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Equal Terms, RLUIPA and the 7th Circuit Test: a cautionary tail of litigating religious land use claims

Written by Daniel P. Dalton on May 25, 2016 Category: Equal Terms, Land Use and Zoning, RLUIPA
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Truth Foundation Ministries (“TFM”) is a small church – typically hosting between 40 and 60 parishioners – that conducts Sunday worship services in Romeoville, Illinois. TFM previously held its services at a local high school, but when school district closures prevented the church from operating, it sought a new location. TFM subsequently leased property located in the Light Manufacturing Research Park (“M-R”) District from W.B. Romeoville Corporation. The lease agreement stated that the property would be used for “Church offices and Church/Sunday School services.” However, the lease also contained a provision stating that TFM, as lessee of the property, was responsible for determining whether the stated use of the property was in compliance with the requirements of the Romeoville Zoning Code (“Zoning Code”).

The Zoning Code classifies churches under various levels of “use” determined by the intended purpose of the land or building. “Permitted uses” are those which conform to the requirements and regulations of each respective district. “Prohibited uses” are those uses that are not specifically listed as “permitted uses.” The Zoning Code also defines two subsets of permitted uses – “conditional uses” and “special uses” – that create exceptions to a normally prohibited use if such use would not be detrimental to public health or safety. The result of the Zoning Code is that churches are classified as prohibited uses in five districts that cover 36.3% of Romeoville. In contrast, churches are considered permitted uses in four districts that cover 12.1% of Romeoville. In three of these four districts, a church is permitted only if the church obtains status as a “special” or “conditional” use under the Zoning Code. The Zoning Code also allows the Village to evaluate land use based on factors such as hours of operation, traffic generation, charitable and philanthropic uses, or “other criteria determined to be necessary to assess compliance . . . .”

In March of 2013, the Village performed an annual fire inspection found that TFM had not procured the proper Business License or Certificate of Occupancy to allow it to operate at that location. As a result, TFM applied for an Exempt Organization Application. The Village denied TFM’s application, citing a violation of the Zoning Code because “[c]hurches or places of worship are not a permitted use in the M-R Zoning District.” The Village noted that previous tenants had successfully complied with the licensing requirements of the Code of Ordinances, but the same level of diligence was not followed by TFM. TFM continued with its planned improvements, and the Village again inspected the property following the beginning of operations in October 2014. In a February 2015 letter to the property’s landlord, the Village indicated that churches are prohibited in the M-R District, pursuant to the Zoning Code, and that TFM should “find a new location that satisfied the entire Village’s Code of Ordinances.” In the following weeks, TFM attempted to procure a suitable alternative location. However, an inspection of three prospective properties indicated that each property was unacceptable due to the limiting size of the space or the prohibitively high price. When TFM was able to locate a property with a suitable price point, the Village informed TFM that it was unable to operate as a church in that District.

RESOLUTION: Accordingly, Truth Foundation Ministries filed a motion for injunctive relief to disallow the Village of Romeoville from engaging in activity that prohibited TFM from operating its church at the M-R District location. TFM alleged that its rights under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) were threatened because the Village, through its Zoning Code, has implemented a total exclusion of small churches from its jurisdiction, has unreasonably excluded small churches within its districts, and treats nonreligious and religious assemblies unequally in violation of the Equal Terms provision. Unfortunately, TFM failed on all three counts.

Total Exclusion under Section 2000cc(b)(3)(A)

Section 2000cc(b)(3)(A) states that “[n]o government shall impose or implement a land use regulation that . . . totally excludes religious assemblies from a jurisdiction . . . .” TFM argues that the Village’s restrictions on churches violate this provision because they totally exclude churches from locating in the Village. However, although RLUIPA prohibits total exclusion of religious assemblies, it does not prevent selective exclusion of religious assemblies in certain districts by imposition of additional requirements. The Village’s allowance of existing churches as “special” and “conditional” use properties contradicts any claim of a total ban on churches. Further, in the Village’s history, it has never denied a church’s request to obtain a special use permit. Therefore, the Village’s implementation of criteria that a church must meet to locate in a particular district does not constitute a total ban under RLUIPA.

Unreasonable Exclusion Under Section 2000cc(b)(3)(B)

Section 2000cc(b)(3)(B) prohibits a land use regulation that “unreasonably limits religious assemblies, institutions, or structures within a jurisdiction.” Case law dictates that what is “unreasonable” must be determined “in light of all the facts, including the actual availability of land and the economics of religious organizations.” TFM asserts that the restrictions placed on churches in permitted use districts unreasonably limit the available properties for small churches. Here, the evidence presented was specific to the required costs for a small church to purchase property in the Village while remaining in compliance with the restrictions of the Zoning Code. TFM did not present evidence regarding churches in general; rather, it chose to limit its arguments to the experiences of TFM or churches like TFM. The court determined that the evidence presented was insufficient to determine whether the Village’s Zoning Code was unreasonable because the court lacked evidence to determine reasonableness “in light of all the facts, including the actual availability of land and the economics of religious organizations[,]” i.e. were the Zoning Code’s limitations reasonable with respect to all religious organizations.

Equal Terms Provision

Finally, TFM alleged that the Zoning Code violates Section 2000cc(b)(1), which provides that “[n]o government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.” TFM argued that the Zoning Code violates RLUIPA because secular institutions, such as museums and art galleries, are permitted in the M-R District, whereas religious institutions are banned. However, to prevail on an Equal Terms claim, TFM was required to show that religious and secular land uses, that are similarly situated, have not been treated the same from the standpoint of an accepted zoning criterion. This it did not do. The Zoning Code states that the purpose of the M-R District is to serve as a manufacturing district and “to discourage the intrusion of residential and commercial uses which are incompatible with the planned industrial uses.” The court noted that the mere listing of a museum or art gallery as a permitted use, without more, does not establish that the Zoning Code violates RLUIPA. Rather, TFM was required to provide evidence linking the alleged uses for a church and a museum or art gallery by reference to any of the accepted zoning criteria. The Zoning Code lists the specific intent and purpose criterion that is required with respect to each district. Where testimony from the Village demonstrated that museums and art galleries comport with the stated purpose of the district, TFM failed to provide arguments that connected the alleged similarly situated use of a church to the criteria enumerated in the Zoning Code. Without this evidence, the court was unable to determine whether the Zoning Code was neutral with respect to religion. TFM also failed to show that it received disparate treatment as compared to an existing secular institution. In order to prevail on an Equal Terms claim, it is necessary that TFM exhibit a suitable secular comparator that has received preferential treatment under the Zoning Code. While TFM argues that permitted uses, such as museums and art galleries, are afforded preferential treatment, the M-R District, in fact, does not contain any museums or art galleries. The court determined that TFM’s vague statements regarding a hypothetical museum that could be comparable to a church did not establish that TFM had been treated disproportionately with a similarly situated nonreligious institution.

This case illustrates the need to review the law of the Circuit that a case is being litigated to make sure the legal arguments line up with the case law of the circuit.  The Equal Terms Challenge in this case, for example, may have worked in the 11th Circuit Court of Appeals, but did not work in the 7th Circuit as the two circuits have very different equal terms test.  Please contact a professional at Dalton & Tomich PLC to discuss your RLUIPA religious land use case.

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