got the board it's really that the pima county it would have been it was the invent but yeah but the way we understand it point of didn't name them so there were out on that claim so there's no claim against the against support of a just by the should reverse what the district court did great in granting summary judgment that's all i really for the moment that's what i want you to tell me where did the district court go wrong i read your brief ok and you know it's it's it's close question it's a hard  question and i would like to say that that it's not only the our look to claim the first amendment freedom of religion claiming they are look the claim are twinned i mean if it's there and they're not twin they're different well it's a little has a different standard and first the first first constitutional claim has a different analysis and you didn't in your brief you did not analyze a first amendment religion claim i see this is a  and the the court below did not directly address whether the inspector was entitled to summary judgment on his interpretation of the pima county is only code that interpretation was new county zoning codes defines church as this is only inspector interpreted the zone the code i've reviewed the facts and i determined that this applicant has inspector said well if you look at everything they're doing the weddings and the facility for caring for the children for the handicapped children they're going to do seventy five weddings during the year feed that seventy five or seventy whatever the number listen and wait you have to show again this would be just a court said was that you didn't show any evidence that the regulation deprived the church of a suitable site the only testimony was that there were this code deprive the church of a suitable site under the district court was incorrect not as a matter of evidence but as a matter of law the interpretation of the night circuit decision that it if you want to use a piece of property and if the county says its the governing body says you can't do it then you have to prove that you couldn't find some other place in the jurisdiction to have your church and that is not the law on the ninth circuit the law on the ninth circuit each of the cases that that the district court in each side is has cited me would be the force where gospel case the san jose christian case the  and the centro familia our case all of those cases started from the premise of the church want to use a piece of property for church use which it was not sown for so they go to the governing body and they say we know this is not zone for a church us put a church here and the governing body says well no we have a reason for not want to do this let you have a church here that is not the case in this situation the case in this situation is that zoning code is known for church and we want to use the property for church purpose let's try to get permits correct building permit illiterate right and they didn't message they were not able to get it right they were not able to get it because the building inspector conducted this telephone pol unscientific but we need you know this idea that well i called bunch of churches in tucson not saying which ones they were they average fifteen weddings appeals to you know if she also looked at that website that your clients were involved in indicating they were going to do weddings at this particular location and also in their representations to the inspector to the zoning inspector that they represented they were going to be doing about seventy what was it seventy wait of any credit weightings during the year along with the other activity in the spec in the inspector had concerns there's no evidence that there was any proposal by your clients to maybe reduce the number of weddings well you run or downsize the other facility now there's nothing like that in there there's no attempt to on their part to sort of mitigate the concerns of the county have it exactly right i think that's a very good point and the county is submitted supplemental authority  recently which walker walker versus baird which they in which the government action it was a warden of a prison his action was upheld because it was narrowly tailored to serve the compelling state interest in this case  no effort narrowly to narrowly to merrily serve instead of saying ok we'll consider your your we'll give you a building permit but you can only have fifteen what he said their year which is the average of tucson we know that and you can go ahead and you can have all your other services which are church services baptisms teaching youth groups bible studies all the other things that this church wanted to do there instead of saying we understand your church you can do all this stuff but the public interest is in not having so many weddings so many public events in this residential neighborhood so will approve your development plan but it's limited to fifteen weddings a year which is our belief that's a reasonable number there's no evidence in the in the record that the county did that statute itself has language in the statute itself says that there must be a compelling government interest and it must be narrowly tailored to serve that interest and when the zoning inspector denied the permit was she obligated also to say well i'll grant you a permit or you might you might be you might want to do this this in this and then w inspector talked in terms of consulting and making suggestions on development plans and actually development plan in this case was a prove that the ported part of the development plan which related to screening where the parking spot to be in that stuff they've gone that far and then the neighbor started complaining and then the zoning inspectors as a wait a minute this is this is not a church because you're going to have too many weddings and that's what it was then i guess what's the relief which the building inspector operates under is named as a defendant and there were substantial damages because the the appellant's invest a substantial amount of substantial amounts of money to develop this property that those stay claims were interference with contraction relationship interference with business expectancy and inverse collimation we did not appeal that portion of the of the district court's ruling denying those claims then you're going to maybe you three and try to well your honor they've already bought dislocation in the they have a lot of i mean it's not like their government where they have an infinite amount of money i mean these are people who are trying to establish a ministry they took all their money that they had available they put in this property and now the building inspect they take you through the process the development plan is they go through you know do this do that screening parking they get to a point where the government just drops the hammer on him and at this point is just the theory if you're related they could have there's a vacuum out of pick up and find another few hundred thousand dollars to run out and buy another property while they're trying to sell this one it's not practical and it's not necessary because there's this kind of interference damages claim and as i guess mr kerry has conceded today that's not only against my client the chiefs owning inspector i think mr kerry's wrong pima county has never been a party to this case itself although this case has been treated throughout  basically an official capacity claim against the chiefs owning inspector which is effectively a claim against the government any it's yes they can be easily corrected that's yeah the minor issue that doesn't really have anything to do here with but i think it is important that substantial burden correct you on their religious exercise correct your honor i do think it's important to look at what the decision was that was made because there was some talk here about conditions and narrow tailoring and that sort of thing the way pima county zoning code works and it works a little differently than some of the other published opinions is if you are a church if you fall under that definition in the code you get to locate in a residential zone there's no conditional use no conditions can't be imposed on that so the question that was presented to the chief zoning inspector and later to the board of adjustment was whether they fall into the category of church in which case there's no limiting the number of weddings if in fact they qualify as a church no other conditions that can be imposed on that decision they just get a permit or whether they're an event venue in which case that's not a permitted use in that zone and you have to go to his own that does allowed and there are only classifications in pima county that allow an event menu that's undisputed  including at least one classification that allows it as of right as well so i think to me was that  did it wasn't asking for a reasoning decision it is asking him to to be allowed to be there as a church they the county makes his decision it's not a church but the district court assumes it's a whether or not it was a church within the meaning of the arizona statute first of all i guess i read the district court's decision a little differently i think she assumed that this use constituted religious exercise for purposes of which is broader than what pima county just determined that defines as a church so in other words i don't think she assumed muskeg road makes this argument but i think it's incorrect i don't think she assumed that the property qualified as a church under the zoning code but it did for purposes of  a religious exercise which again is broader than a church so for example under pima county code a church does not include parochial schools clearly though that's religious exercise under lupa so that i think there's a bit of a conflation of those two issues on the part of the opponents in this case they are distinct issues but that is the heart of muskeg grove's argument we have contended and it's argued in the brief i don't intend to embellish on it too much here but that that that issues precluded by the the  the land use appeal in other words if you think a local zoning decision is incorrect interpretation decision you have a remedy by appeal and or state local law muskeg rove exercise that remedy by going to the board of adjustment district for the board decided unanimously in favor of the chief zoning specter that went to superior court and it became moot at that point that issue whether they're true to me became moot when the property was sold to to foreclosure whiskey crow conceded it summary judgment but even assuming that it can escape gross position and i think they've clarified that before the court today is simply that so long as the decision was wrong that alone is the rule of a substantial burden violation and we would submit the court's cases in this circuit and other circuits that analyze claims it's a multi factor analysis to determine whether something is a substantial burden it has to be based on the individual facts of the case and it gets into other factors including most importantly i think in this case the availability of alternate sites so there was no evidence presented other than the general argument that a party always incurs delay and expense in trying to find another parcel wasn't there a factual dispute here there's no factual dispute here because if in terms of alternate sites it's clear that there are not only other alternate sites but other entire well they just got through saying that they invested all this money and they were into this pretty deeply and gone far along and under those circumstances it wouldn't be reasonable to expect them to find another location that's the position that i think it was that it effectual despite there is no published rule of the decision that i'm aware of in which a court because all the three rounds while because first of all this was a this was a close question before the chiefs owning inspector there was evidence as i think that the panel has noted there was evidence on either side terms of whether it was a church or not and so the correctness of a decision on a local land use question should not be easily converted into a real loop a substantial burden claim and i think that's why courts look at other factors including not just alternate sites but the character of the government's decision was it supported by evidence and in good faith or was it arbitrary and capricious and in bad faith and in particular the second circuit cases and then the seventh circuit cases talk about the  purpose of that analysis being to root out hidden discrimination against religious exercise so you look for the arbitrariness of a decision that good or bad faith in the on the half of the government entity in evaluating that question which is what you're saying is that her her efforts or her work in looking at the wedding situation and evaluating the response of the when they laid out how they were going to use the facility that as a matter of law those circumstances result in a determination that was no  as a matter of law but that they seem to be in dispute but the the facts are in dispute with respect to i suppose whether and ultimately would qualify as a church yes but that question is a aloa decision of law which is appealable and can be corrected or you minute ago you said that that decision because they didn't because they sold the property that decision became moot and therefore there's no way you can  this in this case on that particular issue yes the chief standing specter moved for summary judgment on the land use appeal in addition to the other counts because as mr kerry pointed out that was still part of the case and that motion was granted and that was not appealed and that was not appeal juror and i don't think it could be at this point because it's moot i would like to really quickly get to the issue of the survey is a minute to think through that a little bit yeah this exercise may very well be protected and are really i agree that this exercise if it's sincere and there's a question of fact about that but if it's sincere this may well be protected under narrowly defined church but but allows this type of use in other zoning districts the same goes for parochial schools our code does not classify parochial schools as churches they're allowed and in other locations so the point is  that the question of whether they're a church as defined in the code is a question of local land use law the question of religious exercise and substantial burden religious exercise is broader but to show substantial burden they can't just show we weren't allowed to locate on this parcel they have to show that we were substantially burden in our ability to locate a suitable site in pima county and they've made no effort to show that in this case i'd like to do in a way their own particular factual circumstances about investing money in that doesn't also factor into that analysis well i suppose i suppose it would all be in the county if they did they got certain apparently they got certain of some approvals correct no that's not really correct that they saw it in a development plan development plan is a sheet of paper pick you know picture of what you're going to do and other information on it it said we're going to be a church that went through one level of zoning review they got back a card that said this is been rematch river reviewed for zoning matters and here are the things we need you to address it's true that there was nothing in there about we don't think you're a church but it was never approved and while it was while it was still in the review process that this question came up i'd like to see the remainder my time to mr baldwin if i can all right thank you it please the court i mean as howard baldwin i represent the board of adjustment who apparently is out of this case now but according to the appellate we wish they'd had said that earlier but let me just touch on a couple things that the one thing that the use that was proposed the other use was an adult day care judge pages but you hit the heart of this case this is are about the blue book act and it's also about what the decision was below judge rapped how said let's put all this other stuff aside and let's look at this as if it is the church but if it is a church then let's apply the president of the ninth circuit which is in order to meet the burden of the proof under the act itself you must show some lack of ability to get another location and that has been true of all the cases that have been decided by this circuit so far where were the substantial burden question comes up and it's not entirely clear that our kept case law says it's an absolute requirement in every case no it  saluted and in this particular case the mitigation could have been performed by the appellants themselves just more of the scope of what they were wanting to do so that their use was not primarily something other than smaller i don't look at it as all the geisha i look at it is common sense i don't think it was the obligation of the of those only inspector either but common sense tells you that if that use isn't going to work because it so far exceeds the definition of what a church is then come up with something else but you know i think that that lies on both sides i think there's only inspector can say well if you do this and this you know you'd comply then we could give you your zoning perm friendly government in a trial that's true try to help things along you know in arizona what they have is for the board of adjustments that they can interpret the zoning inspector can interpret the code and what they get into then is an adversarial position sometimes my take on arizona students a sensation versus arizona border 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