At a special meeting Monday night, Upper Arlington City Council upheld a decision by the Board of Zoning and Planning that a rezoning, not a conditional use permit, would be required to locate a school at the former CompuServe facility on Henderson Road.

At a special meeting Monday night, Upper Arlington City Council upheld a decision by the Board of Zoning and Planning that a rezoning, not a conditional use permit, would be required to locate a school at the former CompuServe facility on Henderson Road.

But it took three hours of discussion, largely among lawyers, to get there.

The special meeting was to hear an appeal filed by Tree of Life Christian Schools of BZAP's recent ruling. Tree of Life would like to consolidate its Columbus area schools on a single campus at the CompuServe site, and had applied for a conditional use to do so. BZAP said a rezoning would be needed for such a use.

Much of the discussion focused on whether the city's zoning code is ambiguous, and that issue was not resolved.

The legal subtlety threatened to become lost several times during the hearing, as council president Frank Ciotola struggled to maintain the focus of attorneys, witnesses and council itself on procedures.

Challenges to motivations on both sides permeated the hearing, as Tree of Life supporters argued the city was focused on tax revenues rather than fairly interpreting the code, and opponents of the potentially tax-exempt use charged Tree of Life with clever lawyering by seeking a conditional use instead of a rezoning.

Robert Albright, a resident and zoning attorney, gave volunteer testimony, arguing that zoning, rather than conditional use, was the proper procedure to use.

"They're trying to rezone by a conditional use," Albright said. "You know why they don't want to rezone? We'd have a referendum. And I would lead it. I've done it before in this community. They don't want to rezone because a referendum would whip them down."

Attorney Glen Dugger, representing Tree of Life, said the code included several uses of land in residential districts that are not dwellings, such as parks, churches and schools. Such uses are allowed under every residential area in the code, he said.

"There are at least seven uses that are permitted, parks, places of worship, churches, rec centers, libraries and public and private schools, in every single residential district," Dugger said. "They are residential uses."

Dugger attempted to discuss the city's view of the use of the land as a school versus a higher tax value commercial use, but an interpretation by the Joseph Durham, the city's special counsel, ruled that it was not relevant to the hearing. Durham was charged with issuing objective procedural rulings at Monday night's hearing.

"Obviously in light of the number of people here and public opinion that's been expressed, the lines of copy this has received, it's controversial," Dugger said. "I would love an opportunity to have a hearing on the merits.

"Knowing that this conversation has been controversial, I think we need to address what is kind of really going on here and why this application is taking so long just to get to this stage," Dugger said. "As I think we all know, you probably more than others, cities finance themselves on income tax. This apparent debate is based on some idea that there might be some better use of this particular building."

"I would ask the city attorney if we're allowed to discuss things outside the scope of this hearing?" said council member Erik Yassenoff.

Durham said the parties had agreed that the issue before council was whether the term residential as used in the code includes the term private school, and that council could exclude other evidence.

City attorney Jeanine Hummer, acting as an advocate presenting arguments on behalf of the city, said the city "was not presenting any evidence with regard to the economic impact. We've made a concerted effort not to do that. It could really prejudice the case if we (did)."

Attorney Don Leach, representing four clients, including the UA Area Chamber of Commerce, said before the hearing that allowing a school into an office and research district would cause economic harm to other businesses in the city.

"We disagree with the interpretation of the zoning code that Tree of Life is requesting," Leach said. "It's inconsistent with the intent of the zoning code and will lead to uncertainty as to permissible uses in a zoning district. That will have an adverse impact on commercial development and on Arlington's tax base."