[00:00:08] Speaker 02:
Good morning, Your Honors. My name is Jim Lobsons. I represent Pastor Miller and the church. I'd like to reserve seven minutes for rebuttal.

[00:00:17] Speaker 02:
And I'd like to begin by discussing a common theme that runs through all of the legal claims that we have raised, and that claim is delay or waiting or having to wait for something before you get your relief or before you are allowed to exercise your religious freedom.

[00:00:38] Speaker 02:
The problem with delay is extreme in this case because the law that Burien passed making it illegal to live in Burien on public property was passed on September 25th, effective November 1st. So there were 36 days to act after the law took effect for the homeless to leave if they couldn't find a private place to live.

[00:01:07] Speaker 02:
And hosting began on November 7th.

[00:01:11] Speaker 02:
The other thing that's emergent about time here and not having to suffer waiting for the city to make a decision is that winter is coming and winter kills unhoused people. They die of hypothermia and it's November.

[00:01:28] Speaker 02:
So if the city had said, we're going to wait and ask For your permission to do this, no matter how long it takes, it could take months. It could take months for them to issue a decision.

[00:01:39] Speaker 01:
How do we know it would take months?

[00:01:40] Speaker 02:
We don't. But it could.

[00:01:43] Speaker 01:
But we don't. But that's just speculation. And as we see in the facts here, Berrien is letting them stay there and just saying, would you apply for a permit? They don't kick them out. They just say, would you please apply for a permit? And your client just says, no, we're not going to do it. Not now, not ever.

[00:02:01] Speaker 02:
I don't think. that all the case law says that just because it might get granted later is not a reason why you have to apply.

[00:02:09] Speaker 01:
But your argument is we should hold against the city because your people would be delayed in allowing the people onto the parking lot, but they've not been delayed. The record shows that they're allowed to be there pending the application being filed.

[00:02:27] Speaker 02:
If I'm right, Your Honor, what you're saying is maybe they would have granted the permit. Maybe they would have granted it.

[00:02:31] Speaker 01:
No, what I'm saying is in response to your question about delay, there's no showing here that the city of Berrien is going to say you can't have these people unless you have the permit. They're saying we understand the people are there. We want you to apply for a permit. They never applied for a permit, but the city of Berrien never actually went and cleared them out. They just let them stay there. So it seems to me that you're saying what you're saying is speculative and at least on the records, probably wrong.

[00:03:00] Speaker 02:
What I'm saying, Your Honor, is that I don't have to make that showing. No church has to make that showing that the case law says you don't have to apply in order to challenge these types of licensing schemes. I'm saying that Watchtower Bible people didn't apply. The People in the Second Circuit at the Presbyterian Church, they didn't apply. The people within this circuit didn't apply, and the district courts have said, you don't need to apply, you don't need to apply, you don't need to apply. You don't need to wait to see what they will do.

[00:03:30] Speaker 02:
In fact, the burden, they need to have a statute which guarantees prompt judicial decision-making. Judicial or administrative? Judicial. The U.S. Supreme Court says it has to be judicial in the Littleton case. It cannot – that was exactly the argument made in Littleton. Littleton said, you know, what about – actually what Littleton said is all we need to show is that there's prompt access to a court. It's not a prompt judicial determination.

[00:04:00] Speaker 03:
That just can't be right. So you're saying that you could make a facial challenge to any law that doesn't have a timeline on making a decision?

[00:04:09] Speaker 02:
That's what the prior straight law – all the precedents say. That's all. There's six U.S. Supreme Court cases that say you do not have to apply. And there are cases where this court has said, you win. This is a prior restraint, even though you didn't apply.

[00:04:25] Speaker 03:
Well, then you have to prove this is a prior restraint law then.

[00:04:27] Speaker 02:
Yes, we have to prove it's a prior restraint law.

[00:04:29] Speaker 04:
And how does that fit then with the spirit of Aloha Temple, which talk about facial challenges?

[00:04:42] Speaker 04:
And where is the expressive conduct here?

[00:04:48] Speaker 02:
Well, maybe I could say two things about the Aloha case, Your Honor. First, I think the answer, one answer to your question is that in Aloha, the court said you can make both facial and as applied challenges. And I think that's the case where they said you win on facial challenge. So we don't even have to bother addressing as applied challenge. Most of the cases I've cited, I think the churches win on a facial challenge.

[00:05:17] Speaker 02:
Sorry, what was the other point you were making? Oh, about expression.

[00:05:22] Speaker 04:
That's the central point made in Spirit of Aloha, isn't it, related to expression?

[00:05:31] Speaker 02:
That is one of the points, yes, central point made there. And I think the district court assumed that unless you can shoehorn this into expression and speech and free speech, that you just can't apply the prior restraint doctrine. It just doesn't apply. And The U.S. Supreme Court has said that's wrong and that the prior restraint doctrine applies to free exercise of religion at least three times.

[00:05:56] Speaker 03:
I mean, assuming they agree, but how does this even show?

[00:06:00] Speaker 02:
How is it exercise of religion?

[00:06:03] Speaker 03:
Yes, the statute.

[00:06:06] Speaker 02:
The statute? The regulation.

[00:06:09] Speaker 02:
The statute, I'm not sure I understand. The statute says, among other things, it says, Religious facilities are allowed in this zone.

[00:06:20] Speaker 02:
It says that. That's a permitted use. And if you are a religious facility, well, then they define religious facility as a facility where there's a primary thing going on is worship.

[00:06:35] Speaker 02:
Taking the stranger in, taking the unhoused in is worship.

[00:06:41] Speaker 02:
Several courts have said that.

[00:06:43] Speaker 02:
Well, they've said you have to. Sorry.

[00:06:46] Speaker 01:
The question is what's the meaning of the code, not some generic free-floating definition. So the question is whether or not this fits as religious facility within the meaning of the code, correct?

[00:06:59] Speaker 02:
That's one question, but I don't believe it's the only question, Your Honor.

[00:07:02] Speaker 01:
I mean, in other words, one question is… But that's my question. It's my question to you. How does this fit within the definition of religious facility within the code?

[00:07:10] Speaker 02:
Well, it's worship.

[00:07:14] Speaker 02:
Setting up homeless encampment is worship? It is, Your Honor, when people have no place to live and they're poor and disadvantaged and they're going to freeze, and you take the stranger in, when that's a central tenet of your religion, which it has been in Christianity for 2,000 years and is in all major Abrahamic religions, taking the stranger in is religious worship, and it's central to all three Abrahamic religions.

[00:07:37] Speaker 01:
No, I take that point, and I think under some definitions that's absolutely right. My question is whether or not that's the definition employed. by the Burien Municipal Code, and I'm not sure you're right as to that.

[00:07:48] Speaker 02:
Well, my answer to that is twofold. I mean, the Burien Code says if it's a religious facility, it's okay here. How do we define religious facility? It's a facility that's primarily devoted to worship or an accessory use.

[00:08:02] Speaker 02:
If you conclude that this isn't that, that's not the end of the ballgame, because facial examination of the statute is not the only way, whether you see it's a prior restraint.

[00:08:14] Speaker 02:
The first, sorry, not the first, the second circuit in the practically identical case, the Fifth Avenue Presbyterian case said they did the exact same thing. The church said, unhoused people can sleep on our property at night. And New York City said, you can't do that unless you get a license to run a shelter facility. And they didn't apply, and they said it was a violation of pre-exercise, and they won. In fact, I think they got a preliminary injunction, I think. Because they were likely to win.

[00:08:45] Speaker 03:
Counsel, I agree with much of what you're saying. But as I understand, you're not challenging the religious use regulation. You're challenging the temporary use permit regulation.

[00:08:57] Speaker 03:
That's what you're saying is a prior restraint.

[00:09:01] Speaker 02:
Yes.

[00:09:02] Speaker 03:
And so regardless – so you have to prove why that regulation is expressive.

[00:09:09] Speaker 02:
I don't think so.

[00:09:10] Speaker 03:
It has a close relation to expression. Why not?

[00:09:12] Speaker 02:
Why not?

[00:09:13] Speaker 03:
Let me ask you this. Did you make an as-applied challenge?

[00:09:17] Speaker 02:
Both, yes.

[00:09:18] Speaker 03:
You are making an as-applied challenge? Both. Okay. Because I think what you're saying as applied makes a lot of sense. But on the facial side, I don't see it. Because I see you're challenging the temporary use regulation, not the religious permitting regulation.

[00:09:35] Speaker 02:
Well, I'm not sure if this goes to what you're saying or not, but I just want to point out that – We always took the position that your code allows us to do this without applying for a temporary use permit. Your code says this is okay. We don't even need to apply. It says we only need to apply if it's an unpermitted use. We wrote them and said this is a permitted use.

[00:10:00] Speaker 03:
So you are challenging the religious use regulation. You're saying that it's undue.

[00:10:05] Speaker 02:
I'm not challenging. What I'm saying is you are not applying your own code honestly. You are being dishonest about your own code. Your own code says we don't have to apply for this permit. And, in fact, at the end of the day, I mean, when either the encampment was over or almost over and there's an exchange of communications about would you enter into a memorandum of understanding, which we did enter into and which we signed the one that they proposed, we were saying, what about all these fines that you imposed on the pastor?

[00:10:39] Speaker 02:
And they said, and this is in the record, right, this is in our complaint, oh, don't worry about the fines. The primary reason we imposed those fines was to provoke you into taking an appeal, an administrative appeal, which, by the way, would lengthen the administrative process before there was a final decision, which doesn't even get to there being a final judicial decision, which could take over a year, and I've cited many cases. But they said the reason they wanted to provoke an appeal was administratively to themselves, to their own administrative hearing officer, was so they could get the guidance of the administrative hearing officer as to whether their interpretation of their code was correct.

[00:11:19] Speaker 02:
So in this case, and I don't agree with you, Your Honor, that speculation matters. I don't have to prove that they would have denied a permit, but you actually have in this case evidence that they intended to delay things. They intended to provoke an administrative appeal which could take months and months and months. Winter would be long over by the time this process was done. And that is why people like Justice Gorsuch, in a concurring opinion, I think, in one of the COVID cases, the Roman Catholic case, he said that the court was rejecting, properly rejecting the argument that let's give the courts below more time.

[00:12:03] Speaker 02:
The church can always come back later if need be.

[00:12:06] Speaker 01:
But my point is, Yes, this was going to take time. But in the meantime, on the ground, as a de facto matter, the encampment was permitted.

[00:12:15] Speaker 02:
And that's how it goes. And that's how it goes. And that's how we want it to go.

[00:12:19] Speaker 01:
But you're arguing, well, wait a minute. They can't drag this out and not allow us to do this. No, it is being dragged out. But meantime, you're allowed to do what you want to do.

[00:12:30] Speaker 02:
They can't tell us, if you do this again, we're going to fine you again. They can't tell you that we might prosecute you criminally. They have scared off all the other churches in this town. I mean, this church put out a call to the other churches and said, why don't you stand by us? And they saw what happened to this church and nobody else stepped forward. We want to do this every two years. We said we want to do this every two years. They said, if you enter into an agreement with us about how this should operate, that will cure your violations.

[00:13:00] Speaker 02:
We actually did sign their agreement that they proposed. And it would govern all the future ones. We wanted to do this every two years. Now it's been about two and a half years since we've done it. And if we're allowed to do it without this threat of massive fines, and we do it in the winter of 26, 27, it'll be three years since we've done it.

[00:13:21] Speaker 01:
But have you applied for another permit?

[00:13:23] Speaker 02:
We will never apply for a permit unless they get around this, unless they fix everything. And I don't think they're going to fix everything. I mean, we said, you said to us, one of the reasons, ways you can cure this is to enter into an agreement. Do these things. Make sure it's not noisy. Don't serve liquor. We agreed to all those things. Don't have registered sex offenders. There were no problems with this. The only thing we won't do is say, could we have your permission, please? We gave them every piece of information they asked for.

[00:13:55] Speaker 02:
Their application only asks three questions. Do you need more electricity? Will there be a problem with egress on public roads? And do you serve liquor? And that's it. And we said, no, no, no. We gave them everything their application asks for. The only thing we didn't do is say, now, mother, may I please do this? Because that would give them the opportunity to stretch it out for months, for years. And we do not have to prove. So, counsel, can you clarify?

[00:14:25] Speaker 03:
So you're saying your facial challenge is to the Code 19.10.450, the religious facility regulation, not to the temporary use regulation?

[00:14:39] Speaker 02:
No, it's – the temporary use regulation doesn't have things in it.

[00:14:48] Speaker 02:
I mean, it doesn't have time limits. That's one thing. Well, I'll just answer my question.

[00:14:54] Speaker 03:
What's the facial challenge to? Which regulation?

[00:14:57] Speaker 02:
The facial challenge, I think, is to the temporary use permit law that says you have to prove this and this and this and this and doesn't say we have to make a decision in any amount of time. Okay. So you're not challenging facially the religious facility regulations. No, we think that supports us. We think we are a religious facility, and we fit your definition of religious facility, and you won't explain to us why we don't fit your definition. And yet, so you're asking us to do something your own code says we don't have to do.

[00:15:29] Speaker 02:
I'm not challenging it. I'm saying you are ignoring your own code.

[00:15:33] Speaker 03:
My problem is to get through a facial prior restraint challenge, you have to show why the temporary use regulation then is closely related to expression. Which I think is a hard thing to do. If you're challenging the religious facility regulation, then that's much easier.

[00:15:50] Speaker 02:
Well, let me say something about closely related to expression. First of all, in Aloha or Oregon Barter or perhaps both, I think both, this court said religion, exercise of religion, is commonly associated with freedom of expression.

[00:16:06] Speaker 03:
Yeah, I understand that.

[00:16:07] Speaker 02:
So, boom.

[00:16:08] Speaker 03:
But I just want to know which regulation are you facially challenging?

[00:16:11] Speaker 02:
Certainly we're challenging the temporary use permit law.

[00:16:14] Speaker 03:
Okay. That's okay.

[00:16:15] Speaker 02:
Go ahead.

[00:16:16] Speaker 03:
Go ahead.

[00:16:17] Speaker 04:
Well, you know, if they decided they wanted to set up a, a Friday night beer hall and jazz festival under the temporary use law, would you argue, well, that's related to expression also?

[00:16:34] Speaker 02:
Probably not. Um, that would be a stretch for a fitting within the mass gathering kind of, uh, line of case law from Oregon Barter, but if you're just going to drink beer, I don't think that would be a stretch. I don't know. On the other hand, the Oregon Bartering case says there's going to be lots and lots of hippies here at a back to the land festival, and there's going to be a lot of opportunity for expression. But I wouldn't be here. This church wouldn't be here.

[00:17:00] Speaker 03:
But then how are you making a facial challenge to that?

[00:17:03] Speaker 02:
Their law says you have to prove to us that this fits and was compatible with the area. Their law says you have to prove to us that this does not create any dangers or problems. Their law says you have to prove it's not materially detrimental to the public welfare. Their law doesn't say, and we will get you, we will ensure prompt judicial decision-making, decision within a very short period of time, so it's a prior restriction.

[00:17:30] Speaker 04:
Mr. Lobson, is the bottom line really that even if they could impose certain kinds of restrictions, Your objection is you can never be assured of a speedy answer. Is that the bottom line of your complaint?

[00:17:49] Speaker 02:
That's one of them, yes. And it runs through the substantial burden one where you recognize that delay is a substantial burden and it runs through the prior restraint law. But if I could, I don't want to sit down before I touch on the pre-exercise claim, which doesn't... Sorry, before... Can you show me where you made an as-applied challenge? It's pled in the complaint, I think. I'm pretty sure that... We took you over. Why don't you... I would like to just say one thing about the free exercise claim, which doesn't depend on any of this prior restraint stuff.

[00:18:24] Speaker 02:
And that is, a law which has exceptions in it is not a law of general application. Period. That was made very clear in the Fulton case recently.

[00:18:35] Speaker 02:
A lot of courts had the recognized that some of their prior precedents were now not good law anymore in light of Fulton. This law lets Christmas tree lots operate without applying for this thing, lets carnivals and amusements, and it lets you put a mobile home on the place for a year as long as you're building something else on the place that you intend to live in it. This law has exceptions, so it's not generally applicable under Fulton. It cannot be considered generally applicable. That triggers strict scrutiny.

[00:19:06] Speaker 02:
They have to have a compelling governmental interest and they have to have a narrowly tailored explanation as to why it applies here. And the burden's on them. It's not that I have to prove on behalf of the church that it won't cause a fire or it won't do this or it won't do that. The burden's on them. And it's just like they said in Roman Catholic. And why are you letting hair salons and bars be open for this but not churches and worship services? Why are you letting amusement rides and carnivals and... So you want some time for rebuttal?

[00:19:39] Speaker 02:
Yes. Thanks.

[00:19:51] Speaker 00:
Good morning. Excuse me. Good morning, Your Honors. May it please the Court, Holly Lynch on behalf of the City of Burien.

[00:20:00] Speaker 00:
Before I get into the specific claims, there's some key... points and concepts that I think are important.

[00:20:07] Speaker 00:
This is a land use case about land use and zoning codes.

[00:20:13] Speaker 00:
It is not a case involving a permit that was denied or religious conduct that was stymied or didn't go forward.

[00:20:22] Speaker 00:
It's not about licenses. It's not about short-term events.

[00:20:26] Speaker 00:
It's not about a two-day change to how somebody is using their property. It is about taking a parking lot and turning it into dwelling space, outdoor dwelling space, for close to 100 people. And keep in mind that these people are some of the most vulnerable in our populations.

[00:20:47] Speaker 00:
And the mechanism for allowing that to happen, because it is a change in use, parking to dwelling, is through a permitting process. It is not through a letter from an attorney.

[00:21:01] Speaker 00:
It is not through back and forth phone calls. It's a permitting process, and that's the mechanism that we have.

[00:21:07] Speaker 01:
So let me ask you this.

[00:21:10] Speaker 01:
Do we have any assurance that had the permit been applied for, it would have been granted?

[00:21:19] Speaker 00:
Certainly. I think that if you look at the permit application itself, which we submitted in our supplemental record, It says, you know, a permit needs to be applied for 30 days ahead of time. The city interprets that to mean you're going to get your permit within the 30 days.

[00:21:36] Speaker 01:
No, no, it doesn't say that. That implies you're going to get an answer within 30 days.

[00:21:41] Speaker 00:
Oh, yes. Pardon me. You are correct, Your Honor.

[00:21:45] Speaker 00:
And what the city had represented to the church all along, we encourage this. Thank you. We just need to make sure that this is safe. And...

[00:21:57] Speaker 00:
I think you can also infer from the undisputed facts, you know, they waived the permitting fee. They actually had directly reached out to the church themselves saying, hey, we need to set this up. I mean, that doesn't happen in a typical permitting process.

[00:22:13] Speaker 01:
And so what are the requirements for the permitting for this particular use? That is to say, basically, access, sewage, that kind of stuff?

[00:22:21] Speaker 00:
Yeah, and if you look at the – again, because it's a generally – neutrally applied process.

[00:22:31] Speaker 00:
It's a review by the building department, the fire department, the planning department, police. And yes, it's all of those health and safety factors that the city pointed out and described to them. And we need to just make sure that there's sanitation, there's no fire hazards, that this is generally safe.

[00:22:48] Speaker 00:
And the way to do that is through this review.

[00:22:55] Speaker 00:
When they refuse, again, the city is trying to find alternative means to move this forward.

[00:23:02] Speaker 01:
So help me understand.

[00:23:07] Speaker 01:
Your adversary is telling me that they agreed to all of these things. Is that right?

[00:23:13] Speaker 00:
Yes and no. They agreed to all of them finally, but after the encampment had ended at its natural end date. So at that point, it was moot.

[00:23:23] Speaker 01:
But they agreed to all the things that would be in the permitting process if they were to apply again?

[00:23:28] Speaker 00:
I believe so. I don't want to speak to a hypothetical circumstance in the future.

[00:23:38] Speaker 01:
But they agreed to things that would have been required had they filed for the permit beforehand?

[00:23:45] Speaker 00:
They agreed to things that they negotiated through a memorandum of understanding, which was entered into – under Washington law regarding religious institutions hosting homeless encampments. And so the terms of that were reflected from the statute. Those were not necessarily going to be conditions of granting the permit.

[00:24:07] Speaker 04:
But was it co-extensive? No.

[00:24:10] Speaker 04:
Was their agreement in effect include the conditions that would be included in a permit application?

[00:24:18] Speaker 00:
Well, I think that we're dealing with a hypothetical here because there was no permit application.

[00:24:23] Speaker 04:
There was a negotiation and this is what... No, I understand there wasn't, but you just ticked off a series of items that would need to be in an application. So my question is, is the agreement that was reached tantamount to a permit application or even a grant of a permit application because this is now a permitted use?

[00:24:50] Speaker 00:
I think that it's an apples to oranges analysis somewhat because the memorandum of understanding is an agreement and therefore it doesn't go through that typical permitting process. The permitting process that the city described was very much of, we would like to just come in and have the fire department come with us. We need to make sure that there's water sanitation, no fire hazards.

[00:25:24] Speaker 00:
When they contemplated a memorandum of understanding that exceeds the boundaries of a permit, because this temporary use permit was contemplated for 90 days, and a memorandum of understanding potentially could have been applied to future happenings, it's a different scenario.

[00:25:46] Speaker 04:
It doesn't quite get to my question, and that is the key points of a temporary use permit, as you laid them out, relate to basically safety and health. Correct. And are those, in fact, part and parcel of the memorandum of understanding? So the memorandum, in effect, would be tantamount to a permit and then a granting of a permit.

[00:26:14] Speaker 00:
Exactly. Yes, Your Honor. I believe if I'm understanding your question correctly, yes, the Memorandum of Understanding addresses health and safety. And so under Washington state law, this is an alternative to the permitting process.

[00:26:30] Speaker 04:
So they don't need a permit if they're operating under the Memorandum of Understanding?

[00:26:37] Speaker 00:
Correct. Under Washington state law.

[00:26:44] Speaker 04:
So if I answered your question, I just want to get... I guess I'm trying to figure out what the beef is at this point. I mean, when asked, of course, Mr. Lobson says we will never apply for a permit because we don't need to.

[00:26:57] Speaker 04:
But what you're now saying is what's happened is tantamount to a permit. He's concerned, of course, about the future.

[00:27:06] Speaker 04:
But for now...

[00:27:09] Speaker 04:
Everything is copacetic.

[00:27:11] Speaker 00:
Is that right? The memorandum of understanding was ultimately not executed because the encampment ended. It certainly could be revived in the future if the situation arises again.

[00:27:26] Speaker 00:
But I do want to get into a little bit the claims here specifically because I think that it's important to address these facts within the actual claims that have been pled. And the first one is the free exercise clause claim, of course. And as this court said in San Jose Christian College, a law, and many other courts have said, zoning laws that are neutral and are applied uniformly to everybody that don't target religion, that don't ask about a religious purpose, are not violations of the free exercise clause, even if they affect, incidentally, a religious practice.

[00:28:06] Speaker 00:
So a law is neutral and generally applicable, and I'm reading here, I'm quoting from the San Jose Christian College case, if it does not aim upon or restrict practices because of their religious motivation, and does not in a selective manner impose burdens only on conduct motivated by religious belief.

[00:28:29] Speaker 00:
So of course we know in the San Jose Christian College case, a religious institution wanted to, a zoning exemption permit to build a religious college, and the city denied it. And this court said, well, you know, these are neutral, generally applied laws. Anybody who wants to build in a zone that doesn't allow for it has to apply for a permit. This is not looking into the use.

[00:29:00] Speaker 00:
This is not looking into the religious motivation behind it.

[00:29:04] Speaker 00:
And as Biryan said over and over, anybody who wants to convert a parking lot into a dwelling outside for over 100 people has to apply for a permit. It doesn't matter what the underlying purpose is or not. We're not looking at that. We believe you that this is a sincerely held religious belief, but that's not relevant to our process.

[00:29:27] Speaker 00:
And in fact, they can't look into that.

[00:29:31] Speaker 00:
The permit application itself is short. It does not consider the religious or the secular reasons behind it. It simply looks at the change in use. Again, parking to living.

[00:29:41] Speaker 03:
Go ahead. Can I ask, do you think that they made an as-applied challenge on the free speech claim?

[00:29:55] Speaker 00:
No. I do not believe that they made an as-applied challenge on the free speech claim.

[00:30:01] Speaker 00:
Because to get there, there there would have had to have been some curtailment of the religious practice.

[00:30:10] Speaker 00:
And and Cantwell versus Connecticut, which they say is the case that must be relied on, says that when a law does not involve a religious test or does not obstruct or delay. It is not subject to any constitutional objection and is not a prior restraint.

[00:30:24] Speaker 03:
Well, I mean, here, if they made an as-applied challenge, they are saying that you've determined that their ancillary use or accessory use is not religious, and that is a religious test.

[00:30:35] Speaker 00:
Well, no, what we're saying is that there was a change in use at the property.

[00:30:40] Speaker 03:
Well, that's because you're just denying that their religious purpose is not an ancillary use.

[00:30:46] Speaker 00:
No, it's more specific than that. It is taking the parking lot, which is part of the original permitted property, how it was built 20-some years ago, and turning that use into a dwelling.

[00:31:00] Speaker 03:
Yes, but if they're saying that that's an ancillary use, then of their religious purpose, it fits within the regulation.

[00:31:10] Speaker 00:
Right, but it is a change.

[00:31:13] Speaker 03:
Well, it doesn't say you need to do anything. It changes if you're within the use of the – within the permit.

[00:31:24] Speaker 03:
Use is not otherwise permitted in the zone. So if it is a religious purpose to use the parking lot, then it's not a change that requires a temporary use permit.

[00:31:33] Speaker 00:
I believe that the code says accessory use.

[00:31:36] Speaker 03:
Yeah, sorry.

[00:31:38] Speaker 00:
Which does not contemplate dwellings.

[00:31:42] Speaker 03:
Well, I mean, that's a religious determination, though, isn't it? Or it could be.

[00:31:48] Speaker 03:
What's accessory to the religious practice? That is a quintessential religious question.

[00:31:55] Speaker 00:
Sure.

[00:31:59] Speaker 00:
But but again, it's it's going back to how this property was originally zoned. And it's yes, the church, the dwelling. But zoning is not just, hey, here's our building.

[00:32:11] Speaker 00:
There's a site plan, et cetera.

[00:32:12] Speaker 03:
There's laws regarding – But you would agree if that's the case, though, it could infringe on the exercise or at least implicate the First Amendment?

[00:32:21] Speaker 00:
That code provision?

[00:32:23] Speaker 03:
Yeah, determining that something is not a related accessory use in the religious context can implicate a First Amendment.

[00:32:32] Speaker 00:
Well, and that's why it's done neutrally here, and that's why the city says we're not looking at a – your religious intent, we take you for your word. This is, you're changing a parking lot to a place for 100 plus people to live for three months outside.

[00:32:47] Speaker 04:
But they're saying that actually is in the confines or under the umbrella of how we view Christianity and our duty to help these people. So it's no different whether it's inside the church or it's in the parking lot.

[00:33:06] Speaker 00:
Well, and so certainly, and It would be then similar to requiring a religious organization to apply for a building permit to build a temple. Nobody can deny that a temple is is for a religious use and a religious purpose.

[00:33:21] Speaker 03:
But say they use the parking lot for a blood drive. Do you think they need a permit for that?

[00:33:29] Speaker 00:
Well, if they used it for for 90 days continuously, it's.

[00:33:35] Speaker 00:
Sure, because it's changing the use from a parking lot to a different use.

[00:33:40] Speaker 03:
But you would agree that's a related accessory use?

[00:33:45] Speaker 00:
No, I would agree that they would need a permit because it would be a change in use.

[00:33:50] Speaker 04:
So what if they were to use it for a children's camp, a children's Christian Bible camp for 100 days of the summer?

[00:33:59] Speaker 00:
Again, that would be a change in use. And so under the It would be changing the parking lot from – But that's not what the regulations say.

[00:34:08] Speaker 03:
It's saying you could use it – you only need the temporary use permit unless it's otherwise permitted. And if it is permitted use to use the parking lot for a religious purpose, then the temporary use permit is not necessary.

[00:34:22] Speaker 00:
I think the city's position was that a parking lot isn't inherently a religious purpose.

[00:34:30] Speaker 01:
Here's a sort of a – I'll call it a meta question.

[00:34:34] Speaker 01:
You – well, all three of us or all four of us are struggling to figure out what's a related accessory use. I mean that's in the code. I've got a different question, which is who gets to decide that question? Does Burian get to decide that because it's their code? Do we get to decide it independently what the meaning of their code is? I mean I can see arguments either way. This may or may not be a related accessory use within the meaning of the code. Maybe it is, maybe it isn't.

[00:35:05] Speaker 01:
Do we get to decide that? Does the city get to decide that in the first instance? Do we have to give some deference to them as to the meaning of their own code? I mean, who gets to decide that? Not what is the meaning, but who gets to decide what is the meaning?

[00:35:19] Speaker 00:
Certainly, but there is not a challenge to that definition.

[00:35:23] Speaker 01:
Well, no, the question is what is the meaning? I mean, what is the definition?

[00:35:27] Speaker 00:
I don't have it in front of me.

[00:35:28] Speaker 01:
Well, no, I've got the words in front of me, but then the question is what does that definition mean? I mean, as I view it, it's capable of including a related accessory use, may well be having a homeless encampment, but it may not be. I mean, how do I know?

[00:35:43] Speaker 00:
Certainly, but that does not go to any of the claims that have been pled here.

[00:35:47] Speaker 00:
Because the claim is that you, by requiring a permit, you have just that simple requirement, you have violated our right to free exercise.

[00:36:00] Speaker 00:
It is not... that you denied us a permit and we were entitled to that permit and we were entitled to do this because it was a sincerely held religious belief. They did exactly what they wanted to do. There was no change in their behavior. The city said to them, look, this is not a prerequisite. We just need you to apply for the permit. I think you stated it accurately.

[00:36:28] Speaker 04:
They said, or at least council said, we don't need to apply for a payment and we won't.

[00:36:36] Speaker 04:
Is that right?

[00:36:37] Speaker 00:
That is correct. That's what they said.

[00:36:41] Speaker 00:
And the city said, turning a parking lot into an outdoor dwelling for 100 vulnerable people requires a temporary use permit. We're willing to waive the fee. We're willing to extend the length of time. We're willing to work with you. We're willing to try to come up with something that will work for everybody.

[00:37:04] Speaker 03:
Assuming that we do think that strict scrutiny should apply here, should you survive anyway?

[00:37:11] Speaker 00:
Absolutely. This is not putting them through years of permitting review. It's a 30-day process at most. There are provisions set up for review. And in fact, that notice of violation is what triggers that. Like, hey, here, we're giving this to you. You have 14 days if you want to challenge our interpretation. They don't. And then in the church's briefing, they say that, well, then it's subject to the you don't get to judicial review until you file a complaint under the Administrative Procedure Act.

[00:37:45] Speaker 00:
And that's not the case.

[00:37:48] Speaker 00:
That was in their reply brief. You would the procedure would be under Washington's Land Use Petition Act. which has an expedited schedule, a 20-day, 21-day timeline to file, it is set up to be as prompt as possible.

[00:38:03] Speaker 00:
So we're not talking about a situation of would be, could be, maybe, delay. There was no delay. This use happened. And there's no claim that is articulated that you interpreted your code wrong, and that equals a prior restraint.

[00:38:30] Speaker 00:
The claim is simply requiring us to have a permit period, and that provision, the temporary use permit provision, is a prior restraint because we should not have to apply for a permit. And what the courts have said is, no, it is not.

[00:38:45] Speaker 01:
Here's just a straightforward practical matter.

[00:38:49] Speaker 01:
What is at issue with respect to this permit provision? sewage, access, safety, anything else?

[00:38:56] Speaker 00:
I believe that what the city said, you know, basic sanitation, fire hazard.

[00:39:01] Speaker 01:
That's what is at issue. The city says we want to make sure that it's safe, that it's sanitary. Bingo, that's it. As a practical matter, that's what's at issue.

[00:39:11] Speaker 00:
I mean, yeah, we want to make sure that it's safe, that it's sanitary, that, you know, there aren't tripping hazards, that people, that emergency vehicles can get in and out. Yeah, got it. all of the very basics of when you are housing a vulnerable population. And again, none of this has any inquiry into what the religious intent or purpose is underlying. I just quickly want to address the substantial burden, discrimination, and unequal application cases.

[00:39:46] Speaker 00:
But first, I want to mention that to get to the prior restraint, there has to be a violation to begin with. If it doesn't violate the free exercise clause, we don't have to get to a substantial... Excuse me. We don't have to get to...

[00:40:14] Speaker 00:
my words are escaping me right now, to a prior restraint analysis. And were we to, as this Court says, then it must be tied to expressive conduct. Okay.

[00:40:27] Speaker 00:
Thank you, Your Honors.

[00:40:28] Speaker 03:
Thank you, Counsel.

[00:40:39] Speaker 02:
Judge Fletcher, I'd like to Come back to the questions you asked about speculation and stuff and applying. I just want to point out that the U.S. Supreme Court said in the Thornhill case, a person who could have had the permit just for the asking still doesn't have to ask.

[00:40:55] Speaker 01:
Let me ask you. I understand that. Let me ask you a practical question, though.

[00:41:02] Speaker 01:
It seems to me with this many people on the parking lot for a sustained period, you are going to need some facility, some accommodation for sewage, for sanitary, and so on, correct?

[00:41:15] Speaker 02:
We had them.

[00:41:17] Speaker 01:
Yes. And is the city not able to require that you do so if you do not?

[00:41:23] Speaker 02:
They can.

[00:41:25] Speaker 02:
They never asked any questions about that. They never had any problems about that.

[00:41:30] Speaker 01:
But then I'm asking you, as I understand the permitting process, the permitting process – The permitting process is one that says, are you making those arrangements?

[00:41:41] Speaker 02:
No, it isn't. And the facts have not been represented correctly to you today. There's not a single question on that application form about sanitation. Electricity, liquor, public way access by roads. That's it. We gave them all the information they asked for. We said, do you want any more information? They never asked for any more information. We had our own fire inspections. We asked our own fire department, a different city fire department, to come in and inspect. Is there anything wrong with this? Is there anything we should do? We don't have any problem with any of that.

[00:42:12] Speaker 02:
But their permit does not ask for any of that stuff. It doesn't. And they also represented to you that they make a decision within 30 days, and that's not true. And we pointed out in the reply brief, that 30-day period says if you want a permit, you have to apply 30 days in advance of when you want to do this thing. It has nothing to do with issuing a swift decision, not a swift administrative decision, not a swift judicial decision. It's not true that it says that. Is anything guaranteed within 30 days?

[00:42:42] Speaker 02:
And finally, I really want to emphasize that this is an appeal from a 12b-6, not an appeal from a summary judgment. And I hear a lot of representations about the evidence says this and the evidence says that and you haven't shown this and you haven't shown that. We don't have to have evidence at this point. We do. But we have to have plausible allegations at this point. And we sure as heck do have those. And finally, I point out that it's an unpublished decision, but an unpublished decision of this court, which is of persuasive value.

[00:43:13] Speaker 02:
It's a harbor missionary case. The harbor missionary case had the district court erred by not granting a preliminary injunction. You have district courts like St. Timothy's in Brookings, Oregon, relying on that. These cases hold that it's a denial of free exercise. not to allow these people to serve the homeless food.

[00:43:35] Speaker 02:
Thank you.