A federal judge has let an Ohio city manipulate its zoning enforcement to prevent a large Christian school from occupying an office building in its commercial district that had been abandoned by the previous owners when it was purchased.
In a lawsuit brought by the Tree of Life Christian school against the city of Upper Arlington, the city is demanding that the building obtained by the school to consolidate its multiple campuses and house additional students – up to an expected 1,300 – be used by commercial interests to generate more tax revenue.
The school sued under the equal-rights federal Religious Land Use and Institutionalized Persons Act, pointing out that the city already allowed daycare centers in its business district, a function similar to that of a school.
The city then, with the approval of U.S. District Judge George C. Smith, banished the daycare centers so that the Christian school could not use the equal-treatment argument.
“Although they were a permitted use, daycares were ultimately removed as a permitted use in the district during the pendency of this litigation,” the judge wrote in his latest decision rejecting the school’s request for permission to use its building.
“They were originally permitted in the district to serve an ancillary purpose, e.g. to serve the working public,” the judge continued. “Since the Sixth Circuit remanded this case for consideration of evidence from the parties on similar comparators and the court is now considering the entire record for purposes of entering final judgment, the court can consider evidence from defendant that they currently do not permit day cares in the ORC Office and Research District and are willing to enter into an agreed judgment prohibiting any such use in the district in the future.”
The judge, whose decision is being appealed again to the Sixth Circuit, argued that without day cares as a “comparator,” the Christian school was being treated equally to any other organization that wanted to locate in the city’s business district. The school, therefore, he said, had no grounds to demand that the city allow its non-commercial use of the building.
The judge also said the judgment “should reflect that the city of Upper Arlington agrees to an injunction that daycares are not a permitted use in the ORC Office and Research District, nor will the UDO be amended to allow them in the district in the future.”
The case erupted when the Columbus-area Christian school sought to use an office building abandoned by Time Warner.
The city said no, citing its demand that commercial operations occupy the building.
The judge originally decided against the school, but the 6th U.S. Circuit Court of Appeals reversed the ruling and sent the case back to the lower court, which accepted the city’s argument that since it no longer allowed daycares in the district, the school also should be rejected.
“No city should use its zoning laws to engage in religious discrimination under the guise of maximizing tax revenue,” said ADF Senior Counsel Erik Stanley.
He argued that the city’s zoning law allows day care facilities and other similar uses of equal size that provide less tax revenue than even Tree of Life’s school.
“Federal law prohibits zoning discrimination against religious land use; therefore, Tree of Life should be allowed to use its building for the schooling purposes it has long intended,” Stanley said.
When the appeals court reversed the judge the first time, it said the city cannot discriminate “to maximize the government’s income-tax revenue.”
The city argued its zoning code “does not permit any schools, whether public, private, or religious, to be located in the five percent of the city that is zoned for commercial uses.”
When the school raised the comparison to day cares, the city abruptly withdrew the permission the day cares had to operate in the business district.
The 6th Circuit ruling the first time said that “by enacting RLUIPA, Congress directed federal courts to scrutinize municipal land-use regulations that function to exclude disfavored religious groups like TOL Christian Schools.”
ADF explained the city’s “main argument in the case has been that it has the power to keep Tree of Life from using its property so that someone else could buy the property who would provide greater tax revenue to the city.”
But the court noted its “obligation is to apply the statute enacted by Congress.”
“We cannot contort its meaning … RLUIPA does not allow the government to treat more favorably land uses that, like TOL Christian Schools, fail to maximize the government’s income-tax revenue. … Even the government’s proffered rational basis for its regulation – we want A, we think land use B leads to A, thus we regulate to privilege land use B – does not satisfy RLUIPA’s test.”
ADF said its lawyers already have filed another notice of appeal to the 6th Circuit.