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Prior approval to assemble and use a building for Church and the subsequent demand to leave: RLUIPA and Substantial Burden concerns

Written by Daniel P. Dalton on July 14, 2016 Category: First Amendment, RLUIPA, Substantial Burden, Unreasonable Limitations

The Church of Our Lord and Savior Jesus Christ (“Plaintiff” or “Church”) brought suit against the City of Markham, Illinois (“Defendant” or “City”), following the City’s denial of a special use permit to allow Plaintiff to operate a church in an area zoned residential. Upon filing of the initial complaint, the Circuit Court of Cook County dismissed Plaintiff’s claims without prejudice. Several months later, on amended complaint, Plaintiff alleged six counts: (1) administrative review; (2) violation of § 2(a) of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”); (3) violation of § 2(b)(2) of RLUIPA; (4) violation of the Illinois Religious Freedom Restoration Act (“IRFRA”); (5) violation of the Illinois Open Meetings Act; and (6) violation of the First Amendment to the United States Constitution. In response, Defendant filed a motion to dismiss Plaintiff’s claims.

Administrative Review

The Church first argued for an administrative review of the zoning board’s decision that denied their special use permit. However, Defendants contended that Count I for administrative review must be dismissed because the decision of the zoning board not subject to administrative review. Defendants specifically cite to Section 10-13-25(a) of the Illinois Compiled Statutes, which states: “Any decision by the corporate authorities of any municipality . . . in regard to any petition or application for . . . rezoning or other amendment to a zoning ordinance shall be subject to de novo judicial review as a legislative decision, regardless of whether the process in relation thereto is considered administrative for other purposes.” To this point, Plaintiff argued that Markham City Council’s decision to adopt the Planning Board’s recommendation to deny a special use permit was arbitrary and capricious because no reason for the denial was provided. The court found this Count to be improperly named as one for administrative review rather than a violation of the Illinois Constitution, and ultimately declined to dismiss the Count.

Section 2(a) RLUIPA and The Illinois Religious Freedom Restoration Act

Next, Defendant asserted that Count 2 (violation of Section 2(a) of RLUIPA) and Count 4 (violation of the Illinois Religious Freedom Restoration Act) must be dismissed because Plaintiff failed to state a plausible claim that it had been substantially burdened under these two provisions. The court began by noting that RLUIPA does not authorize any kind of relief against public employees. See Vinning-El v. Evans, 657 F.3d 591, 592 (7th Cir. 2011) (citing Nelson v. Miller, 570 F.3d 868 (7th Cir. 2009)). Therefore, any RLUIPA claims against the Mayor or alderman were dismissed. The court then proceeded to an analysis of these Counts against the City of Markham.

According to the court, RLUIPA “provides that a government land-use regulation ‘that imposes a substantial burden on the religious exercise of a . . . religious assembly or institution’ is unlawful ‘ unless the government demonstrates that imposition of the burden . . . is in furtherance of a compelling governmental interest; and it is the least restrictive means of furthering that compelling governmental interest.” World Outreach Conference Ctr. v. City of Chicago, 591 F.3d 531, 533 (7th Cir. 2009). “[I]n the context of RLUIPA’s broad definition of religious exercise, a land-use regulation that imposes a substantial burden on religious exercise is one that necessarily bears a direct, primary, and fundamental responsibility for rending religious exercise – including the use of real property for the purpose thereof within the regulated jurisdiction generally – effectively impracticable.” Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir. 2003). Substantial burden “mean[s] something different from [a] ‘greater burden than imposed on secular institutions.’” Sts. Constantine & Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d 895, 900 (7th Cir. 2005). “If a land-use decision . . . imposes a substantial burden on religious exercise (the statute defines ‘religious exercise’ to include the ‘use, building, or conversion of real property for the purpose of religious exercise.’ 42 U.S.C. § 2000cc-5(7)(B)), and the decision maker cannot justify it, the inference arises that hostility to religion, or more likely to a particular sect, influenced the decision. Id. at 900.

Here, Plaintiff alleged that it had operated in the same location for ten years “without issue” when it received a summons from Defendants requesting that it close due to safety violations and the absence of a conditional use permit. According to Plaintiff’s allegations, although the Building and Fire Inspectors approved the use of its property for its intended purpose, the City’s Planning Board attempted to force the inspectors to change their decisions. Plaintiff further alleged that these Board members spoke out against the issuance of a special use permit during a meeting when the issue was not on the agenda, and that the Planning Board arbitrarily and capriciously denied the special use permit without application. The court noted that “[w]hen there is plenty of land on which religious organizations can build churches (or, as is common nowadays, convert to church buildings previously intended for some other use) in a community, the fact that they are not permitted to build everywhere does not create a substantial burden.” Petra Presbyterian Church v. Vill of Northbrook, 489 F.3d 846, 851 (7th Cir. 2007). While the court acknowledged that it did not have full knowledge of the facts surrounding the City Council’s decision, it ultimately decided that these concerns were outside the scope of the complaint. Viewing the allegations in a light most favorable to the Plaintiff, the court denied Defendant’s motion to dismiss the RLUIPA and IRFRA claims against the City. Therefore, it is clear that the absence of specific facts surrounding zoning decisions does not necessarily result in the dismissal of a RLUIPA substantial burden claim.

Section 2(b)(2) of RLUIPA

Section 2(b)(2) of RLUIPA provides that “[n]o government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination.” Defendants argued that this Count must be dismissed on the ground that Plaintiffs failed to allege facts supporting the contention of discrimination. Ultimately, the court agreed, and therefore Plaintiff’s claim under Count 3 was dismissed.

The First Amendment

With respect to Plaintiff’s First Amendment County, the court determined that, “given the similarities between RLUIPA Section (a)(1) and First Amendment jurisprudence, [the court] collapse[d] [the Plaintiff’s] claims for the purpose of this analysis.” See World Outreach Conference Ctr. v. City of Chicago, 591 F.3d 531 (7th Cir. 2009) (“If we’re right that section 2000cc(a)(1) of RLUIPA codifies Sherbert v. Verner, there isn’t much point to a plaintiff’s adding a claim under 42 U.S.C. 1983 alleging a Sherbert-type violation of the free exercise clause (as made applicable to state or local governmental action by the Supreme Court’s interpretation of the due process clause of the Fourteenth Amendment.)”). Because the court found that Plaintiff had sufficiently alleged a claim under Section 2(a)(1) of RLUIPA, the court denied Defendant’s motion to dismiss the claim under the Free Exercise Clause of the First Amendment for the same reason.

With respect to the First Amendment violation, the Free Exercise Clause prohibits a government entity from making any law “prohibiting the free exercise” of religion. The Seventh Circuit has noted that “[g]iven the similarities between RLUIPA Section (a)(1) and First Amendment jurisprudence, we collapse [the plaintiff’s] claims for the purpose of this analysis. (If we’re right that section 2000cc(a)(1) of RLUIPA codifies Sherbert v. Verner, there isn’t much point to a plaintiff adding a claim under 42 U.S.C § 1983 alleging a Sherbert-type violation of the free exercise clause. Because the Court has found that Plaintiff sufficiently alleged a claim under § 2(a)(1) of RLUIPA, the motion to dismiss the claim under the Free Exercise Clause of the First Amendment is denied for the same reason.

The Illinois Open Meetings Act

Finally, Plaintiff alleged that the Open Meeting Act violations occurred in April and June 2013. However, under the statute, Plaintiff was required to file an Open Meetings Act challenge within sixty days of the relevant decision. Plaintiff, however, did not file suit in Circuit Court until September 24, 2013, over sixty days later. Therefore, the court held that the claim was time-barred.

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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.