                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                    File Name: 16a0122p.06

                   UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                  _________________


 TREE OF LIFE CHRISTIAN SCHOOLS,                   ┐
                              Plaintiff-Appellant, │
                                                   │
                                                   │
        v.                                         >           No. 14-3469
                                                   │
                                                   │
 CITY OF UPPER ARLINGTON,                          │
                             Defendant-Appellee. │
                                                   ┘
                        Appeal from the United States District Court
                       for the Southern District of Ohio at Columbus.
                    No. 2:11-cv-00009—George C. Smith, District Judge.

                                  Argued: April 29, 2015

                             Decided and Filed: May 18, 2016

              Before: BOGGS, SUHRHEINRICH, and WHITE, Circuit Judges.

                                    _________________

                                        COUNSEL

ARGUED: Erik W. Stanley, ALLIANCE DEFENDING FREEDOM, Scottsdale, Arizona, for
Appellant. Mark D. Landes, ISAAC, WILES, BURKHOLDER & TEETOR, Columbus, Ohio,
for Appellee. ON BRIEF: Erik W. Stanley, ALLIANCE DEFENDING FREEDOM,
Scottsdale, Arizona, Philip Gerth, Daniel J. Skinner, Todd A. Fichtenberg, GERTH &
SKINNER, LLC, Columbus, Ohio, for Appellant. Mark D. Landes, Craig R. Mayton, Scyld D.
Anderson, ISAAC, WILES, BURKHOLDER & TEETOR, Columbus, Ohio, for Appellee.
Philip K. Hartman, Yazan S. Ashrawi, FROST BROWN TODD, LLC, Columbus, Ohio, James
C. Becker, Columbus, Ohio, for Amici Curiae.

        BOGGS, J., delivered the opinion of the court in which SUHRHEINRICH, J., joined, and
WHITE, J., joined in part. WHITE, J. (pp. 13–25), delivered a separate opinion concurring in
part and dissenting in part.




                                              1
No. 14-3469       Tree of Life Christian Schools v. City of Upper Arlington      Page 2


                                      _________________

                                           OPINION
                                      _________________

       BOGGS, Circuit Judge.       Defendant-Appellee Upper Arlington (the government), a
suburb of Columbus, Ohio, regulated the use of land owned by Plaintiff-Appellant Tree of Life
Christian Schools (TOL Christian Schools). As a result of this regulation, TOL Christian
Schools could not use its land to operate a religious school. TOL Christian Schools, after
corresponding with and applying to the government on related proposals, applied to rezone the
property to allow use as a religious school. The government denied the application because such
a use would not accord with certain aspects of the government’s Master Plan. In its denial, the
government focused on the Master Plan’s provision that the government maintain zoning for
commercial uses in order to maximize its income-tax revenue.

       After the denial, TOL Christian Schools filed this suit. The suit primarily claims, under
the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc–
2000cc-5, that the government illegally failed to treat TOL Christian Schools on equal terms
with nonreligious assemblies or institutions. After both parties moved for summary judgment,
the district court granted summary judgment to the government. This was error.

       Although the record in this case is complex, we can summarize our view briefly. TOL
Christian Schools purchased the largest office building in Upper Arlington, unused at the time of
the purchase, and attempted to negotiate with the government to open a religious school. The
government refused to strike a deal with TOL Christian Schools in hopes, apparently unfounded,
that the property’s former occupant, AOL/Time Warner (or its equivalent), would return. Such a
result, the government officials further hoped, would mark the first step in a plan to increase
services by increasing personal-income-tax revenues without allowing multifamily, retail, or
commercial use of land currently zoned for only single-family residential use.

       Anticipating controversies similar to this one, and affirming its commitment to protecting
religious freedom, Congress enacted RLUIPA, which provides, among other things, that “[n]o
government shall impose or implement a land use regulation in a manner that treats a religious
No. 14-3469         Tree of Life Christian Schools v. City of Upper Arlington     Page 3


assembly or institution on less than equal terms with a nonreligious assembly or institution.”
42 U.S.C. § 2000cc(b)(1). Different circuits interpret this provision differently. Some circuits
have held that a land-use regulation must treat “similarly situated” religious and nonreligious
assemblies and institutions equally. The Eleventh Circuit has held that a government land-use
regulation that discriminates against a religious assembly or institution in comparison to any
nonreligious assembly or institution is invalid unless it is narrowly tailored to achieve a
compelling government interest.

       Under any approach, the issue in this case is whether the government treats nonreligious
assemblies or institutions that would fail to maximize income-tax revenue in the same way it has
treated the proposed religious school. That is a factual, not a legal, question. Federal courts may
not resolve genuine issues of material fact on motions for summary judgment, even in
proceedings for equitable relief. So, the district court’s grant of summary judgment to the
government was error. We reverse the judgment of the district court and remand. We explain
more fully our reasoning below.

                                                 I

       In 2009, AOL/Time Warner, a media company not party to this litigation, vacated an
office building located at 5000 Arlington Centre Boulevard in Upper Arlington. The same year,
TOL Christian Schools, a school with several campuses across the Columbus area supported by
local churches, began negotiations that would conclude in August 2010 with its purchase of the
property at 5000 Arlington Centre Boulevard.

       Upper Arlington is a primarily residential suburb. It has assembled various land-use and
economic regulations in the Unified Development Ordinance (UDO). The UDO zones Upper
Arlington. The UDO provides for seven criteria to “be followed in approving zoning map
amendments to the UDO.” UDO § 4.04(C). One of those criteria provides “[t]hat the proposed
zoning district classification and use of the land will generally conform with the master plan.”
Id. § 4.04(C)(5).

       The Master Plan focuses on regulating uses of land in order to increase the government’s
income-tax revenues.     For this reason, it emphasizes the importance of using certain non-
No. 14-3469           Tree of Life Christian Schools v. City of Upper Arlington                Page 4


residential land as office space.1 The government theorized that such land use will attract high-
income professionals, whose income the government can tax. The zone for office use, under the
UDO, is the “ORC Office and Research District” (ORC District). According to the UDO, the
purpose of the ORC District is

        to allow offices and research facilities that will contribute to the City’s physical
        pattern of planned, healthy, safe, and attractive neighborhoods. The ORC district
        should also provide job opportunities and services to residents and contribute to
        the City’s economic stability. Permitted uses in the ORC district are: business and
        professional offices, research and development, book and periodical publishing,
        insurance carriers, corporate data centers, survey research firms, outpatient
        surgery centers, [and] hospitals . . . .

UDO § 5.03(A)(6). The ORC District includes 5000 Arlington Centre Boulevard.

        Extended negotiation between TOL Christian Schools and the government preceded this
case. On January 5, 2011, after negotiations had failed, TOL Christian Schools filed this federal
case, alleging that Upper Arlington had violated RLUIPA’s Equal Terms Provision, and seeking
injunctive relief. After procedural developments in this case, including a previous appeal to this
court, not now relevant, TOL Christian Schools “submitted a[n] . . . application to the
[Government] to rezone its property. . . . from ORC Office and Research District to residential,”
in which zone the government allows land to be used for schools, religious or otherwise. Tree of
Life Christian Schs. v. City of Upper Arlington, 16 F. Supp. 3d 883, 892 (S.D. Ohio 2014)
(emphasis added). In response to this zoning amendment that TOL Christian Schools proposed,
the government’s senior planning officer, Chad Gibson, reported to the City Council that he

        believe[d] that the proposed rezoning is in direct opposition to numerous core
        master plan goals and objectives. The proposed zoning change would eliminate
        nearly 16 acres of extremely limited ORC-zoned ground, which will reduce the
        amount of office and research space within the City. . . . [A]pproving such a
        rezoning would be contrary to the City’s long-term financial interests.

Chad Gibson, Staff Report to Upper Arlington City Council (Nov. 25, 2013) (emphasis added).
In addition, the City Attorney spoke to the City Council, focusing on the fact “that rezoning to

        1
          The government implies that the Master Plan’s purpose is straightforward and unitary. We assume as
much without deciding. But we note that, even on the few pages of the Master Plan submitted in the record, it might
be possible for reasonable minds to derive from the Master Plan’s language different understandings of what uses
conform. Such difference would make consistent compliance with the relevant UDO provisions difficult indeed.
No. 14-3469        Tree of Life Christian Schools v. City of Upper Arlington      Page 5


eliminate commercially zoned property would be contrary to the master plan.” Tree of Life
Christian Schs., 16 F. Supp. 3d at 892. Based on Gibson’s report and the City Attorney’s
comments, “the Council denied [TOL Christian Schools]’s rezoning request” on December 9,
2013. Ibid.

       On February 11, 2014, TOL Christian Schools moved for summary judgment on its
claims in the district court. On March 6, 2014, Upper Arlington submitted both a memorandum
opposing the motion of TOL Christian Schools and a cross-motion for summary judgment. On
April 18, 2014, the district court granted summary judgment to the government, reasoning along
the lines of Gibson’s report. TOL Christian Schools timely appealed.

                                                II

                                                A

       As a general matter, municipalities regulate land use.      The federal government, by
contrast, generally does not regulate local land use. But Congress has long concerned itself with
the protection of religious freedom. As the Department of Justice has observed,

       despite the guarantee of religious freedom in our founding documents, individuals
       and groups have faced discrimination based on religion throughout our history.
       And throughout our history, Congress and the federal government have repeatedly
       acted to protect Americans from such discrimination. . . .
                For example, while it was passed largely in response to ongoing racial
       tensions, the landmark Civil Rights Act of 1964 included religion along with
       race . . . as categories in which persons are protected against discrimination in a
       host of areas . . . .

U.S. Dep’t of Justice, Report on the Tenth Anniversary of the Religious Land Use and
Institutionalized Persons Act 1 (Sept. 22, 2010).

       “RLUIPA is the latest of long-running congressional efforts to accord religious exercise
heightened protection from government-imposed burdens . . . .” Cutter v. Wilkinson, 544 U.S.
709, 714 (2005). In 1993, Congress enacted the Religious Freedom Restoration Act (RFRA).
Congress sought to justify RFRA’s regulation of states by its Fourteenth Amendment power to
enforce the First Amendment. But, the Supreme Court held, “Congress had exceeded” its
No. 14-3469           Tree of Life Christian Schools v. City of Upper Arlington                 Page 6


authority to “enforce constitutional rights pursuant to § 5 of the Fourteenth Amendment” when it
endeavored to “defin[e] those rights instead of simply enforcing them.” Midrash Sephardi, Inc.
v. Town of Surfside, 366 F.3d 1214, 1236 (11th Cir. 2004) (emphasis omitted) (discussing City of
Boerne v. Flores, 521 U.S. 507 (1997)).                Because, in the Supreme Court’s view, “RFRA
contradict[ed] vital principles necessary to maintain separation of powers and the federal
balance,” the Court held that RFRA, as applied to the states, was unconstitutional. City of
Boerne, 521 U.S. at 536.

        After City of Boerne, Congress passed RLUIPA. RLUIPA, “enacted under Congress’s
Commerce and Spending Clause powers, imposes the same general test as RFRA but on a more
limited category of governmental actions.” Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct.
2751, 2761 (2014).2         By enacting RLUIPA, Congress directed federal courts to scrutinize
municipal land-use regulations that function to exclude disfavored religious groups like TOL
Christian Schools. “RLUIPA’s land-use sections provide important protections for the religious
freedom of persons, places of worship, religious schools, and other religious assemblies and
institutions.” U.S. Dep’t of Justice, supra at 4 (emphasis added).

        RLUIPA protects land use as religious exercise in several ways. For example, it limits
government’s ability to impose a land-use regulation “that imposes a substantial burden on”
religious exercise. 42 U.S.C. § 2000cc(a)(1). In addition, RLUIPA prohibits land-use regulation
that “discriminates against any assembly or institution on the basis of religion,” id.
§ 2000cc(b)(2), or “unreasonably limits religious assemblies, institutions, or structures within a
jurisdiction,” id. § 2000cc(b)(3)(B). The RLUIPA provision at issue here, often called the Equal
Terms Provision, provides that “[n]o government shall impose or implement a land use
regulation in a manner that treats a religious assembly or institution on less than equal terms with
a nonreligious assembly or institution.” Id. § 2000cc(b)(1).



        2
          Unlike RFRA, “RLUIPA, in an obvious effort to effect a complete separation from First Amendment case
law,” Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2761–62, omitted “the reference to the First
Amendment,” id. at 2762, that was present in RFRA. In addition, RLUIPA provides that it “shall be construed in
favor of a broad protection of religious exercise . . . .” 42 U.S.C. § 2000cc-3(g). The Court has acknowledged that
the phrase “‘exercise of religion,’ as it appears in RLUIPA, must be interpreted broadly . . . .” Hobby Lobby, 134 S.
Ct. at 2762 n.5.
No. 14-3469         Tree of Life Christian Schools v. City of Upper Arlington        Page 7


                                                  B

       All of our sister circuits that have interpreted the Equal Terms Provision have glossed the
statutory language in a way that allows defendant governments some safe harbor for permissible
land-use regulation. But they disagree about the “nonreligious assembly or institution” whose
treatment by the government should be compared with the government’s treatment of a religious
assembly or institution.

       The Eleventh Circuit’s test in Midrash Sephardi, Inc. v. Town of Surfside is the oldest and
most plaintiff-friendly. 366 F.3d 1214 (11th Cir. 2004). The Eleventh Circuit begins with a
literal reading of the Equal Terms Provision’s language: A valid comparator could be any
nonreligious assembly or institution. It is this understanding of what is a comparator, i.e., which
secular land users are similarly situated to a religious assembly or institution, that is so plaintiff-
friendly. To compensate, and as an off-setting consideration, the Eleventh Circuit borrows from
the Supreme Court’s Free Exercise jurisprudence a strict-scrutiny analysis: a land-use regulation
does not violate the Equal Terms Provision if it is narrowly tailored to further a compelling
government interest.

       Other circuits, by contrast, require that a comparator be “similarly situated” to the
plaintiff religious assembly or institution with regard to the regulation at issue or to its purpose.
For instance, the Third Circuit restricts comparison to “secular assemblies or institutions that are
similarly situated [to the religious assembly] as to the regulatory purpose.” Lighthouse Inst. for
Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 266 (3d Cir. 2007). The Second Circuit
compares the plaintiff religious assembly to a nonreligious assembly “similarly situated for all
functional intents and purposes of the regulation.” Elijah Grp., Inc. v. City of Leon Valley,
643 F.3d 419, 423 (5th Cir. 2011) (internal quotation marks omitted) (discussing Third Church
of Christ, Scientist, of N.Y.C. v. City of New York, 626 F.3d 667 (2d Cir. 2010)); see also Elijah
No. 14-3469           Tree of Life Christian Schools v. City of Upper Arlington                   Page 8


Grp., Inc., 643 F.3d at 422–24 (describing how the various tests using “similarly situated”
language differ, while declining to choose among them).3

         We need not definitively choose among the various tests used by other circuits in order to
resolve this case. Granting summary judgment to the government is erroneous under any test,
because “summary judgment must be denied in a proceeding for equitable relief . . . where
genuine issues of material fact exist.” Hasan v. Clevetrust Realty Inv’rs, 729 F.2d 372, 374 (6th
Cir. 1984); cf. Hess v. Schlesinger, 486 F.2d 1311, 1313 (D.C. Cir. 1973) (holding that, when a
plaintiff seeking an injunction raises a genuine issue of fact material to the defendant
government’s claim regarding its justification for a policy, summary judgment is inappropriate);
Windsurfing Int’l, Inc. v. Ostermann, 534 F. Supp. 581 (S.D.N.Y. 1982) (holding that, where
defendant’s assertion depends on proof to be offered at trial, summary judgment is
inappropriate).

                                                         III

         Do TOL Christian Schools and the government genuinely dispute whether the
government treated more favorably any other assembly or institution that, like TOL Christian
Schools, failed to maximize the government’s income? The government’s current zoning law
allows (in fact, encourages) nonreligious assemblies or institutions to use 5000 Arlington Centre




         3
           The Seventh Circuit observed that the Third Circuit’s “use of ‘regulatory purpose’ as a guide to
interpretation” presents several practical problems. River of Life Kingdom Ministries v. Vill. of Hazel Crest,
611 F.3d 367, 371 (7th Cir. 2010) (en banc). The regulatory-purpose test:
                  (1) “invites speculation concerning the reason behind the exclusion of churches”;
                  (2) “invites self-serving testimony by zoning officials and hired expert witnesses”;
                  (3) “facilitates zoning classifications thinly disguised as neutral but actually systematically
                      unfavorable to churches”; and
                  (4) “makes the meaning of ‘equal terms’ in a federal statute depend on the intentions of local
                       government officials.”
Ibid.
          Nonetheless, the Seventh Circuit adopted a test closer to that of the Second, Third, and Fifth Circuits than
that of the Eleventh, although it “shift[ed] focus from regulatory purpose to accepted zoning criteria.” Ibid.; see
also Centro Familiar Cristiano Buenas Nuevas v. City of Yuma, 651 F.3d 1163, 1172–73 (9th Cir. 2011) (following
the Seventh Circuit’s “accepted zoning criteria” test).
No. 14-3469           Tree of Life Christian Schools v. City of Upper Arlington                Page 9


Boulevard: businesses most obviously, but also nonprofit organizations such as hospitals,
outpatient care centers, and daycare centers.4

        The government does not deny that the UDO would allow these other assemblies or
institutions to use 5000 Arlington Centre Boulevard.5 So the remaining question is whether
these other assemblies or institutions, treated more favorably, are similarly situated.                      TOL
Christian Schools has pled facts sufficient to allege that at least some of these assemblies or
institutions are situated, relative to the government’s regulatory purpose, similarly to TOL
Christian Schools, i.e., they would fail to maximize income-tax revenue. See Verified Compl.
¶¶ 60–65 (identifying permitted uses of child day care centers, hotels/motels, hospitals,
outpatient surgery centers, and business and professional offices). These allegations create a
genuine issue of fact as to whether the government treats more favorably assemblies or
institutions similarly situated with respect to maximizing revenue, unless the government can
demonstrate that no assemblies or institutions could be similarly situated.

        The religious land use that TOL Christian Schools proposes is, we assume without
deciding, deleterious to the purpose of the regulation at issue (which we assume to be increasing
income-tax revenue). But the nonreligious uses that the government concedes it would allow
seem to be similarly situated to the regulation. Indeed, the comparisons that the government
invites seem to compel the opposite conclusion, even on casual review.

        For instance, the government suggested at oral argument that it would prefer that
5000 Arlington Centre Boulevard be used for an ambulatory care center or outpatient surgery

        4
           The UDO formerly allowed daycares as permitted uses in ORC Office and Residential District. Upper
Arlington chose, during the pendency of the litigation, to exclude daycares from the ORC District. See Ordinance
52-2011. But “[a] defendant’s voluntary cessation of allegedly unlawful conduct ordinarily does not suffice to moot
a case.” Ohio Citizen Action v. City of Englewood, 671 F.3d 564, 583 (6th Cir. 2012) (quoting Friends of the Earth,
Inc. v. Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S. 167, 174 (2000)); see also Ohio Citizen Action, 671 F.3d at 583
(observing that “the defendant bears ‘the formidable burden of showing that it is absolutely clear the allegedly
wrongful behavior could not reasonably be expected to recur” (quoting Friends of the Earth, 528 U.S. at 190)).
Here, the removal of daycares from the zone, absent an injunction that would prevent their permitting, would not
remedy the alleged problem; Upper Arlington always could amend the UDO once again to allow daycares in the
ORC district. See Gibson Depo., R. 55 at 66 (explicitly admitting that Upper Arlington could return to the earlier
UDO at any time).
        5
          A government’s small size or general anti-development regulations or political culture cannot protect it
from valid RLUIPA claims on motions for summary judgment: A government’s regulatory system that provides for
unequal treatment violates RLUIPA even if no practical comparator has arisen.
No. 14-3469        Tree of Life Christian Schools v. City of Upper Arlington         Page 10


center. But we cannot assume as a fact, and the government certainly has offered no evidence to
show, that an ambulatory care center (or an outpatient surgery center, or a data and call center, or
office space for a not-for-profit organization, or a daycare) would employ higher-income
workers than TOL Christian Schools would (or result in less traffic or even in less outdoor noise,
each an alternative rationale at one point proffered by the government for refusing TOL Christian
Schools’s application). The dissent engages in a vigorous factual analysis of these factors, but
they are genuine issues of material fact that cannot be resolved on summary judgment. As such,
the district court’s grant of summary judgment to the government was error.

       We remand to the court below to answer remaining questions of fact: Are there
nonreligious assemblies or institutions to which the court should compare Tree of Life Christian
Schools because they would fail to maximize income-tax revenue, and if so, would those
assemblies or institutions be treated equally to TOL Christian Schools?

                                                 IV

       Our obligation is to apply the statute enacted by Congress.          We cannot contort its
meaning. Under any of our sister circuits’ tests, RLUIPA does not allow the government to treat
more favorably land uses that, like TOL Christian Schools, fail to maximize the government’s
income-tax revenue. The standard for judgment is objective: Are other assemblies similarly
situated or are they not? It is not for us to decide this question, because the question is factual.
Taking that position does not imply our acceptance of the Eleventh Circuit’s strict-scrutiny
standard. Nor does it imply intermediate scrutiny or rational basis. These standards of legal
review and their attendant arguments do not apply at this stage in the litigation.

       For instance, the government claims that TOL Christian Schools can locate elsewhere in
95% of the land that exists in Upper Arlington. That claim, perhaps relevant to the intermediate-
scrutiny defense of “other means,” has no application here. The Equal Terms Provision forbids a
locality from discriminating against religious institutions and assemblies, regardless of time,
place, and manner. In other words, it is not a defense that a government discriminates against
No. 14-3469           Tree of Life Christian Schools v. City of Upper Arlington                  Page 11


religious assemblies and institutions only in part, rather than all, of its jurisdiction.6 Even the
government’s proffered rational basis for its regulation—we want A, we think land use B leads
to A, thus we regulate to privilege land use B—does not satisfy RLUIPA’s test.

         Finally, we observe that the government could ensure commercial use of the property at
issue without violating the federal statute.7 Using eminent domain, Upper Arlington could force
TOL Christian Schools to sell the land to the government, and sell the land to a buyer that the
government thinks offers superior economic benefits. See Kelo v. City of New London, 545 U.S.
469 (2005); see also Christopher Serkin & Nelson Tebbe, Condemning Religion: RLUIPA and
the Politics of Eminent Domain, 85 Notre Dame L. Rev. 1, 53 (2009) (arguing that eminent
domain “provides local governments with an escape hatch to avoid the most severe applications
of RLUIPA’s zoning provisions”). But the city has not committed government funds to the
theory that a traditional commercial office tenant—as yet unidentified—both could be attracted
to use the land and also, if attracted, would increase tax revenues. Instead, they have placed the
cost on TOL Christian Schools—perhaps to save the upfront cost of compensating an exercise of
eminent domain, perhaps because there is no market for office space in Upper Arlington, and
perhaps to exclude an unfamiliar or disfavored religious assembly.

                                                         V

         TOL Christian Schools claims that Upper Arlington has violated its constitutional rights
to equal protection and free exercise.8 These claims are incorrect. Because facially neutral
statutes such as the UDO might survive rational-basis review under the Equal Protection Clause

         6
           Just because regulations do not prevent a particular and protected use does not mean that such a use is
factually possible. Here, the government points to the zoning of much of its land for residential use, where it allows
owners to use land for schooling, religious or otherwise. But it may be functionally impossible for a school such as
TOL Christian Schools to purchase and amalgamate such land, which could belong to many private owners.
         7
          We reiterate that we assume without deciding that Upper Arlington’s stated policy goal—regulating the
use of land in order to maximize income-tax revenue—both reflects the essence of the statutory language and also
presents no legal problems by itself, although some courts have found regulations of land use solely for the purpose
of maximizing the local-government’s tax revenues to be arbitrary and unreasonable. See, e.g., Mindel v. Twp.
Council of Twp. of Franklin, 400 A.2d 1244 (N.J. Super. Ct. Law Div. 1979). We hold only that the regulatory
scheme employed to affect that goal may violate RLUIPA and the facts disputed are material to the question of
whether there has been a violation.
         8
         TOL Christian Schools initially complained of violations of the Ohio Constitution, see Verified Compl.
¶¶ 167–73, but did not brief the issue on appeal, so we do not consider it.
No. 14-3469             Tree of Life Christian Schools v. City of Upper Arlington             Page 12


and Free Exercise Clause,9 Congress established enhanced protections for religious assemblies
against land-use regulations. We apply RLUIPA by its statutory terms and find a genuine issue
of material fact as to its applicability.

        In conclusion, because we hold that there is a genuine issue of material fact as to the
applicability of RLUIPA’s Equal Terms Provision, we REVERSE the judgment of the district
court, and REMAND for further proceedings.




        9
            See Emp’t Div., Dep’t of Human Res. of Ore. v. Smith, 494 U.S. 872, 877 (1990).
No. 14-3469             Tree of Life Christian Schools v. City of Upper Arlington                 Page 13


                    _____________________________________________________

                       CONCURRING IN PART AND DISSENTING IN PART
                    _____________________________________________________

        HELENE N. WHITE, Circuit Judge, concurring in part and dissenting in part. I agree
with my colleagues’ disposition of the equal protection and free exercise claims, but respectfully
dissent from the analysis and disposition of the as-applied equal-terms RLUIPA challenge.
Whether the district court took too restrictive a view when it looked solely to secular schools as
comparators is an open question in this Circuit. But assuming for argument’s sake that the
district court erred in its choice of standard, the City of Upper Arlington is still entitled to
summary judgment because Tree of Life Christian Schools did not identify a secular comparator
similarly situated with respect to the relevant zoning criteria that received more favorable
treatment under the challenged Unified Development Ordinance. Dist. Ct. Op., PID 2744 (citing
Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward Cty., 450 F.3d 1295, 1311
(11th Cir. 2006)). Nor has it identified or argued that there are questions of fact that bear on this
issue. I would affirm the grant of summary judgment to the City.

                                                         I.

        Upper Arlington (the City) is 10-miles square and almost 99% of its land is developed.
Schools and churches are permitted in residential zones, which comprise 95% of developed land
within the City.1 Commercially-zoned districts comprise 4.7% of the land and include areas
zoned Office and Research Center District (ORC), which constitute a minuscule 1.1% of the
land.2 Churches are permitted as conditional uses in ORC-zoned areas but all schools are
prohibited.3




        1
            See Land Use Map, PID 149, and District Court Opinion, PID 2743.
        2
            The City is approximately 6,336 acres and ORC-zoned districts occupy only 67 acres.
        3
           Schools are prohibited in the ORC and all other commercially-zoned districts. The other commercial
districts are the Office District (O), Neighborhood Business District (B-1), Community Business District (B-2),
Conditional Business District (B-3), and Planned Shopping Center District (PB-3). Churches are permitted or
conditional uses in commercial districts B-1, B-2, PB-3, O, and ORC.
No. 14-3469          Tree of Life Christian Schools v. City of Upper Arlington             Page 14


        The City’s 2001 Master Plan, developed and implemented after lengthy study and
seventeen public participation meetings at which residents gave input, notes that due to capital
shortfalls,

        in order for the City to maintain its existing level of facilities and services, and in
        order to provide for future capital needs, it is critical for the City to enhance its
        revenues. The revenue generated per acre from commercial use far exceeds
        the revenue provided by residential use. In order to maximize revenues, the
        City was directed in the Master Plan to create opportunities for office
        development that emphasize high-paying jobs . . . .

PID 2731-32 (emphasis added).             In keeping with the Master Plan, the City’s Unified
Development Ordinance (UDO) describes the purposes of ORC zoning:

        to allow offices and research facilities that will contribute to the City’s physical
        pattern of planned, healthy, safe, and attractive neighborhoods. The ORC district
        should also provide job opportunities and services to residents and contribute to
        the City’s economic stability. Permitted uses generally include, but are not
        limited to, business and professional offices, research and development, book and
        periodical publishing, insurance carriers, corporate data centers, survey research
        firms, and outpatient surgery centers.

PID 1131/UDO art. § 5.04.

        Against this backdrop, Tree of Life Christian Schools (TOLCS), a private religious
school currently serving approximately 660 K-through-12 students and employing around 150
persons,4 contracted in October 2009 to purchase from Time Warner the largest office complex
in the City, 5000-05 Arlington Centre Boulevard––a 15.8-acre, 254,000 square-foot two-building
center in an ORC-zoned district.5

        Although the City advised TOLCS months before it entered into the purchase agreement
with Time Warner that schools are neither permitted nor conditional uses in the ORC and that
site-specific rezoning would be required in order to operate a school there, TOLCS applied to the


        4
         TOLCS asserted that it employed 150 persons, and the district court used that figure in its opinion.
Subsequently, however, TOLCS’s counsel represented to the City’s Board of Zoning Appeals that TOLCS employs
100 persons. PID 2227, 2635/supplemental record filed with leave following this court’s remand.
        5
          The property TOLCS purchased has been zoned commercial since 1970. Time Warner purchased the
property in 2006 for $23 million dollars. TOLCS purchased the office complex from Time Warner for $6.5 million
dollars.
No. 14-3469            Tree of Life Christian Schools v. City of Upper Arlington               Page 15


City for a conditional use permit, requesting to use the office complex “for a place of worship,
church and residential, to the extent that residential includes a private school.” After the City
Council denied a conditional use permit, TOLCS sought to amend Table 5 of the UDO to allow
private religious schools (but not other schools) as permitted uses in the ORC, and to change
churches from conditional to permitted uses. The City Council denied TOLCS’s request for
reasons including that amending the UDO to allow only private religious schools in ORC-zoned
areas would “raise a facial First Amendment problem.” PID 2463, 2732.

       The Time Warner-TOLCS purchase agreement contained a rezoning contingency period;
nonetheless, TOLCS closed on the property on August 11, 2010, without seeking site-specific
rezoning. TOLCS filed this action in January 2011.

       In October 2013, TOLCS sought, for the first time, site-specific rezoning of its office
complex from ORC to R-Sd (residential suburban).6 The City’s Board of Zoning and Planning
(BZAP) reviewed TOLCS’s rezoning request, after which the City Council considered it at three
meetings in November and December 2013. By that point, this action had been pending for well
over two years, the parties had taken some discovery, and the administrative record included
evaluations of TOLCS’s prior requests.

       City Staff reported to the City Council that the office complex now owned by TOLCS
typically generated three types of income for the City: personal income tax on wages earned by
employees (2%), entity-level income tax on net profits of company(ies) located there (2%), and
property tax. The City’s Director of Finance Catherine Armstrong had previously testified that
TOLCS’s office complex “is our largest commercial site and the income tax generated from this
property has always been significant.” PID 1285, 1294. In 2001, the office complex generated
29% of the City’s income tax revenues; over $3,000,000. In 2005, the office complex generated
revenue from personal and entity-level income taxes totaling $1,216,732, which decreased to

       6
           The purpose of R-S residential zoning
       is to allow single-family dwellings in low-density residential neighborhoods. This district is
       further subdivided into four subdistricts R-Sa, R-Sb, R-Sc, and R-Sd, differing primarily in
       required lot area and yard space. Net densities range from 0.33 dwelling units per acre in the R-Sa
       District to 2 dwellings per acre in the R-Sd District. Permitted uses generally include, but are not
       limited to, single-family residential, institutional, cultural, recreation, and day care.
PID 2524/UDO § 5.02(A)(1).
No. 14-3469            Tree of Life Christian Schools v. City of Upper Arlington           Page 16


$20,269 in 2009, the year Time Warner vacated the office complex. Property tax revenue to the
City from the office complex increased from $584,917 in 2005 to $646,219 in 2009.

        In 2010, TOLCS’s 150 or so employees combined earned $2,321,211.99,7 which would
translate to approximately $46,424 in personal income tax to the City, or about 1/10th the income
tax (personal and entity-level) Time Warner generated in 2006.

        Rezoning would also substantially change the character of the ORC district by allowing
single family homes and schools in an office and research zone, eliminating over 20% of the
City’s existing ORC-zoned land, and permitting future owners to demolish existing buildings,
which would further reduce revenue to the City. PID 2614/City Staff Report to City Council
11/23/2013.

        In addition to the financial aspects of the proposed rezoning, staff addressed use
concerns:

        A K-12 school has inherent characteristics which can be intrusive and destructive
        to an office park. Traffic, including school bus circulation, loading and
        unloading, can be challenging for an area to accommodate. A large number of
        young drivers and parents arriving and departing at similar (peak) times can tax
        the roadways and related infra-structure, reducing the level of service for the
        signalized intersections. After-school activities such as band and theater
        productions can also bring large numbers of parents and students to the area, often
        necessitating overflow parking demands. Outdoor events, such as band practice,
        can create noise impact for office workers who are attempting to do business
        and/or serve clients.

PID 2490.

        The City Attorney reported to the City Council that TOLCS met none of the seven
standards the UDO requires for rezoning (quoted below, followed by the City Attorney’s
remarks in italics).

        1.      That the zoning district classification and use of the land will not
                materially endanger the public health or safety;


        7
          TOLCS Superintendent Dr. Todd Marrah also projected that if TOCLS occupies the office complex, the
student population could increase to 1300 and employees to 250, but he was not asked to project total employee
wages should personnel exceed 150.
No. 14-3469       Tree of Life Christian Schools v. City of Upper Arlington      Page 17


              [Finance Director Armstrong] testified in her deposition that the City had
              a decline in income in 2007, 2008, and 2009. The income in 2010 was
              comparable to the 2009 income and there was an increase in income in
              2011. The City had a balanced budget during those years because
              appropriations were not requested that would exceed estimated revenues.
              The elimination of the estate tax and reductions in state funding further
              reduces available revenues and places additional stress on a tight budget
              situation. In order to continue to provide necessary services to the
              residents, the City needs to maximize revenues. Rezoning the Tree of Life
              property to residential does not maximize the revenue potential of one of
              the City’s largest commercial office sites. The rezoning would permit a
              future owner to demolish the office buildings/school and build single
              family houses which would further reduce revenues.
      2.      That the proposed zoning district classification and use of the land is
              reasonably necessary for the public health or general welfare, such as by
              enhancing the successful operation of the surrounding area in its basic
              community function or by providing an essential service to the community
              or region;
              The issue is not whether quality schools are necessary or if Tree of Life
              will be a good neighbor, but whether the City needs more residentially
              zoned land. Approximately 90% of the City . . . is already zoned for
              residential uses, including schools. Tree of Life has failed to establish the
              necessity for more residentially zoned land.
      3.      That the proposed zoning district classification and use of the land will not
              substantially injure the value of the abutting property;
              Tree of Life’s argument concerning St. Andrews and Wellington [both
              schools] are an “apples to oranges” comparison. Both . . . are located in
              purely residential districts that specifically contemplate schools. Tree of
              Life proposes to put a school in an office and retail district that does not
              contemplate such a use. Abutting commercial owners could not have
              anticipated such a school use possible when they acquired their properties.
      4.      That the proposed zoning district classification and use of the land will be
              in harmony with the scale, bulk, coverage, density, and character of
              the area the neighborhood [sic] in which it is located;
              The AOL office workers were in harmony with the commercial character
              of the Henderson Road corridor. Residential uses, including 600 students
              attending a K-12 school, are not . . .
      5.      That the proposed zoning district classification and use of the land will
              generally conform with the Master Plan and other official plans of the
              City;
No. 14-3469         Tree of Life Christian Schools v. City of Upper Arlington        Page 18


               Rezoning to eliminate commercially zoned property is contrary to the
               Master Plan [which] seeks to “Enhance the City’s revenue sources” and
               “Expand the amount of office space in the City”.[sic] Tree of Life is
               asking Council to eliminate over 20% of the City’s existing ORC zoned
               land. Commercial office comprises only 1.1 percent of the City’s total
               land area. Zoning should be based on a comprehensive plan taking into
               consideration the best interests of the community. It should not be done
               on a piecemeal based on the desires of an individual property owner.
       6.      That the proposed zoning district classification and use of the land are
               appropriately located with respect to transportation facilities, utilities,
               fire and police protection, waste disposal, and similar characteristics; and
               The revised traffic study is still deficient in addressing the change in
               traffic conditions resulting from a school. Staff is also concerned whether
               adequate study has been made if the property were redeveloped for
               residential or other uses permitted in the R-Sd district.
       7.      That the proposed zoning district classification and use of the land will not
               cause undue traffic congestion or create a traffic hazard.
               It is questionable whether Tree of Life’s promise that no athletic events or
               evening activities would be held at the site would be enforceable.

UDO § 4.04(c) (emphasis added)/PID 2391; 12/9/13 City Council Mtg. Minutes/PID 2578-79.

       The City Council denied TOLCS’s rezoning request, which prompted the parties to file
cross-motions for summary judgment, the disposition of which led to this appeal.

                                                  II.

       RLUIPA’s equal terms provision provides: “No government shall impose or implement a
land use regulation in a manner that treats a religious assembly or institution on less then equal
terms with a nonreligious assembly or institution.” 42 U.S.C. § 2000cc(b)(1). This statutory
command . . . allows courts to determine whether a particular system of classifications adopted
by a city subtly or covertly departs from requirements of neutrality and general applicability.’”
Primera Iglesia, 450 F.3d at 1307 (quoting Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d
1214, 1232 (11th Cir. 2004) (emphasis added)).

       To establish a prima facie case under the equal terms provision, a plaintiff has the burden
of showing that 1) it is a religious assembly or institution, 2) subject to a land use regulation, that
3) treats it on less than equal terms, with 4) a nonreligious assembly or institution. Primera
No. 14-3469        Tree of Life Christian Schools v. City of Upper Arlington       Page 19


Iglesia, 450 F.3d at 1307. It is TOLCS’s burden to identify a similar secular comparator treated
more favorably under the UDO. Id. at 1313–14 (Noting that “without identifying a similarly
situated nonreligious comparator that received favorable treatment, Primera failed to establish a
prima facie Equal Terms violation.”).

                                                 A.

       As TOLCS acknowledges on appeal, the circuits generally are in accord “that valid
comparators for RLUIPA purposes are secular assemblies or institutions that impact the accepted
zoning criteria, or regulatory purpose, to the same or greater extent than the religious assembly
or institution at issue.” Reply Br. 8. See Eagle Cove Camp & Conference Ctr. Inc. v. Town of
Woodboro, Wi., 734 F.3d 673, 683 (7th Cir. 2013) (“In determining whether a claim exists under
the equal terms provision, we look to the zoning criteria rather than the purpose behind the land
use regulation”) (citing River of Life Kingdom Ministries v. Village of Hazel Crest, Ill., 611 F.3d
367, 371 (7th Cir. 2010) (en banc)); Centro Familiar Cristiano v. Village of Yuma, 651 F.3d
1163 (9th Cir. 2011) (observing that “our analysis is about the same as the Third Circuit’s: we
look to see if the church is ‘similarly situated as to the regulatory purpose’” or to the Seventh
Circuit’s refinement of the regulatory purpose test “to avoid inappropriate subjectivity by
requiring equality with respect to ‘accepted zoning criteria,’ such as parking, vehicular traffic,
and generation of tax revenue.”); Third Church of Christ v. City of New York, 626 F.3d 667, 670
(2d Cir. 2010) (church and two secular institutions were similarly situated “for all functional
intents and purposes relevant here.”); River of Life Kingdom Ministries, 611 F.3d at 371 (“The
problems . . . with the 3d Circuit’s test can be solved by a shift of focus from regulatory purpose
to accepted zoning criteria. ‘Purpose’ is subjective and manipulable . . . ‘Regulatory criteria’ are
objective–and it is federal judges who will apply the criteria to resolve the issue.”); Lighthouse
Inst. for Evangelism, 510 F.3d 253, 266 (3d Cir. 2007) (comparator must be similarly situated ).
But see Elijah Group v. City of Leon Valley, 643 F.3d 419, 424 (5th Cir. 2011) (declining to
adopt the test of any other circuit and holding that RLUIPA’s equal terms provision “must be
measured by the ordinance itself and the criteria by which it treats institutions differently.”), and
Primera Iglesia, 450 F.3d 1295 (11th Cir. 2011) (comparators are determined based on whether
challenged ordinance is facially neutral or facially discriminatory; if the latter, any nonreligious
No. 14-3469            Tree of Life Christian Schools v. City of Upper Arlington                    Page 20


assembly or institution can be a comparator and strict scrutiny applies.                          If the challenged
ordinance is facially neutral, however, claims are classified as either 1) those that challenge
ordinances of general applicability but that nonetheless target religion through a religious
gerrymander, or 2) those that challenge discriminatory application.)8

The parties did not attempt to resolve the legal standard below; nor do they do so on appeal.
Each maintains that it prevails under any of the standards. Further, TOLCS does not challenge
the City’s zoning criteria; rather, it argues that it is treated unfavorably compared to similarly
situated comparators with respect to those criteria. Finally, neither party argued to the district
court, and neither argues on appeal, that there are questions of fact with regard to the various
uses or zoning criteria that preclude summary judgment.

B. Similarly Situated Comparators

         TOLCS acknowledged below that secular schools are proper comparators, and does not
dispute the district court’s determination that the UDO treats all schools equally, i.e., prohibits
all schools in ORC districts. It also acknowledges that churches are permitted as conditional
uses in ORC districts. TOLCS’s argument is that while secular schools are proper comparators,
they are not the only proper comparators, and the district court erred in not considering day-care
centers, charitable office uses, and hospitals as additional comparators, which, it asserts, are
similarly situated with respect to the zoning criteria but treated more favorably.9




         8
           The majority’s references to the Eleventh Circuit’s test for determining comparators, Maj. Op. at 3 and 7,
are unnecessary given that TOLCS does not argue for application of that test. TOLCS simply argues that, contrary
to the district court’s determination that only secular schools are proper comparators to TOLCS, none of the circuits
(including the Eleventh Circuit) require that secular comparators be identical to the religious plaintiff, only similarly
situated. Appellant Br. 22, 24.
         9
          TOLCS asserts that the “fatal flaw” in the City’s attempts to distinguish it from day-care centers,
charitable office uses, and hospitals, is that
         the City’s desire to maximize tax revenue from the use of Tree of Life’s property translates to
         nothing more than a vague set of hopes and dreams. The City . . . created the ORC district in the
         hopes that it would generate tax revenue for the City but it drafted the district requirements in an
         imprecise, overly broad, and impractical way that allows for uses in the ORC district that undercut
         its stated purpose and criteria to the same or greater extent than Tree of Life’s use.
Reply Br. 15.
No. 14-3469         Tree of Life Christian Schools v. City of Upper Arlington     Page 21


       In September 2011, after TOLCS brought the instant action, the City Council passed an
ordinance amending the UDO to remove daycare centers from the category of permitted uses and
designate them as prohibited uses in the ORC district. TOLCS asserts that the district court erred
in not considering daycares as a valid comparator because its damages claim cannot be mooted
by the City’s voluntary cessation of unlawful conduct, and because the amended UDO still
violates RLUIPA by allowing hospitals and non-profit uses in the ORC district. The City asserts
that daycare centers are not a proper comparator because they are no longer allowed, but even
assuming they are, they are not similarly situated with respect to the relevant zoning criteria. We
turn to that question.

       1.      Child Day-Care Centers

       The UDO defines “Child Day-Care” as:

       administering to the needs of infants, toddlers, preschool children and school
       children outside of school hours by persons other than their parents or guardians,
       custodians or relatives by blood, marriage, adoption, for any part of the 24 hour
       day in a place or residence other than the child’s own home.

PID 1025. Child Day Care may be provided at a permanent residence or other location:

       Child Day-Care Center and Type A Home: means any place in which child
       day-care is provided, with or without compensation, for 13 or more children at
       one time, or any place that is not the permanent residence of the licensee or
       administrator in which child day-care is provided, with or without compensation,
       for seven to 12 children at one time. In counting children for the purpose of this
       ordinance, any children under six years of age who are related to a licensee,
       administrator, or employee and who are on the premises of the center shall be
       counted.

       Child Day-Care Home and Type B Home: means a permanent residence of the
       provider in which child day-care services are provided for one to six children at
       one time and in which no more than three children may be under two years of age
       at one time. In counting children for the purpose of this ordinance, any children
       under six years of age who are related to the provider and who are on the premises
       of the Type B home shall be counted. A Type B family day-care home does not
       include a residence in which the needs of children are administered to, if all of the
       children are siblings of the same immediate family and the residence is the home
       of the siblings.

PID 1026.
No. 14-3469            Tree of Life Christian Schools v. City of Upper Arlington                  Page 22


         TOLCS’s reliance on the testimony of Senior Planning Officer Gibson and Robert
Weiler, one of the City’s experts, to support that child day-care centers are similarly situated to
its 660-student school because some centers would not maximize tax revenue to the City, is
unavailing.     Both Gibson and Weiler testified or averred that, in keeping with the UDO’s
description of ORC zoning as including “services,” day-care centers were permitted as ancillary,
complementary services in support of primary uses like offices, not because they generate
significant tax revenue for the City in and of themselves. Similarly, coffee and barber shops are
permitted uses in the ORC as ancillary uses.10

         Weiler explained:

         Although daycares are not significant revenue producers, daycares compliment
         [sic] a commercial use by providing child supervision for employees in the area.
         In addition, the surveyed daycares in the city of Upper Arlington serve only
         between 40 to 130 children. Additionally, having built and owned daycares
         including a current interest in a daycare located on Sawmill Road in Columbus,
         few daycares are in excess of 10,000 SF as compared to [] school[s] that are
         routinely substantially larger.

PID 1765. A 600-student K-12 school is not an ancillary service for the convenience and
support of the employees who work in the area’s offices and commercial establishments

         TOLCS also asserts that day-care centers are proper comparators because some are large
and licensed to accept as many as 1,000 children. Appellant Br. 12–13, n.4. It relies on two




         10
           UDO § 5.01(B) provides that only uses designated as permitted shall be allowed as a matter of right in a
zoning district and any not so designated shall be prohibited . . . PID 2008. Schools are not designated as permitted
in the ORC and are thus prohibited.
         ORC uses designated as permitted include banks, business and professional offices, corporate data centers,
hotels and motels, hospitals, insurance carriers, outpatient surgery centers, periodicals and book publishing, research
and development in information or medical technologies, survey research firms, barber shops and beauty parlors,
and coffee shops.
          Expressly prohibited ORC uses include adult book stores, adult motion-picture theaters, amusement
arcades, animal boarding, automotive service establishments, bowling alleys, candy stores, pool or billiard rooms,
department stores, drug stores, dry-cleaning shops, fast-food restaurants, funeral homes, grocery and supermarket
stores, laundromats, liquor stores, massage parlors, meat and fruit markets, motor-vehicle wash facilities, movie
theaters, night clubs, pharmacies, publishing, radio and TV studios, skating rinks, soda fountains, variety stores, and
tattoo parlor or body-piercing studios.
No. 14-3469         Tree of Life Christian Schools v. City of Upper Arlington           Page 23


exhibits, the first11 of which lists six day-care centers located in Arizona, Missouri, Kansas, and
South Carolina that “care for children outside of school hours” and have capacity to serve from
416 to 965 children. The second exhibit consists of charts listing the twenty-five largest day-care
centers in Ohio, which have capacities to serve from 282 to 467 children. But TOLCS points to
no day-care facilities in the City or the immediate area. The size of the six day-care centers in
four states far from Ohio seems no more relevant than the size of day-care centers in Europe.
Similarly, the list of the largest day-care centers in Ohio provides no information about the
communities they serve, other than their names. The City is entitled to devise a master plan and
ordinances that take into account the size of the community and its actual experience with
commercial and other users of land.

        Additionally, most of the twenty-five largest Ohio day-care centers TOLCS offered are
named either “school,” “learning center,” “child development center,” “head start,” or
“children’s center,” suggesting that the facilities provide both day-care and schooling. Assuming
these centers would have qualified as child day-care centers permitted under the UDO, TOLCS
failed to present evidence that any day-care comparator seeking to locate in the City’s ORC
would serve anywhere near the 660 students TOLCS serves (it is uncontroverted that the largest
day-care center in the City served 130 children). TOLCS’s proposed 660-student K-through-12
school would constitute a much more intensive use than a day-care center by virtue of its size,
the age range of its students, and the traffic and noise it would generate during peak times and
during after-school and weekend activities. In sum, TOLCS failed to show that the day-care
comparators are similarly situated with respect to the accepted zoning criteria, and are no more
consistent with office use, research use, supporting commercial activities, and supporting,
ancillary, services than TOLCS.

        2.      Hospitals

        TOLCS asserts that hospitals are proper comparators because some hospitals in the
Columbus area are nonprofit and do not generate property tax for the City, Appellant Br. 13, 36,
and therefore inclusion of hospitals in the ORC undermines the City’s objective of generating

        11
          See PID 115, the declaration of a legal assistant at the Alliance Defense Fund who avers that she
conducted research regarding the size of day-care centers across the country.
No. 14-3469        Tree of Life Christian Schools v. City of Upper Arlington     Page 24


revenue. But TOLCS overlooks that income tax, not property tax, is the largest source of
revenue for the City, and hospitals typically employ many highly-skilled and educated
professionals who tend to command large salaries. Thus, that some hospitals are non-profit and
do not pay real-estate taxes is unimportant when compared to the revenue non-profit hospitals
generate in income taxes. Appellee Br. 25.

       The majority observes that “we cannot assume as a fact, and the government certainly has
offered no evidence to show, that an ambulatory care center (or an outpatient surgery center
. . . ) . . . would employ higher-income workers” than TOLCS. Maj. Op. at 10. I disagree for
two reasons. First, the majority discounts the City’s institutional knowledge of which land uses
generate most revenue for the City. Second, it is TOLCS’s burden to come forward with a
similarly situated comparator, Primera Iglesia, 450 F.3d at 311, and TOLCS offered no evidence
that it would generate comparable to that generated by a hospital or medical center, nonprofit or
not. Further, TOLCS does not argue that questions of fact should have precluded summary
judgment or that we should remand for further factual development.

       3.      Charitable Offices

       Finally, TOLCS asserts that charitable offices generate no property tax and that nothing
in the UDO would preclude a charitable organization from staffing an office, say, with only
twenty employees, which would not generate much income tax for the City. Appellant Br. 13,
36. But the density of non-profit office use and the salaries of non-profit professionals are more
compatible with the ORC’s permitted uses and economic goals than a K-12 school and its
accompanying noise and traffic.

                                               IV.

       In sum, the majority requires not equal treatment, but special treatment, for the proposed
religious use. See, e.g., Primera Iglesia, 450 F.3d at 1313–14 (citing Midrash, 366 F.3d at
1231–32, and Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 762 (7th Cir.
2003) (“[N]o . . . free pass for religious land uses masquerades among the legitimate protections
RLUIPA affords to religious exercise.”)) I would affirm the grant of summary judgment to
Upper Arlington on the basis that TOLCS failed to present a secular comparator that is similarly
No. 14-3469          Tree of Life Christian Schools v. City of Upper Arlington               Page 25


situated with respect to the relevant zoning criteria.12 See, e.g., Eagle Cove Camp & Conference
Ctr. Inc., 734 F.3d at 683; Centro Familiar Cristiano, 651 F.3d at 1172–73.




        12
            I further observe that the majority’s discussion of eminent domain is inapposite. TOLCS purchased the
property with knowledge of the existing zoning, and the City has no obligation to compensate TOLCS as a condition
of its enforcement of its valid zoning regulations. TOLCS has not shown that there are no feasible uses for the
property. Indeed, it derives income by leasing out a portion of the space.
