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

• Decision Date: 18 September 2018
• Docket Number: No. 17-4190,17-4190
• Citation: 905 F.3d 357
• Parties: TREE OF LIFE CHRISTIAN SCHOOLS, Plaintiff-Appellant, v. CITY OF UPPER ARLINGTON, OHIO, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

905 F.3d 357

TREE OF LIFE CHRISTIAN SCHOOLS, Plaintiff-Appellant,

v.CITY OF UPPER ARLINGTON, OHIO, Defendant-Appellee.

No. 17-4190

United States Court of Appeals, Sixth Circuit.

Argued: July 31, 2018

Decided and Filed: September 18, 2018

ARGUED: Erik W. Stanley, ALLIANCE DEFENDING FREEDOM, Scottsdale, Arizona, for Appellant. Shawn Judge, ISAAC, WILES, BURKHOLDER & TEETOR, Columbus, Ohio, for Appellee. ON BRIEF: Erik W. Stanley, ALLIANCE DEFENDING FREEDOM, Scottsdale, Arizona, Philip W. Gerth, THE GERTH LAW OFFICE, LLC, Gahanna, Ohio, for Appellant. Shawn Judge, Mark Landes, ISAAC, WILES, BURKHOLDER & TEETOR, Columbus, Ohio, for Appellee.

Before: GILMAN, GIBBONS, and THAPAR, Circuit Judges.

GILMAN, J., delivered the opinion of the court in which GIBBONS, J., joined. THAPAR, J. (pp. 376–87), delivered a separate dissenting opinion.

RONALD LEE GILMAN, Circuit Judge.

This case arises out of a zoning dispute between Tree of Life Christian Schools (Tree of Life) and the City of Upper Arlington, Ohio. In 2001, Upper Arlington adopted a Master Plan to guide its zoning decisions. The Master Plan emphasizes the need to increase the City’s revenue by attracting business development in the small portion of the City’s land that is devoted to commercial use. To further the Master Plan’s goals, Upper Arlington’s Unified Development Ordinance (Development Ordinance) restricts the use of areas zoned as an office-and-research-center district (office district) to specific uses that are primarily commercial. The operation of schools, both secular and religious, is a prohibited use within the office district.

Despite this prohibition, Tree of Life decided in 2010 to purchase a large office building on a 16-acre tract of land that is located within the office district (the Property) for the purpose of operating a pre-K through 12th-grade school. After failing to secure authorization from Upper Arlington to operate a school on the Property, Tree of Life filed suit in the United States District Court for the Southern District of Ohio, arguing, among other things, that the Development Ordinance violates the "equal terms" provision of the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc(b)(1), by treating the school less favorably than comparable nonreligious land uses.

After two prior appeals to this court, the parties filed cross-motions for final judgment. The district court granted Upper Arlington’s motion and denied Tree of Life’s, holding that the Development Ordinance is no more onerous to Tree of Life than it is to nonreligious entities that generate comparably small amounts of revenue for the City. Because Tree of Life has not established a prima facie case under RLUIPA’s equal terms provision, we AFFIRM the judgment of the district court.

I. INTRODUCTION

A. Factual background

1. Upper Arlington’s land-use policies

Upper Arlington’s Master Plan stresses the need for the City to create "new revenue" to "meet its current capital needs and support its current level of services," noting that "commercial office use provides significantly more revenue to the City than any other land use." Commercial office use is authorized on less than five percent of the City’s land. And because Upper Arlington is landlocked and fully developed, the preservation of its office districts for commercial use is of utmost importance to the City. The Master Plan also singles out personal income taxes as "an important source of Upper Arlington’s revenues" and emphasizes that "every effort will be made to broaden and expand the City’s employment base in order to increase these tax revenues."

In keeping with the Master Plan’s emphasis on commercial office use and the generation of income-tax revenue, the City’s Development Ordinance specifies that office-district zones within the City are meant to "provide job opportunities and services to residents and contribute to the City’s economic stability." Upper Arlington, Ohio, Unified Dev. Ordinance § 5.03(A)(6), https://library.municode.com/oh/upper_arlington/codes/code_of_ordinances?nodeId=PT11UNDEOR. Permitted uses within the office district include "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." Id. As previously noted, both secular and religious schools are specifically prohibited uses. Places of worship are conditional uses, meaning that they are permitted in the office district, but only with approval from the Board of Zoning and Planning (the Board). Id. art. 5, tbl. 5-C.

Child daycare centers (hereinafter, "daycares") are also prohibited uses in the office district under the Development Ordinance as presently worded. Dev. Ordinance § 5.03(A)(6); id. art. 5, tbl. 5-C. But they were permitted prior to 2011, when the City Council amended the Ordinance to exclude them in response to this litigation. Upper Arlington, Ohio, Ordinance 52-2011 (Sept. 12, 2011). Chad Gibson, Upper Arlington’s Senior Planning Officer, testified in a deposition that the City previously intended daycares to be an ancillary use in the office district, designed not to generate revenue but to "facilitate the general office district" by providing "a place where workers in the office complex could drop off their children during work hours in a safe environment." Although Gibson noted that "typically daycares are not massive in size," he acknowledged that the prior iteration of the Development Ordinance did not restrict their size, so a large daycare would have been a permitted use within the office district.

2. Tree of Life purchased property within the office district.

Tree of Life, a religious nonprofit corporation, operates a private Christian school that currently serves 532 students and has a workforce of 150 employees spread across three campuses throughout the Columbus, Ohio metropolitan area. The school believes that its lack of a unified campus inhibits its growth and limits its enrollment numbers. Accordingly, Tree of Life began searching in 2008 for a site where it could consolidate its campuses and serve a larger population of students.

In 2009, AOL/Time Warner, a media company that is not a party to this litigation, vacated a 254,000-square-foot office building—the largest in Upper Arlington—located on the Property. AOL/Time Warner generated significant revenue for Upper Arlington during the time that it occupied the Property through a combination of property taxes and income taxes levied on both the company and its employees. In 2001, for example, AOL/Time Warner accounted for 29% of all income-tax revenue collected by the City.

Tree of Life signed a purchase agreement for the Property in October 2009, and the sale was finalized in August 2010. The purchase agreement contained a contingency clause that allowed Tree of Life to cancel the purchase if, prior to the closing, it was unable to obtain Upper Arlington’s approval for the rezoning of the Property to allow for the operation of a school. During the allotted time, Upper Arlington made no commitment to rezone the Property or otherwise authorize the operation of a school on the premises. Tree of Life nevertheless decided to move forward with the purchase.

3. Upper Arlington declined to accommodate Tree of Life’s desire to operate a school on the Property.

Before acquiring the Property, Tree of Life filed a conditional-use application with Upper Arlington’s Department of Development. The application stated that the property would be used as a church with an included school. The Board, however, rejected Tree of Life’s characterization of its intended use of the Property, ruling that "the proposed primary use of the property as a private school does not constitute a ‘place of worship, church’ as that term is used in [the Development Ordinance], and is therefore not a conditional use in the [office district]." The City Council upheld the Board’s decision. In a separate set of rulings, the Board and the City Council also rejected Tree of Life’s argument that a private school should be allowed as a permitted conditional use.

During the course of this litigation, Tree of Life submitted an application to the Department of Development to request that the Development Ordinance be amended to permit private religious schools to operate in the office district. Gibson, as Upper Arlington’s Senior Planning Officer, prepared a staff report recommending that the City Council reject the amendment. Among other criticisms of the proposed amendment, the report concluded that allowing private religious schools "within the City’s extremely limited commercial areas is simply not necessary or beneficial to the City, and it is likely that negative long-term economic consequences will result." Based on this recommendation, the City Council denied the proposed amendment.

Tree of Life next filed an application requesting that the Property be rezoned for residential use. Echoing the reasons for his opposition to Tree of Life’s first proposed zoning amendment, Gibson issued a staff report urging the City Council to reject this second proposed amendment as well. The report noted that the northern boundary of the Property "has the greatest opportunity for intense office use" in Upper Arlington and that rezoning the Property for residential use would therefore "be contrary to the City’s long-term financial interests." Based on Gibson’s recommendation, the City Council rejected Tree of Life’s second proposed amendment.

B. Procedural background

Tree of Life filed suit after Upper Arlington rejected its conditional-use application. The complaint alleged violations of (1) RLUIPA’s substantial-burden and equal terms provisions; (2) the First Amendment’s Free Speech, Assembly, Free Exercise, and Establishment Clauses; (3) the Fourteenth Amendment’s Due Process and Equal Protection Clauses; and (4) Article 1,...