well here jesus christ is the answer ministries versus baltimore county and mr stores or whenever you're ready we'll hear from you afternoon your honour's they please the court roman stores are for reference lucy ware and jesus christ is the answer ministries this case is about a church that needs a home they've needed a home for many years they found one they found one on property or was that also the parking the first application was denied solely on the buffer and set back issues that could the parking issues were not reached because they were made moot because of the other determination in the second one that was never merits that's correct and what's interesting here yonkers is the very peculiar nature of the baltimore county zoning regulations here in addition to saying that a church is a permitted use in this district it says that was placed directly next to the popular property in line next to the neighbor here soley on that basis the board of appeals denied it that decision was appealed to the maryland courts and again soley on that basis that decision was affirmed petition where she cured that problem for she moved the parking lot to the center of the property and she complied with what are called the r t a regulations which don't say that if you're a church you must meet the setback unbuffed requirements they say that you have to comply with those requirements to the extent possible and that's just a critical issue here the position that the county has taken is that because she did not meet those requirements said the second the titian addressed that and eliminate the parking as an issue altogether and it was never ruled on the merits it was a basically all the way through it was said because the first  that's what has been done here as a reaction to the community and to the protesters but if we agree with you that they've never reviewed the second petition  your argument is this is a twelve b six and we should just reverse that and let the case go and take its own course absolutely and again your honor the as the complaint states the requested relief here is not an order permitting the church to worship at the location but simply to send it back to the board to review it on its merits to make the determination of whether the church has complied to the extent possible with the r t a regulations and additionally the second part of that is to determine whether it's in the character of the community two major points there is your honor the first is the reasonable expectation certainly for all the reasons we argued that the applicant here had a reasonable expectation the use was permitted they complied to the extent practical it was permitted as a right the permitted as right the planning director signed off on it there is no reason to deny this other than this rescue to cut issue which was faulty from the outset because even the ball of our county people's council admitted in his in his taking back his  agent is reciting absolutely and she was correct it as well the zoning does permit her use is completely permit here i would like to address your honor's question in another way as well and that is  the district court's sole reliance on the reasonable expectation standard and i understand from the this court's decisions in the bethel case and in the end don case the focus and the importance that the district court  d on that and that factor but it can't be determinative it cannot be the sole factor on whether loop a substantial burden standard is is violated or not i like to give the court an example of this  the petition is denied again then it will be back up before the district court and the district court may be applying a faulty standard again and that faulty standard is that if there is no reasonable expectation that the substantial burdens provision cannot be violated again if there if there was a zoning regulation that stated for example churches are permitted by right but no services are allowed on sundays or you're not allowed to have a storefront church or any host of other examples a church that comes in and attempts to use to seek a place to worship whether it's on sundays or in a storefront church would not have a reasonable expectation to be able to locate in that jurisdiction but i believe that congress certainly was clear and that really push should be read in a broad manner it's one of the provisions of the before the board if that is the district court if it goes back to the district court and not a lawsuit and in the district court and there's a twelve six motion and if you were to see all we do is send it back and say your complaint is operative and you continue in that case answer us we file discovery yes we whatever whatever the next proceeding is correct your honor but the requested relief again is to be sent back before the board to review the merits of the  we don't issue that we that's the district court's no but it believes that it certainly would be beneficial to be directed the court to send it back to to fix the standard that the district court has erroneous lee applied in this case if it does eventually end up before the district court at the same standard at the reasonable expectation which i believe was not what this court held in bethel i believe that the court's decision in the end on case muddied the water somewhat in suggesting that perhaps that was the only factor to look at not a map up of the problem here was that even with respect to that factor the district court simply got the facts wrong i mean right absolutely i'll move on to the discrimination problem procedurally with your response because you filed a suit in the district or and if we were to send it back you'd like it to get back before the board but that's a relief would have to get from the district court if you carried the day i mean we accept your obligations as true at this point and you would have to prove it in the court would have to give that as relief i guess your point is if we made clear the correct standard then you would have more greater likelihood of getting the relief from the district court but the district court still has to be the court to give you relief right yes certainly as a procedural matter yes you know i'll move on to our discrimination claims the religion nondiscrimination provision as well as our equal protection claim which are analyzed under under the same standards generally the district court here i believe iran around easily applied that standard as that's provision as well vice effectively saying if the discrimination doesn't come out of the mouths of the board members there can be no discrimination and you know so your lights on your one question is unrelated to that this was not raised baltimore county you may want to look at your complaint before you can back up longer bottle but tell me very briefly where in the complaint do you a ege religious discrimination there's a lot of the scotian that could be taken as race based ethnicity national origin but i didn't find in my reading that you alleged discrimination on the basis religion a religious denomination if i may respond to that question here yes of course the there are allegations in the complaint stating facts such as she can come over here from africa branch out from another church and put all this in our neighborhood dancing and hollering like they back in at their home back in africa somewhere they were out there dancing like from africa this these are paragraphs one hundred sixty one zero eight and that i mean that would be a national african church where there may be may be dancing there may be singing the reference to another church from out from africa branching out from another church that they're not being attacked because they're african or because they're african american but rather the mistake of concluding that if the discriminatory remarks that not come directly from the board in this case that that wasn't good enough i don't necessarily disagree with that but on the other hand the mere fact that others may have said pensive things about the church and its members i don't see were in the record there is anything to suggest that the board either agreed with that a ceded to it you know occurred with it or did anything you point to the fact that they ruled incorrectly that they want to get the people's counsel and suggesting that rescued or caught it was appropriate but how does it make out a plausible this discrimination claim without some evidence suggesting that they in fact adopted the the middle ear pensive views couldn't rule on it simply because the you know the parties themselves might have been offensive i would also direct the court to the marks versus city of chesapeake case where as i understood the facts in that case the relevant government body didn't make a the comments about about the application before them and simply denied them after the offensive comments that were made and this court said that the city council in that case could not placate those members members of the public by denying the application where there was again no evidence that the members of the city council adopted those those that that type of animists were on a motion to dismiss here your honor and i believe that it is certainly possible  that there's a reasonable inference that the protest and who engaged in this despicable behavior in terms of their treatment of the church and the statements that they made against the church they they pursued this motion a motion that was abandoned by its original proponent and then the board jumped on that and agreed to dismiss the petition soley on that basis at this stage on a twelve b six motion i believe that that's enough there was relevant factors that have been established in the case law of this court's and other circuit courts and in this analyze the one factor the reasonable expectation factor that it did consider and on the nondiscrimination claim it failed to consider the inferential case that had virtually all of the circumstances here first the plaintiffs a plausible he pled that they have a need for a house of worship there and in fact that point is undisputed at this juncture of the litigation the congregation is forced to squeeze into a modest two bedroom home it can't perform weddings and hold other events it's had to discontinue its ministry and its evangelizing because it's in an inadequate facility second the plaintiff possibly pled in the district court ignored that the pla fs were ready willing and able to substantially comply with the zoning regulations in fact they've alleged that they did comply with the zoning regulations because they complied with the r t a setback requirement to the extent possible the second petition didn't seek any exception on the buffer it eliminated the prior parking variance request that had been in the first petition and it complied with this setback provisions to the extent possible so as a plaintiffs of a ledge that would indicate that they've in fact complied with the zoning regulations the third factor and set of allegations that the district court ignored was the plaintiff's possible pleading that the county completely denied and prevented any religious use on the property this wasn't a case where the counties suggested some conditions or in the normal back and forth in the in the zoning process asked the church to make certain modifications it imposed a race judicata bar which would appear to bar any future petitions as well consistently applied and that it was legally erroneous and the district court seemed to agree that it was legally or illegally when it was legally erroneous and there hasn't been a chance for the plainest to reduce evidence yet that it was in consistently applied but that is one of the allegations in their complaint a nd in fact that's another factor that the district court ignored because one of the factors in the real of the case law is whether the decision makers decision is somehow arbitrary and they've alleged that they've alleged that it was legally around us and inconsistently complied applied and the fifth and final factor that the district court overlooked but that the plane is plausibly pled out is that this decision by the board left them without any quick and feasible alternative and those that's another factor that the district  have looked at in that the case law stablish is let's talk for a moment about that it district courts erroneous reasoning on reasonable expectation remember what the district court said about reasonable expectation it said that reverend where did not have a reasonable expectation of a religious use of this property and that any harm was self inflicted because reverend where hadn't gone out and researched the zoning regulations at some point in the past it's unclear whether the district court thought that should happen before buying the property or before filing the first petition but this rationale is erroneous for a couple of reasons first loop it doesn't impose that kind of requirement on its face second this is the only court of which united states is aware that has ever imposed that kind of requirement of some prior research and it makes particularly no sense here because imagine what would have happened if reverend ware had gone out and researched the zoning regulations she would have discovered confirmation that her realtor was correct that religious ruse use was permitted as of right in this area and on this property she also would have discovered confirmation of her own observation because there were ten other religious houses of worship within a mile of the property and about to within a quarter mile and she would have learned that she could petition for an exception if she complied with the  a requirements to the extent possible and in a minute way that could be expected to be compatible with the character and general welfare of the surrounding residential premises so the zoning regulations themselves underscored that any expectation of religious use here was recent because she filed a second petition that either substantially complied or didn't comply with the exception requirements and so therefore she should have been able to use the property and certainly had a reasonable expectation of doing so and that's what makes this case different than and so and in was a case where the plaintiff and the church wanted to engage in a use that they knew was contrary to law they had been told it was contrary to law and the zoning officials told them that they were unable to qualify for variance here the church is asking for permission to engage in a use that it believes is legal not one that it believes is illegal like the plaintiff in and in and in fact they're correct about that at least they've pledged that they're correct about that because the second petition complie understand your colleague's argument though that even that contrary the law exception is subject to analysis on the statute that imposes an unreasonable burden on the petitioner is that right absolutely that's absolutely correct in the district court did not engage in that analysis in the way that it should and the district court sided and in which for the reasons i just explained is distinguishable but there's also a distinction in the allegations in and in compared to this case so for example we walked through a few of the factors that the district court failed to consider and those factors  the other way in and and so for example there was no allegation andon that the church could substantially comply with the zoning regulations here the plaintiff has made that allegation with respect to the second petition second and there was no allegation that the church actually did comply with the zoning regulations and here the plaintiff has alleged that in fact the church did comply to the extent possible as required by the r t a exception third there was no allegation and in that the zoning decision makers decision completely foreclosed just use on the property here we do have that allegation because the race judicata bar on the second petition which was erroneous because the effect of completely barring any religious use on this property and fourth there was the allegation and there was no allegation and in of arbitrary decision making in fact it appears that the zoning authorities did it by the book whereas here there is an allegation of arbitrary decision making and use of and misapplication of the race judicata rationale for rejecting the second petition so this case is more like bethel where the court held there was a reasonable expectation where religious use was permitted as of right even though the church had to petition for it and wasn't guaranteed to gore i thought they both made the same arguments but that's ok i don't resent it however you wish first of all the board of the court needs to know that the board of appeals did in fact review both where one and where two in its opinion an order anywhere to which appears in appendix page one twenty and goes through and thoroughly analyzes the petitions in both cases secondly there is pending in the circuit court for baltimore county at this moment it petition for judicial review of the board's decision that matter has i think as far as i know there's a scheduling order but they will have a judicial review as they did in where one of where that's what that's the that's really what we're sort of departing i believe from what rule lupa says and more particularly what the and on case a binding precedent of this circuit says and in that case that this court said that the pla billy plead a substantial burden claim because the extensive that because of the fact that they had bought at least the property they were smart enough at least to have a contingency clause there was one here they tried to meet their four requirements for a variance they were unable to meet the third requirement and they didn't get the relief they sued this court said when they entered into that lease they did not have a reason why expect haitien that they would be able to do what they wanted to do well in the end all in case there wasn't a use bar right as there is this case i believe there was could be wrong maybe that was buffalo sometimes i get the cases confused but what the court a respectfully request needs to look at is yes it's a use permitted as of right but then you go and look at the actual  regulations and this is appendix page one fifty six it starts off discussing density residential zones uses permitted as of right includes a church number four but then you go on and you go to be which talks about  supplementary use explicit restrictions based on existing subdivision and development in other words this case started out with ms ms where  conducting not even minimal due diligence she bought a single family dwelling that had been a residence for sixty one years and it was located in the middle of a block in a completely residential neighborhood called dianna acres she put down gravel in the backyard for parking and began her activities in complete disregard of the character and general welfare of the surrounding residential premises and in violation of the baltimore county zoning regulations she most of the that was that was the first petition she didn't observe the there were three charges buffer setback and parking and in her second petition she eliminated the parking problem and she satisfied the buffer problem and she the setback was as good as possible some of it was very close almost seventy five feet but other parts i think went down to forty nine feet or something like that but she alex alleges in the complaint that that was as good as possible but i want to get back to you said the they reviewed the second petition and it's pending in the circuit court for baltimore now i said it was never reviewed and you said it was mute referred me to page one twenty page one twenty is where the decision starts the it i've got actual background they list the two of course we're five years jail but they didn't review the site discussed where one your honor in the need to scuff where to of course but they didn't review where to they gave the historical background and then they dismissed where to for race judicata and that's the only reason they gave because they were seeking i'm not because i'm just saying the only thing they examined was race judicata i did not review the merits of whether it complied they reviewed the merits of the claim that they were now changing their petition to assert that they wanted to build an addition under sub paragraph g four that was completely different as an existing church and the board said hey wait a minute you're not an existing church that doesn't make any logical don't hire not reading the same paper that i just they gave the background and then when they considered where to they applied race  and a lengthy discussion and that's how they got rid of but also dismissed on the merits wanted out that they were seeking at that point a edition you can see it in the drawings that they've they've provided to page twenty four of the appendix they were seeking in addition under g four ok well that's depicted on the drawing there's the additional look they didn't rule on it well even the conclusion they say the conclusion they said where one basically where one decided the question and they're not going to decide it again but the boy if the board was wrong in that respect  not that respect that's the only respect in other words they didn't consider where to on the merit they are seeking judicial review of the board's decision right now in the circuit court well they may be but my point was initially you were responding to my point that you're trying to suggest that the board had reviewed no on the merits they never reviewed it on the merits they've never gotten a hearing on whether the revised petition was acceptable under the zoning code well can i point something out to the court please and that would be a page twenty four which is the dial the second diagram in their complaint and it's very difficult to read but if you look at the drawing at page twenty four it depicts the house and  argument maybe it would be in the district court but we're not here for any of that we're not finding any facts what we're revealing is the district court's decision that says there was an under reasonable expectation so all this other i don't think has anything to do with that what you need to do is tell us why that district or finding an unreasonable expectation was correct yes your honor and i was only responding to what was asserted that it was complete where two was completely in compliance they were not on that ok by that i agree with the focus of this case is on and on the and on case and before you get to that i don't and i want to get to that but you've mentioned twice that there is a petition for review pending in the circuit court you're not suggesting that this lawsuit is somehow that they have exhausted their administrative remedies or than are properly before the court are you at this point not quite why are you bringing that up because mr stores or was saying that they wanted to have this matter reviewed by board they have the ability to do that because they have a case pending in the circuit court which i just the argument was and the allegation was that the board never reviewed the second and they assert that the second one compl with the zoning regulations as best as possible that's what they assert now that's what we accept as true for analyzing the real loop of this complaint the federal court will back the judge a g s point and it's it's the crux of this case is whether or not they have plausibly pled as a violation of really substantial burden claim nondiscrimination etc the district judge in an exhaustive forty two page opinion reciting all the facts the court of special appeals in a very well written decision reviewed where one which is not being challenged and came up with the conclusion they had not even then i'm only complied well when the district court did it analysis it seemed like it just completely forgot about where to and it was speaking in terms of where one which is not before us you know the in in it so where's a reasonable expectation as i started to say is where the real estate agent says yes it's a permitted use right real estate agents are at it real estate agents are trying it's was correct correct but there's more to it there's another story and that is if you go into the regulations right after that is permitted use you see the residential transition area regulations which came into play here this is going to apply to any purchaser and that signing has uses a right they're going to have to comply with correct the conditions and that's what they've attempted to do and where to so what's the on reasonable expectation of because you look at the circumstances at the time is where on the property at the time she bought the property what was her reasonable expectation it was to build a church except there are other requirements that she had to meet she had to meet the residential transition area required that wouldn't approve it her from putting on a church all that would have required is adjusting the setbacks the church use was approved as of right under the zoning and so what the real estate agent said to her is it turns out to be correct and now that the second point you come back and say well there are additional requirements you have to have set back and offer and parking type of thing and they say they comply with that i'm not coming back here i'm just saying what that what the regulations state i and what is required she had an expectation of putting a church there because the zoning explicitly provides the churches i can be put there at will i guess for i'll try to frame it this way let's take a residential neighborhood that's been a residential neighborhood for sixty one years all residences somebody comes in and decides i'm going to have a church here and they buy out a reasonable person would say wait a minute this is a residential neighborhood maybe there's more to this than meets the eye i better see if i can build this to have this church and so a reasonable person would go to a lawyer and say hey i'm going to enter into a contract of sale  what do you think a good lawyer would say we better check the zoning regulations and see what the requirements are for you to be able to have a church in this clearly residential neighborhood that would be what is reasonable that was not done in this case or she acted she may have acted on reasonably but that doesn't address the question of whether or not a purchaser her shoes would have had a reasonable expectation of success as she complied with the regulations and she's now complied with the regulators well i complaint her complaint shows she hasn't complied the diagram shows legit hasn't complied she well she alleges she complied and they use a regulation to say as as as as much as possible whatever the language is but she's alleged that we have to accept that and honor it but they put a diagram a chose it's not correct i mean it's just not correct it doesn't comply with the r t a regulations on its face so i think that i see my time is running out i would only ask the court to go back and think about what's reasonable for a person who's coming into this neighborhood buying a property and once the story church all of a sudden there's fifty cars parked on the property and on a gravel or grass and the neighbors are going what's going on here and the reason the neighbors ago much going on here is because their their properties are being completely affected by this and the reason the r t a regulations exist is to protect the joining property owners and that's why she has to comply and that's she should have no not at the time she bought the property if she didn't know that that's her own fault it's nobody else's fault but her if she assumed the risk of buying that property without completely checking into whether she could have a church there that's the point of this whole of the of this case if so then she files a petition and where one and does not even right so now what are they pursuing are they pursuing g six or g four i think they've abandoned g four which is the edition but the edition is shown on the diagram that they submitted so it's it's a lot of maneuvering and i know it's they say it's a head scratcher and it's not to be because somebody else wrote their hands and say oh well just let them do what they want to do that's the point of judge bennett throwing looking at this case and deciding that it was not plausible residential neighborhood and there was no evidence that churches were permitted where she goes into a neighborhood which is residential and has churches and the and the and the regulation says churches are explicitly properties they had adequate parking and there were no issues there are issues here because they tried she tried to plop a church right the middle of this neighborhood what aspect of the statute that you know why she didn't substantial burden you know where she cannot show that she was substantially burden based on and on which says if you have no reasonable expectation of being able to do what you want to do then you have no substantial burden  statute and allowed the church as of right and it did as the ordinance provides the property zone for commercial use may be used for a community facility including a place of worship were church when four conditions are satisfied so i believe that's essentially the same or actually the same as these counties statute in this case i think the term as of right has been blown a little out of proportion when one looks at the b c z o r which is extensive and is and it is conceded by the pla fs to be valid in this case they are not challenged challenging the facial validity of this case so what mr nolan is saying is correct is that as judge bennett not a permitted site for a community facilities such as a church i believe it was and subsequently it says and on its purchase the property parcel since one thousand nine hundred seven the property continuously has been classified for commercial use under the city zoning ordinance they were in its provides and i'm reading from and on the first page that properties own for commercial use may be use facility including a place of worship or church only one for conditions are satisfied and then they go through the conditions including primarily the setback condition  believe that the district court was correct in viewing and on as a controlling precedent that he was bound to apply the facts are the same in fact in actuality the plaintiff in and on was more prudent in that they at least and turned into a contingent lease whereas the plaintiff here and entered into a non contingent purchase agreement without a reasonable expectation that her zoning application would be approved so permitted as of right does not go as far as the plaintiffs and the d o j would suggest under the allegations here are on august thirty one river where purchased the property uses a church the property is zoned d r three mixed used area with schools churches multifamily residential uses and other assemblies and institutional land uses these are all allegations of the complaint which i'm not sure the district well i don't know that they they go to the issue of this particular neighborhood and that's what the early on there are alleging generally that the neighborhood at large which we're not sure what the petitioner in that case was seeking to use an existing building that clearly did not comply with the setback requirements that's not the facts of this case it is the facts of this case yours isn't it is that a new building or in the snow it's an existing it was a single family home for sixty one years ok and it lies twenty eight feet from the neighboring property line they are seeking to convert it to a church with parking for sixteen spaces even though we know from the hearings that there were fifty cars back there the first time they held a service so yes the the point is that when they go to convert the home from a residential dwelling to a church it generates as vernaculars this r t a which precludes the church from operating within that that buffer and there squarely within the buffer so where one was properly decided well that's where once an hour we're having a right so yes where one was properly decided not withstanding the change and where to they still have the problem of the house in the buffer  but you didn't meet the third and the city was entitled to enforce that that's what we have here well it's not that we don't have a decision on the merits of the we're two and it would be an easier case for me knowledge if we did because i don't think they're going to get around that fundamental problem but the allegation is that we didn't so our our real loop of violation essentially is we didn't give them a second bite at the apple that's that's what they're saying and i think the district court's reading of the law was accurate i think and on stands for the proposition that when you centrally assume the risk of zoning approval and it's not a reasonable risk that's on you not the government in other words the government isn't there to treat you more favorably than they would a nonce than a secular use if you were zoning doesn't go through unless you can clearly show that you had that reasonable expectation and given all the set back problems they had and the overarching requirement that the property the use of the property be compatible with the residential nature of that block it's never going to be compatible for their neighbor to have to look out their kitchen window and see a parking lot of sixteen or possibly fifty cars so they did assume the risk and the law in this case under bethel is that unless the government is the direct primary and fundamental reason for the church's inability to practice their religion they're not libel and we are not the direct calls plaintiff herself is there are six hundred fifty churches in baltimore county there are thousands of locations she could have located yeah thank you anderson again i have had and i might be beating a dead horse here but it appears that the county's position again its briefing and argument is that the church did not comply because it did not meet the setback and buffer requirements regulations do not require that a church meets the setback and require and and buffer requirements only that they meet them to the extent possible that is a fundamental distinction from this case and the end on case where th  court held that recognized that in and on that property could be used as a community facility only where four conditions are satisfied if the zoning regulations here stated a church can locate in the in this is owning district only if it has a seventy five foot setback and a fifty foot buffer then it might be a different case it might be more like and on but that's not what they say there is an exception for new churches here and we fall within that exception it's in  regulations we meet it to the extent possible certainly that's wedged in the complaint paragraph one hundred forty two of the complaint makes that allegation specifically with that your honor so if there's any further questions i have nothing f