The District Court for the Southern District of Ohio, in Tree of Life Christian Schools v. The City of Upper Arlington, No. 2:11-cv-009 (Southern District of Ohio, 2014), has granted summary judgment in favor of the City of Upper Arlington (“City”) in its defense of RLUIPA and related claims brought by Tree of Life Christian Schools (“School”), which sought to develop a religious school on land it purchased in the City’s OCR Office and Research District. To make out a prima facie case under RLUIPA’s equal-terms provision, a religious institution must identify a secular institution, called a “comparator,” that it alleges has been treated more favorably by a municipality than a religious institution. 42 U.S.C. Section 2000cc(b)(1). The court’s decision is noteworthy for its treatment of identifying a comparator under RLUIPA’s equal-terms provision. It used an “apples to apples” comparison to determine a comparator and found that a non-religious school was the only proper comparator to the religious school. It rejected the School’s contention that other permitted uses, such as banks, barber shops, beauty parlors, daycare centers, coffee shops, hotels/motels, and hospitals were also comparators. The court’s approach appears to restrict the types of uses that may be considered a proper comparator rather than permitting a comparison with all other secular assembly uses.
In applying the Third Circuit’s “regulatory approach” test and the Seventh Circuit’s “accepted zoning criteria” test to consider whether non-religious schools were treated more favorably than religious schools, the court concluded that the City’s preservation of its limited commercial land for commercial use as set forth in its Master Plan serves a compelling state interest. Further, the City treats all schools, religious or not, the same by excluding them from the ORC Office and Research District while permitting them in the City’s residential districts, which account for more than 95% of all the City’s land. Because allowing a school in the commercial zone would conflict with the purpose of that zone and would threaten the City’s financial stability, the School’s equal-terms claim failed.
The School’s First Amendment free exercise claim also failed because, according to the court, “any burden imposed on Plaintiff was self-inflicted. Plaintiff was fully aware of the zoning restrictions when it purchased the building. . . . [and] was specifically informed by Upper Arlington City Council that ‘a private school is neither a permitted or a conditional use in the Office and Research District . . . .’”
The court found against the School in its remaining federal law claims, including those under the U.S. Constitution, and state law claims.
We first reported about this case after it was dismissed by the District Court for lack of ripeness and then remanded by the Sixth Circuit for a determination as to whether the School had cured the ripeness defect following the City’s denial of the School’s zoning amendment request. It is not clear whether the School will appeal the District Court’s latest ruling.