Judge sides with city in Tree of Life lawsuit
A federal judge sided with the city last week in a discrimination lawsuit filed by the Alliance Defense Fund -- now called Alliance Defending Freedom -- on behalf of Tree of Life Christian School.
Tree of Life wanted to consolidate three campuses accommodating 660 students at the former America Online/Time Warner building at 5000 Arlington Centre Blvd. It now offers preschool through 5th-at 2141 Indianola Ave. in Columbus and 2900 Martin Road in Dublin, and 6th through 12th grade at 935 Northridge Road, Columbus.
The property's zoning prohibited a school at the site but allowed churches under certain conditions.
U.S. District Judge George C. Smith dismissed the suit Aug. 16, ruling the case was "not ripe" for court review because Tree of Life had not applied for a rezoning of the property.
"Local officials were never afforded the opportunity to address the merits of Plaintiff's requested change in use of its property ... the Court should not interject itself into a local governmental process until the dispute is fully defined," Smith wrote.
Upper Arlington City Manager Ted Staton said the ruling protects local government's regulatory authority over land use.
"We're comforted the judge essentially agreed with us," Staton said.
"We told them from the start rezoning was the path to go," Assistant City Attorney Tom Lindsey said. "They chose to ignore that."
Erik Stanley, an attorney with the Alliance Defending Freedom, said the group is considering its options.
"We're still studying the ruling," Stanley said. "No decisions have been at this point about what our next step will be."
Lindsey said Tree of Life could appeal Smith's decision to the Sixth District Court of Appeals in Cincinnati, seek a rezoning or pursue both.
"That depends on what steps Tree of Life seeks," he said. "(The ruling) doesn't end the litigation."
Smith's 24-page ruling granted the city's request for a summary judgment in the case.
The property is within the ORC Office and Research District in the city's zoning code under which a school is not a permitted use.
According to information from the city, Tree of Life sought a meeting in December 2009 to review a major site plan application. At that time, the city staff indicated the site was not zoned for use as a school site.
Tree of Life then submitted a major site plan application to the city's development department. It also sought a conditional use permit on the grounds that the property would be used as a "place of worship, church and residential, to the extent that residential includes a private school." The Board of Zoning and Planning and Upper Arlington City Council both upheld the staff's decision that Tree of Life would have to seek a rezoning, after which Tree of Life filed an appeal with Franklin County Environmental Court. That appeal was withdrawn in January 2011.
Also in January 2011, the Alliance Defense Fund, identified as a national legal alliance "of Christian attorneys and like-minded organizations," filed a federal lawsuit against Upper Arlington on Tree of Life's behalf, alleging, among other things, that the city zoning code is unconstitutional and discriminatory, violates free speech, free exercise of religion and freedom of assembly.
Tree of Life argued that the city's Unified Development Ordinance was unconstitutional because it was applied to prohibit Tree of Life's school while permitting uses such as daycare centers. Tree of Life argued it had been discriminated against under the Religious Land Use and Institutionalized Persons Act of 2000 and that harm had occurred to the school and would continue under a rezoning process.
Since then, the city has amended it zoning code to prohibit daycare centers in the ORC Office and Research District.
In his Aug. 16 ruling, Smith said called Tree of Life's conditional use application for the property "futile."
"Although this Court is sympathetic to Plaintiff's situation, Plaintiff did purchase the property fully aware that the building was not zoned for use as a school," he wrote. "Even if the Court had found that this case was ripe, the Court believes that the circumstances have changed, primarily the removal of daycare centers from the ORC Office and Research District, that no longer justify a finding in Plaintiff's favor."
The building is the site of the largest office building in Upper Arlington. In 2001, it accounted for 29 percent of the city's income tax revenue but had been vacant since 2009 when Time Warner ceased operations there.
Upper Arlington, landlocked and primarily residential, has only about 4.7 percent of its land available for commercial use, and 1.1 percent is for office use.