established law of this circuit as articulated by this court in san jose christian college versus city of morgan hill and in christian gospel church versus city and city and county of san francisco in morgan hill you articulated  clear rule for what constitutes a substantial burden under the religious land use and institutionalized persons act you said that the burden imposed by a local government regulation must be oppressive to a significantly greater extent that it must impose a significantly great restriction or onus upon religious exercise and that the city's regulations and zoning denial in that case did not impose a burden on really substantial burden on religious exercise because it did not they did not render exercise in the jurisdiction generally effectively impracticable let me direct your attention to the standard of review in this case all right which was that cultural was there any guidance provided by the planning commission or the county of sutter as to what areas other than the residential plan as to which they had contracted for purchase the sikh's should look for space if i could take a half a step backwards the reality here is that this case was tried the parties agreed to try this case on an administrative record that references to what happened with respect to the grove road facility the facility in the in the residential district or references that only appear in the administrative record as they relate to the application on washing and all of our so there isn't to answer your question there isn't a complete record concerning sikh society was directed to other specific parcels of property i can tell you this the sikh society was was advised that there were concerns with respect to noise with respect to traffic in rain with respect to light at residential facility they apparently agreed with that determination because they did not appeal that determination to the county board of supervisors which would have been a dead noble repeal i'm sorry peel and it was their their right to do they also state in their complaint in this action that that site was eventually too small to accommodate the growing size of their congregation and so moving to the agricultural facility at the a great deal of agricultural land inside or county this piece of agricultural land is fairly far from the existing core of the county for other types of the hearing before the board of supervisors was there any direction the sea croup as to what land was available and would be approved there were there were references in the record by people commenting that there were other sites further down on washington boulevard closer to  the more urbanized development in sutter county where a number of churches synagogues and temples were already located that that would be a more appropriate location there was also a specific volunteer ng by one member of the board of supervisors to help the sikh society find a location where he could where he could locate within sutter county i read i want to emphasize the point to the court because i don't want this to get lost this is a substantial burden case this is not a discrimination case it's not an equal protection case it's not an exclusion case and it's not an unreasonable limitation case all theories that can be advanced under really but in point of fact the exclusion and unreasonable limitation causes of action under real lupa were specifically adjudicated liberties for urban believers the city of chicago is a case that in morgan hill this court found entirely consistent with its holding and in that case there were multiple use permit denials and efforts extending over a decade to to cite churches in the city of chicago now we're not saying that that's going to happen in this case what we're saying is that there were legitimate land use reasons for determining that the sikh society should not locate  or be granted a use permit to locate on that agricultural parcel and those legitimate land use reasons were one leapfrog leap frogging policies established in the general plan with respect to with respect conflicts between land uses and leapfrog development and the and this and the county's overall policy for preserving agriculture it's an agricultural county so yes now i did mention before that christian gospel church is also a relevant precedent here i think the rule in morgan hill is clear enough to to resolve this case but christian gospel church is an important decision because it was decided under free exercise  interpreted and in christian gospel church you had a situation where a religious organization applied for a conditional use permit in a residential neighborhood in the city of city of san francisco for home or ship and that was that application was denied largely based upon community opposition and inconsistency of that use with the surrounding uses and this court found that the burden imposed in that case was minimal that it was a because the reality here is that there are a number of ways that the case last tell us the substantial burden can be demonstrated the availability of an availability of alternative sites is obviously the touchstone is something that was mentioned in morgan hill it's something that was civil liberties for believers frankly even in the cases that we would consider bad for us like cottonwood christian center the district court case it was mentioned there that there weren't available alternative sites there's no evidence in this record of an unavailab alternative sites there there's no evidence that there's an undue amount of time and expense that would be consumed in locating alternative sites there's no evidence that there is even the ability to currently worship elsewhere in fact the evidence before sikh society has been operating inside our county continuously since one thousand nine hundred one there is no evidence of site specific religious beliefs which this court suggested might be a relevant consideration in christian gospel church there is no evidence that the county will prohibit future applications in fact on a summary judgment standard the evidence for you tells you that you have a member of the board of supervisors offering to help find a suitable site recognizing that that goal here is to find a place where the sick society can worship there's also no evidence that we are interfering with an existing ongoing operation which this court found it to be a relevant consideration in christian gospel church as well where  that where what is happening is there's an effort to change religious practices the burden is deemed to be less significant those are all pieces of evidence that could have been in mistreated records and had they been inserted in a minute ministry of record and adjacent agricultural parcels until urbanization becomes predominant in the immediate area it t general plan goal is to minimize conflicts between agricultural and non agricultural uses that's in the excerpts of record tab five one of the purposes one of the legitimate land use purposes is preserve agricultural land my question to you is is there any indication of the seeds want to farm this land except for the temple no there is no indication of that thing there's nothing in the states i'm like asian that says that there is evidence in the record that there is another sikh temple not far away and that there has been community opposition based upon trash and activity and whatnot that has gone on at that it's in the record i think so yes the reality though your honor is that the county board of supervisors makes a policy based determination and that policy based determination is memorialized in the general plan and if the general plan says avoid leap frog development well then the board of supervisors because the general plan is the constitution for all development within the county has to follow the general plan and if that's the finding of consistency with the general plan that lays at the heart of any sions to deal with fumigation issues and from the staff perspective those accommodations were deemed sufficient again the problem here i don't want to focus on two things first the problem here is a question of finding consistency with the general plan and implementing the general plan it isn't about the specific concerns with this property because the general plan dissuades leapfrog development that's a b but the specific you have to look at proper on that particular piece of property avoids the leapfrog development policy in the general plan i guess that's the point i'm trying to make the broader point that i'm trying to make is the reasons for the board of supervisors denial well we believe they were legitimate exercise of land use authority are somewhat strays from the question with the burden of that denial was on the ability to practice religious exercise of the sea society this is not an unreasonable limitation case that that that action was so merrily adjudicated in favor of the county it's not an equal terms case it's not a discrimination it's not an exclusion case it's a substantial burden to take a case where we look at the effect of the of the restriction on religious exercise and as i stated there is no evidence of the burden on religious exercise under this court's precedent in morgan hill or in christian gospel church i want to turn because despite all the time well imagine the sikhs would say and you can imagine why someone might get the impression that every place that they go will be some action some pretext frankly your honor that impression would be wrong the reality is that in the record we have statements that the pride of sutter county is the numbers of churches temples and synagogues that it has we also have evidence in the record that you can't locate anywhere in center county a religious or religious use without a use permit you take those two factors and put them together the notion that it would be futile to keep trying which is essentially what you what you're asking me is betrayed by the evidence in the record what happened here was that there was one use that was proposed that the sikh society ultimately agreed wouldn't accommodate its length its long term land use needs and abandon an application and then the second time just like christian gospel church you had a circumstance where the is just a codification of the individualized exemptions test that was originally set the stablished in smith and then expanded upon in city of high level we think that you ought to take all of those parties at their word as far as that goes and apply individualized exemptions test you know the proof is in the pudding let's take the individualized exemptions test and apply it to this case and see if if what you have is an individualized exemption the first point to make is under the city of morgan hills tast in the free exercise of portion of the decision the use permit process is a neutral lot of gen up with ability in we're going to tell you set a law is one of neutrality in general it's like ability if it does not aim to infringe upon a restrict religious practices because of their motivation well that's certainly true in this case you have a use permit process that is a political to all uses of secular and religious alike regardless of and doesn't look at religious motivation at all looks at land consistency issues and then you went on to say that it is neutral and generally applicable if it does not in a selective matter imposed manner him posing burdens only on conduct motivated by religious belief again the use permit process doesn't selective manner even consider religious belief this is a neutral law of general public ability and lest there be any confusion we can take a specific look at the individualized exemption test under smith smith the rule established and i hate to read it but just to reiterate in circumstances in which the individual is exemptions from a general requirement are of vailable the government may not refuse to extend that system to cases of religious hardship without a compelling reason here again there isn't any refusal to extend a system to cases of religious hardship in fact there's no refusal to extend the system at all the use permit process is extended to all non permitted use if you're just agriculture and agricultur have a circumstance where the number of churches temples and synagogues in the county are the pride of the county so this is not a system of individual ised exemptions under the smith hialeah line of cases and so if you take pelleas the district court the intervenor and there are meeting all at their word the reality here is that you do not have you have not triggered the individualized assessment portion of or lupus such that it even applies now if you want to in interpret the individualized assessment provision of or loop in some other manner you run into constitutional problems constitutional problems i think are going to be the almost the exclusive focus of the next discussion so i'm going to just do my best to set the stage the way i look at it it's it it's easy is a plus b equals c with the free exercise gers prudence and individualized exemptions plus a substantial burden on religious exercise equals compelling governmental interest test a test that is what two supreme court justices have said strict in fact theory but fail in fact the single most searching test known to constitutional law what really does under the district courts and the pelleas interpretation is switch a individualise exemptions for individualized assessments a term that under the a pelleas reading would apply to virtually every land use decision involving a religious exercise switch be substantial burden on religious exercise by changing the term religious exercise to include any use building of conversion of real property which under the a pelleas authorities would essentially mean that anytime a use permit is denied on the merits it is per se is all three pieces of that equation completely swapped out of brand new test and if there's any confusion about it being a different test i advise you to just take the words of the district court in his summary judgment ruling at page forty five agree with that this far as it goes except for i don't agree with the district court's interpretation of relief but again i come back to the fundamental principles i just urge you to apply morgan hill and if you think that in any way the morgan hill rule doesn't fit the facts of this case i urge you to look at christian gospel church as the constitutional backstop for the for the breath of your ability to interpret really too much are you suggesting that we should wait until the supreme court united states ten of those twenty five minutes for that period of time thank you the thing that i want to talk about that i think is most important to this case is that i think the county of sutter doesn't have  the correct focus with regard to what is a substantial burden i think what the county of sutter is ignoring is that what is a substantial burden is incapable of definition m i struggle with that because the congress indicated that stance of burden is to be defined by supreme court jurisprudence but nothing in supreme court jurisprudence define substantial does have meaning but it has both a qualitative and quantitative analysis and i think in looking at all of the opinions that i cited i think the judge that came the closest to defining it was judge district court judge in the castle hills case and he analyzed it in this fashion what i think it doesn't mean i think is very important what counsel would like it to mean seizing upon the club language which of course in saying it's constantine's seventh circuit completely and did their club language in any event so to seize upon that now in light of the st constantine decision which i cited to you in my letter br f updating the law in this area what counsel seems to state is that the standard is if there are some outside possibility that you can exercise your constitutional rights somewhere else or in some other fashion that you have to exhaust all reasonable or unreasonable possibilities before you can ever come to court let's go back to sherbert ensure all the supreme court required was that the seventh day adventist show th had applied approximately as i recall the record in that case three times for jobs in which she wouldn't have to work on a saturday and she wasn't successful now if we took counsel's analysis the supreme court would have said you got to show us that you've applied for every possible job in the area before will allow you to exercise your constitutional rights and that is not and cannot be the standard as the court explained in these things constant what was going on was that in club they were only looking at the the statute in terms of how it was designed and it says it didn't seem to the panel majority in club not to place a substantial bur to have to apply for what amounts to a zoning variance to be allowed to build in a residential area that's what this court said in san jose christian college it doesn't seem to us to be a burden for you to finish the application because then you said in your opinion but in that opinion what you were basically saying is it's not a substantial burden to require you to comply with those governmental regulations which everyone needs to comply with to simply get to the process where we and you're saying you need this home to worship in because quote home religion is important to you yet you've been doing all of your religious services before now in a hotel now basically what you were saying to those persons  passage is you're pulling my leg here ok this is not a substantial burden and more importantly you haven't shown why you can't alleviate your problems either by dealing with the concerns in that area or finding some other reasonable place under these circumstances what distinguishes our case from that case we did exactly what you told us to do in this case where is there evidence that really shows that other place that you can go is there evidence that there is no other place we can go within the county of sutter indeed to carry out the mission of the church that would be impossible to show i think under any standard but with regard to what counsel said you know the area that they're talking about on george washington bill of our we call it church row there literally are a number of churches there that is not within the county of sutter's jurisdiction that is within the city of yuba city jurisdiction it would require us to move to a different jurisdiction and to apply to a different jurisdiction and i don't believe that constitutional rights can be practiced in an area where a person a person can't be forced to leave simply because the expedienc said for me quite clearly it's sort of like we were told well we don't want you in closer where all of the surrounding problems so we moved to a nice tranquil area and then that wasn't my question ok you talked about the far out as we are in fact a little further so you can see it is a leap definitely now is there any difference between that other sikh community your religion and your sikh community religion the only difference is little like happens in western religion at the time i did the brief i apologize i only had the us district lots of citation at two thousand and four lexus forty six sixty nine i have not updated my research for the actual site on that now see the government ye will concede to the government with my apolog really did not deal with discrimination but dealt with burdens that people had from generally applicable law in contrast in our lupa the record was focused on discrimination or the study showing that minority religions making up no more than one percent of the population were responsible for forty nine percent of the  disproportionately faced hurdles in the zoning process sometimes discrimination can be proven in this case it was not but more often congress found there subtle discrimination or groups that are unfamiliar towards towards a seventh day adventist rather term the supreme court adopted a rule insurer that would take these cases where there's discretion where in the case of unemployment there is a good cause showing if you can show good cause for not working then you are entitled to unemployment benefits and by very nature unemployment compensation is case where the court found a generally applicable law it was an employment case but it deal with misconduct with drug use there's no doubt it's individualized in a sense because it's one person coming before the board but there is not that broad discretion whereas in the good cause provision which was at issue in shirt it open it up itself up to a wide range of subjective considerations and in those situations minority religions like seventh day adventists were disadvantage n five of the fourteenth amendment to do its best to discern what is the law found that this is so in situations where you have this individualized determination were quintessentially  individualized somebody may come up and say i have a specific plot and i want to build a specific type of structure there and the zoning board will look at it and say well no you were exceeding the height moment that's a generally applicable law that's what the professional staff does and in fact in this case the professional staff reviewed the facts and determined that with all the general generally applicable requirements that in fact they had met them know it's not but my my point is that when it got to the ultimate decision maker there they were able to call on very fuzzy principles like consistency with the general plan they in fact found that it them to turn around and say well that's not consistent with the general plan we've already put you in the six specific areas that indicates that it's the type of subjectivity that the supreme court was concerned about in church and which congress is concerned relevant market is here absolute we can understand where the substantial burden is i mean if there are five other areas in which they can move right how can it be a substantial burden if they can't move no one  case there was evidence in the record that there were two properties right around the corner that would have been sufficient and they'd get one property they didn't get their way they ran to court here you've got a group that has played by the rules everything they were supposed to they went to a residential zone they were approved by the by the career planning staff and then shut down the political subjective process and then ask you if you w was correct in pointing out that she applied to three other jobs and didn't get them the court noted that other than her only one of the hundred fifty other seventh day adventists in the area had trouble institution that was trying to go into that area and there were many other zones that hadn't been tried that were possible then maybe but that's not the case here but i'm asking you a question to see how far your argument  leapfrog is alleged had none the less said this is a use for it can work here then i would say no that is not a legitimate concern would be my answer but i would i would point out here that congress  they were compatible with the residential the look to the one other type of area where they were permitted in this county which is agricultural and they decided to to go along and try their best there but i would turn back to the  use of a controversial use of section five the reason i stray into the into the such a substantial burden is because we believe that congress did not exceed in any way the standard that's already out there even if it did believe that the record that congress stablished of of discrimination especially against minority religions that this remedy if it goes even if it goes a little bit beyond general and i'd like to pick up on the question that you asked about essentially shifting the burden to local government agencies to the i'm sorry i want to shift to the question that you asked about shifting the burden to local agencies to demonstrate good faith i think you haven't regardless of judge nelson scums you haven't done justice to religious test there it's shifting the burden to local agencies to demonstrate a compelling government interest by the least restrictive means possible that is essentially the position that's advocated by the of this case you have one of an application and one application that was brought to conclusion and there was a substantive decision based upon general plan policies so it doesn't get more basic than that you're not talking about evaluating religious exercise and what you most important don't have is proof of the burden of the availability of alternative sites of all of those other issues that i discussed in my first argument was the one thing was curious that opposing counsel pointed out that there's a simple that's already in this area how how do you how can you explain the granting of the application for one thing temple that leap frog previously apparently that not the denial of the second one frankly i don't have the background on whether that sikh temple predated the zoning code or the general plan that's one possible explanation but i can tell you what the record says about that that temple here's the statement from citizens actually from the family that donated the property so that that temple could be established we already this is a quote from the record at page one tend to want to leaven we already have one temple on both road this is the other sikh temple which curtails our spring scheduled for orchard on the west side of the temple we own the property on the west side of the temple and have to deal with trash left in our orchard after a big parties that the temple and also cars parking on our property during events at the temple we prefer not to have to deal with this sort of behavior at the george washington boulevard site that was the evidence presented to the board is that we've taken care of by conclusions it can be taken care of by conditions but there's no saying that it wasn't taken care of by conditions road site and that it was ultimately an enforcement problem in either event it lend support to the to the concern that leapfrog development causes in consistencies with neighboring land uses and that was the basis for the for the determination one final statement and then i promise i'll stop the cause of the comment was made that smith makes reference to individualized assessments i urge you to read the whole statement individualized assessments of the reasons for the relevant cond that's what smith is concerned about and here the reasons for the relevant conduct have nothing to do with religion or religion or secular concerns at all has only to do with land use issues thank you