my name is michael ware on with adrian saatchi at counsel table we represent and don l l c and reconciling people together in faith ministries were here on our petition today primarily because of th i'm sure the court has read the transcript with regard to the engagement of conversation and dialogue with the judge at which time he went more into what a variance would do the fact that we have put forth the cause of action and the court in that particular matter said that because of the twamley case in the case that you know it did not believe we had set forth parallel with me factual backup with regard to your allegations the reason it can is a troubling to us in that particular matter is you also have a rule eight eighty two which says that basically it's a notice pleading i don't think think the city was ever in jeopardy of not knowing what we  with regard to this case now clearly there's there are other facts that we could have allege that were put maybe put more bones on it but i think if you review our complaint in this particular matter we went so far as to point out cases and cite them in the complaint so that it gave a basis for what we were allegedly why we were alleging it and how we believe that it was complimentary to our case it's me can i ask you that i'm so what rule are you proposing for when denial of that would allow for the operation of a church would constitute a substantial burden is that whenever a variance is tonight no your honor in the law is the rule that you are proposing well what i'm proposing judges what was set forth in bethel and if i'm a judge it sets forth many things that the court takes into consideration primarily of which is i think our focus in this particular case had we had the opportunity to put on the case and try the case is that you can have a neutral very regulation or ordinance or a non neutral one but in the case of baffled the court speaks to the fact that you can have a variance or an ordinance ask judge do more if he did not believe that we had adequately pled this particular case to give us leave to men we had basic information that we believe we go further but let me give you an example that fits right in to what judge harris is asking in this particular case this particular property is small very small the church it is certainly proposed for there went to the neighborhood and in engaged everybody to make sure they could go in neighborhoods have covenants that run with the land so you could have somebody you know you could have maybe a present neighbor saying something but they can sell the property and and it mean if it's it's something if i make it continue that all i'm saying is as it stands as commercial you have that particular opportunity when you take the church which has now been strapped sense from the planning commission or the zoning board of appeals or something that it isn't going to fly the variance maybe not normally you try to submit plans that would mitigate the problems and then sometimes the second or third time around you get the variance approved but it's a it's a dialogic process where here in tires of whether there was an adequate degree of separation from from residential structures and everything that was done along just that was dialogue with regard to that you know but were there actually plan well you know we spoke of the fact that they would only be operating on wednesday evening but we spoke of the fact that they'd only be operating on wednesday evenings on certain times on sunday they would limit the number of cars the fact that there is a governmental ditch that separates the residential on the other side zone such that you have a massive drainage ditch which is not a small army with about twelve or fourteen foot breath if i may go back that was in engage if you recall from our complaint when the initial contact was made with the city's officials it was no it's not going to happen our argument judges if you take the church and bundle it in that particular zoning ordinance that includes mussa lodges swimming pool public swimming pools parks and all those kinds of things and require that hundred foot buffer restricts the ability for church to go into any residential area which if it was a orthodox synagogue but what limiting principle is there to your argument i mean if we if we were to say that i mean for all i know this looks like to me a reasonable sort of garden variety zoning restriction it doesn't seem to me to be something out of the  ordinary says no property or structures located within one hundred feet of any side or rear property as well that those kind of thing are i mean there there are very ordinary now if we were to say that this kind of zoning ordinance imposes us facially reasonable you find this kind of zoning ordinance in municipalities across the country and if we were to say that a facially reasonable zoning ordinance of this type impose substantial burden what limiting principle is there to that well would not any number of reasonable ordinances impose substantial burdens and how what criteria are we to use  you know as to what is a reasonable zoning restriction and what is not i mean is it is one hundred fifty reasonable seventy five seventy five feet reasonable and one hundred nine is fifty reasonable and seventy five not i did i just i don't get it because in bethel we had a very different situation where the zoning was changed while the church was under construction so there was a significant reliance interest there and that's not what you that this is very this is very different because they had a big if there hadn't been any expenses made it's all everybody's plans were contingent upon approval of the zoning variance and and the the church is a potential less so or a potential lessee that's correct it's it's not the owner of the property and then his big owner of the property so what i'm worried about is if we say in the case and in a contingent case where you have a potential less it and you have  if a fairly ordinary zoning restrictions and you don't have the factors that you have in beth el where there was owning changes that impeded construction and where the zoning law has been in place in this case since one thousand nine hundred ninety seven and missed the end of the didn't even buy the property until two thousand and eleven and so if you can't say that there's been some sort of ambush here the zoning ordinance was in place for fourteen years before the  purchase was made so if we say you may be right here what is the limiting what is the limiting principle i mean do we do we just take over the state court understand what the criterion are if a major the police not focused one hundred feet in in the broad spectrum as you're speaking because i can understand that if you fall back on ruble and what report tells us that so that no government show imposes unless the government government demonstrates that imposition of the burden on the person or somebody prince is in the furtherance of a compelling governmental interest is the least restrictive means of furthering that governmental interest so you're saying it's not that we have to decide whether one hundred feet or seventy feet is reasonable we have to decide whether they advance a compelling interest i'm not sure that makes it better well i do think it makes it better here here's the reason i do if you look at the city of newport news and you apply this one hundred foot to a church and you make that barrier in there because they were assembly of people it basically restricts the use of commercial because a lot of commercial backs up to residential and it restricts the use of residential because residential already has ten or twelve foot sideline buffers we're seeing the the ordinance as a whole is problematic because you've bundled churches into these non these areas that you want to have now the government will pursue say and here's the thing just before we even get to the interesting though i'm still on substantial burden and what kind of criteria we apply to figure out when is a religious organization substantially burdened by denial of a lease they aryans what would allow that organization to run worship services in a particular place  your answer whenever that happens what the religious organization wants that building if they can't have it that's a substantial because i mean that's not a logical but i'm just trying to figure out is there any stopping point and i see my time's run out but if i may respon to that question yes the way i see it is that if we had had the opportunity to put forth the case in this particular matter i think we would have been able to demonstrate that the ordinance as a whole is flawed basically pregame ok this is the concept in zoning law of a self imposed hardship and clearly in bethel the hardship they did not impose upon themselves they undertook to to develop the property prior to the change in the ordinance and here you've got a self imposed hardship so how does the the self imposition of the hardship you entered into this contract knowing the law was against you how does that then come into the  fully expecting that maybe he would get the variance rootlets tells us that the government is supposed to make the concessions with regard to the least in positions to make it work richer asking you're asking for a vari here and you know at some point i mean all zoning law is an accommodation ok it's in the it's an accommodation between the needs of the developer all the property owner and effect and the needs of this area as a whole the city is a hole in the surrounding neighborhoods and the the point is made that the churches very still but of a bump up against the needs of the community they could still bump up against the needs of the community as a whole and the the the  problem i see is that we're just making ourselves into a super zoning board if if we adopt the position because i don't i just the judge came just articulated and that is the face of the people in both fellow got caught in the middle they got they got hijacked but here everybody had notice  a there's got to be a difference in this whole area of law between what she describes as a self imposed hardship and something where the of parties are jerking people around in and i agree with you one hundred percent from the standpoint of self imposed the one thing i'm saying is the reason that the pastor in this particular aspect could not find a location in the city of new produce is because in fact the zoning ordinance  t that has more safeguards and necessary than the church does and you know i think i might just say something quickly as i think you may have just answered my question so you're saying at the denial of their eons is a substantial burden because there is nowhere else in town because the one hundred foot is imposed upon the church as if it was a moose or anything else your secular ordinance itself is what i'm saying is volatile of rupert from our standpoint unfortunately we didn't we've got one hundred forty four pages that represents our tomorrow took the case away did not allow us to develop it or better yet replete it so that we could show these are some of the greater concerns we have so it's so so your argument is that it's a substantial burden because  there's no way for a new church without a grandfather at least and i gather a small church can't afford a big property to locate anywhere in newport news i believe that to be that's a given very difficulty and that's what it was because of the way the ordinance is drafted  us to so we didn't lead all that because we believe that it was incumbent upon us in before we researched the rubella aspects of it to make the the introduction to the city to go to the neighborhood to address quote the concern of what the regulation was i even neighborhood protecting the neighborhood and if you've got the acquiescence of the neighborhood saying i prefer to have a church there than a seven eleven or a spy shop in the day of the week and you have that what that would mean is that in certain types of jurisdictions such as let's say a high density area it's probably going to be less likely that you'll be able to find another place in hammond but that can't that can't mean that the zoning ordinance is simply tossed out or becomes unreasonable because  zoning ordinance is is put in there with a recognition that the community may be one where there's a high density population if you have of of a community with lots and lots of of townhouses and houses close together the zoning ordinance reflects that high density and protect against it being even even higher density and we can't just toss out the zoning ordinance on the grounds that all these people all live close together and so it would be difficult for charge to locate elsewhere so therefore this is a substantial burden because that starts to treat suburban communities and high density inner city communities very differently in terms of the encroachment on the neighborhoods or in fact communities with with townhouses that are relatively near large metropolitan areas there and that of that's that's that's my problem is to have it depend on the real estate market gets us into some differential treatment in i'm not saying this is  we were speaking earlier about the legislators graft and the draft hears is in the furtherance of the government compelling interest and that's what they're looking at to make sure the government's compelling interest if this was a parking machine or such as that so that we want to be parking on the yards curbs and all that that's one thing but when you have let me give you an example of what i could see with there is an enormous difference if an orthodox jewish community as a church in the in the whole neighborhood the church burns down because of financial reasons they can't rebuild in two years their grandfather for that particular property is gone or the ducks have to walk to to shore on their sap they can't grow up so then because of this hundred foot restriction they can not rebuild in any parts of that area even if it's commercial or residential so it's come into play that is my belief with regard to basically a oversimplification in this case thank you sir is only about a third of an acre that's a relatively small property and all that's being and asked is that the real hundred for buffer between the sides that front with residential properties  and as the court has pointed out the church has lost no money because there was this lease was made contention upon the city's approval variance and so they never paid out any rent to lease this this property and the court is asking well what is substantial and the answer is not this certainly is a matter of law and that's why the court was correct and granting told the six motion if you make a action under the facts there is no embellishment of the facts that could have changed the outcome of this as under the existing law so it does not matter and one of the cases that is cited in the cit iglesias case and in that case there was imposed upon a charge a thousand foot buffer and the court it was the district court the case that portion was not appealed up in sort of court level but the circuit court went to went through the findings and the facts and that case a thousand foot but for was not found to be substantial here it's a mere one hundred offer and churches are allowed as a matter of right under the us under its current zoning at c one retail commercial the only problem is there's not enough space between the building and the residential property lines and  if there had been enough space at the property were just a little bit bigger we wouldn't be here today because council can just as you doesn't seem like the weather the burden imposed on the church is substantial is going to turn on the amount of the setback right it's go turn on does application of this law in this instance sort of prevent the church from you know getting together for communal worship which is clearly a religious exercise so i guess i don't really understand why we're talking about the you know the number of involved isn't the question you know it is the application of the law in this case to this particular church preventing it from coming together for communal worship or not and i sort of understand that they are saying yes it does because we can't find anywhere else to do it my response would be yes yes and let's talk about that ok good let's talk about it yes because you know is one hundred feet the issue here and the case law has said that you know these run of the mill zoning requirements do not constitute a substantial burden so to say this is only one hundred feet under any circumstances or is it is are there any circumstances in your view in which is owning ordinance might constitute a substantial burden and if not why do we have a loop i mean clearly the drafters of really contemplated that some applications of zoning ordinances would create a substantial burden write well you have to look and see wh substantial burden but the cases have said that churches cannot exempt themselves from you know run of the mill zoning requirements and this is just run of the mill zoning requirement and i wonder if there was a run of the mill zoning requirement in newport news and said no religious worship in newport news i think we would all agree that would be a substantial burden i just i'm not understood right i totally agree with you some applications of zoning ordinances clearly will not create substantial burdens there's no per se exemption but some will and all i'm asking for is some guidance as to which ones do and which ones don't yes and there is clarification what i wasn't fully i'm subscribed to the law and it was run of the mill is owning but it's pertaining to things like that setbacks and that sort of thing so there are no circumstances under which a buffer or setback zoning ordinance could constitute a substantial burden on religious activity there because i don't understand why we have a loop there is no case of which i fact the underlying premise is that zoning ordinances per se do not constitute a substantial burden well the example would be the best case that this court has decided and in that case the locality imposed zoning ordinance after zoning ordinance after zoning ordinance and this court said that in that case the church bought a property where i had the reasonable expectation that it would be able to build the church and because of the process taking so long and the subsequent zoning ordinance the church was not able to be built at all obvious finally has the answer when it imposes a substantial burden when it makes it impossible for a church or a religious organization to locate at all with them some kind of what you want what you want to worry about for example are people manipulating these laws to keep a mosque or an unpopular religious faith oh i'm out of the community just because its religious tenets happen to be zero zero unpopular with the surrounding neighborhoods and sometimes the people resigning authorities gain in it hasn't been changed while the place of worship was under construction it applies to community centers the y m c a as well as it would to a church part of the answer has to be the been on the books a long time and where it's neutral in its application and where it's clearly not directed at churches as a as a group or a particular play because the surrounding just have a religious prejudice against the faith then then the question is if even that zoning ordinance is a substantial burden what would not be and so it is the case that sometimes the zoning ordinances are going to pose a substantial burden i don't think you have to have a a rule but if if something as ordinary and plain vanilla as this ordinance is thought to be a substantial burden i don't understand where i don't understand what the limiting bronson is it seems to me we're just off to essentially overtaking the role of local authorities in zoning which historically against religious groups no government shall impose or implement all angels regulation that discriminates on the basis of religion so that covers the ones maybe like bethel where it looks like they're after a particular religion they're manipulating zoning regulations to keep one particular church or religion now that's already covered but then there's a whole other provision that says no government in addition to that no discriminating but on top of that you still can't impose even a neutral angels regulation in a manner that imposes a substantial burden i totally share the concern that if the answer is when ever a religious body can't rent their first choice property that's a substantial burden then there is no stopping point but i guess i'm asking you in order to agree with you we put it this way in order to agree with you do i have to agree that a neutral non manipulated lane juice regulation can never constitute a substantial burden because i'm having trouble reconciling that with the statute is there some more limiting principle i could use to agree with you no you don't have the lemon in principle isn't the word substantial the bevel case was not decided under the equal terms version it was decided under the substantial burden that's the part that that we cite  most notably the footnote for in that opinion so no you don't have to agree with me but we do have some guidelines as to what is and what isn't substantial and the courts have said you can't eliminate that word from the statute it's got to have some meaning so it can't just be just any burden it's got to be a substantial burden ok and the case the cases have indicated the club case out of chicago that is cited that this time and money of locating within an urban  setting is not a substantial burden and it's and correct actually to say that this church was unable to find any location within the city of newport news and i would point fam i would point the court to the join at pastor terry's affidavit and what he says on page thirty one is that before signing this lease he looked at other locations but could not find a location that was the appropriate size location and price many of the buildings were too large and too expensive for a young congregation so it's not that there weren't properties of vailable it's just basic basic comes down to you know size and cost go together and in the end the y really couldn't afford to buy a location that was a rental that was suitable for a church and so the case law has said that just because you can't afford it doesn't mean there's a substantial  existing uses and the availability of parking so those are just sort of run of the mill type things that aren't necessarily a substantial burden but specifically is where the court said in fact for we're a church bias a property recently expecting to build a church government action impeding the building of that church may impose a substantial burden because the delay uncertainty and expense of selling the current property and finding a new one are themselves burdensome this is not to say the religious organization can state a real loop of substantial burden claim simply by alleging that it received an adverse land use ruling certainly congress did not intend to permit religious organizations to exempt themselves from neutral zoning provisions that's a court will likely find that a religious organization has not play and that that word is very important but a religious organization has not planted a substantial burden claim merely by alleging that it moved to an area in which and bar construction of churches and then was denied exemption from the zoning provisions to build its church and that is exactly the point that judge wilkinson was was getting at is that he or both that this property would be available for use as a church and the fact that they entered into a lease contention upon city approval acknowledges that frankly let me try let me i totally understand you're saying this does answer my question about where counts as a substantial burden well at least what doesn't count as a substantial burden let me frame the case for you in the way i think is i'm just being devil's advocate here just the most sympathetic way i could possibly frame it for the claimant which would be it is true right there was not intended to give religious organizations sort of an automatic exemption but it was intended to cover cases arguably like this one were a religion is i mean not a minority religion a newly established religion and young religion and lay in neutral even neutral and use regulations sort of inadvertently have kind of a disparate impact on those minority religions because they are not entitled to the grandfathering that older and better established religious groups have they're small they're young they don't have much money and so what appears to be and was intended as an entirely kind of run of the mill garden variety zoning ordinance has the unfortunate  driving those younger newer minority religions out of town while allowing older more established religions to remain and that that actually was the kind of thing we're lupul was concerned about so if i were trying to make that absolute best case for the claimants here that's what i'd be arguing and what's your response to that it is a situation like that had it been played here might that constitute a substantial burden or no now because the cases have educated that we are all subject to market conditions so there is always going to the seventh circuit but cited by this circuit with approval where they indicated that time and money expenditures just do not equate to that and i mean i read that case but i don't believe there is any allegation that sort of the laws would have this kind of i'm systematic effect where they would inadvertently have a disparate impact on minority less well established religious groups and drive just those religions out of town well really if the facts are as i understand that the court is saying i'm pathetic it's it's really a matter of money because what you're saying is this is a new church it's a small church the line of the grandfathering yes and they're trying to find a location and it's really just a matter of expense can they afford to find a place within the city of newport news and just as this pastor said there were properties available he looked at them but they were just too large and too expensive and so it's just a matter of market conditions to which we're all subject on the district court said you know i would've liked a bigger house when i was younger but i just couldn't afford it that's just the the the product of real estate in the market conditions maybe a smaller church or a church we have a better chance of meeting a set pronouncements recovery can actually take into account the different facts before us including the fact of this is that the church has been put on notice the owner of the property has been put on notice that the the court that the bethel case has all this court needs especially footnote four where that panel seemed to forecast exactly the issue that was in this case except what they said wouldn't even even meet the pleading requirements for a substantial burden here the burden is even less substantial if you will because there is no money that has been been spent and you know no time to try to to reshape the bill and our work with what the city that's just not before us the matter was been so kind to me i will try to be brief and the one thing that counts for not both agree is that i think bethel brings a lot to the table and if you listen to what they say of course we recognize that when a point of challenges an a land use regulation has imposed a substantial burden which religious exercise need not sure that the land regulation targeted it and if you go back to one of the original statements for ripple of and i'm quoting the right to build b or rent space isn't in the sensible and jim of the core first amendment right to symbol for religious purposes churches in general and new small or unfamiliar church years in particular are frequently discriminated against in the ok and it says that the government should basically try to accommodate the church is taken into consideration the public interest that they have in this particular case there is not a parking issue it is six hundred feet is not  have courts approve buffer zones of a thousand things i think the courts of approved a lot of things and that's why i think it's a practice in that particular case i don't recall the distance i do know that there's also you don't you have no reason to what what i'm saying is one hundred feet is not a lot it depends on from where to where well if it's a from one hundred foot from the back of the church to the adjoining house that's one thing if it's one hundred foot from the back of the church to the property line of the residential that's a difference and a lot of people a lot of homes houses every form in the stat machine coming within one hundred feet of but my point judges if we're bullish says that they should accommodate him is long as their governmental interest is protected the governmental interest here is the separation between the residential and the commercial we've addressed those issues but the one to the nature of the thing getting that now also let me submit if i were to have the landlord in this particular case acquire the residential property immediately behind it so as to do away with this  still does nothing because that is still zoned residential and the front piece is still zone commercial i think we counsel him out of both given you all a good indication i think what we have is a neutral zon which has more ramifications in the intended because they bundled it in an organizational meeting spot which what they were looking to prevent the moose lodge the bingo parlors and everything else from backing up to a residential community in this particular case this property is uniquely situated because the rezoning that went through in the city it changed all the zoning in that area has now pinched this property into a commercial zone and it can be used for anything commercial that would be more volatile to the community then a church that has a very small parish to it so with a judge i would submit that i think we've made all our points out appreciate your consideration of m