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A RLUIPA Case Study

Written by Daniel P. Dalton on April 24, 2010 Category: Religious Institutions, RLUIPA
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Carlinville Southern Baptist Church, located in Carlinville, Illinois thought how blessed it was when it purchased a former Wal-Mart store in early 2008 to have a home. The Church had worshiped in its building for several years prior, but grew rapidly to the point that it needed to expand or move to accommodate its members and to continue to serve the community. The property it found, originally a 60,000 square foot Wal-Mart store was zoned commercial and the religious use was permitted as of right.

While the Church was thrilled, the City was not. The City of Carlinville’s intentionally and deliberately tried to preclude Carlinville Southern Baptist Church from the City by using all means necessary from occupying its building for worship. The main reason behind this stubborn behavior boils down to money. The City does not want to give up the property to a tax-exempt Church when it could gain revenue from a commercial use. Therefore, after the City learned the Church entered into an agreement to purchase the property, it changed the zoning. And once they were notified that the zoning change violated the Religious Land Use and Institutionalized Persons Act, (“RLUIPA”) 42 USC 2000cc et seq., it changed the zoning three more times in an effort to keep the church out. It then filed suit against the Church on a “nuisance” theory.

The Church initiated a law suit challenging the constitutionality of portions of the City of Carlinville Zoning Ordinance. Carlinville Southern Baptist alleged that the Zoning Ordinance- both on its face and as applied to it- violates the First and Fourteenth Amendments to the United States Constitution, the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), and the Illinois Constitution. In particular, the Church contended that the Code’s discriminatory treatment of religious uses violates its constitutional rights to the free exercise of religion, freedom of speech, association and assembly, and equal protection of the laws. As a result of the unconstitutional provisions in the City’s Zoning Ordinance and the unconstitutional actions of City, the Church argued that it suffered irreparable harm unless the City as immediately enjoined from enforcing its discriminatory Zoning Ordinance against the Church.

Upon filing suit and moving for a temporary restraining Order, the City acknowledged the violation of the Church’s civil rights and stipulated to an Order allowing the Church to occupy, use, and renovate the building for all purposes except corporate worship. After eight very long months of discovery, negotiations, litigation and prayer, the City finally agreed to settled ten months later. This is the Carlinville Southern Baptist story.


Carlinville Southern Baptist Church (“the Church”) is a congregation of Christians that is a member church of the Illinois Baptist State Association, affiliated with the Southern Baptist Convention, which appeals exclusively to the scriptures for its authority and means of governance. It is a religious body formed for the promotion of the message of the Christian gospel, instruction and righteous conduct, fellowship of its members and outreach to the community. In accordance with its beliefs, the Church regularly assembles on Sunday mornings and Wednesday evenings to worship. The Church conducts said religious services and activities in pursuit of its mission and responsibilities to the community it serves.

Since 2000, the Church has experienced steady and substantial growth in membership and in participation in its ministries and programs such that continued operation of the Church and all of its programs at its existing site has become impracticable. To accommodate its growing membership and in furtherance of and to facilitate the foregoing purposes, on January 28, 2008 the Church purchased property located at 1030 West Main Street, Carlinville, Illinois. (the “Premises”). The Premises were formally home to a Wal-Mart retail store. The Church sought to occupy and use the Premises for the primary purpose of gathering corporately to engage in the public worship of God, including the public preaching of doctrines of the Christian faith. The Church also intends to use the Premises for other activities that pertain to its primary purpose, including classes of bible instruction, fellowship gatherings, administrative functions, and various ministries of community outreach.

The City’s Zoning Process

On September 13, 2005, the Church executed a contract for purchase of the Premises, with an indefinite closing date to be set at the discretion of Wal-Mart. The Premises were zoned under the C-1 Neighborhood Commercial zoning designation, which allowed the Church to be permitted as of right. The adjacent land uses are as follows: to the North is undeveloped agricultural land; to the East is a retail/office center, single family residential developments, a bank, and a trucking facility; to the South is a vacant restaurant, single family residential developments and the Carlinville High School, and to the West is an assisted living facility and undeveloped land.

Upon learning of the Church entering into an agreement to buy the land, the City re-defined the C-1 zoning district to with respect to Church’s in a C-1 district. Then, when the City learned that the Church was closing on the property, the City changed the zoning definition again to exclude the church use in the zoning designation. On December 13, 2007, Pastor Tim Rhodus, the senior pastor and agent for the Church, applied to the City of Carlinville for re-zoning of the property from the C-1 commercial zoning designation to the R zoning designation to allow the use of the property for religious purposes. The City of Carlinville neither had an internal planning department nor an outside professional consultant review the application to rezone the premises prior to the Carlinville Planning/Zoning Commission holding a public hearing and making an advisory report to the City Council on the rezoning application. The Carlinville Planning/Zoning Commission held a public hearing on January 16, 2008 and recommended denial of the rezoning.

The City Changes the Zoning Ordinance During the Process

At the time of the Church’s December 2007 application for rezoning, churches were not allowed as special uses under any zoning designation. Prior to January 16, 2008, the schedule of permitted zoning uses allowed for assembly uses similar to a Church in a C-1 zoning district, such as auditoriums, retail and service uses, day care centers, and eating and drinking places as of right. The zoning ordinance defines the term “Auditorium” as “A room, hall or building made a part of a church, theater, school, recreation building or other building assigned to the gathering of people.”

In a letter dated January 4, 2008 to the City of Carlinville through the City Attorney, the Church notified the City of the incongruity of the uses permitted by the Zoning Ordinance and that the ordinance violated the Religious Land Use and Institutionalized Persons Act, 42 USC 2000cc. Instead of fixing the problem, the City of Carlinville amended its schedule of permitted uses, accessory uses and special uses, for the C-1 zoning designation by deleting “Auditoriums” as a permitted use under the C-1 designation. The definition of “Auditorium,” however, remained the same.

As a result, the City allowed auditoriums, non commercial clubs and lodges as a special use under the C-1 zoning designation. The City further provided in the amended “use” schedule that Churches are permitted with special use approval in the A, (agricultural) district. They did so realizing that there was no available land within the City of Carlinville that is reasonably suitable for Carlinville Southern Baptist Church to build or use for religious purposes.

The City Denies Rezoning Based on Loss of Tax Revenue

At a regularly scheduled meeting in January 2008, the City Council voted unanimously to deny the application for rezoning. Carlinville Mayor, Robert Schwab indicated that the sole reason for the denial was to attempt to maintain potential tax revenues. Subsequent to the decision, the City has publicly said that the sole reason for denying the rezoning is the loss of potential tax revenues that would result from religious use of the property. The Mayor of the City of Carlinville further acknowledged in a television interview that the sole reason for the denial of the rezoning was the potential loss of real property tax and sales tax if the Premises was converted to a church. Then again, the Mayor of Carlinville confirmed that the reason for the City denying rezoning is the loss of tax revenue when he addressed the Carlinville Chamber of Commerce.

After denying the Church’s rezoning request, the City of Carlinville, through its Mayor, demanded that the Church sell the Premises to the City. The Church refused to sell the property to the City. In response, the City Commission directed the City Attorney to file a nuisance lawsuit against the Church. The Carlinville Zoning Administrator, however, informed Church representatives that the City could not prevent the Church from remodeling and undertaking construction of the interior of the property because under the current provisions of the Zoning Ordinance, certain uses, including office uses, daycare centers and eating and drinking establishments, such as banquet halls, are permitted uses under the C-1 zoning designation and, therefore, such uses of the Premises are proper. Remarkably, there is no building code in the City of Carlinville, nor is there any requirement that a property owner obtain a building permit before making internal renovations to a building.

The Lawsuit

The Church filed its federal lawsuit on March 18, 2008, along with a Motion for a Temporary Restraining Order, or in the alternative, a Preliminary Injunction to preclude the City from interfering with the lawful uses of the building under the C-1 district. The City also filed its nuisance lawsuit against the Church the same day. The Church attempted to serve the mayor, who led the charge in denying the Church the use, with the lawsuit and the Motion for a Preliminary Injunction. He refused to accept service until the Federal Court directed him to accept it.

Acknowledging its error in violating the civil rights of the Church, the City stipulated to an Order allowing the Church to enter, occupy and renovate the property provided that the use complies with the C-1 Neighborhood Commercial zoning designation. The permitted uses under the zoning designation include “retail and service uses, filling stations, day care centers, office uses, mini-warehouses, storage facilities, funeral homes, eating and drinking places, public utility buildings. Special uses are “auditoriums, non-commercial clubs and lodges and multiple family residences.

The Legal Claims

The strength of the case rests in the City Zoning Ordinance’s violations of the Church’s rights under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), the 14th Amendment right to Equal Protection under the law, and the 1st Amendment right to freedom of assembly and exercise.

The Ordinance’s facial discrimination against religious uses in general, and its as-applied discrimination against Carlinville Southern Baptist Church in particular, unquestionably violated the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). First, the Zoning Ordinance, on its face and as applied by the City, violated the equal terms provision of RLUIPA because it treated religious uses on less than equal terms with nonreligious uses, 42 U.S.C. § 2000cc(b)(1). Second, the Zoning Ordinance, on its face and as applied by the City, violated RLUIPA’s nondiscrimination provision because it discriminates by religion by privileging one type of religious assembly (funerals) over the Church’s religious assembly. 42 U.S.C. § 2000cc(b)(2). Third, the denial of rezoning based on the loss of tax revenue is a substantial burden under 42 USC 2000cc(a)(1). And fourth, the denial of rezoning violates the exclusions and limitations clause of RLUIPA. 42 USC 2000cc (b)(3).

There was no dispute that the decision to deny rezoning based on loss of tax basis, Carlinville violated the Equal Terms provision of RLUIPA, found at 42 USC 2000cc (b)(1). The City’s claimed interest in upholding a tax basis could not be used to justify a complete exclusion of a religious institution from the City’s jurisdiction. The maintenance of property tax revenue is a pretextual basis for decision-making that was a specific target of RLUIPA.

The City’s violation of the equal terms provision is further evidenced by the substantial similarity between the Church’s religious use and certain special uses in the C-1 district. The zoning ordinance excludes religious uses from that district, while auditoriums and non-commercial clubs and lodges are all permitted as special approval land uses. The Church has an interest in property in a C-1 district, and the Ordinance allows as permitted uses in these districts: retail and service uses, filling stations, day care centers, office uses, mini-warehouses, storage facilities, funeral homes, eating and drinking places, public utility buildings but does not permit churches as of right. Special approved uses are “auditoriums, non-commercial clubs and lodges and multiple family residences, and again, churches are not even permitted to apply for the use.

These myriad uses are “nonreligious assemblies and institutions,” within the meaning of RLUIPA. Moreover, the fact that the Church meets all of the C-1 permitted and special land use requirements, but the City denied the permit due to the Church’s potential impact on property tax revenue, further shows that the City is excluding the Church from the area solely because of the religious character of the use.

Moreover, the Zoning Ordinance, on its face and as applied, discriminated against religion by privileging one type of religious assembly—funerals—above the Church’s religious assembly. The City’s discrimination was not subtle. Funeral homes by their very nature regularly host and conduct religious assemblies on their properties, i.e. funerals. It was discriminatory for the City to allow regular religious assemblies of only this one type as the City is privileging one form of liturgical or religious expression over all others, including the Church’s. This it cannot do without running afoul of the First Amendment and RLUIPA’s nondiscrimination provisions. By allowing the Church to preach to the dead at a funeral, but not to the living at a church, Carlinville has run afoul the nondiscrimination clause of RLUIPA. § 2000cc (b)(2)

Further, the denial of the rezoning resulted in a “substantial burden” under RLUIPA. The City’s admitted reasons for its decision was the loss of real property and sales tax if the property was rezoned from commercial to religious. There is no greater burden than not allowing the Church to use its building for worship simply because it does not generate tax revenue for the City. As a result of the denial of the rezoning, the Church could not use its property for any reason whatsoever. The C-1 zoning district allows retail and service uses, day care centers, office uses, eating and drinking places, and storage facilities as right, but the City is threatening to prevent the Church from using the property for those permitted uses as well. On the other hand, there was no available land in the residential or agricultural districts where churches are permitted as of right. Only the land located in the C-1 district is suitable for the Church’s use. The present inability to use the property as a religious use is clearly a “substantial burden” on the free exercise of the Church, as it cannot use its property for any religious reason.

Finally, the proofs revealed that the denial of rezoning violated the exclusions and limitations section of RLUIPA. In determining whether a particular land use regulation is unreasonable, the Court’s have relied on RLUIPA’s legislative history which states “[w]hat is reasonable must be determined in light of all the facts, including the actual availability of land and the economics of religious organizations.”

In Carlinville, religious uses are categorically excluded from C-1 districts whereas a host of nonreligious assemblies are not. Not allowing the Church to even obtain a special use permit to build and operate in a commercial district unreasonably limits religious assemblies because (1) the zoning regulations do not narrowly circumscribe the zoning board’s discretion to grant the permit–no factors are set forth to address an application; (2) there are no “legitimate, non-discriminatory municipal planning goals” in denying the Church’s use—the City has made it clear its only goal is to maintain tax revenue; and (3) the myriad of nonreligious assembly uses permitted in commercial districts involve assemblies of people and ceremonial activity, just like religious uses; (4) the use of the property for religion does not threaten the City’s interests any more than other permitted assembly uses in the C-1 district; and (5) the only available land for the Church’s use is in the C-1 district. See Vision Church, 468 F.3d at 990-991 (discussing factual circumstances that determine whether an unreasonable exclusion exists).

Resolving the Religious Land Use Dispute

After securing the Injunctive Order, the City asked the Church to mediate the remainder of the dispute. The Church agreed and appeared at two separate sessions with the Magistrate. The City, through its Mayor, Council Member, City Attorney, its insurer, and its insurance defense attorney, also appeared at the mediation sessions. The parties reached a settlement that was subject to City Council approval. The City Council approved, but the Mayor, who appeared at the mediation and approved the settlement, vetoed it. The Council failed to override the veto at its next meeting and the case went back into litigation. After months of negotiations, and discovery, the parties then came to a general understanding of a settlement, the parameters included Carlinville Southern Baptist Church would receive a special land use permit to use its property for all religious purposes; the City of Carlinville would pay Carlinville Southern Baptist Church damages and attorney fees; The City of Carlinville would retain the right of first refusal to purchase this property if Carlinville Southern Baptist Church ever sold it, and an easement on the west side of the subject property. The settlement proposal came through a resolution enacted by the City Council at its meeting of Monday, September 15, 2008. Carlinville Southern Baptist Church was informed that if it accepted the offer, the settlement would be completed as the City would then vote on a special land use ordinance at its meeting of Monday, October 6, 2008. The Church agreed to the terms.

However, two days before the City Council meeting, the City provided the Church final version of the settlement agreement and, for the first time, the proposed easement. The Church reviewed the easement and discovered that it included not only the parking lot, but also 50 feet of the Church’s building. The 50 feet ran through the sanctuary of the Church. After confirming that the easement drafted by the City attorney included 50 feet of the building, the Church advised the City that the easement was not what they had agreed as the Church only agreed to the 50 foot easement on the west side of the parking lot. The stated purpose of the City for an easement was to access the west side of the property for future development. As a result, the City refused to issue a special land use ordinance because the easement issue was not resolved. After several more weeks of negotiations, the City finally approved the settlement with the easement on the parking lot, only.

Carlinville Southern Baptist Church continues to thrive and grow in the community whose elected officials did not want them. This case illustrates the rational behind Congress’s decision to enact RLUIPA. A community cannot exclude a religious institution based on loss of tax dollars. Rather, it must treat a religious institution on the same or equal terms as a non-secular use. RLUIPA truly levels the playing field for religious institutions in the context of land use.

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