An appeals court panel has ordered the judge who dismissed Tree of Life Christian School's religious discrimination lawsuit against the city of Upper Arlington to reconsider the case.
Representatives from both sides last week were awaiting word from U.S. District Judge George C. Smith to determine what the next move will be in Tree of Life's ongoing legal battle to open a school in Upper Arlington's largest office complex.
The case was remanded back to Smith on appeal after the 6th U.S. Circuit Court ruled Sept. 6 that the case must be reviewed now that Tree of Life has sought to rezone its property at 5000 Arlington Centre Blvd. to permit a private religious school.
"The ruling is definitely a win for Tree of Life," said Erik W. Stanley, an attorney for the Kansas-based Alliance Defending Freedom, which filed the lawsuit on behalf of Tree of Life. "The case can continue forward and we can get a decision on the merits of the case, which we've been seeking all along."
Tree of Life purchased the former America Online building at 5000 Arlington Centre Blvd. off Henderson Road in 2010 with plans to consolidate four other campuses accommodating 660 students.
The property's zoning prohibited a school at the site but under certain conditions allowed churches.
Tree of Life argued that because it provides Christian-based instruction, it is virtually indistinguishable from a church.
In sending the case back to Smith, the 6th U.S. Circuit Court panel noted Tree of Life had not sought to have the land at its Upper Arlington site rezoned to permit schools before it filed the discrimination lawsuit in the U.S. District Court.
Since that time, Tree of Life unsuccessfully applied for a rezoning, and the 6th Circuit panel ruled Smith must now consider if the city violated the federal Religious Land Use and Institutionalized Persons Act (RLUIPA) when Upper Arlington City Council denied the rezoning request last March.
"The city of Upper Arlington's zoning code treats religious uses ... on less than equal terms with secular uses," Stanley said. "The differential treatment violates federal law on land use by religious institutions.
"We're asking for the court to hold that the city zoning and denial of Tree of Life violates that law. That would enable Tree of Life to use the site for its school."
City officials have maintained the school does not meet the zoning standards for its Office and Research District (ORC) because it would intrude on the primary office use contemplated in the ORC by significantly adding traffic and noise through transportation of students.
They've also argued a school at the site would negatively affect the city's ability to generate commercial tax revenue from the 67 acres, and noted the ORC makes up approximately 1 percent of Upper Arlington's total land.
Last week, Upper Arlington City Attorney Jeanine Amid Hummer disputed claims that the 6th Circuit ruling was a "win" for Tree of Life.
Rather, she said, it confirmed the city's position that Tree of Life should have been required to seek a rezoning of its land.
"We said from the beginning, 'You need to file a rezoning action,' " Hummer said. "We're happy the court agreed with us in terms of the proper process.
"(Tree of Life) filed a rezoning action while the case was pending in the court of appeals. If the rightness (of land use) is no longer an issue, the court will look at the merits of (Tree of Life's) claim," she said. "The case has not been fully litigated."
According to the 6th U.S. Circuit Court's ruling, Smith was required to wait 30 days before taking action.
As of Oct. 7, those 30 days had passed. Representatives of both sides said they were awaiting the scheduling of a teleconference with Smith to discuss the next steps.