The Law

Cities Using Holes in RLUIPA by Michael Blahy As a suburb of Columbus Ohio, the City of Upper Arlington (the City) is land locked and limited in growth potential. In 2001 it adopted a new Master Plan, with a Unified Development Ordinance (Ordinance), which emphasized the need for new revenue to support its current level of services and capital needs. Of all the different land uses, commercial office use generated the most. Less than five percent of the city is zoned as commercial office. The Ordinance identified “business and professional offices, research and development, book and periodical publishing, insurance carriers, corporate data centers, survey research firms, bank finance and loan offices, outpatient surgery centers, [and] hospitals” as businesses permitted in the office district. With the approval of the Board of Zoning and Planning (the Board), Places of Worship are also allowed. Schools of any sort are specifically prohibited. Child daycare centers were originally allowed, but in 2011, after litigation started, the City Council passed an amendment to the Ordinance to prohibit daycares. From Circuit Judge Thapar’s dissenting opinion, Since the founding of this nation, religious groups have been able to “sit in safety under [their] own vine and figtree, [with] none to make [them] afraid.” Letter from George Washington to the Hebrew Congregation in Newport, R.I. (Aug. 18, 1790). In keeping with that promise over two hundred years later, Congress enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA) to protect religious groups from discriminatory zoning laws. In October 2009, Tree of Life, a religious non-profit corporation, signed a purchase agreement for the former AOL/Time Warner, 254,000 square foot office building. The agreement allowed for the cancelation if Upper Arlington denied the rezoning request to allow for the building to be used as a school. No commitment was received, but Tree of Life finalized the agreement in August 2010. Tree of Life’s first application mentioned that “the property would be used as a church with an included school“. Believing that the primary use intended was as a private school rather than a place of worship, the application was rejected. Tree of Life filed suit seeking equitable relief to allow it to operate on the Property and compensatory damages for the harm that it has allegedly suffered as a result of Upper Arlington’s refusal to accommodate the proposed school. The suit alleged violations of: RLUIPA’s substantial-burden and equal terms provisions the First Amendment’s Free Speech, Assembly, Free Exercise, and Establishment Clauses the Fourteenth Amendment’s Due Process and Equal Protection Clauses Article 1, Section 7 of the Ohio Constitution During the litigation process, following an appeal by the City, Tree of Life applied to have the Ordinance amended to permit private religious schools to operate in the office district. The amendment was rejected by the City Council. A third application was made to rezone the 16 acre property for residential use. This too was denied by the City Council. Tree of Life moved for a preliminary injunction based on its equal protection and RLUIPA equal terms claims. Although the district court found that Tree of Life was likely to succeed on the merits of its RLUIPA claim (but not on its equal protection claim) so the motion was denied. At the district court, the City was granted summary judgment saying that because Upper Arlington excludes both secular and religious schools from the office district, the City’s land-use regulations do not violate RLUIPA’s equal terms provision. The court also said of the other Tree of Life claims, that they were either abandoned or legally deficient. The Tree of Life appealed and the case was remanded back to the district court to answer two specific questions: ”Are there nonreligious assemblies or institutions to which the court should compare Tree of Life Christian Schools because they would fail to maximize income-tax revenue” ”if so, would those assemblies or institutions be treated equally to [Tree of Life]?” Back at the district court, Tree of Life argued that daycares and partially used offices are similarly situated to the proposed school in terms of their minimal capacity to generate revenue for Upper Arlington. The district court noted that the Ordinance no longer allows daycares, the use of daycares as a comparator is moot. Besides, the city provided an expert witness whose analysis showed that a daycare on the site would generate seven times more income for the City than a private school. The district court issued an injunction preserving the Development Ordinance’s current ban on daycares in the office district, so that the City cannot revert to the prior version of the Ordinance. The district court held that the City cannot demand the full use of a property, so the RLUIPA equal terms claims can only be analyzed by comparing the “full use of one assembly or institution” to the “full use of another type of assembly or institution”. The partially used offices argument was also rejected. A third and final appeal followed, with both parties waiving oral presentations, they filed cross motions. The central issue being how RLUIPA’s equal terms provision should be applied. The RLUIPA’s equal terms provision prohibits governments from “impos[ing] or implement[ing] a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution”. The Appeals Court found “equality” to be a complex concept and said “Did Congress intend for the statute to require municipalities to extend preferential treatment to religious entities? We think not.” This would not be “equal”. After the analysis of numerous previous court decisions, the Appeals Court accepted that “The concept of ‘similarly situated with regard to legitimate zoning criteria’ is simply the most reasonable interpretation of the undefined statutory words ‘equal terms’”. The Appeals court found that Tree of Life misunderstood a statement from the second appeal, and took it out of context. In cases like this one, the plaintiff, must show the existence of an office use comparable to its own, rather than the government proving that none exist. Once it is shown that a comparable exists, then the burden of proof shifts to the government. The Appeals court found that Upper Arlington did not violate RLUIPA’s equal terms provision … Revenue maximization is a legitimate regulatory purpose, and is not pretextual. Some non-profit organizations are welcome in the office district, since they have highly paid employees who pay income tax to the City. The only potential comparator put forward by Tree of Life is Daycares, but showed no evidence that they are similarly situated as the proposed school in their ability to generate income. The Appeals court affirmed the decision of the lower court, but Circuit Judge Thapar suggested “the courts have forgotten this country’s sacred vow and failed to give RLUIPA the effect its written text demands. Now our circuit does the same.” (Tree of Life Christian School. v. City of Upper Arlington, (US Court of Appeals for the Sixth Circuit, Docket: 17-4190)) Decided: September, 2018 Published: September, 2018 Feature Articles If you have an opinion on the retailing or retail real estate industries, take this opportunity to share your thoughts. Articles should run between 400 and 800 words. Topics can, be general in nature, consumer observation or specific to retail concepts or practices. Articles will be posted for at least one week and will then be placed in the Editorial Archives. All articles submitted will be read and considered but we cannot guarantee publication. Each published article will carry the submitters byline (if desired) and is a free service to our community. Article ideas and suggestions are also always welcomed. Contact PVS@PlainVanillaShell.com