[00:00:08] Speaker 02:
Good morning, Your Honors.

[00:00:09] Speaker 02:
My name is Jim Loebsens.

[00:00:10] Speaker 02:
I represent Pastor Miller and the Church.

[00:00:12] Speaker 02:
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.

[00:00:24] Speaker 02:
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.

[00:00:35] Speaker 02:
Factually, the problem with delay is extreme in this case because...

[00:00:44] Speaker 02:
The law that Burien passed making it illegal to live in Burien on public property was passed on September 25th, effective November 1st.

[00:00:53] Speaker 02:
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.

[00:01:06] 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.

[00:01:22] Speaker 02:
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.

[00:01:37] Speaker 02:
It could take months for them to issue a decision.

[00:01:39] Speaker 04:
How do we know it would take months?

[00:01:41] Speaker 02:
We don't.

[00:01:42] Speaker 02:
But it could.

[00:01:43] Speaker 04:
But that's just speculation.

[00:01:47] Speaker 04:
And as we see in the facts here,

[00:01:50] Speaker 04:
This, Berrien is letting them stay there and just saying, would you apply for a permit?

[00:01:54] Speaker 04:
They don't kick them out.

[00:01:55] Speaker 04:
They just say, would you please apply for a permit?

[00:01:57] Speaker 04:
And your client just says, no, we're not going to do it.

[00:01:59] Speaker 04:
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 04:
But your argument is we should hold against the city because

[00:02:14] Speaker 04:
your people would be delayed in allowing the people onto the parking lot, but they've not been delayed.

[00:02:20] Speaker 04:
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.

[00:02:30] Speaker 02:
Maybe they would have granted it.

[00:02:31] Speaker 04:
No, no, what I'm saying is in response to your question about delay, there's no showing here that the city of Berien is going to say you can't have these people unless you have the permit.

[00:02:41] Speaker 04:
They're saying we understand the people are there.

[00:02:43] Speaker 04:
We want you to apply for a permit.

[00:02:45] Speaker 04:
They never applied for a permit, but the city of Berien never actually went and cleared them out.

[00:02:49] Speaker 04:
They just let them stay there.

[00:02:50] Speaker 04:
So it seems to me that you're saying what you're saying is is speculative and

[00:02:57] Speaker 04:
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.

[00:03:03] Speaker 02:
No church has to make that showing.

[00:03:04] Speaker 02:
The case law says you don't have to apply in order to challenge these types of licensing schemes.

[00:03:12] Speaker 02:
I'm saying that Watchtower Bible people didn't apply.

[00:03:17] Speaker 02:
people in the Second Circuit at the church, 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.

[00:03:40] Speaker 02:
Judicial or administrative?

[00:03:41] Speaker 02:
Judicial.

[00:03:42] Speaker 02:
Your Supreme Court statute has to be judicial in the Littleton case.

[00:03:47] Speaker 02:
It cannot, that was exactly the argument made in Littleton.

[00:03:50] Speaker 02:
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.

[00:03:57] Speaker 02:
It's not a prompt judicial determination.

[00:04:00] Speaker 03:
That just can't be right.

[00:04:01] Speaker 03:
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 restraint law, all the precedents say.

[00:04:12] Speaker 02:
There's six US Supreme Court cases that say you do not have to apply.

[00:04:17] Speaker 02:
And there are cases where this court has said, you win, this is a prior restraint, even though you didn't apply.

[00:04:23] Speaker 02:
So.

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

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

[00:04:48] Speaker 02:
Well, maybe I could say two things about.

[00:04:52] Speaker 02:
the Aloha case here on.

[00:04:53] Speaker 02:
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.

[00:05:11] Speaker 02:
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?

[00:05:20] Speaker 02:
Oh, about expression.

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

[00:05:31] Speaker 02:
That is one of the points, yes, central point made there.

[00:05:35] Speaker 02:
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.

[00:05:44] Speaker 02:
It just doesn't apply.

[00:05:45] Speaker 02:
And the US 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:
Yeah, I mean, assuming they would 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 regulations, the statutes, I'm not sure I understand.

[00:06:12] Speaker 02:
The statute says, among other things, it says religious facilities are allowed in this zone.

[00:06:20] Speaker 02:
It says that.

[00:06:22] Speaker 02:
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 Several courts have said that Well, they've said that you have to up.

[00:06:46] Speaker 02:
Sorry.

[00:06:47] Speaker 04:
The question is what's the meaning of the code?

[00:06:50] Speaker 04:
Not some generic out 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 04:
I mean, in other words, one question is... But that's my question.

[00:07:05] Speaker 04:
It's my question to you.

[00:07:06] Speaker 04:
How does this fit within the definition of religious facility within the Code?

[00:07:11] Speaker 02:
Well, it's worship.

[00:07:12] Speaker 02:
And several... Setting up homeless encampment is worship?

[00:07:17] Speaker 02:
It is, Your Honor.

[00:07:18] Speaker 02:
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,

[00:07:24] Speaker 02:
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.

[00:07:34] Speaker 02:
And it's central to all three Abrahamic religions.

[00:07:38] Speaker 04:
No, I take that point and I think under some definitions that's absolutely right.

[00:07:41] Speaker 04:
My question is whether or not that's the definition employed by the Berian Municipal Code, and I'm not sure you're right as to that.

[00:07:49] Speaker 02:
My answer to that is two-fold.

[00:07:51] Speaker 02:
I mean, the Burian Code says if it's a religious facility, it's okay here.

[00:07:56] Speaker 02:
How do we define religious facility?

[00:07:57] Speaker 02:
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 ball game because facial examination of the statute is not the only way whether you see it's a prior restraint.

[00:08:13] 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.

[00:08:24] Speaker 02:
The church said.

[00:08:25] Speaker 02:
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.

[00:08:40] Speaker 02:
In fact, I think they got a preliminary injunction, I think.

[00:08:44] Speaker 02:
Because they were likely to cancel.

[00:08:45] Speaker 03:
I agree with much of what you're saying.

[00:08:47] Speaker 03:
But as I understand, you're not challenging the religious use regulation.

[00:08:53] Speaker 03:
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 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 closer relation to expression.

[00:09:12] Speaker 03:
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?

[00:09:19] Speaker 03:
Both.

[00:09:20] Speaker 03:
Okay, because I think what you're saying is 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.

[00:09:51] Speaker 02:
Your code says, this is OK.

[00:09:52] Speaker 02:
We don't even need to apply.

[00:09:53] Speaker 02:
It says we only need to apply if it's an unpermitted use.

[00:09:57] Speaker 02:
We wrote them and said, this is a permitted use.

[00:10:01] Speaker 03:
So you are challenging the religious use.

[00:10:03] Speaker 02:
Regulation you're saying that it's 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

[00:10:21] Speaker 02:
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.

[00:10:34] Speaker 02:
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, this is in our complaint, oh, don't worry about the fines.

[00:10:45] Speaker 02:
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,

[00:11:04] Speaker 02:
But they said the reason they wanted to provoke an appeal 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.

[00:11:25] Speaker 02:
I don't have to prove that they would have denied

[00:11:28] Speaker 02:
a permit, but you actually have in this case evidence that they intended to delay things.

[00:11:35] Speaker 02:
They intended to provoke an administrative appeal, which could take months and months and months.

[00:11:41] Speaker 02:
Winter would be long over by the time this process was done.

[00:11:45] Speaker 02:
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,

[00:11:58] Speaker 02:
that the court was rejecting, properly rejecting the argument that let's give the courts below more time, the church can always come back later if need be.

[00:12:05] Speaker 04:
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.

[00:12:16] Speaker 02:
And that's how it goes.

[00:12:17] Speaker 02:
And that's how we want it to go the next time and the next time.

[00:12:19] Speaker 04:
No, but you're arguing, well, wait a minute, they can't drag this out.

[00:12:23] Speaker 04:
and not allow us to do this.

[00:12:25] Speaker 04:
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.

[00:12:34] Speaker 02:
They can't tell you that we might prosecute you criminally.

[00:12:37] Speaker 02:
They have scared off all the other churches in this town.

[00:12:40] Speaker 02:
I mean, this church put out a call to the other churches and said, why don't you stand by us?

[00:12:44] Speaker 02:
And they saw what happened to this church, and nobody else stepped forward.

[00:12:48] Speaker 02:
We want to do this every two years.

[00:12:50] Speaker 02:
We said we want to do this every two years.

[00:12:53] Speaker 02:
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.

[00:13:03] Speaker 02:
that they proposed, and it would govern all the future ones.

[00:13:06] Speaker 02:
We wanted to do this every two years.

[00:13:08] Speaker 02:
Now it's been about two and a half years since we've done it.

[00:13:10] Speaker 02:
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 02:
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.

[00:13:29] Speaker 02:
And I don't think they're going to fix everything.

[00:13:31] Speaker 02:
I mean, we we said you said to us one of the reasons ways you can cure this is to enter into an agreement.

[00:13:39] Speaker 02:
Do these things.

[00:13:40] Speaker 02:
Make sure it's not noisy.

[00:13:41] Speaker 02:
Don't serve liquor.

[00:13:42] Speaker 02:
We agreed to all those things.

[00:13:44] Speaker 02:
Don't have registered sex offenders.

[00:13:45] Speaker 02:
There were no problems with this.

[00:13:47] Speaker 02:
The only thing we won't do is say, could we have your permission, please?

[00:13:52] Speaker 02:
We gave them every piece of information they asked for.

[00:13:55] Speaker 02:
Their application only asks three questions.

[00:13:58] Speaker 02:
Do you need more electricity?

[00:14:00] Speaker 02:
Will there be a problem with egress on public roads?

[00:14:04] Speaker 02:
And do you serve liquor?

[00:14:05] Speaker 02:
And that's it.

[00:14:06] Speaker 02:
And we said, no, no, no.

[00:14:08] Speaker 02:
We gave them everything their application asks for.

[00:14:11] Speaker 02:
The only thing we didn't do is say, now, Mother, may I please do this?

[00:14:15] Speaker 02:
Because that would give them the opportunity to stretch it out for months, for years.

[00:14:20] Speaker 02:
And we do not have to prove.

[00:14:22] Speaker 03:
Can you clarify, so you're saying your facial challenge is to the code 19.10.450, the religious facility regulation, not to the temporary use regulation?

[00:14:40] Speaker 02:
The temporary use regulation doesn't have things in it.

[00:14:48] Speaker 02:
I mean, it doesn't have time limits.

[00:14:51] Speaker 02:
That's one thing.

[00:14:52] Speaker 02:
And what it does... Well, I'll just answer my question.

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

[00:14:55] Speaker 03:
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.

[00:15:09] Speaker 03:
OK.

[00:15:09] Speaker 02:
So you're not challenging facially the religious facility regulation?

[00:15:13] Speaker 02:
No, we think that supports us.

[00:15:15] Speaker 02:
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.

[00:15:24] Speaker 02:
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.

[00:15:30] Speaker 03:
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

[00:15:39] Speaker 03:
regulation then is closely related to expression, which I think is a hard thing to do.

[00:15:45] Speaker 03:
If you're challenging religious facility regulation, then that's much easier.

[00:15:50] Speaker 02:
Well, let me say something about closely related to expression.

[00:15:53] Speaker 02:
First of all, in Aloha or Oregon Barter, or perhaps both, I think both,

[00:15:58] Speaker 02:
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:
OK, that's it.

[00:16:16] Speaker 03:
Go ahead, Judge McKinnon.

[00:16:18] Speaker 00:
Well, if they decided they wanted to set up a Friday night beer hall and jazz festival,

[00:16:28] Speaker 00:
under the temporary use law.

[00:16:30] Speaker 00:
Would you argue, well, that's related to expression also?

[00:16:34] Speaker 02:
Probably not.

[00:16:36] Speaker 02:
That would be a stretch for fitting within the mass gathering kind of line of case law from Oregon Barter.

[00:16:42] Speaker 02:
But if you're just going to drink beer, I don't think that would be a stretch.

[00:16:48] Speaker 02:
I don't know.

[00:16:48] Speaker 02:
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.

[00:16:56] Speaker 02:
I wouldn't be here.

[00:16:58] Speaker 02:
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 in, is compatible with the area.

[00:17:10] Speaker 02:
Their law says you have to prove to us that this does not create any dangers or problems.

[00:17:14] Speaker 02:
Their law says you have to prove it's not materially detrimental to the public welfare.

[00:17:19] Speaker 02:
Their law doesn't say, and we will get you, we will ensure prompt judicial decision-making decision.

[00:17:27] Speaker 02:
within a very short period of time, so it's a prior restraint.

[00:17:30] Speaker 00:
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.

[00:17:45] Speaker 00:
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

[00:17:55] Speaker 02:
a substantial burden, and it runs through the prior restraint law.

[00:17:58] Speaker 02:
But if I could, I don't want to sit down before I touch on the free exercise claim, which doesn't... Oh, sorry.

[00:18:04] Speaker 03:
Before... Yeah, and I... Can you show me where you made an as-applied challenge?

[00:18:09] Speaker 03:
It's pled in the complaint, I think.

[00:18:11] Speaker 03:
In the complaint?

[00:18:12] Speaker 03:
Okay.

[00:18:12] Speaker 02:
I'm pretty sure that... Well, we took you over.

[00:18:16] Speaker 02:
Well, why don't you... But I would like to just say one thing about the free exercise claim, which doesn't depend on any of this prior restraint stuff, right?

[00:18:24] Speaker 02:
and that is a law which has exceptions in it is not a law of general application, period.

[00:18:30] Speaker 02:
That was made very clear in the Fulton case recently.

[00:18:34] Speaker 02:
A lot of courts had to recognize that some of their prior precedents were now not good law anymore in light of Fulton.

[00:18:41] Speaker 02:
This law makes Christmas tree lots operate without applying for this thing, lets carnivals and amusements and

[00:18:49] Speaker 02:
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.

[00:18:56] Speaker 02:
This law has exceptions, so it's not generally applicable under Fulton.

[00:19:02] Speaker 02:
It cannot be considered generally applicable.

[00:19:04] Speaker 02:
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.

[00:19:16] Speaker 02:
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.

[00:19:23] Speaker 02:
The burden's on them.

[00:19:26] Speaker 02:
And it's just like they said in Roman Catholic.

[00:19:27] Speaker 02:
And why are you letting hair salons and bars be open for this, but not churches and worship services?

[00:19:34] Speaker 02:
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 05:
Good morning.

[00:19:52] Speaker 05:
Excuse me.

[00:19:53] Speaker 05:
Good morning, your honors.

[00:19:54] Speaker 05:
May it please the court, Holly Lynch, on behalf of the City of Berrien.

[00:20:00] Speaker 05:
Before I get into the specific claims, there's some key points and concepts that I think are important.

[00:20:07] Speaker 05:
This is a land use case about land use and zoning codes.

[00:20:12] Speaker 05:
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 05:
It's not about licenses.

[00:20:23] Speaker 05:
It's not about short-term events.

[00:20:26] Speaker 05:
It's not about a two-day change to how somebody is using their property.

[00:20:31] Speaker 05:
It is about taking a parking lot and turning it into dwelling space, outdoor dwelling space, for close to 100 people.

[00:20:41] Speaker 05:
And keep in mind that these people are some of the most vulnerable in our populations.

[00:20:47] Speaker 05:
And the mechanism for allowing that to happen, because it is a change in use, parking to dwelling, is through a permitting process.

[00:20:57] Speaker 05:
It is not through letter from an attorney.

[00:21:01] Speaker 05:
It is not through back and forth phone calls.

[00:21:03] Speaker 05:
It's a permitting process, and that's the mechanism that we have.

[00:21:07] Speaker 04:
So let me ask you this.

[00:21:08] Speaker 04:
Do we have any assurance that had the permit been applied for, it would have been granted?

[00:21:18] Speaker 05:
I certainly I think that if you look at the permit application itself, which we submitted in the in our supplemental record.

[00:21:28] Speaker 05:
It says, you know, a permit needs to be applied for 30 days ahead of time.

[00:21:32] Speaker 05:
The city interprets that to mean you're going to get your permit within the 30 days.

[00:21:37] Speaker 04:
No, no, it doesn't say that.

[00:21:38] Speaker 04:
That implies you're going to get an answer within 30 days.

[00:21:41] Speaker 05:
Oh, yes.

[00:21:42] Speaker 05:
Pardon me.

[00:21:43] Speaker 05:
You are correct, Your Honor.

[00:21:45] Speaker 05:
And what the city had represented to the church all along, we encourage this.

[00:21:50] Speaker 05:
Thank you.

[00:21:51] Speaker 05:
to make sure that this is safe.

[00:21:55] Speaker 05:
And I think you can also infer from the undisputed facts, you know, they waived the permitting fee.

[00:22:03] Speaker 05:
They actually had directly reached out to the church themselves saying, hey, we need to set this up.

[00:22:10] Speaker 05:
I mean, that doesn't happen in a typical permitting process.

[00:22:13] Speaker 04:
And so what are the requirements for the permitting for this particular use?

[00:22:17] Speaker 04:
That is to say, basically, access, sewage, that kind of stuff?

[00:22:20] Speaker 05:
Yeah, and if you look at the.

[00:22:25] Speaker 05:
Again, because it's a generally neutral neutrally applied process.

[00:22:31] Speaker 05:
It's a review by the building department, the fire department, the planning department, police.

[00:22:35] Speaker 05:
And yes, it's all of those health and safety factors that the city pointed out and described to them.

[00:22:40] Speaker 05:
And we need to just make sure that there's sanitation.

[00:22:42] Speaker 05:
There's no fire hazards.

[00:22:44] Speaker 05:
This is generally safe.

[00:22:47] Speaker 05:
And the way to do that is through this review.

[00:22:54] Speaker 05:
when they refuse, again, the city is trying to find alternative means to move this forward.

[00:23:02] Speaker 04:
So to help me understand, your adversary is telling me that they agreed to all of these things.

[00:23:11] Speaker 04:
Is that right?

[00:23:13] Speaker 05:
Yes and no.

[00:23:14] Speaker 05:
They agreed to all of them finally, but after the encampment had ended at its natural end date.

[00:23:22] Speaker 05:
So at that point, it was moved.

[00:23:23] Speaker 04:
But they agreed to all the things that would be in the permitting process if they were to apply again?

[00:23:29] Speaker 05:
I believe so.

[00:23:32] Speaker 05:
I don't want to speak to a hypothetical circumstance in the future.

[00:23:38] Speaker 04:
But they agreed to things that would have been required had they filed for the permit beforehand?

[00:23:45] Speaker 05:
They agreed to things that they negotiated through a memorandum of understanding, which was entered under Washington law regarding religious institutions hosting homeless encampments.

[00:23:57] Speaker 05:
And so the terms of that were reflected from the statute.

[00:24:01] Speaker 05:
Those were not necessarily going to be conditions of granting the permit.

[00:24:07] Speaker 00:
But was it co-extensive?

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

[00:24:18] Speaker 05:
Well, I think that we're dealing with a hypothetical here because there was no permit application.

[00:24:23] Speaker 00:
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.

[00:24:33] Speaker 00:
So my question is, is the agreement that was reached tantamount to

[00:24:42] Speaker 00:
a permit application or even a grant of a permit application because this is now a permitted use?

[00:24:50] Speaker 05:
I think that it's an apples to oranges analysis somewhat because the memorandum of understanding is an agreement and therefore

[00:25:06] Speaker 05:
it doesn't go through that typical permitting process.

[00:25:10] Speaker 05:
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, need to make sure that there's water sanitation, no fire hazards.

[00:25:24] Speaker 05:
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

[00:25:37] Speaker 05:
potentially could have been applied to future happenings.

[00:25:42] Speaker 05:
It's a different scenario.

[00:25:46] Speaker 00:
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.

[00:25:59] Speaker 00:
Correct.

[00:25:59] Speaker 00:
And are those in fact part and parcel of the Memorandum of Understanding?

[00:26:08] Speaker 00:
the memorandum in effect would be tantamount to a permit and then a granting of a permit.

[00:26:15] Speaker 05:
Yes, Your Honor.

[00:26:16] Speaker 05:
I believe if I'm understanding your question correctly, yes, the memorandum of understanding addresses health and safety.

[00:26:22] Speaker 05:
And so under Washington state law, this is an alternative to the permitting process.

[00:26:30] Speaker 00:
So they don't need a permit if they're operating under the memorandum of understanding.

[00:26:36] Speaker 05:
correct under Washington state law.

[00:26:44] Speaker 05:
So if I answered your question, I just want to get.

[00:26:46] Speaker 00:
I guess I'm trying to figure out what the beef is at this point.

[00:26:49] Speaker 00:
I mean, when asked, of course, Mr. Lipson says we will never apply for a permit because we don't need to.

[00:26:57] Speaker 00:
But what you're now saying is what's happened is tantamount to a permit.

[00:27:03] Speaker 00:
He's concerned, of course, about the future.

[00:27:06] Speaker 00:
But for now, everything is copasetic, is that right?

[00:27:12] Speaker 05:
The memorandum, I'm understanding, was ultimately not executed because the encampment ended.

[00:27:18] Speaker 05:
It certainly could be revived in the future if the situation arises again.

[00:27:26] Speaker 05:
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.

[00:27:36] Speaker 05:
And the first one is the free exercise clause claim, of course.

[00:27:41] Speaker 05:
And as this court said in San Jose Christian College,

[00:27:44] Speaker 05:
A law and many other courts have said, you know, 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.

[00:28:01] Speaker 05:
Even if they affect incidentally, a religious practice.

[00:28:06] Speaker 05:
So a law is neutral and generally applicable.

[00:28:09] Speaker 05:
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 05:
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.

[00:28:43] Speaker 05:
And this court said, well, you know, these are neutral, generally applied laws.

[00:28:48] Speaker 05:
Anybody who wants to build in a zone that doesn't

[00:28:53] Speaker 05:
Allow for it has to apply for a permit.

[00:28:58] Speaker 05:
This is not looking into the use.

[00:29:00] Speaker 05:
This is not looking into the religious motivation behind it.

[00:29:03] Speaker 05:
And as you know, said over and over like anybody who wants to convert a parking lot into a dwelling.

[00:29:10] Speaker 05:
outside for over 100 people has to apply for a permit.

[00:29:14] Speaker 05:
It doesn't matter what the underlying purpose is or not.

[00:29:17] Speaker 05:
We're not looking at that.

[00:29:18] Speaker 05:
We believe you that this is a sincerely held religious belief, but that's not relevant to our process.

[00:29:27] Speaker 05:
And in fact, they can't look into that.

[00:29:30] Speaker 05:
You know, the permit application itself is short.

[00:29:33] Speaker 05:
It does not consider the religious or the secular reasons behind it.

[00:29:37] Speaker 05:
It simply looks at the change in use.

[00:29:40] Speaker 05:
Again, parking to living.

[00:29:46] Speaker 03:
And, oh, go ahead.

[00:29:47] Speaker 03:
So can I ask, do you think that they made an as-applied challenge on the free speech claim?

[00:29:55] Speaker 05:
No.

[00:29:56] Speaker 05:
I do not believe that they made an as-applied challenge on the free speech claim.

[00:30:01] Speaker 05:
Because to get there, there would have had to have been some curtailment of the religious practice.

[00:30:10] Speaker 05:
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,

[00:30:20] Speaker 05:
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.

[00:30:33] Speaker 03:
And that is a religious test.

[00:30:35] Speaker 05:
Well, no.

[00:30:36] Speaker 05:
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 05:
No, it's more specific than that.

[00:30:48] Speaker 05:
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, that fits within the regulations.

[00:31:10] Speaker 03:
Right, but it is a it is a change and the temporary well It doesn't say you need to do anything it changes if you're within the within the use of the within the permit

[00:31:24] Speaker 03:
Use is not otherwise permitted in the zone.

[00:31:26] Speaker 03:
So if it is a religious purpose to use the parking lot, then it's not a change.

[00:31:31] Speaker 03:
That requires a temporary use permit.

[00:31:33] Speaker 05:
I believe that the code says accessory use.

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

[00:31:36] Speaker 03:
Accessory.

[00:31:38] Speaker 05:
Which does not contemplate dwelling.

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

[00:31:45] Speaker 03:
Or it could be.

[00:31:48] Speaker 03:
What's accessory to the religious practice?

[00:31:51] Speaker 03:
That is a quintessential religious question.

[00:31:55] Speaker 05:
Sure.

[00:31:59] Speaker 05:
But again, it's going back to how this property was originally zoned.

[00:32:04] Speaker 05:
And yes, the church, the dwelling.

[00:32:06] Speaker 05:
But zoning is not just, hey, here's our building.

[00:32:11] Speaker 05:
There's a site plan, et cetera.

[00:32:12] Speaker 05:
There's laws regarding that.

[00:32:14] Speaker 03:
But you would agree if that's the case, though, it could infringe on the free exercise, or at least implicate the First Amendment.

[00:32:21] Speaker 05:
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 05:
Well, and that's why it's done neutrally here.

[00:32:34] Speaker 05:
And that's why the city says we're not looking at your religious intent.

[00:32:39] Speaker 05:
We take you for your word.

[00:32:41] Speaker 05:
You're changing a parking lot to a place for 100 plus people to live for three months outside.

[00:32:47] Speaker 00:
Yeah.

[00:32:47] Speaker 00:
They're saying that actually is in the confines

[00:32:51] Speaker 00:
or under the umbrella of how we view Christianity and our duty to help these people.

[00:33:00] Speaker 00:
So it's no different whether it's inside the church or it's in the parking lot.

[00:33:05] Speaker 05:
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.

[00:33:16] Speaker 05:
Nobody can deny that a temple is for a religious use and a religious purpose.

[00:33:23] Speaker 03:
Say they use the parking lot for a blood drive.

[00:33:27] Speaker 03:
Do you think they need a permit for that?

[00:33:28] Speaker 05:
Well, if they used it for 90 days continuously, 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 05:
No, I would agree that they would need a permit because it would be a change in use.

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

[00:33:59] Speaker 05:
Again, that would be a change in use.

[00:34:01] Speaker 05:
And so under the

[00:34:03] Speaker 03:
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.

[00:34:13] Speaker 03:
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 05:
I think the city's position was that a parking lot isn't inherently a religious purpose.

[00:34:30] Speaker 04:
Here's a sort of a meta question.

[00:34:33] Speaker 04:
All three of us or all four of us are struggling to figure out what's a related accessory use.

[00:34:41] Speaker 04:
I mean, that's in the code.

[00:34:42] Speaker 04:
I've got a different question which is who gets to decide that question?

[00:34:47] Speaker 04:
Does the – does Burien get to decide that because it's their code?

[00:34:51] Speaker 04:
Do we get to decide it independently what the meaning of their code is?

[00:34:55] Speaker 04:
I mean I can see arguments either way.

[00:34:58] Speaker 04:
This either – this may or may not be a related accessory use within the meaning of the code.

[00:35:03] Speaker 04:
Maybe it is, maybe it isn't.

[00:35:05] Speaker 04:
Do we get to decide that?

[00:35:06] Speaker 04:
Does the city get to decide that in the first instance?

[00:35:09] Speaker 04:
Do we have to give some deference to them as to the meaning of their own code?

[00:35:12] Speaker 04:
I mean, who gets to decide that?

[00:35:15] Speaker 04:
Not what is the meaning, but who gets to decide what is the meaning?

[00:35:18] Speaker 05:
Certainly, but there is not a challenge to that definition and that Well, no, the question is what is the meaning?

[00:35:25] Speaker 04:
I mean, what is the definition?

[00:35:26] Speaker 05:
Because I don't have it in front of me.

[00:35:28] Speaker 04:
Well, no, I've got the words in front of me But then the question is what does that definition mean?

[00:35:31] Speaker 04:
I mean, it's as I view it is capable of including a Related accessory use may well be having homeless encampment, but it may not be I mean, how do I know?

[00:35:43] Speaker 05:
I

[00:35:43] Speaker 05:
Certainly, but that does not go to any of the claims that have been pled here.

[00:35:47] Speaker 05:
Because the claim is that you, by requiring a permit, you have just that simple requirement, you have violated our right to free exercise.

[00:35:59] Speaker 05:
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.

[00:36:13] Speaker 05:
They did exactly what they wanted to do.

[00:36:17] Speaker 05:
There was no change in their behavior.

[00:36:20] Speaker 05:
The city said to them, look, this is not a prerequisite.

[00:36:23] Speaker 05:
We just need you to apply for the permit.

[00:36:26] Speaker 00:
I think you stated it accurately.

[00:36:28] Speaker 00:
They said,

[00:36:29] Speaker 00:
or at least council said, we don't need to apply for a payment and we won't.

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

[00:36:37] Speaker 05:
That is correct.

[00:36:38] Speaker 05:
That's what they said.

[00:36:41] Speaker 05:
And the city said, turning a parking lot into an outdoor dwelling for a hundred vulnerable people requires a temporary use permit.

[00:36:52] Speaker 05:
We're willing to waive the fee.

[00:36:54] Speaker 05:
We're willing to extend the length of time.

[00:36:56] Speaker 05:
We're willing to work with you.

[00:36:58] Speaker 05:
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 05:
Absolutely.

[00:37:12] Speaker 05:
This is not putting them through years of permitting review.

[00:37:19] Speaker 05:
It's a 30-day process at most.

[00:37:22] Speaker 05:
There are provisions set up for review.

[00:37:26] Speaker 05:
In fact, that notice of violation is what triggers that.

[00:37:29] Speaker 05:
Like, hey, here, we're giving this to you.

[00:37:30] Speaker 05:
You have 14 days if you want to challenge our interpretation.

[00:37:33] Speaker 05:
They don't.

[00:37:35] Speaker 05:
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 05:
And that's not the case.

[00:37:48] Speaker 05:
That was in their reply brief.

[00:37:50] Speaker 05:
The procedure would be under Washington's Land Use Petition Act, which has an expedited schedule, a 20-day, 21-day timeline to file.

[00:37:59] Speaker 05:
It is set up to be as prompt as possible.

[00:38:03] Speaker 05:
So we're not talking about a situation of would be, could be, maybe, huh, delay.

[00:38:10] Speaker 05:
There was no delay.

[00:38:12] Speaker 05:
This use happened.

[00:38:14] Speaker 05:
And there's no claim that is articulated that you interpreted your code wrong, and that equals a prior restraint.

[00:38:30] Speaker 05:
The claim is simply requiring us to have a permit period.

[00:38:35] Speaker 05:
And that provision, the temporary use permit provision, is a prior restraint because we should not have to apply for a permit.

[00:38:42] Speaker 05:
And what the courts have said is, no, it is not.

[00:38:45] Speaker 04:
Here's just a straightforward, practical matter.

[00:38:49] Speaker 04:
What is at issue with respect to this permit?

[00:38:52] Speaker 04:
Sewage, access, safety, anything else?

[00:38:56] Speaker 05:
I believe that what the city said, basic sanitation, fire hazard,

[00:39:00] Speaker 04:
That's what is at issue.

[00:39:02] Speaker 04:
The city says we want to make sure that it's safe, that it's sanitary.

[00:39:09] Speaker 04:
Bingo, that's it.

[00:39:09] Speaker 04:
As a practical matter, that's what's at issue.

[00:39:12] Speaker 05:
I mean, yeah, we want to make sure that it's safe, that it's sanitary, that there aren't tripping hazards, that emergency vehicles can get in and out.

[00:39:20] Speaker 05:
All of the very basics of when you are housing a vulnerable population.

[00:39:26] Speaker 05:
And again, none of this has any inquiry into what the religious intent or purpose is underlying.

[00:39:36] Speaker 05:
I just quickly want to address the substantial burden, discrimination, and unequal application cases.

[00:39:46] Speaker 05:
But first, I want to mention that to get to the prior restraint, there has to be a violation to begin with.

[00:40:01] Speaker 05:
If it doesn't violate the free exercise clause,

[00:40:06] Speaker 05:
Um, we don't have to get to a substantial or excuse me, we don't have to get to, uh, my words are escaping me right now, uh, to a prior restraint analysis.

[00:40:20] Speaker 05:
Um, and, and were we to, as this court says, then it, then it must be tied to expressive contact.

[00:40:26] Speaker 03:
Okay.

[00:40:27] Speaker 03:
Thank you.

[00:40:28] Speaker 03:
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.

[00:40:45] Speaker 02:
I just want to point out that in the U.S.

[00:40:47] Speaker 02:
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.

[00:40:57] Speaker 04:
Let me ask you a practical question, though.

[00:41:01] Speaker 04:
it seems to me with this many people on the parking lot for a sustained period we're going to need you are going to need some facility some accommodation for sewage for sanitary and so on correct we had them

[00:41:16] Speaker 04:
And is the city not able to require that you do so if you do not?

[00:41:23] Speaker 04:
They can.

[00:41:24] Speaker 02:
They never asked any questions about that.

[00:41:26] Speaker 02:
They never had any problems about that.

[00:41:29] Speaker 04:
But then I'm asking you, as I understand the permitting process, the permitting process is one that says

[00:41:39] Speaker 04:
Are you making those arrangements?

[00:41:41] Speaker 02:
No, it isn't.

[00:41:42] Speaker 02:
And the facts have not been represented correctly to you today.

[00:41:46] Speaker 02:
There's not a single question on that application form about sanitation.

[00:41:50] Speaker 02:
Electricity, liquor, public way access by roads.

[00:41:54] Speaker 02:
That's it.

[00:41:55] Speaker 02:
We gave them all the information they asked for.

[00:41:57] Speaker 02:
We said, do you want any more information?

[00:41:59] Speaker 02:
They never asked for any more information.

[00:42:01] Speaker 02:
We had our own fire inspection.

[00:42:03] Speaker 02:
We asked our own fire department, a different city fire department, to come in and inspect.

[00:42:07] Speaker 02:
Is there anything wrong with this?

[00:42:09] Speaker 02:
Is there anything we should do?

[00:42:10] Speaker 02:
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.

[00:42:16] Speaker 02:
doesn't and they also represented to you that they make a decision within 30 days and that's not true.

[00:42:22] Speaker 02:
And we pointed out in the reply brief that 30 day period says if you want to permit you have to apply 30 days in advance of when you want to do this thing.

[00:42:31] Speaker 02:
It has nothing to do with issuing a swift decision, not a swift administrative decision, not a swift judicial decision.

[00:42:38] Speaker 02:
It's not true that it says that.

[00:42:40] Speaker 02:
It's anything guaranteed within 30 days.

[00:42:42] Speaker 02:
And finally, I really want to emphasize that this is an appeal from a 12b6.

[00:42:47] Speaker 02:
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

[00:43:08] Speaker 02:
It's an unpublished decision, but an unpublished decision of this court, which is of persuasive value, it's the Harbor Missionary case.

[00:43:15] Speaker 02:
The Harbor Missionary case had the district court erred by not granting a preliminary injunction.

[00:43:20] Speaker 02:
You have district courts like St.

[00:43:22] Speaker 02:
Timothy's in Brookings, Oregon, relying on that.

[00:43:25] Speaker 02:
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.

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

[00:43:36] Speaker 02:
This case is submitted.