On Monday evening, Aug. 16, the Upper Arlington City Council considered and rejected the most recent legal maneuver of Tree of Life School (TOL) to change the use of the AOL/CompuServe site from business to school.

On Monday evening, Aug. 16, the Upper Arlington City Council considered and rejected the most recent legal maneuver of Tree of Life School (TOL) to change the use of the AOL/CompuServe site from business to school.

Last week's hearing was TOL's second appearance before city council, and focused on the city's refusal to consider TOL's conditional use application for use of the site as a church. The city staff had concluded that TOL's intended predominant use of the property was for a school, not a church, and since schools are not permitted uses in the property's zoning district, there was no reason to consider the conditional use application for a church.

The Board of Zoning and Planning had upheld the staff's determination and Monday night's hearing was the appeal of that issue to city council.

The hearing lasted approximately 3? hours, with the essence of TOL's argument being that its church and school uses were so inextricably intertwined that they could not be separated. As a result, they contended that the conditional use application to allow a church use in the zoning district (which is possible) should be considered on the merits.

City staff and the city attorney's office presented the city's position, which focused on both the fact that TOL's use of the property would be principally as a school and that to accomplish its purpose TOL should be pursuing a zoning change. A zoning change is a different process which allows public input and can ultimately be the subject of a citizen vote through the referendum process.

During the course of Monday's hearing, TOL's attorney indicated that TOL was reluctant to go through that process.

Chamber board member Don Leach appeared on behalf of the chamber and argued:

That the hearing should not be taking place because the issue being considered should have been a part of TOL's earlier appeal to council and they should not be allowed to take what essentially amounts to two bites at the apple.

That the zoning code regulates uses and it is irrelevant what a property owner contends it is going to be using the property for. Rather, the key is what the actual use is and the reality is that while there might be some church use of the property by TOL, the property was clearly going to be used as a school, which is not permitted within that zoning district.

City council ultimately voted 7-0 to reject the appeal and affirm the BZAP and staff's decision, so once again TOL was unsuccessful in its arguments to the city. TOL is expected to appeal this decision to court, as it did the 7-0 council vote on its last appeal.

The court process will likely take at least six months and probably longer before there is an initial decision. That decision could then be subject to an appeal to the Franklin County Court of Appeals. Even if TOL is ultimately successful in the court case, that victory would only entitle it to a hearing before BZAP on the merits of allowing their proposed use at the site.

The chamber will be monitoring the case and believes that the city's position is not only strong, but also correct.