tristan good morning my name is eric stanley and i represent the appellant cross appellee tree of life christian schools this court should reverse the trial court because tree of life claim is ripe and this court should also proceed to the merits and hold that the city of upper arlington violated relief when it denied tree of life zoning permission to use its building as a christian school in regard to the rightness issue in this case the district court erred because the finale requirement is met already because the harm in this case has already been committed tree of life for a loop a claim is that it should not have to apply for zoning approval when other secular institutions do not have to apply the requirement to apply for rezoning is the harm in this case but even though you think they should not be required to be phoning it in fact they have applied for a right that's correct and we did file a motion with this court asking to supplement the record or for judicial notice that what i think the proper analysis in this case is in the first instance the case was ripe to begin with because of and that but it was my question and the answer for the purpose of argument that it wasn't ripe or that it was contested whether it was ripe and then there was an appeal through and then that that's correct i think that's exactly right and i think that these especially given the fact that these are city council meeting minutes this is a proper subject for judicial notice by the court so the case is ripe and we would urge this court to proceed to the merits of the case because the district court made its views very clear on the merits of this case when it said in its in its opinion even if the court found that this case was ripe the court believes that the circumstances have changed primarily the removal of daycares from the o r c office and research district that no longer justify a finding and plaintiffs favor counsel i'm looking at your reply brief here on page three and it says three of lives claim under  is a facial claim and not an as applied claim is that right that is correct your honor right then does that mean we just look at the face of the of the ordinance to see whether it's constitutional or not that's right you look at the faces you're not you're saying if we look at the face of it and it's not unconstitutional that's the end of your i think that that if you have to look at the face of the ordinance itself to determine if there are excluded uses or i'm sorry if there are included uses here's my question yes we look at the face of the ordinance yes without the facts and what happened to you and so forth and on its face it's either constitutional or unconstitutional and we say on its face it's constitutional is that the end of your case i believe it live if it doesn't matter what's because in fact this is very typical of what the zoning about the law that's right and what this what this zoning code is is very typical of what zoning codes are which is the non cumulative zoning that a city follows where there are lists of permitted uses and then any uses that is not that are not permitted are executed and that seen that is the norm for zoning codes right now and so when you look at the face of the code no it's not going to say and list out all of those prohibited uses but in fact on its face it is discriminatory because of that non cumulative structure and the eleventh circuit in the mid rash case looked at the exact same thing and came to the same conclusion that even though the prohibited uses were not listed on the face of the zoning code itself it was still a facial claim because the zoning code specifically says they held in that case that there was unequal treatment on the ice on the code in a in a code code provision that didn't mention religion this is on the face of the code itself that there is an equal treatment under and i believe that the unequal treatment exists because if you look at the o r c zoning district itself there are secular institutions and assemblies that are allowed as permitted uses in the zoning district but yet tree of life christian school is a prohibited use the city's made that very clear as a school because it's a christian school and it's a school it because it is a school and in this particular instance it's a christian school which nation school but that's somehow supplied thing you're doing facial right well i can't be there so it's a it is but in this case this is a real loop a case and so in this case you look at the fact that this is a christian school that is seeking access to this particular zone and you look at how the zoning code treats religious assemblies or institutions which in this case in the o r c zoning district there is what the city has done here is to take a district and mix the uses together and under any accepted zoning criteria the uses that are permitted in the o r c district impact the city's interest whatever those accepted zoning criteria are to the same extent as tree of life christian schools would you talk a little bit about how  only express stated interest in this case is the revenue generation interest where it said that it stays put up the district and it created it in such a way as to generate revenue now in that respect daycares hospitals  exempt hospitals from property taxes nonprofit office uses in fact even churches that are allowed as a conditional use in that zone undercut that interest to the same degree as what tree of life christian schools would and that's where if this case we believe that this case should be decided by this court and that this court should adopt the test that's put forth by the fifth in the ninth circuit's for equal terms claim because i mean under any of the tests tree of life christian school should prevail i think that's the test that is probably most faithful to the text of or loop itself and takes into consideration the accepted zoning criteria what does the city say is the purpose of this and the criteria for the zoning district and then it asks did it pursue those interests uniformly against all uses in that district it's essentially a free exercise analysis if you want to look at it that way and in this case the city did not pursue its interest uniformly it mixed the zone with other uses that undercut its stated interest in revenue generation to the same or greater degree than tree of life christian schools would is the case you cited to me primera iglesia about these two cases that when you were talking about a minute ago the the mid rash case that it would be included in the business district in that particular case and the city claimed in fact that allowing synagogues would erode the tax base much like tree of life christian schools the city claimed in regard to that and the court held that the zoning codes violated or loop in that case because private clubs were allowed as permitted uses but yet the church and the synagogues were not and that's the in going back to your question in regard to the face of the zoning code itself with these non cumulative zoning schemes you're going to have that type of instance where the prohibited uses are not talked about which is what the what was the case in mid rash but then you'd have to look at what was actually done doesn't seem like a facial case in classic terms well i think and  maybe that's because it is a violent when you say it's facial you have to throw the whole thing out you can apply the statute that's right and i think it's your was it's or not and as the eleventh circuit had said in the mid rash case there's there's three different types of claims under the equal terms section two of them or as applied in one they consider to be facial because but i think what they were really talking about was the fact that on the face of the zoning code itself there was that unequal treatment so you have to look at this is this is in fact a religious assembly or institution that is seeking access to this is own i think you can't get by that part because we are bringing a real loop a claim here and in that respect you then you look at what other uses are alive well it may have the a little bit of the flavor of an as applied challenge but i think it is still facial because you look at the face of the code and determining all the non religious school can't make the same challenge to well a non religious school could make the same challenge and not under real lupa not under now they might have a different challenge under go under whether they're religious or not and no i don't think that's quite correct because the terms of her lip itself say a religious assembly or institution has to be treated on less than equal terms with the secular assembly but that's to usually happen in an ordinance that's right it does it in a row out that provision of the ordinance that treats religious things differently that you have an ordinance that doesn't treat religious things differently then you say well it but it's on its face a violation of our loop it just seems to be a contradiction in terms if i'm trying to figure out that's right any of that it well the theory of it is that it's not on its terms because it's not it's not contradictory because of the non cumulative zoning schemes otherwise the court good but i'm sorry cities and counties could circumvent really very easily by just saying well we're going to create this zoning code that all it lists all of the secular institutions or assemblies in this particular zone and it doesn't say anything about religion at all even though it excludes religious uses and i think in that instance lose the mama st by on its face at least excludes them on the same basis that excludes non religious use that's right that's right and so yours your argument would apply to any zoning imitation i would say i believe as you could say well but i'm not within the zoning limitation and i'm religious so it excludes me that's right i believe it would end in fact every zoning determination is violates our no not every zoning determination because because any anyone that's not allowed under the precludes anything i could find a religious version of that and go in and say on its face right well under i believe you could make that type of an argument but you would have to then meet the test under a loop which is where i think you go where you say did the city mix these uses together in such a way that it undercuts any accepted zoning criteria the city might have for that particular zone so it's not just an entree into the zone itself and in that regard that's what the city has done seventh circuit as well they term it differently they say what is the accepted zoning criteria and i believe that the fifth in the ninth in the seventh we're trying to get away from maybe a subjective analysis of what the third circuit would do is and in fact  judge posner said this in the seventh circuit river life case he said if you allow the third circuit case then what we're going to be doing is looking at what are the subjective motivations of the drafters of the zoning code which really it goes against looking at the constitutionality of a statute shouldn't look at the subjective motivations of the drafters and so you look at what are the what is the accepted zoning criteria i think though the second circuit and the seventh circuit both understood and recognized that no matter what test was that's out there right now although they may be stated  differently functionally they are similar in their application and i think that's the case here as well and the case note says that the provision at issue in that midrash case excluded churches from locations where private clubs were permitted that's correct it just did that it please the court i'm mark landis i'm here for the city who just wants to do the right thing now that we're facing a facial challenge i'll start with the text of the statute where we should and this is clearly just an equal terms argument that's been made by the plaintiff not a substantial burden we're not hearing first amendment so it's an equal time statute equal term says that we should not treat religious assemblies or institutions on less than equal terms than non religious assemblies or institutions what's distinctive about this case and unlike any other that you've decided to is this is not a church case and the other courts of appeals struggled with the sophisticated analytical framework to determine how would you treat a church with a non religious church there is no such thing as a non religious church so they struggled to figure out what do you compare an assembly a religious assembly what kinds of non religious assemblies would you compare a church to in this case you don't have that problem you have a school and this is the first case in which i relive the case of this nature has been brought to a court where it's not been a church and these other courts of struggle with is a bomb shirt religious uses are still covered by the statute absolutely once it's a church it's once you're in you're in your honor as you as you would say is is he reading is eleven circuit case correctly that you can have a facial challenge to an ordinance which doesn't mention churches as long as it mentions a lot of non churches we would say no your honor we've been no end well in part because it was in fact they had to determine whether or not a church would be allowed versus an assembly that's like a church and there's something that's very easy for them to look at and that was a private club you have the same kind of assembly with a private club and and because they had private clubs clubs are allowed every other circuit this ever picked up made rash and no one has has followed midrash yet the third the fifth the seven that was on the stand the night applied whether there was facial violation well as to the analytical framework of whether or not merely listing a non church assembly can get you there instead they look at why did you list in the church assembly would it be ok under accepted zoning criteria which is what the seventh came up with it's just a facial challenge but it's a special kind of facial challenge that in some context you call applied what what should we do with the ripeness argument now that the now that the recourse that was that had not occurred which made it arguably not right has now heard that's a good sentence thank you let me start here i don't think that there is a rightness challenge that holds up when we're just looking at this facial issue you've asked counsel whether this is merely facial the court the trial court ruled on the facial challenge that was paid t what they've done as a type of ass applied check i wouldn't blame you and well the next thing i would say is this your honor assuming we do that for the moment yes that seems to be what the district court did and in their complaint they say i supplied they do so if we want to be  be generous and try to do justice we can treat this not just purely as a purely rightness challenge but also perhaps look at it as a type of oblige alledge then you would say the ripeness argument applies but the rightness argument doesn't apply does it because they've already gone to the as a professional challenge it doesn't apply if the court is inclined to look at an as applied challenge notwithstanding counsel's representations and that's not why we're here but i'd like to answer have an answer the question we thank you here it is they've still not exhausted properly under miles christie and here's why they were told three times the proper method to go about to get an answer from the city as to whether the city would allow this use they buy a school knowing that it's not zoned for schools they don't make the use conditional they don't make the trip the contract they had to do a secret zoning change right they had to seek a zoning change and that's a spectacular kind your honor it's a site specific change to the zoning map so they're supposed to take the property they own and say hey we know it's not zoned for schools it is known for churches by the way it's a conditional use for churches churches are allowed in this district back to the facial challenge but it's not allowed for schools if you want it for schools you need to come in here and tell us how you would use it as a school you go to staff staff looks at it it goes to the board is going pills and then city council rules whether or not w change the zoning map to make your land in a classification that allows a school they've never done that instead what they did different from what they did here's what they did do and you can find this under the motion on and they asked for the entire reason office and research district to be zoned reasoned not to allow schools but to only allow religious schools they basically asked the city while this case was pending to establish a religious school district that's what they put before us and that's what we denied well we've never been asked to resign verily and that's it's one thing to say you need to go to this recourse but then just say well you made the wrong arguments on this recourse and there it is clear then that they're making the wrong arguments they were told three times and they were told so clearly that the sites are actually attachments to their complaint in exhibit b i and k to their complaint they were told very specifically exactly what to do against the youth that we told them to go here and tell us how you plan to use this as a school i mean i guess a lot of people could argue about types of school seems to me the uses of a school of the kinds of things that most people could take notice of and so are you asking them are you to use this as a religious school as a secular school or what because it seems one thing to have a set of steps or hoops for them to go through but if those steps are hoops are just so that you can to these or is no here no useful purpose but of course and your efforts need to be sincere so let me ask you this in this case the expressed purpose of the r c district is to generate property and and income taxes and to provide jobs and services and so can you explain how the proposed use the tree of life is different than that proposed use by date here is hospitals that other types are permitted youth in that district thank you i could as a note they keep talking about day cares and day cares are not allowed use anymore and we followed judge posner's argument on that but and so let me note that but as to hospitals as the office districts this what had been the headquarters for l time warner they had very highly compensated people packed into the entire building creating at one time thirty one twenty nine percent of all the income tax revenue in this landlocked city instead  we're going to get six hundred students were to get students that some of them are sixteen have shiny new brick license licenses that they're trying to drive on do they come for football games on friday night is there going to be activities on friday night what miles christie says with this court said miles christi is the city gets to look at that and decide in the first instance whether that's ok unlike a daycare where people pick up and drop off once a day people are coming and going all the time and they're coming and going individually students don't have income tax but they do have parents they do have parents parents would not pay income tax at that location because they wouldn't be working there you'd have a few teachers notoriously underpaid teachers and that's what you'd have instead of an office building the one point one percent of all the land is used as an office this is the largest office building in the city but your point is i take it is that these that this colloquy you're having know way with judge donald should be done the city council is probably rather city council has never had that chance i mean certainly there's been conversations in litigation but city councils never had a chance my clients refused to predict what the outcome would be had they asked and they were told how to ask because it's a facial challenge we look at the statute the statute says if it's not or the ordinance if it's not permitted it can't be used that's section five a one and then there is a table so we look at the text of  loop on equal terms only not substantial burden anything else and then we look at the statute and the statute says nothing about schools being of permitted and because they're not permitted under the language they're not a conditional use they're just not permitted any kind of school private school public school religious school any kind of school that really stops or inquiry the cases you've been cited to our church for says private club cases they're not  they don't see church they just say private club actually it says churches and churches are conditional use in this particular district or you're referring amid rash yeah i'm talking about the statute the ordinance so so ordinance doesn't say anything about it does it did it one time allow daycare centers which makes sense if you've got an office district that's where people want to drop off their kids so there was an acceptable zoning criteria there was a legitimate regulatory purpose under the circuits that i don't think you even have to reach that analytical framework because there's no schools any kind of school and churches are conditional use their first attempt was to try to say that  that they should be allowed as conditional use as a church but they're not a church and they've now said that and they've said that in their pleadings to this court so we are dealing with a school versus school issue there are no schools allowed of any flavor and because of that a facial challenge needs to fail little public school be subject to the zoning or it would so the public school authority would have to get the variance so he changed the site specific zoning to that location that's only true your honor in this or seen just rick in this research since this office and research district in ninety five percent of the rest of the city they could build schools ninety five percent they picked this particular builder they had a building they bought the building knowing it wasn't designed but but yes you're on a ladder by buildings so i guess to sum up first of all if it's just a facial challenge i don't think you have a rightness issue if the court is inclined to walk away from counsel's comments in that regard you do have a right in this issue under miles christie because the city's never been given a chance to give an answer i think your dishes question thank you thank you just in regard to your question judge rogers on the midrash case i refer you to page twelve nineteen of that opinion where the eleventh circuit said surfside zoning scheme is permissive any use not specifically permitted is prohibited and that's precisely what is that issue here in the tree in the city of upper arlington zoning code and that it permitted private clubs it permitted private clubs and private clubs did not include churches that's correct it did not include churches now in this case the city of upper arlington has permitted daycares hospitals nonprofit office uses and even churches biconditional uses but it does not allow their school this thing which is based on whether something is religious yes in fact and you go back to the test that this court should adopt where you place on the face of it yes there are other secular institutions or assemblies which is the language of itself that are described as secular yes that are allowed hospitals nonprofit offices  matter that the zoning code has it in terms of secular versus religious what matters is is the religious assembly or institution excluded from the zone and other secular institutions or assemblies are they included and do they undercut looks like this ordinance is drawing a distinction between religious and non religious institutions whether it's hospitals or daycare centers or schools or or meeting places then you could say that there is stated a facial claim and if not then not and i think if you look at something that says private clubs and that's interpreted not to include religious clubs you could say on the face of it it's drawing a distinction between whether you're religious or not and finish just if you just said meeting houses then churches would have been included right that's right it was also something there is something on the face of it which distinguishes between religious and non religious institutions which i'm not yet seeing in this one that's my problem and and i understand that and i do think that my response is twofold one i think that there is in how the zoning code treats because it's specifically prohibits religious uses because they're not put there not permitted religious daycare centers versus non religious daycare centers it's all on it's face neutral will speak to all of those sec right yeah yeah yeah sure that is that is correct that on its face it does not say secular hospitals are included and religious hospitals are executed it does not say that you know secular schools are permitted in religious schools are not but i think that that is a with all due respect a cramped reading  maybe it goes back to the idea that we are saying that this is properly considered to be a facial claim i think that a facial claim under a loop as on equal terms might look a little bit different than your normal facial claim would be but in any event i would point the court to the district claim because the district court has made it pretty clear as to what would happen if the case were to go back we're going to ping pong back to this court because the district court already made its views on the merits known on both official and as applied claims and so i would urge this court to at least