Seventh Circuit Rules Church Has Standing to Challenge Entirety of Zoning Scheme Under RLUIPA’s Equal Terms Provision

On January 17, 2019, the Seventh Circuit Court of Appeals ruled in favor of Dalton Tomich client, the Church of Our Lord and Savior Jesus Christ, in its suit against Markham, Illinois. The suit raises several claims under the Religious Land Use Institutionalized Persons Act, including a claim under the act’s “Equal Terms” provision which says that “No 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.” Typically, an equal terms claim focuses on how a municipality restricts religious assemblies at a particular property or in a specific zoning district. For example, if a city allows non-religious assembly halls but prohibits religious assemblies, such as an Assembly Hall of Jehovah’s Witnesses, from locating in a particular zoning district, there would be a strong “equal terms” claim.

The Church of Our Lord case presents a different kind of equal terms claim which challenges how the City’s zoning code as a whole, or jurisdiction-wide, discriminates against religious uses. In short, the Church argues that if the City has zones where non-religious assemblies may locate as of right, then it must have zones where religious assemblies may locate as of right. On appeal, the City argued that the Church lacked standing to challenge how the City regulated religious assemblies as whole or jurisdiction-wide. But in its opinion, the Seventh Circuit rejected the City’s argument and held that courts may assess the entirety of a zoning scheme when evaluating a religious assembly’s equal terms claim.

At the oral argument , I argued that there is only two ways to interpret the City’s zoning code, and either way the City has violated provisions of the Religious Land Use & Institutionalized Persons Act. Either a church is permitted as of right at the property and the City was wrong to burden the church’s religious exercise by demanding it apply for a conditional use permit (which the City denied) or the City has no zone where a church may locate as of right–a violation of both RLUIPA’s “Unreasonable Limitations” and “Equal Terms” provisions. Now that the Seventh Circuit has ruled, the case will now proceed at the district court level to a decision on the merits of the Church’s claims.