Ohio Christian School's Land Use Claims Reinstated

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By Jeffrey D. Koelemay

May 23 — A Christian organization's claims against Arlington, Ohio—which refused to rezone an office building for use as a religious school—were reinstated May 18 by the U.S. Court of Appeals for the Sixth Circuit.

Whether the government treated the school differently than a nonreligious institution is a factual—not legal—question, so the district court's summary judgment for the city was inappropriate, Judge Danny J. Boggs's majority opinion said.

The procedural ruling leaves as an open question in the Sixth Circuit what approach should be used to evaluate claims under the Religious Land Use and Institutionalized Persons Act's “Equal Terms Provision,” at 42 U.S.C. §2000cc(b)(1).

Maximizing Tax Revenue

The city's Unified Development Ordinance “Master Plan” focuses on land uses that “increase the government's income-tax revenues,” the court said.

The city council denied the rezoning request because it wouldn't advance “long-term financial interests,” the court said.

The statute says governments can't impose land use regulations treating “a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.”

Comparing Comparators

Multiple circuits disagree on whether any “nonreligious assembly or institution” may be used as a comparator, or if the comparator must be similarly situated as to the regulation at issue and its purpose.

Here, the district court looked solely to secular schools as comparators, but the organization argues it should have also included day-care centers, charitable office uses and hospitals.

Judge Richard F. Suhrheinrich joined the opinion.

Judge Helene N. White dissented in part, saying “the majority requires not equal treatment, but special treatment” for the school.

Alliance Defending Freedom argued for the organization. Isaac, Wiles, Burkholder & Teetor argued for the city.

By Jeffrey D. Koelemay

To contact the reporter on this story: Jeffrey D. Koelemay in Washington at jkoelemay@bna.com . To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com and Nicholas Datlowe at ndatlowe@bna.com

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