Christian School Zoning Dispute Revived

     CINCINNATI (CN) — The Sixth Circuit blasted Ohio zoning officials Wednesday for trying to keep a Christian school’s property ready for the return of a taxable business.
     AOL/Time Warner used to occupy 5000 Arlington Centre Blvd., the largest office building in Upper Arlington, but the property was unused when Tree of Life Christian Schools bought it in the hopes of opening a religious school.
     Reviving the Christian school’s federal lawsuit under the Religious Land Use and Institutionalized Persons Act, the Sixth Circuit said today that Upper Arlington blocked rezoning efforts out of the “apparently unfounded” belief that it would get a better offer.
     Return of a commercial tenant, “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,” the 25-page ruling out of Cincinnati states.
     Though U.S. District Judge George Smith in Columbus ruled for the city, a divided three-judge panel of the Sixth Circuit found this outcome incorrect today.
     “The government suggested at oral argument that it would prefer that 5000 Arlington Centre Boulevard be used for an ambulatory care center or outpatient surgery center,” Judge Danny Julian Boggs wrote for the majority. “But we cannot assume as a fact, and the government certainly has offered no evidence to show, that an ambulatory care center [or similar business] … would employ higher-income workers than TOL Christian Schools would (or result in less traffic or even in less outdoor noise, each an alternative rationale at one point proffered by the government for refusing TOL Christian Schools’s application).” (Parentheses in original.)
     Judge Boggs also skewered the government’s argument that TOL could use other land — even as much 95 percent of the city — for its school.
     “The Equal Terms Provision forbids a locality from discriminating against religious institutions and assemblies, regardless of time, place, and manner,” he wrote. “In other words, it is not a defense that a government discriminates against religious assemblies and institutions only in part, rather than all, of its jurisdiction.”
     Boggs concluded the ruling by urging the city to consider eminent domain.
     If Upper Arlington forced TOL Christian Schools to sell the land to the government via eminent domain, it could “sell the land to a buyer that the government thinks offers superior economic benefits,” according to the ruling.
     “Instead, they have placed the cost on TOL Christian Schools — perhaps to save the upfront cost of compensating an exercise of eminent domain, perhaps because there is no market for office space in Upper Arlington, and perhaps to exclude an unfamiliar or disfavored religious assembly,” Boggs added.
     Judge Helene White meanwhile said she would have affirmed for the government, questioning TOL’s portrayal of daycare centers in Arizona, Missouri, Kansas and South Carolina as comparable-use facilities.
     “The size of the six day-care centers in four states far from Ohio seems no more relevant than the size of day-care centers in Europe,” White wrote. “Similarly, the list of the largest day-care centers in Ohio provides no information about the communities they serve, other than their names. The city is entitled to devise a master plan and ordinances that take into account the size of the community and its actual experience with commercial and other users of land.”
     Judge White said TOL simply “failed to present a secular comparator that is similarly situated with respect to the relevant zoning criteria.”
     Judge Richard Fred Suhrheinrich rounded out the panel.

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