Local Government Q&A Ancel Glink attorneys each month post a new question and answer on the website. Many of these questions have been edited and collected in a pamphlet in the Ancel Glink Library: 230 Questions that have Actual Answers. Set out below are a series of recent questions and answers. Test your knowledge of questions and answers about local governmental bodies with those listed below. Many of these questions are directed to municipalities, but others specifically deal with municipalities with some questions concern legal issues in the context of other governmental bodies. Many of these answers apply to all governments in Illinois.Click here to submit a question to Ancel Glink.
Municipal Q&A - November 2004
Are religious institutions entitled to special treatment in zoning cases?
ANSWER:Not necessarily. While religious institutions have been accorded different-some would say preferential-treatment under Illinois law, as well as federal law, courts have routinely upheld the application of zoning and other land use regulations to religious institutions. Federal courts have recently issued several decisions that can strengthen a municipality's position in a suit under the federal Religious Land Use and Institutionalized Persons Act.
By David S. Silverman
1. Background Sources of Illinois Land Use Law Concerning Religious Institutions.
Illinois courts have-for a long time-approached cases involving religious institutions and adverse zoning decisions differently than those land use cases involving other property owners. Generally, Illinois law treats municipal land use regulations as presumptively valid, and the burden is on the challenger to show that the regulation is invalid. (See La Salle Nat'l Bank v. County of Cook, 145 N.E.2d 65 (1957)). However, Illinois law has, for at least 42 years, also accorded religious institutions unique treatment in land use law. Columbus Park Congregation of Jehovah's Witnesses, Inc. v. Brd. of Appeals, 182 N.E.2d 722 (1962):
[E]very owner has a right to use his property in his own way, subject only to the restraint necessary to secure the common welfare… Zoning laws which… permit [municipalities] to interfere with property rights by means of a zoning ordinance,. . . to be valid must have a real and substantial relation to the public health, safety, morals or general welfare…However… the impact of the ordinance prevents plaintiffs from the practice of their religion in this particular location, and so serves in some degree to limit the free exercise of religion…[and] the right of freedom of religion, and other first amendment freedoms, rise above mere property rights." Id. at 725.) The most recent case from an Illinois court reiterating the principles in Columbus Park was Our Savior's Evangelical Lutheran Church of Naperville v. City of Naperville, 542 N.E.2d 1158 (2d Dist. 1989). Our Savior's involved the church's application for a conditional use permit to expand its existing parking lot to accommodate a previous expansion of the church's facilities and a planned expansion of the church's facilities. Naperville's city council denied the application. The Court explained that:
There is a presumption that Naperville's zoning ordinance is valid, and it can only be overcome by clear and convincing proof that the ordinance has been applied in an arbitrary and unreasonable manner that bears no substantial relation to the public health, safety, and welfare. However, a presumption of validity diminishes when the impact of the zoning decision limits the free exercise of religion, and, where the decision of the city council has to do with the free exercise of religion, it is not necessary for the church to produce evidence by clear and convincing proof. Id. at 1162.
The practical effect of Columbus Park, and later cases concerning zoning and religious institutions, is that the burden of proving the validity of a zoning ordinance is shifted to the municipality to prove that the adverse decision does not limit the free exercise clauses of both the federal and state constitutions.
In spite of the special treatment accorded religious institutions by Illinois law, zoning cases involving churches, synagogues and mosques are often controversial. Thus, the religious community in Illinois (and in other states) concluded that they were being treated unfairly by local governmental regulations. This resulted in an extraordinary coalition of sometimes diverse parties in a joint federal and state effort to pass legislation which would restrict the powers of governmental bodies and impose a higher standard when disputes ended up in court.
The ruling of Columbus Park, and later cases concerning zoning and religious institutions, was codified in the Illinois Religious Freedom Restoration Act ("IL-RFRA"), 775 ILCS 35/1 et seq. Section 15 of IL-RFRA is the statute's operative provision:
Government may not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability, unless it demonstrates that application of the burden to the person (i) is in furtherance of a compelling governmental interest and (ii) is the least restrictive means of furthering that compelling governmental interest. 775 ILCS 35/15. As in Columbus Park, and its progeny, Section 15 of IL-RFRA places the burden to prove the validity of its zoning ordinance, as applied to a religious institution, on the municipality, and requires that the municipality prove that the ordinance and decision were based on more than merely promoting the public health, safety, and welfare. In legal parlance, this burden of proof in IL-RFRA, (and in the federal Religious Land Use and Institutionalized Persons Act discussed below), is known as "heightened scrutiny." This state law goes beyond zoning and applies to any exercise of municipal authority that limits the rights of a religious person, group, or institution. This is so even if the ordinance or regulation is one of general application rather than specifically applied to the religious person, group, or institution.
Two additional sections of IL-RFRA are important: Section 20 enables a party that prevails against a municipality in an IL-RFRA action to recover its attorneys fees and costs, 775 ILCS 35/20; and Section 25 makes IL-RFRA applicable to all municipal ordinances enacted prior to or after the enactment of IL-RFRA, and also pre-empts home rule authority, 775 ILCS 35/25. The scope of IL-RFRA is very broad, but the constitutionality of the statute has not been addressed to date by any Illinois court.
2. Federal Sources of Land Use Law Concerning Religious Institutions.
The federal government's first attempt to elevate challenges to local land use decisions to the federal level was with the Religious Freedom Restoration Act of 1993, 42 U.S.C. Sec. 2000bb et seq. ("US-RFRA")
Congress adopted US-RFRA in response to the United States' Supreme Court's decision in Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990) where the Supreme Court upheld against a federal constitutional challenge a decision by the State of Oregon to not provide unemployment benefits to members of a Native American church who lost their jobs as a result of ritual use of the psychoactive drug, peyote. Peyote use was criminalized under Oregon's statutes. US-RFRA's operative provisions were very similar to IL-RFRA's Section 15, including the burden shifting and "heightened scrutiny" standards.
Unlike IL-RFRA, US-RFRA was successfully challenged by the City of Boerne, Texas in a case involving that city's application of its historic preservation ordinance to a church building. In City of Boerne v. Flores, 521 U.S. 507 (1997) the Supreme Court found that Congress exceeded its authority under certain provisions of the Constitution when it enacted US-RFRA, and declared US-RFRA unconstitutional as a substantial and broad intrusion on powers traditionally relegated to the states and not otherwise proscribed by the federal Constitution.*
Congress responded to the Supreme Court's Boerne decision by enacting the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. Sec. 2000cc et seq. ("RLUIPA"). Unlike the sweeping scope of US-RFRA that the Supreme Court declared unconstitutional, RLUIPA is specifically directed at land use regulations. Section 2(a)(1) is the operative provision of RLUIPA:
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 a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution--
(A) is in furtherance of a compelling governmental interest; and
(B) is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C. 2000cc-2(a)(1). This language is similar to the language in IL-RFRA, but is specifically limited to land use regulations. However, it does contain the heightened scrutiny language. Unlike IL-RFRA, the burden is not totally shifted to the municipality. Instead, RLUIPA provides in Section 4(b):
If a plaintiff produces prima facie evidence to support a claim alleging a violation of the Free Exercise Clause or a violation of section 2000cc of this title, the government shall bear the burden of persuasion on any element of the claim, except that the plaintiff shall bear the burden of persuasion on whether the law (including a regulation) or government practice that is challenged by the claim substantially burdens the plaintiff's exercise of religion.
42 U.S.C. 2000cc-4(b). Unlike IL-RFRA, RLUIPA requires that a party challenging a zoning ordinance or any adverse decision from such an ordinance to prove that it "substantially burdens" their free exercise of religion. What exactly constitutes a substantial burden on the free exercise of religion is not defined in the statute. However, if a party succeeds in demonstrating that the adverse zoning decision does substantially burden the free exercise of religion, Section 4(b) does shift the burden to the municipality to demonstrate that the substantial burden is (1) in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest (i.e. "heightened scrutiny").
RLUIPA is a more tailored approach to what concerned Congress when it adopted US-RFRA in the wake of the Dept. of Human Resources of Oregon case. However, by federalizing challenges to local land use decisions, Congress has significantly increased the legal burdens on municipalities and other units of local government with zoning powers, as well as increased the legal costs that local governments may incur when their ordinances are challenged. It might be expected, then, that RLUIPA, and IL-RFRA, have had a chilling effect on local land use regulations, but this has not been the case-so far. Several courts have considered RLUIPA and-so far-the parties that have challenged local zoning ordinances and adverse zoning decisions have only been minimally successful.
Among the recent cases, perhaps the most significant is Civil Liberties for Urban Believers ("C.L.U.B.") v. City of Chicago, 342 F3d 752 (7th Cir. 2003). C.L.U.B. involved a so-called facial challenge to Chicago's business, commercial, and manufacturing zoning classifications that require religious institutions to obtain special permits to locate and operate in such districts. C.L.U.B.'s challenge was "facial" in that C.L.U.B. had not attempted to obtain a special permit for a specific location to open a church. Instead, C.L.U.B., relying on RLUIPA, claimed that Chicago's requirements that religious institutions obtain special permits was facially invalid under RLUIPA. The Court ruled against C.L.U.B., holding that, among other things, Chicago's requirement that religious institutions obtain special permits to locate and operate in business, commercial, and manufacturing districts did not impose a "substantial burden" on religious exercise. Perhaps, most importantly, the Court also provided a definition of what constitutes a "substantial burden" under RLUIPA:
A land use regulation that imposes a substantial burden on religious exercise is one that necessarily bears direct, primary, and fundamental responsibility for rendering religious exercise-including the use of real property for the purpose thereof within the regulated jurisdiction generally-effectively impracticable.
Id. at 761. The Court also approved of Chicago's amendments to its zoning ordinance, enacted after Congress adopted RLUIPA, that placed religious institutions on "equal footing" under its zoning code with non-religious assembly land uses, thereby correcting any violation of RLUIPA's non-discrimination provisions. Id. at 762.
C.L.U.B. is an important decision for a number of reasons. First, the decision was made by the Seventh Circuit Federal District Court of Appeal. Decisions from the Seventh Circuit are binding in Illinois. Second, the decision implicitly endorses municipal zoning regulations that require religious organizations to seek special permits to locate facilities in areas where municipalities want to maximize tax revenues and employment centers-such as commercial and manufacturing districts. Third, the decision gives a municipal friendly definition to what is a "substantial burden." Operationally, under RLUIPA, it is important to know that the party challenging the zoning ordinance bears the initial burden to demonstrate that an adverse zoning decision substantially burdens his or her free exercise of religion. The Court's decision in C.L.U.B. requires such a party to demonstrate with a high level of precision how his or her free exercise is so burdened.
A second important case is Petra Presbyterian Church v. Village of Northbrook, 2004 WL 442630 (N.D. IL 2004). Petra brought suit against Northbrook after Northbrook closed down the church's use of an industrial building in the Sky Harbor Industrial Park. Among its claims against Northbrook, Petra challenged Northbrook's zoning ordinance under RLUIPA and IL-RFRA, because it required a special use permit to operate in an industrial district. Petra also claimed to have established a "vested right" to operate its church. The Court disagreed and basically ruled against Petra because it did not participate in the zoning process in "good faith." Specifically, the Court explained that:
Petra purchased the property in October of 2001, but did not attempt to conduct worship services until May of 2003, a month after the 2003 ordinance came into effect [amendments that placed religious institutions on equal footing with other non-religious assembly land uses]. Thus, not only did Petra not have a good faith belief, they did not even use the property in the manner which they now claim they had a vested right to use. Moreover, before purchasing the property, Petra applied to have the property rezoned under the 1988 ordinance. Before the Village took any formal action, however, Petra withdrew it application for rezoning.
at 4. If nothing else, Petra reiterates the theme that religious institutions, while enjoying some preferential treatment under state and federal law, must still avail themselves of zoning procedures to locate and operate their facilities.
For a period of time, Illinois municipalities which attempted to restrict the expansion or re-location of religious institutions generally lost such cases. They did so because they relied principally upon the assumption of the validity of ordinances which helps municipalities win many lawsuits. The courts, however, began to hold municipalities to a higher standard. In recent years, the uphill battle of governments has been increased by both federal and state legislation which strengthens the hand of litigating religious individuals and institutions. It must be remembered that the Illinois statute requires "heightened scrutiny" for any ordinance, not just the zoning ordinance, which might limit, in some way, an individual's religious expression. Now that these standards have been set, however, courts have been willing to allow governmental bodies, no longer relying upon the argument that "we always did it this way," to present clear and rational evidence as to why the regulations are necessary. Where governments have been able to demonstrate that the regulation is in furtherance of a compelling governmental interest, and that it is the least restrictive means of furthering that interest, the courts have sided with the government.
When the state and federal legislation was passed, we suggested to our clients that other communities should bear the burden and expense of testing these new laws. Now that some of them have been successful, we will be able to view applications for special use permits in commercial or industrial areas in a more critical way. When based upon compelling expert testimony, that the location of a religious institution will do damage to a zoning district, along with reasonable alternative places where the religious institution can locate, courts have been willing to uphold a community's desire to prevent intrusions into certain zoning districts. Each case, however, must be decided on its own facts. Where, however, a religious institution draws large numbers of parishioners from distant areas and requires a substantial parcel of property, it is still likely that a municipal decision to entirely prevent the location of such a church on major roads, even if principally commercially zoned, would probably fail.
3. Conclusion.
The federal and state statutes together with current case law points to several important points for municipalities:
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