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Zoning maps, zoning changes and RLUIPA -Liberty Temple Full Gospel Church, Inc. v. Village of Bolingbrook , Illinois

Written by Daniel P. Dalton on July 13, 2016 Category: RLUIPA, Substantial Burden

Liberty Temple Church of Bolingbrook (“Liberty Bolingbrook” or “Church”) is a small congregation of less than 100 members, and a branch of Liberty Temple Full Gospel Church, Inc. (“Liberty Gospel” or “Plaintiff). Liberty Gospel is a not-for-profit organization that is registered in Illinois, and has six locations in Chicago, San Diego, Orlando, Philadelphia, Waukegan, and the aforementioned Bolingbrook. The Village of Bolingbrook (the “Village” or “Defendant”) is a municipal corporation located in DuPage and Will County, Illinois. In July of 2009, members of Liberty Bolingbrook began holding services at the Holiday Inn in Bolingbrook, Illinois. The Church then sought an independent location at which to hold its services, as it would be able to conduct said services mid-week, and provide better amenities and support to its members. Consequently, in August 2010, Plaintiff began to scout locations, and ultimately settled on 251 N. Bolingbrook Drive. However, the landlord of the property soon warned that the Bolingbrook Mayor had definite ideas about what types of occupants that he wanted in the Village. According to the landlord, the Mayor specifically disfavored new churches. Therefore, the landlord suggested that Plaintiff confer with the Mayor before signing an official lease, and Plaintiff followed this advice. Nonetheless, the Mayor disapproved of Plaintiff’s plan, allegedly telling an elder of the Church that he “did not want any more churches in Bolingbrook” because “churches do not produce any tax revenue.” The Mayor also noted that Plaintiff’s chosen facility lacked bathrooms, handicap access, fire prevention equipment, and adequate parking.

Thus, Plaintiff continued its search, and soon found 378 Bolingbrook Commons. Again, the property’s landlord suggested that the Mayor might not favor the idea of a church on the site. However, because Plaintiff believed the new location addressed the prior site’s deficiencies with regard to handicap access, bathrooms, and fire compliance, they decided to forgo approval by the Mayor. Alternatively, Plaintiff referred to the Village Zoning Code and Village Zoning Map published on the Village’s website. The Zoning Map exhibited no zoning designations on the parcel in question. Instead, the map key designates areas zoned “B-1,” “B-2,” “B-3,” and “B-4” by the identical shade of orange. Zones “B-2” are reserved for “Community Retail” uses, while Zones “B-4” are for “Commercial Urban Development,” which includes churches. The parcel directly east of the subject property bears the same orange tone but is clearly marked “B-3.” Additionally, this parcel is separated from the subject property by a heavy black vertical line. Directly west of the property in question is a parcel bearing the same identical hue and designated as “B-4.” There is no heavy black line separating this “B-4” parcel from the property in question, however, Bolingbrook Drive bisects the two properties. Elsewhere on the map, parcels marked “B-2” are clearly closed off from the other parcels by a heavy black line, even if said parcels are divided by a street.

As mentioned, the parcel in question has no letter designation and no heavy black line separating it from the “B-4” parcel to the west. Plaintiff took this to mean that the parcel in question was also zoned “B-4,” and thus churches were a permitted use on the property. Importantly, churches are not permitted uses in “B-2” zones. Seeing no zoning code issues, the Church put down a $2,500 deposit on a 27 month lease that obligated the Church to make monthly payments toward a total of $66,000. However, in January of 2011, the Village rejected Plaintiff’s application for a building permit. The Village indicated that complete architectural drawings were required to proceed. On February 10, 2011, the Village instructed Plaintiff that it would need to obtain a Special Use Permit (“SUP”), and that the Village would not accept the architectural drawings it had recently demanded. The Village also stated that, under the Village Zoning Code, parking for the site was inadequate, despite the fact that the property was situated in a largely abandoned shopping mall with 420 available spaces. The Village later admitted that the actual parking requirements were far less than what was communicated in February 2011. On February 11, 2011, Plaintiff’s Church Elder met with a Village employee and attempted to present the requested architectural drawings and building permit application. Yet again, he was refused. At this time, a Village Department employee indicated to the Church Elder that a church “would not be approved for that location.” On February 23, 2011, Plaintiff took its case directly to the Mayor. The Mayor allegedly told Church representatives that Bolingbrook had enough churches and that the landlord should have never rented to the Church without his permission. The Mayor further indicated that he would allow the Church to remain on the property if they promised to vacate in two years. Five days later, the Mayor was more definite, telling Plaintiff: “The Village will not back any zoning ordinance allowing the Church to operate at this site.” On March 10, 2011, the Village “red tagged” the property, contending construction was in progress without a permit. However, the landlord, rather than the Church, was performing this construction work. On March 11, 2011, Plaintiff made a final attempt to deliver the building permit application and architectural drawings. On March 23, 2011, the Village refused the documents. Consequently, on March 30, 2011, Plaintiff filed suit against the Village alleging violation of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). Plaintiff contends that the Village’s actions “impose[d] a substantial burden on the [Church’s] religious exercise” consistent with RLUIPA.

Defendant moved for summary judgment on the grounds that Plaintiff had not shown that it was “substantially burdened” by the Village’s actions, in part because it did not apply for a Special Use Permit. In response, the court cited several Seventh Circuit cases addressing the substantial burden clause of RLUIPA: World Outreach Conference Center, et al. v. City of Chicago, 591 F.3d 531 (2009); Sts. Constantine & Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d 895 (2005); and Petra Presbyterian Church v. Village of Northbrook, 489 F.3d 846 (2007).

In World Outreach, a religious organization sought to overtake a former Salvation Army Single Room Occupancy (“SRO”) residence, and continue to rent the rooms as affordable housing for the poor. Although the zoning code had changed since the building was first utilized as an SRO, the code allowed for “nonconforming use[s]” that promised to continue the same nonconforming use that had been grandfathered in. However, the local alderman, upset that the building had not been sold to his political donor, demanded that the parcel be rezoned. The church was told that it would need an SUP before it could obtain the necessary SRO license. When the church sued under RLUIPA, the city quickly issued the SRO license. In its RLUIPA claim, the church argued that it had been substantially burdened through the city’s impediment of its religious mission and the incurring of substantial legal expenses. However, the district court dismissed the suit, noting that the group had not exhausted its administrative remedies. The Seventh Circuit reversed, noting that, while the principle of exhaustion of administrative remedies is a sound one, it did not apply in World Outreach’s case because World “was already entitled to continue the use of the center.” Additionally, the court found that such an application was not necessary because the city’s Zoning Board of Appeals had a fixed policy of not acting on zoning appeals while an alderman’s rezoning request was pending. Therefore, the application for the SUP would have been futile, and such application was not necessary to bring suit. Additionally, the court found that the church had adequately alleged a substantial burden claim. “The burden imposed on a small religious organization catering to the poor was substantial (for burden is relative to the weakness of the burdened), . . . and there was no possible justification for it.”

In the instant case, the Church had a reasonable belief that its proposed land use would be permitted under applicable zoning criteria. This must be distinguished from one in which a church could not reasonably have so believed. See Petra, 489 F.3d at 849, 851 (church’s purchase of property when it knew the village did not zone the site for churches, but believed that zoning to be illegal, did not create legitimate estoppel issues or create a substantial burden because church assumed the risk of buying there). Petra also stands for the proposition that municipalities do not violate RLUIPA merely because they limit churches to certain zones within their borders. Id. at 851 (“When there is plenty of land on which religious organizations can build churches, . . . the fact that they are not permitted to build everywhere does not create a substantial burden.”) But, “[w]hat is true is that, as in [New Berlin] . . . once the organization has bought property reasonably expecting it to obtain a permit, the denial of the permit may inflict a hardship on it.” Id. at 851.

Thus, the court determined that the case would turn on whether the property was zoned “B-2” (Community Retail) or “B-4” (Commercial Urban Development). If the property was found to be zoned “B-2,” the church would not be substantially burdened merely by the fact that it was not allowed to locate wherever it chose. In contrast, if the property was found to be zoned “B-4,” the Village’s refusal to accept building permit applications and architectural drawings, and forcing the church to either apply for a SUP or go to court may be considered a substantial burden on the Plaintiff in violation of RLUIPA.

Therefore, the court turned to the question of whether the church reasonably believed the parcel to be zoned as “B-4” to allow a church. According to the court, the Village’s Local Rule 56.1 Statement of Facts never confirmed that the parcel is zoned as “B-2,” rather that “[t]he Village never intended to change the zoning District for the Property.” In response, the Church stated that “[p]rior to leasing at 378 Bolingbrook Commons, [the Church Elder] viewed the Village Zoning Map . . . and Zoning Code . . . learning that the premises were in the B-4 zone and a Church was a permitted use.” Therefore, an issue of material fact was created.

While the Church never actually submitted a special use permit, it seemed reasonably clear that doing so would be futile as the Mayor appeared hostile to the proposal and the Village had refused to honor its published Zoning Code. Therefore, the court found that “a jury could construe it as a definitive pre-emptive denial” and the “facts raise[d] a more-than-reasonable inference that would allow a jury to find that the Village had no compelling reason to refuse to consider” the Church’s application or to demand a SUP. The court further found that “doing so created a substantial burden on the small congregation by forcing it to file suit and incur legal fees.” Thus, the court held that Plaintiff had adequately alleged facts to create a dispute of material fact central to the cause of action, and therefore Defendant’s motion for summary judgment was denied.

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