the main point in the free exercise issue is whether or not zoning laws are neutral laws of general applicability first this is not technically a new cause because only a hospital  your definition of neutral zon if if the city of morgan hill takes the position anything but a bible college then there's a very serious first amendment problem there if they say nothing but a hospital then the first amendment issues such as that is vastly attenuated and my impression is that what they're saying is nothing but a hospital not anything but a bible college yes i misunderstand they're correct for me  staff in the city councils and who never approved anything but a church anything but a bible college and because of the danger of infringing on the first amendment rights where you have the system in place in both cases going to where is the first amendment issue once it's not anything but a bible college but nothing but a hospital then it seems to me two people can come to the zoning board one says they want to put a bible college here another says they want to put a shopping center here they both lose they lose for the same reason and it was just this predictable way so there isn't any  interference in that hypothetical case with the bible college why is this case different from the hypothetical case because smith and hialeah tell us that is where you have a system of individualized exemptions which is used of the land as a hospital as opposed to anything else because why wouldn't that just be a rational basis just because that isn't the nihil of their application to use it to exercise their time priest smith because of some language and in the legislative history let's say the century well we're not in acting constitutional law here and all that was in my thing was an attempt to get around the burning problem w not even relevant because if the thing that troubles me about this case is the same thing that you have raised that it's an individual i don't include terminations and negotiated the termination but i'm wondering whether i'm mistaken in being as troubled this i am by that i'm thinking suppose you have a zoning determination that is general it's not individualized it's not just negotiation it's no more than five cars can be parked on parcels of one acre or west somebody has a one acre parcel and they construct the parking lot for ten carts it violates the zoning code but if they're running religious services in the building on that parcel you're saying it's constitutionally protected and i got this right yes and but it just it just turns on which text you apply it doesn't say that that activity can't under some scenario be prohibited it just depends on how you get there if they can demonstrate their compelling governmental interest and if they can demonstrate their least restrictive means then there's no problem but again even if the court argument that under roopa it might my client was somehow required to come back again and again and again and again to the city council is totally unsuitable for constitutional right or your several statutory ri ideas saying we want to make this a church and i think before you truly are ruled by you would have to say that denial imposes a substantial burden on  congress in visions and they intended because of the discrimination against churches and particularly minorities churches and small religions maybe they couldn't afford a big building or couldn't afford a big hospital you know that they wanted to meet in homes and they wanted to meet in small store fronts and that they were denied that this is specifically the target of this particular legislation and since  searched for fifteen years for a piece of property you bought this piece of property to train your pastors to go out and minister to folks and you can't do it just common sense tells you that's a substantial burden and that was the bur never met there are cases that say that but that's their problem is with rupert self but they need to take that to congress not to the courts congress enacted this statute this cour were we were i was citing the case mainly for the premises i believe it's almost the last paragraph in the case where it states that smith is a floor not a ceiling their entire argument is i missed on act it does speak as you say expressively to the issue of people trying to put a minority church in an area that discriminates against it and obviously that is the real social a religious assembly or institution on less than equal terms with a non religious assembly or institution or excludes religious assemblies or unreasonably limits religious assemblies institutions or structures those that's the way it spells it out now it seems to me that in this case it is conceded that the religious assembly is not being treated on less than equal terms with a non religious assembly it's being treated with everybody but a hospital well my answer to that your honor is the problem is we're here on summary judgment and the trial an erroneous burden of proof and that's the reason the case may need to go back and then what evidence did you have that you submitted on summary judgment i don't recall  that showed that the bible college was being created on less than equal terms with a non religious institution what i'm thinking of there is an affidavit from say a shopping center developer i went to the zoning board and they told me that non religious assembly or institution not because this was the only application however was there any evidence of exclusion of religious assemblies as opposed to exclusion of everybody would hospital i don't i we're going on the plain language of the statute which says once there's a substantial burden this other test a compelling governmental interest and the least restrictive things applies and out that i probably like to say in my last three minutes case we're starting out with the guys start out with an analysis of the free exercise clause because after all one could possible hypothetical if in fact it is true under me and lets you get strict scrutiny in every virtually every zoning decision no need for a loop because that certainly would already exist and would be a normal parlance and our constitution once again but in fact that is not the case what is characterized is the individual assessment test is really not an individualized assessment test it is in fact an individualized exemptions test this test flows from the unemployment compensation cases that involve statutory schemes allow the government to decide whether or not to lift the regulation the regulations application from the religious subject or in the typical scenario you have a person seeking unemployment compensation and that in the burden is on that applicant to demonstrate that there's a good cause for not having secured employment what most worried me and in this case is it doesn't look like  neutral log general applicability as i understand the process in this particular municipality whatever it is that you want to do you negotiate it and that means instead of its being a law residential only on lots of the least one half acre that's a general a neutral law of general applicability doesn't matter what color you are the matter what we've lived in you are it doesn't matter how you like to live inside your home that's general but in this case it doesn't work like that it's not that kind of zoning want well soon and well it's you decide what it is that you want to do everything is prohibited until we say yes and you come and talk to  district is planned unit development zoning that is a specific planning tool used to allow for integrated integrated use typically in a large sites that oftentimes has currently constructed but critical difference if you look at the if you look at the case law about the individual as the exemption case law what the courts have been concerned with was the government's ability to evaluate religious conduct or religious motivation those are what those cases about for example is good cause for not working on saturday that my religion prohibits faith how do we know that the zoning board would have been a whole lot happier if the bible college was i don't of that is nobody was proposing it to put any medical services there the provider of medical services have left nobody else wanted to come in as far as the record shows and provide medical services it was a choice not between medical services and a bible college but between an empty white elephant and a bible college though those types of policy decisions are made up and down the state on a day in and day out basis now that they're made against bible colleges that seems kind crumbling where if a couple of doctors had come in and said i want to run a clinic or maybe somebody come in and said i want to put in old age home or somebody else's and said i want to use this as a  dormitory first a college down the road of peace and i think the answer is two for the first of all as the course is probably where the courts skew inquiring into the hearts and minds of legislators legislative motive is irrelevant courts are bound to determine the validity of the legislative act based on the face what's really a question here of who has the burden i think bertie here in a general law or a neutral log general applicability it's the bible colleges problem to show that there was some kind of discrimination if what you have is an individual lies discretionary decision that was exercised against allowing religious activity then i wonder if you have the burden to show some five to thirty eight i mentioned i was going to sponsor for the second issue with respect to the legal issue how do the courts treat these types of going to terminations i think the answer is found and borne if you florus and to some distinction between an assessment that involves an assessment by the government of religious motivations for religious beliefs as compared to the policy determination you have here medical versus some other hypothetical use and that to other points this is precisely why in the referent context and other free exercise context there are requirements that you try again because after all this is a situation where there is no evidence at all that the city was discriminating against the college because of its religious beliefs nor might i add is this a case where the city was discriminating against the college as compared to a tax generating facility obviously congress has some concerns in that regard this is not that case there are a whole universe of facts that exist out there in the world that may give rise to substantial porting from verdun findings in the future  this is simply not that this is a situation where you do not have a claim that the city was discriminating against the college because of its religious belief this is not a situation in fact where the city is even claiming that this site is required for concrete and specific expansion because if the court recalls from their record only one of two universes is possible here either this was a situation where the college  executives from a religious sample chance can believe that this is somehow that this is destiny and simply a municipality rendering unavailable that site in the absence of discrimination because of their religious beliefs by the individual assistance maybe and wonder if my mental picture of what we're talking about is right when i imagine it in my mind is a hospital or you've got a fairly large chunk of way and maybe maybe ten acres of more of land a really big building maybe a couple of smaller buildings attacked by corridors and a giant parking lot and somebody wants to turn it into some other kind of institution because the hospital is left and there are no proposals on the table by anyone if you use it for any medical purpose i got it right factually  reintroduction of medical services back to this site i come from the southern part of the state north county where we have a big fight over the closed marine corps air station all torro for quite many years the general designated that as a commercial aviation facility even though these things california association of governments and as well as all of the statistical travel surveys from nine eleven demonstrate quite clearly that there is a closure clear way to put my concern is how do i know that the county's making policy determination about hospitals which is fun as opposed to making a policy determination about whatever  whether you task this case is a religious a case or free exercise case the laws are very clear and the threshold showing a substantial burden plaintiff always bears the burden on that we had a ten month legislative process and not once we don't have any of that here and it was the burden of proof to be borne by the college this is not a situation where we're in a position to hypothesize how they could have done it differently how they could have let me give this case differently what other facts may or parents of the students anybody and that's not to get into an issue about second guessing the validity of that belief because we now as a matter first of all we cannot all that is to say though that it is truly then those are going to be rendered meaningless if in fact the city always has to approve it but we know that can't be the case because we know one thing we may not know the universe the future fact we know one thing and that one thing is congress said crystal clear in  so that is why as judge kleinfeld noted this case is about burden you know if we go back and we have a trial and they believe you know that you know twelve jurors or nine hundred and truly believe that you know that that in fact the city had a good enough reason you know all well we loosed but on summary judgment this case is about the burden of proof and because there was a substantial burden that then pushed it over to the city side to prove a compelling governmental interest and least destructive means that i would like to one comment to council made list was factually correct although this policy if i understand this you're saying that because it's an individual permitted but the context in which it's made is somebody proposing a religious use yes i believe that is correct john and the problem is the reason congress wanted that to trigger the highers through and so we can have the wink wink nod nod you know as these things come through the process just always you whereas all of a sudden everything else but the religious use gets approved and therefore that requires a higher scrutiny to make sure that didn't happen in m are you taking to task the staff itself said that there were plenty of other areas which could be done for hospital uses it just happen to be that this one little twenty five acre spot which is very close apparently to what judge kleinfeld described it was the only one says land use regulation yes or application so i guess what i want to know is this that this california environmental law is that way and use regulation why are what is it it's an environmental but as part of land you don't need to generate plans which are merely a gleam in the planners and that is literally what we had here we had a president she finally had a vision of this campus that we could do this we could do that we could do you know when it turned out that none of that well was going to happen anytime in the next twenty years there's no plans for it they didn't come up with any plans for it and even if they did that would be a factual issue which could not be resolved in summary judgment because we say one thing and they say another that's a trial that's not so