Tree of Life Christian Sch. v. City of Upper Arlington

• Decision Date: 18 May 2016
• Docket Number: No. 14–3469.,14–3469.
• Citation: 823 F.3d 365
• Parties: TREE OF LIFE CHRISTIAN SCHOOLS, Plaintiff–Appellant, v. CITY OF UPPER ARLINGTON, Defendant–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

823 F.3d 365

TREE OF LIFE CHRISTIAN SCHOOLS, Plaintiff–Appellant

v.CITY OF UPPER ARLINGTON, Defendant–Appellee.

No. 14–3469.

United States Court of Appeals, Sixth Circuit.

Argued: April 29, 2015.

Decided and Filed: May 18, 2016.

Rehearing En Banc Denied July 19, 2016.

ARGUED: Erik W. Stanley, Alliance Defending Freedom, Scottsdale, Arizona, for Appellant. Mark D. Landes, Isaac, Wiles, Burkholder & Teetor, Columbus, Ohio, for Appellee. ON BRIEF: Erik W. Stanley, Alliance Defending Freedom, Scottsdale, Arizona, Philip Gerth, Daniel J. Skinner, Todd A. Fichtenberg, Gerth & Skinner, LLC, Columbus, Ohio, for Appellant. Mark D. Landes, Craig R. Mayton, Scyld D. Anderson, Isaac, Wiles, Burkholder & Teetor, Columbus, Ohio, for Appellee. Philip K. Hartman, Yazan S. Ashrawi, Frost Brown Todd, LLC, Columbus, Ohio, James C. Becker, Columbus, Ohio, for Amici Curiae.

Before: BOGGS, SUHRHEINRICH, and WHITE, Circuit Judges.

BOGGS

, J., delivered the opinion of the court in which SUHRHEINRICH, J., joined, and WHITE, J., joined in part. WHITE, J. (pp. 373–82), delivered a separate opinion concurring in part and dissenting in part.

OPINION

BOGGS

, Circuit Judge.

Defendant–Appellee Upper Arlington (the government), a suburb of Columbus, Ohio, regulated the use of land owned by Plaintiff–Appellant Tree of Life Christian Schools (TOL Christian Schools). As a result of this regulation, TOL Christian Schools could not use its land to operate a religious school. TOL Christian Schools, after corresponding with and applying to the government on related proposals, applied to rezone the property to allow use as a religious school. The government denied the application because such a use would not accord with certain aspects of the government's Master Plan. In its denial, the government focused on the Master Plan's provision that the government maintain zoning for commercial uses in order to maximize its income-tax revenue.

After the denial, TOL Christian Schools filed this suit. The suit primarily claims, under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc

—2000cc–5, that the government illegally failed to treat TOL Christian Schools on equal terms with nonreligious assemblies or institutions. After both parties moved for summary judgment, the district court granted summary judgment to the government. This was error.

Although the record in this case is complex, we can summarize our view briefly. TOL Christian Schools purchased the largest office building in Upper Arlington, unused at the time of the purchase, and attempted to negotiate with the government to open a religious school. The government refused to strike a deal with TOL Christian Schools in hopes, apparently unfounded, that the property's former occupant, AOL/Time Warner (or its equivalent), would return. Such a result, the government officials further hoped, would mark the first step in a plan to increase services by increasing personal-income-tax revenues without allowing multifamily, retail, or commercial use of land currently zoned for only single-family residential use.

Anticipating controversies similar to this one, and affirming its commitment to protecting religious freedom, Congress enacted RLUIPA, which provides, among other things, that “[n]o government shall impose or implement 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.” 42 U.S.C. § 2000cc(b)(1)

. Different circuits interpret this provision differently. Some circuits have held that a land-use regulation must treat “similarly situated” religious and nonreligious assemblies and institutions equally. The Eleventh Circuit has held that a government land-use regulation that discriminates against a religious assembly or institution in comparison to any nonreligious assembly or institution is invalid unless it is narrowly tailored to achieve a compelling government interest.

Under any approach, the issue in this case is whether the government treats nonreligious assemblies or institutions that would fail to maximize income-tax revenue in the same way it has treated the proposed religious school. That is a factual, not a legal, question. Federal courts may not resolve genuine issues of material fact on motions for summary judgment, even in proceedings for equitable relief. So, the district court's grant of summary judgment to the government was error. We reverse the judgment of the district court and remand. We explain more fully our reasoning below.

I

In 2009, AOL/Time Warner, a media company not party to this litigation, vacated an office building located at 5000 Arlington Centre Boulevard in Upper Arlington. The same year, TOL Christian Schools, a school with several campuses across the Columbus area supported by local churches, began negotiations that would conclude in August 2010 with its purchase of the property at 5000 Arlington Centre Boulevard.

Upper Arlington is a primarily residential suburb. It has assembled various land-use and economic regulations in the Unified Development Ordinance (UDO). The UDO zones Upper Arlington. The UDO provides for seven criteria to “be followed in approving zoning map amendments to the UDO.” UDO § 4.04(C). One of those criteria provides “[t]hat the proposed zoning district classification and use of the land will generally conform with the master plan.” Id. § 4.04(C)(5).

The Master Plan focuses on regulating uses of land in order to increase the government's income-tax revenues. For this reason, it emphasizes the importance of using certain non-residential land as office space.¹ The government theorized that such land use will attract high-income professionals, whose income the government can tax. The zone for office use, under the UDO, is the “ORC Office and Research District” (ORC District). According to the UDO, the purpose of the ORC District is

to allow offices and research facilities that will contribute to the City's physical pattern of planned, healthy, safe, and attractive neighborhoods. The ORC district should also provide job opportunities and services to residents and contribute to the City's economic stability. Permitted uses in the ORC district are: business and professional offices, research and development, book and periodical publishing, insurance carriers, corporate data centers, survey research firms, outpatient surgery

centers, [and] hospitals....

UDO § 5.03(A)(6). The ORC District includes 5000 Arlington Centre Boulevard.

Extended negotiation between TOL Christian Schools and the government preceded this case. On January 5, 2011, after negotiations had failed, TOL Christian Schools filed this federal case, alleging that Upper Arlington had violated RLUIPA's Equal Terms Provision, and seeking injunctive relief. After procedural developments in this case, including a previous appeal to this court, not now relevant, TOL Christian Schools “submitted a[n] ... application to the [Government] to rezone its property .... from ORC Office and Research District to residential,” in which zone the government allows land to be used for schools, religious or otherwise. Tree of Life Christian Schs. v. City of Upper Arlington, 16 F.Supp.3d 883, 892 (S.D.Ohio 2014)

(emphasis added). In response to this zoning amendment that TOL Christian Schools proposed, the government's senior planning officer, Chad Gibson, reported to the City Council that he

believe[d] that the proposed rezoning is in direct opposition to numerous core master plan goals and objectives. The proposed zoning change would eliminate nearly 16 acres of extremely limited ORC-zoned ground, which will reduce the amount of office and research space within the City.... [A ]pproving such a rezoning would be contrary to the City's long-term financial interests.

Chad Gibson, Staff Report to Upper Arlington City Council (Nov. 25, 2013) (emphasis added). In addition, the City Attorney spoke to the City Council, focusing on the fact “that rezoning to eliminate commercially zoned property would be contrary to the master plan.” Tree of Life Christian Schs., 16 F.Supp.3d at 892

. Based on Gibson's report and the City Attorney's comments, “the Council denied [TOL Christian Schools]'s rezoning request” on December 9, 2013. Ibid.

On February 11, 2014, TOL Christian Schools moved for summary judgment on its claims in the district court. On March 6, 2014, Upper Arlington submitted both a memorandum opposing the motion of TOL Christian Schools and a cross-motion for summary judgment. On April 18, 2014, the district court granted summary judgment to the government, reasoning along the lines of Gibson's report. TOL Christian Schools timely appealed.

II

A

As a general matter, municipalities regulate land use. The federal government, by contrast, generally does not regulate local land use. But Congress has long concerned itself with the protection of religious freedom. As the Department of Justice has observed,

despite the guarantee of religious freedom in our founding documents, individuals and groups have faced discrimination based on religion throughout our history. And throughout our history, Congress and the federal government have repeatedly acted to protect Americans from such discrimination....

For example, while it was passed largely in response to ongoing racial tensions, the landmark Civil Rights Act of 1964 included religion along with race ... as categories in which persons are protected against discrimination in a host of areas....

U.S. Dep't of Justice, Report on the Tenth Anniversary of the Religious Land Use and Institutionalized Persons Act 1 (Sept. 22, 2010).

“RLUIPA is the latest of long-running congressional efforts to accord religious exercise heightened protection from government-imposed burdens....” Cutter v. Wilkinson, 544 U.S. 709, 714, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005)

. In 1993, Congress enacted the Religious Freedom Restoration Act (RFRA). Congress sought to justify RFRA's regulation...