hey sixteen twenty sixty livingston christians versus jenna watch charter township argument not to exceed fifteen minutes per side mr cowan or you may proceed for the about th it please the court i'm robert keller with covington and burling for livingston christian schools and like to respectfully request three minutes for a bottle time if i may livingston christian schools is the only accredited k through twelve religious school in livingston county its mission under its articles of incorporation is to provide religious education in livingston county specifically the denial by genuine township of the special east permit that livingston christian schools requested here and needed in order to move into a permanent home in brighton which was more centrally located more popul was not a mere convenience to livingston christian schools quite distinct from the situation of the church in this court's living water case this was far more than a mere convenience for livingston christian schools the record shows this actually poses a threat to whether the school is viable whether the school survives this is not about whether l c s can add space as in living water it's about whether it can function at all in serving its original mission to livingston county never started picking he was a school that had proved not viable which is why livingston christian schools was leaving in the first place there's record evidence your honor of that ample record evidence that the school board of livingston christian schools had determined there weren't enough students coming into that area it was too far from where the bulk of the students were coming from in brighton it was too far from the commuter routes there was a significant drop off and roll meant that was causing major fiscal problems this is all in the ever produce on the record any financial statements i don't believe there are financial statements there introduce an a record of the past five years ten years or whatever student roll no there is declaration testimony from the treasurer of the school as well as from the the principal of the school regarding that i was also humans i mean i'm asking if there's sort of hard evidence you know financial documentary statistical stuff i don't believe at this stage of the case honor that there statistical evidence or financial records in the record there is however under there is there is declaration testimony and in addition to that there is deposition testimony from the principal or the president of the school that currently resides at pick me which was originally itself a private school and which had to shift into being a public charter school in order to be at that location and the president of that school kolata which currently is housed at pitt to me was deposed on that point that evidence is in the record and i think it's actually some of the more compelling evidence in the record that this is just not a viable private school location it wasn't what we don't know much about the background of this what is it called the light of the world account or a lot of that's right where were your school currently located they are currently in a nearby county at the whittemore location where they have a far that's the case but because it is a year to year lease because the school that owns it has the right to reoccupied it at any time it's led to a drop off in attendance at livingston christian schools this is quite far as i it really is not going to be a viable location for the school it will mean the end of the school because they can't attract the bulk of the students are coming from the brighton area in fact quite a few students are at the now stream church itself where they would be moving to and sort of stay in this location where they're in roman has been dropping off even if they could work out a longer term lease really is not viewed as a solution by the school the expectation is the school would would cease to function at some point we can't be specific as is the essence of the real problem here right well initially they didn't give an explanation at all and they later went back and rebooted and then issued an explanation the explanation highlighted traffic issues which is not really plausible because experts actually revealed that they didn't just go in the justification boat there was a second vote your honor and that's in the record and they highlighted traffic issues which is really not credible because various expert consultants had looked at the traffic issues and concluded that they were manageable with certain conditions that was the basis on which i'm just about out i think also when there are evidence of complaints from the neighbors of the church under its own spire special use permits  bothering the neighbors so there's more than just traffic apparently judge gilman there is a skateboard park and there were various complaints that were that were made the actual explanation tends to focus more on things like traffic but you're right that that was one of the issues they were considering but those issues have been considered by the planning commission as well and nonetheless the system township manager recommended approval of the special use permit the planning commission recommended approval of the special use permit and under really the statute that's at issue here it's really getting at whether there are hints that the local process maybe in a school town is being twisted or skewed in some way possibly by religious animus were animists of secular groups relative to religious groups i don't understand the question for us seems entirely standard us i mean there are a standard we're just posed to make our vote along with a vote o local government fire without regard to a legal standard or some something that we can minister or less neutral way write it what are we supposed to do in that situation i agree it's a challenging context your honor but the court has into unpublished opinions addressed this the living water case in the de lara case and in both those cases the court adopted a standard of whether or not a religious institution is effectively barred from using its property in which it has a property and interest for the exercise of its religious rights and your honor we contend here that there is a genuine issue of disputed substantial burden is sufficient that it constitutes in effect a total bar i'm saying your honor that because the denial of the permit in fact barred livingston christian schools from setting up  exercising its religious rights on this property that constitutes a substantial burden under the standard in the door ok so in the standard in living water that's the standard that the court a lot of those cases focused on whether there was a reasonable alternative and other circuits have said if there's a reasonable alternative and there's no substantial bird right well here there is no reasonable alternative the school is operating right now in temporary  granted but they are operating they're actually discharging their religious function i'm aware that you say that this is not tenable and that if they are forced to continue in this year to year lease they they can't market that there are sufficient restrictions that eventually it will basically kill the church and they will be did not the right ma'am they are operating right and i would submit that the standard can't be that if you have a stopgap measure you're not protected by this statute yes the school was able to identify a stopgap measure an inadequate one one that still results in a drop off in iran and they've had a continued drop off but it doesn't allow them to serve their mission which again if you look at the articles of incorporation which  little unusual they have a specific religious mission directed at serving livingston county that's what they exist for from a religious point of view that's the mission they can't serve at these other locations  that's within livingston county right the old location it is going to go to get it now the l c s vault the pickney property right right it owns it and it could if it hadn't released it out the law it could be back there but  what i would submit to you judge gilman is that because this case is here on summary judgment there is a genuine dispute of material fact as to whether or not the survival of the school is threatened as to whether or not the pinkie location would be a viable location for the school living since christian school submitted record evidence in various ways to establish that pick me was not viable the board of the school had voted that well i think there are i'm sure if it's like my school it depends on the time of day exactly but i think also your honor is no question that the board knew a lot longer able to felt it was a function at that location for fiscal reasons they have a certain amount of revenue that needed to come in to meet their financial commitments it wasn't working out which is why they looked for alternative years most look of the current situation not speculate on move future i mean  last year degree was only half of what it was the year before and we agree with that your honor there's some language in living water that talks about look we don't look out five years or ten years or twenty years but we're not making a speculative argument here our argument is that right away they're not able to exercise their leasehold interest at the church in brighton number one so they're effectively barred right away at that institution number two they've had to move out of the county entirely the county that they're named after the county that they serve and number three that they immediately experience this threat to their survival that tendency is dropping off fewer students coming to the school these are all present issues for them that we do believe constitute a substantial burden under this court's law if you look at other circuits and i recognise there isn't really a published opinion in this circuit that directly controls here but if you look for example to the second circuit's decision rep up your red line i apologize i'll enrollment that it so that it has pinckney there was no action by june or whatsoever that had that effect now what's interesting though if you take a look at how this case got before you the complaint was in the affidavit of scott panning was that they needed to move to a bigger facility because of an expanding in rome and and then when we were able to question that now they come with a second affidavit so they knowledge and it's a declining enrollment they have not ever explained why this case came before the court and said we had expanding in roman and now say we think they say their role was expanding and that is the reason that they want to do a project in your town  it's in their complaint and in their motion for temporary restraining order where the attached the affidavit of scott panning saying we need to get out of this small building because armor old man is increasing that and our response showed that that wasn't true but keep in mind it wasn't then in rome it wasn't declining because of a land use regulation of genoa township you're your council your governing body was based on what kind of reasoning there was too much traffic or what well there was no  budged it was a four three vote and what it was based upon it and keep in mind this when i say the applicant here is the church of the nazareth they call it the now as i may refer to it as the but the applicant was the nass so one of the reason is that over the years they were given special use permit and i think in two important aspects to that one they gave the name and as i special use permit a religious entity so there aren't hints of religious animists thought the nans did not follow through with the number of things yes there is a big building with the skate park and their hours of operation they said because this is right in the heart of the planning committee information of prior compliance or noncompliance with a special permit when they voted to unusual for something like this and all of them there were opposition to it so yes absolutely this was aware of the planning commission but the planning commission doesn't approve the special use permit it makes a recommendation ok so i did the downfall of the planning commission's recommendation because the history with the now as non compliance and keep in mind this this i think is really important there's a question of credibility here the name and as or the l c s went forward and started building the facade and so forth without ever seeking a permit and then when they were called out upon it then said ok yes we need a special use permit they hate trusting because the applicant is the reasons for the denial notwithstanding the planning committee is recommendation it was only the second vote where we have the reasons what necessitated the second vote by the board your honor because i think it was probably a lack of direction from the township attorney that there had to be a specific vote denying it as opposed to not just denying that i'm sitting looking about summary judgment is it reasonable to think that perhaps there was some kind of religious animus and then later on justification for an action which might support the appellate position that maybe we need to have a have a have a trier of fact look at all of the issues and all of the facts related to this we don't get to that step until they show that there's been a substantial burden placed upon it by you know a township engine or a township hasn't placed that burden on it keep in mind they say thou that there's a burden because if they are not allowed if they're grant relief then l s e basically can't exist i mean that it's days are numbered and that that provides a substantial burden i understand that argument was written and i have two responses to arguments to that first of all does relate provide an advantage a benefit not afford it any other applicant because its business model doesn't meet the current needs i submit not the second argument to that is where is the proof because this was a motion for summary judgment this is a rule fifty six motion there is no admissible evidence at all of why the declining enrollment before the application to genoa township nor after we have an affidavit of scott panning saying that people did  or they've told them but that's hearsay where are the people to come forward and say i choose not to go to a to wish and based school because of its location there's never been in this case whatsoever any evidence in the discovery nobody identified in witness list no depositions and no a was passed by congress that is to say what groups or behind the passage of this act and why was there some instance of some  that prompted because congress often comes along and is a problem and they say well we don't know exactly what kind of standard to put down we'll just let the federal courts figure it out is that and here there is no i said that government sometimes would use one reason for denying what but it was really because of the religious nature of it and in the backgrounds were taxable property was that the views of the religion or its practices or the people that was it focused on discrimination against a particular religion or several particular religion's and which could you know very well be the case i mean maybe neighborhoods that don't want a temple or a muslim church or whatever it is that the background of the statue or is it something else i would say it is that plus whether it's a particular religious belief religious practice wh that unconstitutional and then congress came back with a rule and they did not that's correct and they also make mention of the supreme court standard of substantial burden under the first amendment in the establishment clause so if the congressional record is you know the background it does give some hint and that's important because when you look at l c as none of those factors apply there's nothing controversial about the school it it's it's similar to what the naz the people the believes that the church of the nazareth has is if the background of statute is based pretty much on discrimination at the local level against want a more particular religion that doesn't exist in your case right that's what you're saying i'm saying it doesn't exist because we gave the name has the applicant all the special uses so there's there's no hints here that we're in tire religion and when you look at the traffic studies because they make a big mention of the traffic studies their own boss engineering it's the way they handle pay through twelve is they're relying upon staff the staff and parents to control the the drop  off and the pick up and they say that's imperative and they'd say that our consultants agreed with that our consultant said if they actually do that but keep in mind this those promises are not by the nass the naz is not committing to doing that the applicant is the nasty l c s never made an application that said this is how we were to do this they haven't shown one  that that that we have any recourse against l c s should the special use and here's the other thing the substantial burden can they practice their religious beliefs yes they can has it been impaired not because of the actions of juno what township first of all it's questionable whether pickney is really the issue here because when it was negotiating with the archdiocese of lansing the archdiocese said we heard you're planning on going to the nasty they write back in and an email we're not being disingenuous about using the pinckney position we just wanted a fallback so they told the archdiocese that if we couldn't work out a financial deal then we would have to move but we want to stay there so and then after knowing that the special use permit was not going to be allowed they leased the property that they said was sufficient so it's not us it's not a governmental regulation imposed burden it's a self imposed burden so there's any other questions if not thank you so much for your time thank you sir have you three minutes for vital thank you your hon judge mark to answer your question about the history of the relive the statute senators kennedy in hatch who sponsored the statute were concerned about several things it was not just whether a particular sect was being district discriminated against it was also about whether religion in general might be discriminated against by secular inst interests or there were a number of different things they were they were going after that as well actually we do think there is what judge posner called in the sink concent things case a whiff of animus which is indicated by the irregular history here the consensus among the experts in the planning commission that was rejected by the board and also if you look at the point you made judge gilman about the skate park and other things going on at the school it's very interesting because there were several secular activities taking place at the school there's a driving school that uses the space that neighbors complained about a lot there's a skateboard park that's complained about a lot of these things some of them might have been in violation of special use permits previously issued to the church but the record shows that there was no enforcement with respect to these secular activities at the school in fact the record shows that the township is prepared to allow the secular drive in the school to continue to operate on the site even though the township contended it was in violation of a prior permit  claimed after the fact when they got around to a second vote in creating a post hoc rationalization for what they what they did but we know that they have consistently tolerated secular activities that neighbors have complained about but in this instance court i would submit on summary judgment is is there a genuine dispute of fact that goes to the question of substantial burden and there clearly is judge gilman you spoke about the property there is a dispute over whether that's a viable location we've put in evidence that it is not there are two rather lengthy decorations there's deposition testimony from the current occupant of the school the district court really disregarded that disputed evidence entirely and simply concluded as the trier of fact in effect that they could have just gone to to pick the and that would be just fine maybe yes maybe no but it's absolutely a contested issue in this case and the school is entitle to go back and try that issue out to its to its conclusion i would also highlight this question about whether in rome it was going up or was going down as a bit of a red herring in rome it clearly has been going down and that's in the record all there was wanting to expand by going well not quite there was a when they were doing the tiro on very short term basis at the beginning of this they did expect to have a spike in roman and i think it's pretty clear from the record that they were going to have a spike in roman when they moved to the natural church fact that was really the point was to be in a more populous location but there was no claim that they had