good morning good morning middle east court my name is robert tyler i represent calvary chapel bible fellowship and i'd like four minutes for rebuttal please this case is about the fundamental requirement under the religious land use and institutionalized persons act passed in two thousand and asli by congress that requires that government agencies treat religious assemblies on equal terms to non religious assemblies and we ask this court to dismiss the county's argument which really is illusory and require that religious assemblies in land use religious assemblies as a land use category be permitted by way of a plot plan just like special occasion facilities in the county of riverside are allowed by way if there's a reason why that was improper yet absolutely honor the reason why is because the face of the ordinance violates equal terms the v the church has been through nine years of attempting to get through the political process so do you c that this is a facial challenge that we're looking at right here absolutely out this is a facial challenge on equal terms not on substantial burden if possible that this could turn into a substantial burden claim down in the future because if this court agrees that that equal terms requires that a religious assembly be permitted on equal terms as a secular or as a special occasion facility would be permitted by way the plot plan and the discretionary pot plan process goes through and then the church work to be denied and it were to be deemed a substantial burden that becomes a substantial burden case but not until after there's a can i have a plot class so that's why i didn't bring a substantial burden quite exactly hadn't been to my death and you're just saying hey you're on the face so that does get to the question then of explain exactly how you're being treated unequally because there's a big dispute here where the county saying hey you guys the ordinance allows religious organizations and you're saying no it doesn't it's an odd it's an odd posture to be in and so what why do you think that you're precluded on the face of the statute well st of all the this new argument that churches are are permitted that wasn't brought up until appeal down at the lower court has been the county physician all along that churches are not permissible as special occasion facilities well there's some dispute on that in the lower court and one of the questions i had on that one there's a thirty b six witness from the county that appears i forget the name of frenemy but he does appear to say that churches are not permitted and one of the questions i had was to what degree does that bind the  seems to me they may be an admission in the court but that if if you were to go out and apply apply for a special permit and someone else were to challenge it i'm not sure that it would be binding on the county in that way outside of course of the litigation where your honor i can understand that but let's take a look at the mounds of the evidence mounds of evidence here because it's not just the thirty six witness mr larry ross it's also the other thirty six witness  got it difficult last name saw go by pipe on his or st thing so both thirty six dollars witnesses agree that churches were not permitted they could not even submit a plot plan under the existing zoning ordinance quoting currently usage of real property by a church exclusively as a church is prohibited in the wine country winery zone and that was undisputed i direct your children me let me i want to discuss that because exclusively as a church that also seems to be one of the touch points here you have a specific definition of how a church should operate the county seems to have a different one you seem to be saying look we need to be able to operate as a church at all times in all places for all things the county seems to take a different definition of that and say well no you can't be a church as long as you comply with the special occasion facility if the county said that you could apply as a special occasion facility is your view that that would still imping upon your right to operate as a church in the way that you want to operate yes absolutely this newfound concept that somehow it sure can now apply as a special occasion facility this is new this is new want to peel it's a new argument pacific period of time in return for compensation why is that hard for you to comply with the church is a nonprofit organization that allows people to come for free in exchange for compensation doesn't say you have to charge the parishioners says that you have to you are or does that i mean i guess that's one of the questions for public somebody for a specific period of time in return for compensation here's one of the questions and i'm going to ask the county this why couldn't you get a special permit rent this facility out to an organization that you guys operate you pay a dollar a month that is or a dollar a year it's a return for compensation for a specific period of time and then you do whatever you want with that as far as running it as a church in the way that you want to run it yeah the testimony is very clear from the from the thirty six dollars witnesses both of them that a tenant who rents a facility would not be able to operate that speculating that you're going to be denied and then you would have an as applied challenge right no i'm not speculating that we're going to be denied i'm filing a facial challenge to the face of the ordinance respect regardless well but if we don't think you went facially then you could come back as applied we could we could come back and that would be speculative at this point what the at supply challenge would be that's correct let me let me let me point out that  i think what's a loser here is that somehow the church can be a special occasions what is the purpose of our lupa the purpose of our life is to protect religious land use as a category for example but hold on that's that's not the claim that you've brought here you've brought it to say we need to be treated on equal terms with someone else and so when a county comes in and says well you can get a special occasion facility and you say we're not being treated the same as another special occasion syllabi i don't think i think that's my initial question is what you're right if you brought a substantial burden claim but when you bring an equal terms claim it's not that we have to allow you to be a church in every sense of the word it's that we have to give you the same rights as we would give to someone in a secular position your honor i would i would disagree a little bit here in that the if you take a look at central familiar it says that i'll quote it says the city may be able to justify some distinctions drawn with respect to churches if you can demonstrate that the less than equal terms  account of a legitimate regulatory purpose not the fact that the institution is religious in nature and that is exactly what we're dealing with but that's my whole problem is where are you treated on less than equal terms because if if this if we are a secular assembly we can occupy permanently as a secular assembly the only distinction is that it's religious the only i don't see a ceiling that are on the ordinance because the face of the ordinance says all you have to do is apply for a specific period of time in return for compensation and that applies to a religious organization there's plenty of religious organizations that rent there to special cases still be a long time ago nine years ago there's a reason why we're here today is because churches were not permitted because we are exclusively religious because religious assembly is exclusively religious let me give you an analogy if i could but that only come that doesn't come on the face of the statue that comes in through some interpretation of some of the evidence that was taken in this case is that correct i would disagree your honor that it is not on the face of the statute your building a church a separate church it sounds like or an expanded church how does that not fit within the definition of a special occasion facility on the face let's take away the evidence i understand we got the evidence very problem but on the face of the statute how do you know how can you not operate under a special occasion silly your honor it's shut frankly it should because when you take a look at uses that should be permitted it should but the reality of it is is that we wouldn't be here today it would be an extreme injustice at this point if this court said well you know it it appears that you should have been permitted when in reality you're on a real it's been nine years and that's why we're here would be such an extreme injustice if you didn't look to what they've been saying all of this time and especially in the district court level can i give you an analogy with this hand that if you want to save some time for a bottle you might want to hear it the other side that and come back your idea and use your time any way you want i  complaint cavalry now seeks to build a new church sanctuary on its twenty three point four acre profit where it can accommodate this special of cations of its members like weddings and also a growing congregation so you would think cavalry was opening a monastery not a charge and i think what this shows is that its expansion is almost exactly you is that it's far too expansive and doesn't comply in all respects with if you called it a mini city on the parcel and so i guess one of the problems and maybe that just goes to the as applied challenge so we shouldn't consider it but are there aspects that the county will allow calvary church to build that will comply with their desire to use it as a church but absolutely that's what a special occasion facility does the now they have twenty three dollars more acres to play with and all they have to do is meet the footprint limitations of of the special attention facility so and then and once they do that as long as they do that they can hold worship services they can do everything that the church would do maybe a little confusing to say they can't be a church and i know that confusion just means they can't be as separate building as a church other then through the limitations of the special occasion facility what do you understand and i'm only speaking hypothetically this is a hypothetical that you could prevail could do you understand have pathetically you could prevail here because this is a facial challenge but that doesn't make you humphrey an ass applied challenge in the future do you understand that well i understand  hypothetical have to phatic right because i know i don't we don't know what you're going to do well not only that but i am fine if we were but but do you understand that hypothetically if a court were to say we're all on a facial challenge to prevail that doesn't end the down the road they could still bring and as applied and if if if you don't meet if you don't follow the law on that then you can be right back here i certainly understand that they can bring  supply challenge and i don't mean to sound arrogant in that but i am fairly confident that there is nothing here that this ordinance does that in any way is is hostile to religion or burdens religion well they've they've well there are i think there were there were the declarations that we talked about in this particular case i think that judge nelson mentioned and so if it were to come out that i mean you're saying they should be able to technically their application they could they could get it granted as it's written but if it turns out but i think those declarations seem to indicate at ys well two things one is their app an application that meets the footprint standards of a special occasion facility the plot plan application i don't don't want to jump ahead of the process but i see no reason why it wouldn't be granted but you but you would agree that ross said something differently from his lesson in his no your honor i know you had said and i completely agree that that kind of statement isn't binding but there's another reason it is inviting and that's because it was a pure legal conclusion it wasn't a fact and also if you look at his testimony do you would agree that ross gave an valid interpretation of the statute in his doubts on that point absolutely and and miss nan my own way of pronouncing his her wonderfully complex name is that that she testified that churches can become special occasion facilities you know it's quite a weird situation that that you are there other churches that are permitted as a special case of so many in the cv zone while i know there are churches that have religious services there special occasion facilities as part of a winery that have regular services and there and there's no question that they can't the county's position is absolutely that churches and by the way as i'm sure your eyes and stand by churches i mean all religious assemblies that churches can be special occasion facilities and certainly there's no reason that as i just read you their idea is to in fact have to have expansive special occasions like wedding facilities where they're going to be given company so you would say that the plot plan i'm assuming does not comply with footprint seems to be what you've said in your brief and is that because of the administration building that they're planning to build because of the church or is that all inclusive well it's not because it's a church i understand but is that is the church is the church footprint that they plan to build is that not in compliance or is it the administration building that's not in compliance it's not the st of all they get to build one structure ok and they have really eat the whole purpose of having a limited book for a well would it if you had one hundred part of one hundred acre parcel of land presumably you could have two different special occasion facilities i didn't see anything in the ordinance the prohibited it and so that's why i was wondering and this is a lot of these questions perhaps will go to the as applied challenge if it arises in the future but that seems to me i mean if you're willing to represent here in your representative court the churches are permitted under under this reading i mean i think you know i think we would want to take that to the bank but then i don't forsee that that's going to be the end to this case but it's not an important to  a being used for a specific period of time in return for compensation well as that coded language that i just read it get it ma compensation or we'll get some position when it hosts wedding receptions there can be what if they don't charge any i mean what if they don't charge what if they say as a religious view we don't want to charge for our wedding receptions would you then deny them because they're not receiving compensation that would that would then get i suppose to an as applied on the face of it well maybe maybe not i mean if there are religious and they have brought this up but if you have a religious  it's against our religious beliefs to take any form of compensation from our parishioners i guess what i'm asking is in return for compensation does that have to come from those who are using it or could that be something that is my example where calvary church applies for it they rented out to calvary you know a separate calvary church institution and they run it for free would you say that that violated this provision because you weren't charging parishioners or users of it as opposed to just that th they seem to point to evidence where you said you can't run a church as a tenant and i'm wondering if you're disavowing that position does that mean that they can they can get compensation any way they can and by the way one dollar a year would be enough i believe yes i think that would that we're not looking to exclude them as a special occasion facility and i think they quite easily meet the requirements of the special occasion facility and also point out that you're although it's i mett it's it's less likely but if an opera house wanted to open up just for the sake of spreading opera to the world and not charging anyone it would be no different than the situation of the church and you wouldn't shut the opera house down because they were receiving one position whether we would or not it would we wouldn't treated any differently than we treat the church well yeah oh i see what you're saying and then you get to the substantial burden question if in fact a church had a religious belief that they couldn't take you know then i hear what you're saying can i ask about this protect wine country the county seems to be in a pretty tough position here it seems to me you have tried to accommodate calvary chapel here and you keep it and sued and you've lost one you've settled one would you have any sense and it probably doesn't matter for purposes of the current case but what's going on with protect one country are they it is your view that they are out you know against calvary church specifically or religion in general or they just don't want large congregations of any sort in and protect going in in the like and try well st i'd really appreciate the fact that you recognize that the county has very much tr help calgary it has and it seems to whenever religion every time well only in this particular area now and it doesn't win over religion that's the thing it also wins over opera houses and then studios and all the other public assemblies and i do think that it's a very very legitimate thing for a jurisdiction to do in a wine growing area to try to choose carefully and balance between keeping it rural keep it agricultural and at the same time have been enough economic activity is to promote and make possible the wine growing and that's that's the sense behind this is only an ordinance but going back to your question or protect wine country there are there are a number of things that can do that it just has chosen not to do that absolutely are unaffected by protect wine country and settlement well i mean they've tried to do a few things and they and the county keeps getting sued whenever you try and i don't know a few things there was released to but but those were you know those were fair enough one pretty white country i guess has a right to come in i mean this is well and i'm just wondering what drives them in the reason why i'm asking this is again i do it may not be relevant for here but as judge callan has pointed out if there is an as applied challenge the next can become a big matter and if protect one country steps in i'm wondering if there's evidence that they have animist towards c church or other religions and if they do and if the county works with protect one country to exclude or limit in some way calvary church is the is the county then in some future litigation going to are the bad motives if they exist of protect one country going to be imputed to the county as part of their actions well well i absolutely hope not because that is not how the count outside of that it considered i don't know that you could find the jurisdiction as religion friendly as riverside county and including to the purposes that the genuine purposes of this of the of  loop of which which when it's misused as i think it is absolutely being misused in this case hurts real loop because it means that it doesn't become something where you're really protecting legitimate burdens on religion but you are asking for special privileges that no one else can get well but they're not the in their view they're not asking for special privileges they're saying you're allowing secular uses and you're not allowing religious uses you have a different  treated exactly the same well with all due respect your employees made those arguments in the deposition so i'm not sure you can say there is no plausible argue well or one employee to well no because the nd one specific there is a difference your honor and it's not an important difference but as to mr ross i can say is that to me the difference is missed none was absolutely focusing on the practice under the ordinance and she was very clear about that neither would you look back at that testimony and i i i think you can take to your own the phrase i think you can take it to the bank that she was saying that churches were treated the same as secular institution secular simply for purposes of coming into a special occasion facility what mr ross was doing and in a very confused way because he kept saying why i'd have to check with county council i'd have to talk with county council was given his own individual legal interpretation of what he thought the ordinance did and i think there's a occasion facility which includes a winery which you guys are proposing you're going to you're going to be a church that grows wine there is a great seventy five percent vineyards we're happy to comply with that the distinction here is that in it in non religious assembly can always be non religious yeah but they but they also have to grow grapes as well that's right and that's that's not the that's not the issue the issue is a non religious assembly can always be non religious but a religious assembly who comes in can not always be religious and here's the analogy this is not different from a government employer putting out a job description for a new employee saying we are an equal opportunity employer when a muslim applicant comes along applies the government employer says go ahead apply for the job just don't be muslim one hundred percent of the time or you don't qualify title seven protects a category title seventy one dollars of the categories of protection is is the religious belief of an individual whereas our does the same thing it protects a religious use of land and specifically defines the religious use of land as a religious exercise it's a category of protectors now where you've been prevented from doing that that you just heard the county i understand you don't believe them but i think at this point you've got to put them to the test and apply and what do you think that they're not going to allow you to do i can forsee a couple things i don't think they're going to allow you to build the administration now are you  your religion if they deny that your honor it frankly it's i i i it potentially would be i don't know we're not even there yet but our application is irrelevant there's plenty of the giant disneyland type wineries that have multiple special occasion facilities you name it we've put it in our brief you can see it their concept that this is a mini city is kind of a joke when you've got down the street adjacent of the property six hundred seat and with the iter chapel it cetera for the mt palomar winery what's relevant here is simply looking at the looking at the statute and when looking at the statute and their interpretation is telling it's i mean you're telling us that the counties coming up and making misrepresentation to this court the churches are allowed under this have very easily they are absolutely misrepresenting when you look at peaks twenty six of their own brief the issue is you cannot exclusively be a church the church what they're telling us is you can come in and all of the mounds of evidence show or you can be a temporary church you can rant on a tentative basis be a temporary church i couldn't tell you your honor it basically means maybe you can come in and rent a a a building for a marriage retreat for a weekend maybe you can come in and have a bible study once in a while maybe you could come in and have a mayor's prayer breakfast once a year but you cannot exist as a church you cannot this is why you're lo let me just tell you that interpretation number one has been disavowed before this court and number two i don't think it's consistent with the ordinance and no unfortunately for the county it is consistent with what their employee ross said but they disavowed that not only would their employee ross said but what what their other employee their other thirty six witness said piven not only what their statements of uncontroverted fact in their admissions in the in the in the motions for summary judgment down below in addition their own brief and how and how do they come here today and say somehow it's equal terms under a loop for a church it's ok just as long as you're not always a church that's like saying it's ok i'm not going to discriminate against you in your employment as long as you're not one hundred percent muslim that's our violate i don't know if it's exactly the same but i will say that you know what both of you have said here is it's not and significant because we have something called the comeback cases and so it would be very likely that all of you if you come back again would see the same panel because when the sit when a case is related that you know we signed cases at random but one other quick part of one other panels have started cases they they assign it st to the panel that has familiarity with it so be careful what all of you say and be careful what you asked for  because i don't this may not be the last time we see each other did any of my colleagues have additional questions ok you've put your time thank you both for your argument in this case this will be submitted