ok when you're ready and it please the court my name is mark forsberg i represent the church in this case i think the primary issue that we're going that i think is important to discuss at the outset of this is whether under the religious land an institutional purchase persons act a significant or substantial burden hasn't been imposed on this church by douglas county there are two cases decided in the circuit  four square gospel versus san leandro and guru nanak versus sutter county that i think are dispositive of all the questions that arise under the act in this case in foursquare in guru  a substantial burden is what is described as a significantly great restriction upon the exercise religious practice the circuit has established in those cases to that it's going to review the facts of each case individually to determine whether the burden is actually substantial for that particular church before you get deeply into that argument i'd like to ask for polemic question we've got a request for judicial notice  that your client has sold the particular parcel in question and further that your client has bought another parcel and they have received permission from the county to build a charge on that parcel it is that not true it is true and any objection to our taking judicial notice of them on those two things i think that it's appropriate to take judicial notice of the fact that the permit has been approved by the county ok and so in that regard i think that so that means you that means you but you know i have as it is a damages you do not have an injunction suit right and as of yesterday i said that a case that the court under appropriate rule identifying a case that discusses what the proper action is where that's the case where in that case injunctive relief was sought to compel the county to issue a permit that would certainly have been the intention in this case when we filed our petition for now i'm trying to figure out what substantial burden means in the context of a case where a church seeks zoning approval is denied zoning approval does the mere fact is denial of zoning approval on a parcel and the courts have indicated in foursquare anger and act that where there is delay expanse and uncertainty that's in gendered and this was pretty fast i mean i've done i used to property law i'm a customer these things being dragged out for a very long time they were pretty quick well you know being executed i don't care what you lay what else what else would would would go out well there's expense involved certainly the church lost money on the  transactions of purchasing and selling the property that was denied right now would it would that be anything other than entailed in the ordinary course of events where the church seeks stoning approval and  is this taken out of the ordinary delisle in other words well i under the circumstances of the case when you look at the the reasons for the denial in the way the county sest it then i think it becomes a significant burden because these other things that the church had to do were unnecessary they're not there to the expenses and the ways and certainty don't apply to the st lead up to to a denial we understand that that's a potential part of the process yes but i'm just curious what in this case makes this one special there's a what makes it different from an ordinary denial that just happens it's the fact that it's unsupported by the county law and it's it's a significant burden where as in this case the church has to go out after a denial knowing that the county now as it did this time  deny a future permit application simply because members of the board of county commissioners said it's incompatible even though their county code says it's because pre determined that it  is compatible so that creates uncertainty that they'll ever get a permit in the future but then i mean i guess what is the relevance of the fact that they did get another site i mean i guess a judge can we take into account the fact that they have now found another location and apparently been approved as relevant to the substantial burden question i don't think it's relevant to whether the initial denial imposed a substantial burden or a significant burden a significant restriction did the fact that after three years they have found another location still supports the idea of it that initial denial imposes a significant restriction substantial burden because of all the things they've had to do since then just as in the other cases san leandro and guru nanak those churches also had to go through these issues as it wasn't clear that there would be other suitable sites that would those cases do suggest that if you're denied a location a and you almost as good location be as available to you that the reasoning in those cases suggests that that wouldn't be a substantial burden doesn't it no i don't think those cases stand for that i think those cases stand for the fact that where these denials are and supported or based on vague or  repeatable reasons that are sort of undefinable in a way in guru nanak it was called leap frog development in this case that's before you today it's called incompatible without any justification for saying it's incompatible that is the substantial burden that's imposed the substantial burden is what they have to do going forward and i would note that the district court followed that line of reasoning too and i think it's wrong because the district court said well in this case you didn't have to wait a year to get approval and therefore i don't have to consider foursquare because the facts are so much different but the burden on this church can be completely different then the burden one hundred and eighty four thousand member congregation seeking to build an edifice of that nature in a city this is a tiny congregation that owned an acre of land in an area that the county code predetermined was compatible for a church use if the use was mitigated and the county staff decided that it was mitigated and the county commission determined that it was incompatible without explain why that's exactly what happened in guru nanak now and there's still a substantial burden on that church with it there are a couple of different things going on there and what you said one is that this was done without sufficient justification question as to what the burden was on your client help me understand the relationship between those two things well i don't think those two things should be confused substantial evidence to support a decision as is the nevada standard for  arguing in support of the substantial burden issue that they didn't have a very good reason to do this that sounds like an argument that they violated nevada law it is it also i it doesn't if it doesn't create or mean necessarily that there is a substantial burden whether they have the justification that does go to the to the nd part of the nd and rd parts of the analysis and  the religious land use act which is is there a compelling government interest in the denial in the reason for the denial and is it the least restrictive a method of furthering that goal but i'm i'm i think that the substantial burden issue is a predicate to addressing those other two things i also think that the way the county commission and the county planning commission addressed this supports are substantive due process claim because it it renders these decisions arbitrary they don't follow their own code they don't follow their own traffic standards and yet they find them compatible on the basis of traffic and and issues that they've already the code dictates they treat differently than that well but they're not rubber stamps so they're not have traffic studies you can have all sorts of it ministr studies and ultimately have a decision making body that can decide how much weight after hearing public opinion that it wants to give to its own internal studies that's why it works the studies that were done the investigation that was done by the county in this case determined that traffic was so insignificant that it didn't even require a traffic study after the denial by the planning commission the church sensing that this was going to be a big issue it commissioned a traffic study it at its own expense there is no evidence provided in the public opinion portion of it with the public comment to refute the facts of the traffic's that i think those are facts those are scientifically or in pure cli generated information whereas the public comment was vague concerns about traffic no one distinguish between the traffic that occurs at at at a nearby intersection during a week during rush hour with the actual time that this church would operate on sunday morning when there's virtually no traffic this is essentially rural area this is not an area where there is enormous traffic or that the intersection is dangerous but people got up and said that because they don't want to see this approved that was similar to the way good they can take into account certain things not take into account other things and then that was my sort of rubber stamp comment you know you're still going to have more information and that can come by way of of public comment which is what happened here so how do you determine that it's appropriate to discount that public comment well i i disagree with your characterization of what a traffics they do is a traffic study is performed in a manner that's established by national organization of traffic engineers they've developed enormous imperial data about how much traffic is generated by myriad uses and they've created a way of determining based on the circumstances what the traffic is going to be and in this case they did that to the contrary public comment is not evidence at all it's people saying i think this is going to really increase traffic a lot well i don't think that's evidence that sufficient to overcome the evidence of the traffic's that especially when the county code d itself would not permit traffic to be an issue in the decision about this special use permit because it's so also struggled with this they've said well yes public comment is is substantial evidence to support a decision but if you read the cases the substantial evidence is always supported by other information that corroborates it not just a person how much public comment can there be how much negative comment is sufficient to overcome a traffics that nobody no public comment said that on a sunday morning this traffic would be impactful on their ne or that it was make it more dangerous or that it would contribute anything to the route they traffic at the intersection thereby you're down to about fifteen seconds on stuff that will make sure however that you get a sufficient time to respond good morning me please the court i'm charlie bertram i represent douglas county the pelleas in this matter this case started out as what seemed to be a fairly generic petition for judicial review regarding the change zoning is one acre minimum and it's residential and under the county code a church is a use that can be in a residential area we see a lot of churches a dental areas everywhere and that's where the people are and so it is however just because it is something that can be permitted doesn't mean it has to be permitted it still has to go through a process to determine whether it's compatible whether it's going to impact the neighborhood that the community traffic patterns those sorts of things so it did it started out as that then the are loop  religious land use arguments began to come up i kind of look at this as a there is the nevada issues the nevada law issues is there is substantial evidence to support the denial of the special use permit so there's that issue then there's the are loop kind of overlay over the whole thing and counsel correctly identified what a substantial burden is under controlling th circuit law and there's no dispute about that there's also no dispute that these decisions under our loop and also under state law are very site specific and so i think it's important since traffic is is really the the overriding issue in the regarding the denial i think it's an it's very important to understand kind of the traffic patterns in this area and i don't know how the courts copies of the record were some of mine were really what washed out you couldn't read them very well but you saw some maps and the the one point two eight  eight acre parcel and by the way the project itself was there was already a house on the property that was going to remain as a parsonage for church use then there was going to be a five dollars square foot new church facility built that was going to have a sanctuary going to have a fellowship hall which was still within the five thousand square feet kitchen a warming kitchen a cryer room and sixty five dollars paved parking spots on this one dollar acre parcel now the traffic in the area is there's four streets this this property is bordered by four streets there's a street called river view and riverview comes up and makes a little it's on the east side of the property and there's a cold sack and so it ends that's where the in grass and eat grass to the church was going to be then there's a very short street called corrina which is down at the bottom it's on the south side then there's another street called dressler vale which is a fairly major street in the garden bill ranchos area where this is located so the ingress and egress was going to be on a centrally did in street correct it's a dead in street that always a dead in street at one point in time riverview went through at some and this is in the record that one of the public commenters said that the county had foresight to cut that out and make that into a because you're also dealing with an area that has well i got three sides the th side is a street another street called river view so they're actually noncontiguous riverview streets there's river view that comes up a hill and makes a curve on the north side of the property they used to connect they don't anymore and then that connects over to dressler hill so it's a complicated kind of convoluted street system and the  there's a big intersection it's a t intersection dresser ville and and this is why this is very spite site specific dresser ville and riverview and riverview actually dead ins and then dresser built makes a left hand turn at any rate during the public comment section in front of the board of county commissioners there was a lot of specific comments made about the traffic patterns in the area and these were not just gee we don't like it we don't want this in our backyard nimby type of arguments this was this is already an area which is problematic i've listed some of these comments from various folks folks call that the area a mess they called it a disaster they called it challenging they called it an accident waiting to happen there was a blind corner and that would be on the riverview side very very busy a dangerous thing area with slopes and steep hills that's primarily riverview coming up the hill an area where cars slide off the road on ice and with a bunch of them ending up in the bottom one commissioner actually made the comment that this is the like the worst place in the in the county he could even consider a church being located because of those concerns another commissioner commissioner johnson who is the chairman said that the area been dangerous for as long as he could remember and so there was a very specific reason given reasons given for why a church simply was not a proper facility to be put here and again i mentioned the fact that the church it isn't and in consequential facility when you're talking about five thousand square feet when you're talking about sixty five parking places  the substantial evidence question even before us at this point because i think it a lack of substantial evidence would be a basis to set aside the decision but we can't there's no live controversy over that all we have is the damages i don't think so because the district court below in his judge hickson his order had a very long segment of discussion on substantial evidence under nevada state law so i know he didn't and i think the say those issues came up pretty recently and i haven't completely worked them whole the way through my brain but that's probably true since substantial evidence goes to whether an artist's special use permit should be should be granted the fact that that cannot happen anymore probably make substantial evidence a complete irrelevancy however i still think that the very same considerations come in under the a lupa argument  big cases and i think those the guiding light for us to look at in determining what a burden is under our lupa in and when you look at the for instance the foursquare case that took fourteen months i believe from start to finish it involves situations where city of san leandro met with church folks they had zoning changes and overlays and all kinds of other things with meetings and public hearings and and i mean literally a well over a year of delays cost expenses the church had to spend what was it one hundred and ten thousand dollars at least that's in the record in that court decision maybe even more i don't know in order to buy the property and so so there were a lot of time delays and everything else  also in it when we're talking about burdens are there other facilities available are there other properties available we know that the church now has a property that it is beginning to worked through in the sand in the san leandro case it's interesting because that one there were one hundred and ninety six  potential properties none of which there was evidence in the record from a deposition of a realtor that not a single one of those properties was available would have been would have served the church church's purposes here we know that at the time that the application was made in two thousand and sixteen the church had a property it was operating about three quarters of a mile away at another facility at nine hundred and twenty one mitch st facility had gotten a major variance a couple of years before that to expand and that it gone through the system just fine which i think speaks to the fact that this is not a discriminatory county this this  church had already at one point in time received approval to do that now the record doesn't explain why two years later they went to another facility or wanted another facility so we can only guess on that now group men look is also another burden case and it's an important case for our purposes because they started out in in the city or in a residential area they were denied the permit it was a conditional use permit to operate it or to build a sikh temple on that and it was like go west young man go outside the city and so they did they bought a big thirty acre parcel outside the city and they had didn't sue they didn't challenge the st denial and so they went out in the city or out from the out from the sea out of the country and all of a sudden out in the country people are saying there's going to be too much traffic too much noise it's going to mess up the agricultural nature of the community and we don't want it out here and  so they were denied out there that gave rise to kind of look at it as a serial denial type of situation almost almost a bad face situation in that no matter where the sikh temple sought to build their facility there was going to be some objection that was going to cause a denial the specific objection that  starts to come back it's kind of a i don't know a esoteric concept and it's also something that can be applied in all kinds of variety of places the th circuit in that case noted that the net effect of the dials limited down the nessus are the vailable space for the church and so i think there was a little bit of bad faith coming back to our situation there is no evidence of any sort of discriminatory conduct there is no evidence of anything to indicate that the  decision of the board of county commission wasn't anything other than a sound zoning and planning decision that a zoning board or board of county commissioners is entitle to make our lupa is not a or a sledgehammer which will allow a church to come into any community build anything it wants without regard to what the zoning is it's very clear that the statute  had invision and that churches would still have to go through that process and that's the way that it worked in douglas county and we believe that the denial did not violate any of the this is a strict scrutiny kind of analysis that we're doing here and it's on a case by case basis so each case is going to be different in no case guru doesn't set a standard that says it's not a substantial burden if you only have one denial or if you have less than two and san leandro doesn't say that if it takes more than a certain amount of time that's what you need to prove to have a substantial burden getting executed quickly does not mean that you are that the proper procedures was followed so so that's the case there so so i think if you just look at guru nanak it's very similar factually to this case except for the the fact that they were denied twice the very same things happen and one of the things the court said there is the fact that the reasons given were sort of undefinable and the fact that they ignored the mitigation steps that that church had taken make it significantly less likely or uncertain that a future permit would be granted in that kind of a situation that's part of the burden is that when and that's why it's strict scrutiny is so important because these kinds of ordinances can be evenly applied as they were here and even we applied compared to other churches throughout the county that got special use permits no matter how much traffic they generate followed the exact reasoning that's necessary to find a substantial burden here ok thank you very much i think both sides for your arguments pentecostal church of god versus douglas county now submitted and that concludes our arguments for this morning thank you for your