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Building Codes, Fire Codes and RLUIPA – Affordable Recovery Housing v. The City of Blue Island

Written by Daniel P. Dalton on June 9, 2016 Category: RLUIPA, Substantial Burden

SCENARIO: Affordable Recovery Housing (“ARH” or “Plaintiff”) is a non-profit, faith-based organization located in the City of Blue Island, Illinois (“Blue Island” or “Defendant”), on a property referred to as the “Mother of Sorrows property” (“the Property”). Since the mid-1950’s, the Mantellate Sisters of Mary have owned a group of five buildings in Blue Island, with one of the buildings continually functioning as a convent for the Sisters. Until 2009, the remaining buildings functioned as the Mother of Sorrows Catholic High School.

In 2010, John and Mary Jo Dunleavy began discussions with the Blue Island Mayor about converting the Property into a faith-based recovery home for adult men recovering from drug and alcohol addiction. The Property would serve as a 24-hour, full service rehabilitation program that would combine recovery support services, overnight lodging, meals and recreation, job training, medical and dental referrals, and religious outreach. The Dunleavy’s negotiated an agreement with the Mantellate Sisters to rent the Property, and also with the Illinois Department of Human Services to obtain state funding. Although the Blue Island Mayor approved of the project, he warned Plaintiff’s that they must obtain the necessary state and city licenses, draft a plan for the development of the business and buildings, and install an automatic sprinkler system before any residents could occupy the space. In February 2011, Plaintiff moved 14 staff members onto the Property. At this time, Plaintiff had yet to file for or obtain any of the necessary zoning permits for its property. As a result, the Mayor soon wrote to ARH insisting that it submit an application to the Blue Island Zoning Board for a rehearing regarding its goals. The following March, ARH submitted a five-year, four-phase plan for the development of its property. According to the plan, within the first 36 months of occupancy, ARH would apply for all the necessary permits and licenses, and install code upgrades—including sprinklers—in of the occupied buildings. In early 2012, ARH submitted an application for a special use permit to the City of Blue Island, seeking permission to use the Property as a “planned use development.” ARH subsequently presented its proposal for a special use permit to the City’s Plan Commission in May of 2012. At this meeting, it was decided that ARH would submit a revised application in a second meeting to take place in July 2012. At the second meeting, a decision on ARH’s special use permit was again postponed until September 2012. In September, ARH made its third presentation to the Plan Commission, where the special use permit was unanimously improved. The approval purportedly included a three-year accommodation to install the sprinkler system, and allowed ARH to offer overnight accommodations to its residents during that three-year period. Later that evening, ARH submitted the same proposal to the Blue Island Zoning Board of Appeals. The Zoning Board approved ARH’s proposed use of the property, but unlike the Plan Commission, the Board rejected ARH’s requested accommodations regarding the sprinkler system. Nevertheless, ARH continued operations without the installation of a sprinkler system, and in May of 2012, the Blue Island Fire Chief submitted a letter to ARH noting that it was not following the terms of its five-year plan. The Chief ordered ARH to cease operations in the recovery house until the facility met the requirements of the safety code and provided proper licenses. The letter informed the Plaintiff that it had the right to appeal the eviction notice to the Mayor or to the City Council. ARH quickly appealed the Fire Chief’s eviction notice, requesting a three-year accommodation to install the sprinkler system and permission for the residents to continue living on the property. On June 12, 2012, the City Council upheld the Fire Chief’s decision.

RESOLUTION: Nearly six months later, the Illinois DHS licensed ARH as a state-licensed “recovery house.” Following this decision, ARH filed a motion for partial summary judgment, arguing that as a state-licensed recovery house, it was governed by the Illinois DHS safety regulations for recovery home. In its November 27, 2014 order, the court ruled that because ARH is a state-licensed recovery house, it is subject to the Illinois DHS safety regulations, under which the Plaintiff is not required to install sprinkler systems. However, while the court’s determination resolved the major component of the Plaintiff’s lawsuit, it did not absolve Defendants of liability of any harm that occurred previously. Therefore, the court narrowed the focus of its litigation to issues including whether or not the City of Blue Island’s practices constituted a substantial burden under the Religious Land use and Institutionalized Persons Act (“RLUIPA”). ARH’s contended that Blue Island’s imposition and enforcement of its safety and zoning regulations constituted a substantial burden on ARH’s religious exercise in violation of RLUIPA. The relevant section of RLUIPA states:

No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including religious assembly or institution, unless the government demonstrates that imposition of the burden . . . is in furtherance of a compelling governmental interest; and . . . is the least restrictive means of furthering that compelling governmental interest.

According to Vision Church v. Vill. Of Long Grove, 468 F.3d 975, 998 (7th Cir. 2006), “a government agency implements a ‘land use regulation’ only when it acts pursuant to a ‘zoning or landmarking law’ that limits the manner in which a claimant may develop or use property in which the claimant has an interest.” The relevant inquiry in a substantial burden claim is whether a particular restriction “seriously violates” the plaintiff’s religious beliefs, including “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”

In its arguments, ARH described a number of “substantial burdens” that allegedly resulted from the enforcement of Blue Island’s zoning laws. Nonetheless, ARH’s arguments failed on all counts. First, ARH argued that eviction of its residents “burdened its ability to exercise its religion by effectively rendering religious exercise impracticable.” However, Blue Island acted pursuant not to its zoning code, but its fire safety code, and thus this action did not fall within the regulatory scope of RLUIPA as Blue Island’s actions did not involve a “land use regulation.”

Plaintiff next argues that Defendant’s denial of its accommodation requests for a three-year extension of time to complete installation of a sprinkler system constituted a substantial burden on Plaintiff’s religious exercise. This argument fails on the same principles as Plaintiff’s first argument. Although ARH presented its request for the accommodation to the Zoning Board, Blue Island’s action was not pursuant to a zoning or landmarking law. According to the court, a “party cannot convert a municipality’s regulatory action into a zoning action simply by raising this issue with a zoning committee[,]” and therefore ARH’s argument falls outside of the scope of RLUIPA.

Finally, ARH argued that it was substantially burdened by the City’s demand that it procure a special use permit to continue operations. The court found that, while these arguments do invoke actions pursuant to a zoning ordinance, they do not constitute a substantial burden on religious exercise: “Generally speaking, RLUIPA does not provide religious institutions with immunity from land use regulations, nor does it relieve religious institutions from applying for variations, special permits, or exceptions to land use regulations.” “Otherwise, the compliance with RLUIPA would require municipal governments not merely to treat religious land uses on an equal footing with nonreligious land uses, but rather to favor them in the form of an outright exemption from land-use regulations. Unfortunately for [the churches], no such free pass for religious land uses masquerades among the legitimate protections RLUIPA affords to religious exercise.” Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 762 (7th Cir. 2003).

In support of its arguments, Plaintiff relied on the decision of the Seventh Circuit in World Outreach Conference Ctr v. City of Chicago, 591 F.3d 531 (7th Cir. 2009). In World Outreach, the City of Chicago required plaintiff to apply for a special use permit so that it could operate as a community center. The City subsequently rezoned the district to a category where community centers were disallowed, thereby making it impossible for the plaintiff to obtain the necessary permit. The Seventh Circuit held that the City of Chicago’s actions constituted a substantial burden on the plaintiff’s religious exercise. ARH attempted to parallel the City of Chicago’s actions with that of Blue Island’s zoning ordinance, but the court ultimately disagreed. The court found that Blue Island, in fact, demonstrated willingness to allow ARH to proceed as a planned unit development, demonstrated by its endorsement of ARH’s pursuit of a special use permit, along with the permit’s approval by both the Zoning Board and the Plan Commission. Further, the court determined that Blue Island’s actions did not trigger the World Outreach exception. Although Blue Island’s zoning ordinance did not provide for “transitional housing” or “recovery housing” specifically, that does not mean that such use is incompatible with the zoning ordinance. In fact, the zoning ordinance anticipates that such uses “because of their unique characteristics, cannot be properly classified into any particular district,” which is the purpose of having a “special use permit.” Unlike the City of Chicago, Blue Island has made available and endorsed a special use permit to the plaintiffs. Finally, ARH argued that its status as a non-conforming use rendered a special use permit unnecessary. The court, however, found this argument unconvincing. Although AHR properly noted that the zoning ordinance exempts pre-existing, non-conforming structures from complying with certain code regulations, the ordinance also states that “[n]o non-conforming use shall be changed to another non-conforming use.” Historically, the property had been used for educational purposes, where the only overnight residents were the Mantellate Sisters who occupied one building. The Plaintiff’s proposed change in this use, which is the reason a special use permit was necessary, exceeds the prior use of the Property, and therefore the Plaintiff cannot benefit from the City’s non-confirming use policy. Ultimately, the court concluded that Affordable Recovery Housing had not established that it was subjected to a substantial burden under RLUIPA, and therefore the City of Blue Island was entitled to summary judgment on those claims.

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Dalton & Tomich, PLC is the national leader in successfully helping churches, other religious institutions and their insurers defend their rights in land use and zoning matters under RLUIPA, the Religious Land Use and Institutionalized Persons Act. We have helped clients win cases against municipalities and other local government bodies from coast to coast, with experience serving both as general counsel and special litigation counsel.