- noise, each an in less outdoor even legal tional basis. These standards of re- point proffered at one alternative rationale arguments view and their attendant do not refusing TOL government apply stage litigation. at this in the application). The dis- Christian Schools’s vigorous analysis factual engages sent instance, government For factors, they genuine is- of these claims that TOL Christian can lo fact that cannot re- sues of material cate elsewhere in of the land that 95% such, summary judgment. As solved on claim, in Upper Arlington. exists That summary grant judg- court’s district perhaps relevant to the intermediate-scru government was error. ment to the means,” tiny ap defense “other has no to the court below to answer We remand plication Equal here. The Terms Provi of fact: remaining questions Are there locality discriminating sion forbids from or institutions to nonreligious assemblies against religious institutions and assem compare should Tree of blies, time, which the court regardless place, and man they because would words, Life Christian Schools ner. In other not a defense revenue, if maximize income-tax fail to government against that a discriminates so, assemblies or institutions would those only assemblies institutions equally to TOL all, be treated Christian jurisdiction.6 rather than its part, Schools? government’s proffered Even the rational A, regulation basis for its want we —we

TV A, think B land use leads to thus we regulate privilege land use B—does obligation apply is to the statute Our satisfy RLUIPA’s test. cannot by Congress. enacted We contort any Finally, of our sister cir- we observe that the meaning. Under tests, prop- RLUIPA does not allow the could ensure commercial use of the cuits’ favorably erty violating treat more at government to land issue without the federal that, Schools, domain, Using Upper like TOL Christian fail statute.7 eminent uses regulations prevent because do not 7. We reiterate that we assume without decid Just ing Arlington’s Upper policy stated particular protected use does not mean goal regulating the use of land in order to Here, factually possible. a use is that such — maximize income-tax revenue—both reflects government points of much statutory language essence of and also use, of land for residential where it allows its itself, presents legal problems by although no schooling, religious use land owners to regulations some courts have found of land may functionally impos- But it otherwise. solely purpose maximizing use of sible for a school such as TOL Christian local-government's tax to revenues be arbi purchase amalgamate and such Schools See, trary e.g., Mindel v. unreasonable. land, belong many private which could Franklin, Twp. of Twp. Council 167 N.J.Su of owners. 461, per. (NJ.Super.Ct.Law 400 A.2d 1244 regulations. Arlington apply could force TOL Christian We RLUIPA its government, to sell the land to the statutory genuine terms and find a issue buyer the land to a and sell of material fact applicability. superior thinks offers econom- conclusion, because we hold that ic Kelo v. New Lon- benefits. See of genuine there ais issue of material fact as don, 469, 2655, 545 U.S. 125 S.Ct. applicability to the of Equal RLUIPA’s (2005); Christopher L.Ed.2d 439 see also Provision, judg- Terms we REVERSE the Tebbe, Condemning & Nelson Re- Serkin court, ment of the district and REMAND ligion: and the Emi- RLUIPA Politics of for further proceedings. Domain, L. nent 85 Notre Dame Rev. (2009) (arguing that eminent domain “provides governments local with an es- WHITE, Judge, HELENE N. Circuit cape appli- hatch to avoid the most severe concurring part dissenting part. zoning provisions”). cations of RLUIPA’s I agree my colleagues’ disposition city govern- But the has not committed equal protection of the and free exercise theory that ment funds to the a traditional claims, respectfully dissent from the yet commercial office tenant —as unidenti- analysis disposition of as-applied fied—both could be attracted to use the equal-terms challenge. RLUIPA Whether also, attracted, if land and would increase the district court took too restrictive Instead, they placed tax revenues. have view when it looked solely to secular per- the cost on TOL Christian Schools— comparators open question schools as is an haps upfront compen- to save the cost of assuming in this Circuit. But for argu- domain, sating an exercise of eminent per- ment’s sake that the district court erred in haps because there is no market for office standard, its choice of City Upper of space Upper Arlington, and perhaps to summary judg- is still entitled to exclude an unfamiliar or disfavored reli- ment because Tree of Life Christian gious assembly. identify

Schools did not compara- secular V tor respect situated with to the relevant criteria that received more TOL that Up- Christian Schools claims challenged favorable treatment under the per Arlington has violated its constitu- Development Unified Ordinance. Dist. Ct. rights equal protection tional Op., (citing PID 2744 Iglesia Primera free exercise.8 claims are These incor- Raton, Hispana Bautista Boca Inc. v. facially rect. Because neutral statutes (11th Cty., Broward might such as the UDO survive rational- Cir.2006)). argued Nor has it identified or Equal basis review under the Protection Clause,9 questions that there are of fact that bear Clause and Free Exercise Con- gress grant on this issue. I affirm the protections established enhanced would against assemblies summary judgment City. land-use ¶¶ Div.1979). 167-73, only regulatory Compl. We hold that the ified but did not brief the employed goal may scheme to affect that vio- appeal, we issue on so do not consider it. disputed late RLUIPA and the facts are mate- question rial to the of whether there has been Div., Emp’t Dep’t 9. See Human Ore. Res. n a violation. Smith, 872, 877, 494 U.S. 110 S.Ct. (1990). 108 L.Ed.2d 876 initially complained 8. TOL Christian Schools Constitution, violations Ohio see Ver- (UDO) de- Development fied Ordinance I. zoning: of ORC purposes scribes the (the City) 10-miles is Upper offices and research facilities allow land is devel- 99% its almost square and City’s physical to the that will contribute permitted churches are and oped. Schools safe, healthy, and pattern planned, zones, comprise which 95% in residential The ORC neighborhoods. attractive City.1 Commer- land within developed job provide opportu- also district should comprise 4.7% of the cially-zoned districts to residents and con- nities and services areas zoned Office include land and City’s stability.' economic tribute to the (ORC), which District Center Research include, generally Permitted uses 1.1% of the land.2 minuscule constitute a to, profes- business and are not limited uses as conditional permitted Churches are offices, development, sional research are but all schools in areas ORC-zoned insur- periodical publishing, book and prohibited.3 centers, carriers, corporate ance data Plan, developed firms, outpatient 2001 Master City’s survey The research study and lengthy after surgery centers. implemented meetings at participation public seventeen § art. 5.04. PID 1131/UDO input, notes due gave which residents backdrop, Tree of Life Against this shortfalls, capital (TOLCS), private reli- Christian City to maintain its for the in order currently serving approxi- gious school services, facilities and existing level of K-through-12 students and mately 660 cap- provide for future and in order persons,4 contracted employing around 150 needs, it is critical ital purchase in 2009 to from Time October The revenue revenues. its enhance in the largest complex office Warner per from commercial generated acre City, Arlington Centre Boule- 5000-05 provided the revenue far exceeds 15.8-acre, 254,000 use square-foot vard —a In maxim- use. order to residential in two-building center an ORC-zoned dis- revenues, was directed ize trict.5- opportunities to create Plan

the Master advised TOLCS Although emphasize development for office purchase months before it entered into the jobs- high-paying that schools agreement with Time Warner added). nor conditional uses (emphasis keep- permitted are neither PID 2731-32 rezoning Plan, site-specific in the and that Uni- ORC the Master ing with employed per- Map, 4. TOLCS asserted that it PID and District 1. Use See Land sons, figure 2743. court used that Opinion, PID and the district Court however, Subsequently, opinion. TOLCS's 6,336 approximately acres and represented City’s Board of counsel occupy only 67 acres. districts ORC-zoned employs per- Zoning Appeals TOLCS 2227, 2635/supplemental record PID sons. prohibited in the ORC and all are 3. Schools following remand. filed with leave this court's commercially-zoned The oth- districts. other the Office District commercial districts are er property purchased has been 5. The TOLCS (B-l), (O), Neighborhood Business District 1970. Time Warner zoned commercial since (B-2), Community Business District Condi- $23 mil- purchased the in 2006 for (B-3), and Planned District tional Business purchased (PB-3). the office lion dollars. Churches Shopping Center District complex $6.5 million from Time Warner conditional uses commer- O, B-l, B-2, PB-3, dollars. and ORC. cial districts required operate City reported City would be in order to Staff to the Council there, applied City school TOLCS that complex by the office now owned permit, requesting for a conditional use typically generated types TOLCS three complex place use the office “for a of wor- City: personal income for the income tax residential, ship, church and to the extent (2%), wages earned employees enti- that a private residential includes school.” ty-level profits income tax on net of com- After the Council denied a conditional (2%), pany(ies) property located there and permit, sought use TOLCS amend Table City’s tax. The Director of Finance Cath- private religious UDO to allow Armstrong previously erine had testified (but schools) permit- schools not other office complex larg- TOLCS’s “is our ORC, ted uses in the to change and est commercial site and the income tax churches from conditional to generated property always from this has uses. The Council denied TOLCS’s 1285, significant.” been PID 1294. In request including for reasons that amend- 2001, complex generated the office 29% of ing only private religious the UDO to allow City’s revenues; income tax over schools in areas “raise a ORC-zoned would $3,000,000. 2005, In the office complex facial PID problem.” First Amendment generated personal revenue from and enti- 2468, 2732. ty-level $1,216,732, income totaling taxes

The purchase Time Warner-TOLCS $20,269 2009, which in decreased to agreement rezoning contingen- contained a year Time Warner vacated the office com- nonetheless, cy period; TOLCS closed on plex. Property tax revenue to the 11, 2010, on August without complex from the office increased from seeking site-specific rezoning. TOLCS $584,917 $646,219 in 2005 to in 2009. in January

filed this action 2011. In employees TOLCS’s 150 or so sought, October $2,321,211.99,7 combined earned which time, first site-specific rezoning of its office $46,424 would translate approximately (residential complex from ORC to R-Sd personal City, in income tax to the suburban).6 Zoning Board of about (personal the income tax and l/10th (BZAP) Planning and reviewed TOLCS’s entity-level) generated Time Warner rezoning request, after which the Council considered it at three meetings Rezoning substantially would also November and By December 2013. change the character of the ORC district point, this action had been pending for well by allowing single family homes years, parties over two had taken some zone, discovery, and the schools in an office administrative record and research prior eliminating City’s existing included evaluations of TOLCS’s re- over 20% of the land, quests. permitting ORC-zoned future stitutional, cultural, recreation, purpose day 6. The of R-S residential single-family care. dwellings is to allow in low- 5.02(A)(1). density neighborhoods. § residential PID This 2524/UDO district is further into sub- subdivided four R-Sa, R-Sc, R-Sb, R-Sd, Superintendent districts dif- 7. TOLCS Dr. Todd Marrah fering primarily required projected occupies lot area and also if TOLCS yard space. range Net densities 0.33 from complex, population office student could dwelling per units acre in the R-Sa District employees increase to 1300 and but he dwellings per 2to acre in the R-Sd District. project employee wages was not asked to total include, generally Permitted uses but are personnel should exceed 150. to, residential, single-family not limited in- The elimination of the estate tax and existing buildings, demolish owners to funding in state further re- reduce revenue to the reductions further which would places available revenues and 2614/City Report City duces PID Staff City. tight budget additional stress on Council 11/23/2013. pro- In order to continue to situation. of the aspects to the financial In addition necessary services to the resi- vide rezoning, staff addressed proposed .use dents, City the needs to maximize rev- (cid:127) concerns: of Life Rezoning enues. the Tree has inherent characteris- A K-12 school does not max- property to residential be intrusive and destruc- tics which can of one of potential imize the revenue Traffic, including park. tive to an office commercial office largest the circulation, un- loading and school bus permit would rezoning sites. The challenging for an area can be loading, future owner to demolish the office A number of large to accommodate. buildings/school single and build fami- arriving and parents young drivers which would further reduce ly houses can tax (peak) at similar times departing revenues. related infra-struc- roadways and the zoning district proposed 2. That the ture, the reducing the level of service for classification and use of the land is After-school signalized intersections. reasonably necessary public pro- as band and theater activities such welfare, by such as general health or bring large can also numbers ductions operation of enhancing the successful area, students to the often parents and in surrounding the area its basic com- parking demands. necessitating overflow munity by providing function or an events, practice, as band such Outdoor community service the essential impact for office work- can noise create region; attempting to do business who are ers quality The issue is not whether clients. serve and/or if necessary Tree of schools PID 2490. good neighbor, Life will be a Attorney reported City City City more residen- whether the needs met none of the seven that TOLCS Council tially Approximately zoned land. 90% requires rezoning the UDO standards already ... zoned for below, followed the Attor- (quoted uses, including residential schools. italics). ney’s remarks Tree of Life has failed to establish necessity residentially zoned more zoning district classification 1.That land. materially the land will not and use of public safety; health or

endanger proposed 3. That district classification and use of the land will testi- Armstrong] Director [Finance substantially injure the value of deposition in her fied abutting property; 2007, 2008, in income had a decline argument concerning of Life’s The income in 2010 was Tree and 2009. Wellington Andrews and [both to the 2009 income and St. comparable “apples oranges” in income in are an schools] there was an increase Both ... are located in comparison. had a balanced bud- 2011. The specif- years purely residential districts get during appro- those because Tree of ically contemplate schools. priations requested were not a school an proposes put Life would exceed estimated revenues. office and retail district that does not fic resulting conditions from a school. contemplate Abutting such use. Staff is also concerned whether ade- quate study commercial could not an- owners have has been made if the ticipated possible redeveloped such a school use were for resi- dential they acquired properties. when their or other uses in the R-Sd district. proposed zoning That district classification and use of the land will proposed 7.That zoning district harmony scale, bulk, inbe with the classification and use of the land will coverage, density, and character of congestion not cause undue traffic neighborhood the area the [sic] or create a traffic hazard. located;

which it is questionable It is whether Tree of The AOL office workers in har- were promise Life’s that no athletic events mony with the commercial character or evening activities would be held at of the Henderson Road corridor. the site would be enforceable. uses,

Residential including 600 stu- 4.04(c) added)/PID § (emphasis UDO school, attending dents a K-12 are not 2391; City Council Mtg. Min- 12/9/13 2578-79. utes/PID 5. That the proposed zoning district- Council denied TOLCS’s re- classification and use of the land will zoning request, prompted which par- generally conform with the Master to summary ties file cross-motions for plans Plan and other official of the judgment, disposition of which led to City; appeal. this Rezoning commercially to eliminate zoned contrary is II. Master Plan seeks to “En- [which] equal provision pro RLUIPA’s terms City’s hance the revenue sources” and vides: “No government impose shall or “Expand space the amount of office implement a regulation land use a man City”.[sie] asking Tree of Life is religious assembly ner that treats a or Council to eliminate over 20% of the equal institution on less then terms with a City’s existing ORC zoned land. nonreligious assembly or institution.” 42 comprises only Commercial office 1.1 2000cc(b)(l). § statutory U.S.C. This percent total land area. “ command ... to ‘allows courts determine Zoning compre- should be based on a particular system whether a of classifica plan taking hensive into consideration adopted by city tions a subtly covertly the best community. interests of the departs requirements neutrality It piecemeal should not be done on a from and general applicability.’” Primera based on the desires of an individual Iglesia, (quoting 450 F.3d at 1307 Midrash property owner. Surfside, Sephardi, Inc. v. Town 6. That the proposed zoning district (11th Cir.2004) (emphasis F.3d classification and use of the land are added)). appropriately respect located with transportation facilities, utilities, a prima To establish facie case under police protection, fire and waste dis- equal provision, plaintiff terms has characteristics; posal, and similar 1) showing the burden of it is a reli- 2) institution, study assembly subject The revised traffic is gious still defi- 3) cient in addressing change regulation, in traf- a land use treats on (2d Cir.2010) 4) York, 667, 670 terms, 626 F.3d with a nonreli- equal than less (church secular institutions were institution. Primera and two assembly or gious It all functional intents at 1307. is TOLCS’s situated “for F.3d Iglesia, 450 here.”); compa- secular identify a similar relevant River purposes burden favorably Ministries, under the more treated 611 F.3d at 371 Kingdom rator Life (Noting that “with- (“The at 1313-14 Id. ... the 3d Circuit’s problems UDO. similarly situated nonreli- identifying out of focus from can solved a shift test that received favorable comparator gious cri regulatory purpose accepted treatment, failed to establish Primera subjective manipul ‘Purpose’ teria. violation.”). Equal Terms prima facie objec ‘Regulatory ... criteria’ are ate apply judges it is federal who will tive-and A. issue.”); Lighthouse the criteria to resolve acknowledges appeal, As TOLCS Evangelism, In st. “that valid are in accord generally circuits Cir.2007) (3d must be (comparator purposes are for RLUIPA comparators situated). Elijah Group But see similarly that im or institutions secular assemblies 419, 424 Valley, 643 F.3d v. Leon of criteria, regu or zoning pact accepted the (5th Cir.2011) (declining adopt to. the test greater to the same or latory purpose, holding that any of other circuit and assembly or insti religious the extent than be equal provision terms “must RLUIPA’s Eagle Br. 8. See Reply tution at issue.” the by the ordinance itself and measured Inc. Town Ctr. v. Camp & Cove Conference by it treats institutions dif criteria which (7th Woodboro, Wi, F.3d 683 734 ferently.”), Iglesia, and Primera 450 F.3d Cir.2013) (“In a claim determining whether Cir.2006) (11th (comparators are de 1295 provision, we equal terms exists under challenged or based on whether termined rather than the zoning criteria look to facially facially neutral or dis dinance is regulation”) land use behind purpose latter, criminatory; any nonreligious if the Kingdom Ministries (citing River of Life assembly compara or institution can be a Ill., Crest, Hazel Village v. chal scrutiny applies. strict If the tor and Cir.2010) (en banc)); (7th Fa Centro 371 neutral, facially is howev lenged ordinance Yuma, F.3d v. miliar Cristiano 1) er, as either those claims are classified Cir.2011) (9th (observing that “our challenge general appli ordinances of that as the Third analysis the same is about cability target that nonetheless reli if the church is look to see we Circuit’s: through religious gerrymander, gion regulatory pur ‘similarly as to situated 2) discriminatory ap challenge those that ” refine to the Seventh Circuit’s pose’ or plication.) purpose test “to regulatory ment of the attempt to resolve subjectivity by requir parties did not inappropriate avoid below; they do legal nor do respect ‘accepted zon standard ing equality with pre- maintains that it criteria,’ appeal. so on Each parking, such as vehicular ing Further, revenue.”); any tax vails under of the standards. traffic, generation of City’s zon- challenge does not New TOLCS Third Church Christ proper compara- only are majority’s to the Eleventh that secular schools 8. The references TOLCS, (including circuits determining comparators, tors to none of for Circuit’s test Circuit) 369-70, require unnecessary that secular the Eleventh Maj. Op. at 367 and comparators argue applica- be identical given does not that TOLCS that, Appellant only similarly argues plaintiff, situated. simply tion of that test. TOLCS Br. contrary determination to the district court’s rather, criteria; it argues by allowing hospitals that is RLUIPA non- ing unfavorably similarly compared profit treated uses in the ORC district. The respect to those comparators situated with daycare asserts that centers are not a Finally, party argued neither criteria. proper comparator they because are no court, argues and neither allowed, the district longer assuming they but even questions that there are of fact appeal, are, they are not situated with regard to the various uses or respect to the relevant zoning criteria. preclude summary judgment. criteria that question. turn to that We Similarly Comparators B. Situated Day-Care 1. Child Centers acknowledged below secu- Day-Care” The UDO defines “Child as: proper comparators, lar schools are administering infants, to the needs of dispute does not the district court’s deter- toddlers, preschool children and school mination that the UDO treats all schools by children outside of school hours per- i.e., equally, all schools in prohibits ORC parents sons other than their guard- acknowledges It also districts. ians, blood, custodians or relatives churches are as conditional uses marriage, adoption, any part argument ORC districts. TOLCS’s day place 24 hour or residence other proper while secular schools are com- than the own home. child’s they only parators, proper are not comparators, and the district court Day may erred PID 1025. Child provid- Care centers, considering day-care in not chari- permanent ed at a residence or other loca- uses, hospitals table office and as addition- tion: which, asserts, comparators, al are simi- Day-Care Type Child Center and A

larly respect situated with to the any Home: place means in which child favorably.9 criteria but treated more day-care provided, is with or without In September compensation, after IS or more children at for action, time, brought any the instant the one place Coun- that is not the passed amending permanent cil an ordinance the residence of the licensee or daycare day-care UDO to remove centers from the in administrator which child is category designate provided, of uses and compensation, with or without prohibited them as in uses the ORC dis- seven to 12 children at one time. In counting purpose trict. TOLCS asserts that the district children for the of this ordinance, in considering daycares any years court erred not as children under six licensee, comparator damages age a valid because its of who are related to a administrator, City’s claim cannot be mooted the vol- or employee and who are conduct, untary of premises cessation unlawful and on the of the center shall be because the amended UDO still counted. violates generate TOLCS asserts the "fatal flaw” in the tax revenue for the but it City's attempts distinguish day-care fromit requirements drafted the district in an im- centers, uses, hospitals, charitable office broad, precise, overly impractical way is that that allows for uses in the ORC district that the desire to maximize tax revenue purpose undercut its stated and criteria to from the of use of Tree Life’s greater the same or extent than Tree of nothing vague translates to more than a set Life’suse. hopes of and dreams. The ... created Reply Br. 15. hopes in ORC district that it would offices, Type support primary B in uses like Day-Care Home and

Child significant tax reve- they generate residence because permanent means Home: day-care ser- in and of themselves. in which child nue for the provider to six chil- Similarly, shops per- for one coffee and barber are provided vices are in no more ancillary and which in the ORC as uses.10 one time mitted uses dren at than may be under two children three explained: Weiler counting In at one time. age years of Although daycares significant are not ordi- of this purpose children daycares compliment producers, revenue years under six nance, children any by providing a commercial use child [sic] provider related are age who in area. supervision employees B Type of the premises on the who are addition, in surveyed daycares Type A B fami- counted. home shall only city Upper Arlington serve include a does not home ly day-care between 40 to 130 children. Additional- the needs of children in which residence daycares in- ly] having built and owned to, if all of the children are administered daycare interest cluding current fami- same immediate of the siblings are Columbus, in located on Sawmill Road is the home of the residence ly and 10,000 daycares are excess of SF few siblings. that are compared [] school[s] as PID 1026. routinely substantially larger. testimony on the reliance TOLCS’s PID 1765. A 600-student K-12 school is Gibson and Robert Planning Officer Senior ancillary for the convenience not an service City’s experts, sup- Weiler, of the one support employees who work simi- day-care centers are child port that commercial estab- the area’s offices and be- to its 660-student school larly situated lishments not maximize centers would cause some day-care cen- City, unavailing. TOLCS also asserts tax revenue proper comparators are because some testified or ters and Weiler Both Gibson many that, large accept and licensed to keeping with the UDO’s averred 12-13, 1,000 Br. n. including Appellant as children. zoning as description ORC exhibits, the first11 of “services,” 4. It relies on two day-care permit- centers were located in day-care which lists six centers ancillary, complementary services ted as establishments, 5.01(B) bowling provides only automotive service § uses 10. UDO stores, rooms, permitted alleys, candy pool shall be allowed as a designated as or billiard any stores, right stores, district and in drug dry-cleaning matter of department designated prohibited ... PID shall be restaurants, homes, not so shops, funeral fast-food designated permit- are not as 2008. stores, laundromats, supermarket grocery and prohibited. are thus ORC and ted in the stores, massage parlors, liquor meat and fruit designated permitted include ORC uses markets, facilities, movie motor-vehicle wash offices, banks, cor- professional and business clubs, theaters, night pharmacies, publishing, centers, motels, hospi- porate hotels and data studios, rinks, skating radio and TV soda carriers, tals, outpatient surgery insurance fountains, stores, parlor variety and tattoo centers, publishing, and book re- periodicals body-piercing studios. development in information search and firms, technologies, survey research medical legal declaration of a 11. See PID the beauty parlors, and coffee shops and barber at the Alliance Defense Fund who assistant shops. regarding research avers that she conducted include Expressly prohibited ORC uses day-care centers across the coun- the size of stores, motion-picture the- adult adult book aters, try. arcades, boarding, animal amusement Missouri, Kansas, Arizona, use, use, and South Car- research supporting commercial activities, that “care for children outside of supporting, olina ancillary, ser- capacity to serve school hours” and have vices than TOLCS.

from 416 to 965 children. The second Hospitals listing exhibit consists of charts the twen- Ohio, ty-five largest day-care centers in hospitals TOLCS asserts that prop- capacities comparators which have to serve from 282 to er hospitals because some in points 467 children. But TOLCS to no the nonprofit Columbus area are and do day-care not generate property facilities the or the imme- tax City, 13, 36, day-care Appellant diate area. The size of the six Br. and therefore inclu- hospitals centers in four states far from Ohio seems sion of in the ORC undermines day-care City’s objective no more than the relevant size of generating revenue. Similarly, But Europe. tax, centers the list of TOLCS overlooks that income tax, largest day-care pro- property centers in Ohio largest is the source of reve- no information communi- nue for City, hospitals vides about the typically serve, they employ many highly-skilled ties other than their names. and educated plan professionals The is entitled to devise a master who tend to command large Thus, and ordinances that take account into salaries. that some hospitals are community expe- non-profit pay size and its actual and do not real-estate taxes unimportant rience with commercial and other users of compared when to the rev- land. enue non-profit hospitals generate in in- Appellee come taxes. Br. 25.

Additionally, twenty-five most of the largest day-care majority Ohio centers TOLCS of- observes that “we cannot “school,” fact, fered are “learning named either assume as a center,” center,” “child development certainly show, “head has offered no evidence to start,” (or center,” suggesting ambulatory or “children’s that an care center an out- ) provide day-care patient surgery the facilities both ... ... center would em- schooling. Assuming ploy higher-income these centers workers” than TOLCS. qualified day-care Maj. Op. would have as child at I disagree cen- 371-72. for two UDO, First, majority ters under the reasons. discounts the present City’s failed to any day- knowledge evidence that institutional of which comparator seeking care generate to locate land uses most revenue for the Second, anywhere City. ORC would serve near it is TOLCS’s burden to (it the 660 students TOLCS serves is un- come forward with a situated largest day-care controverted cen- comparator, Iglesia, Primera 450 F.3d at children). 1311, ter served 130 and TOLCS offered no evidence that proposed TOLCS’s 660-student K- generate comparable gen- would to that through-12 school would constitute a much center, a hospital erated or medical day-care more intensive use than a Further, center nonprofit or not. TOLCS does size, by virtue of its age range of its argue questions not of fact should students, and the traffic and noise it precluded would have summary judgment or that generate during peak during times and we should remand for further factual de- after-school and weekend activities. In velopment.

sum, day- TOLCS failed to show that the 3. Charitable Offices comparators care situated respect with accepted zoning Finally, crite- TOLCS asserts charitable ria, and are no more consistent generate with office offices no tax and that preclude would in the UDO

nothing CRAIG, Plaintiff-Appellant, Donna an staffing from organization charitable only twenty employees, office, say, with v. much income tax generate which would LLC; BROS. TRUCKING BRIDGES Br. 36. But Appellant City. for the Bridges, Michael Defendants- non-profit office use and density of Appellees. professionals are non-profit salaries of the ORC’s with compatible more No. 15-3396. than K-12 goals and economic uses Appeals, States Court of United accompanying noise school Sixth Circuit. traffic.

Argued: Dec. 2015. IV. May Decided and Filed: equal sum, majority requires not treatment, treatment, special See, e.g., Primera use. religious

proposed (citing Mi F.3d at 1313-14

Iglesia, 450 1231-32,

drash, at and Civil Lib F.3d Chica Believers Urban erties (7th Cir.2003) (“[N]o 752, 762 F.3d

go, 342 land mas religious uses pass

... free protections among legitimate

querades exercise.”)) affords

RLUIPA summary judg grant

I would affirm Arlington on the basis that Upper

ment to compa present secular failed respect similarly situated

rator that is See, e.g., zoning criteria.12

to the relevant Inc., Camp & Cir.

Eagle Cove Conference 683; at Centro Familiar Cristi

ano, F.3d at 1172-73. its valid majority's discus- dition of its enforcement of

12. I further observe that the inapposite. regulations. TOLCShas not shown that there sion of eminent domain Indeed, property. knowl- are no feasible uses for the purchased the by leasing portion income out a edge existing zoning, and the has it derives space. obligation compensate TOLCS as a con- no

Case Details

Case Name: Tree of Life Christian Schools v. City of Upper Arlington

Court Name: Court of Appeals for the Sixth Circuit

Date Published: May 18, 2016

Citation: 823 F.3d 365

Docket Number: 14-3469

Court Abbreviation: 6th Cir.