Since the Christian Assembly Rios de Agua Viva, a church with largely Hispanic members, has outgrown its space in the City of Chicago, it sought a new space in the south suburbs where many of its members reside. The church entered into a contract to purchase a former restaurant that was in bankruptcy. The contract contained a zoning contingency to give the church time to obtain necessary approvals, and their mortgage was able to be withdrawn if it could not obtain proper zoning.
The property at issue was located in a commercial district and the city zoning ordinance allowed 114 permitted uses in that district including business associations, labor association, civic, social and fraternal association, and political organizations. Churches were not permitted as of right, but were allowed subject to special use permit. The Church applied for the special use permit in October 2010, indicating it had a legal right to locate on the property pursuant to the equal protection clause of the Illinois Constitution and the Illinois Religious Freedom Restoration Act. In November 2010 the City published a notice of hearing announcing a proposed amendment to the zoning ordinance that would limit permitted and special uses in the commercial district “to commercial retail stores, service establishments, and professional offices that generate tax revenue, maintain the City’s tax base and allow for convenient locations for the public to shop, obtain services and conduct business.” Further, the notice stated, “All tax exempt uses, residential uses and uses otherwise permitted or allowed as special use in a residential zoning classification are proposed to be prohibited.” However, noncommercial assembly uses, including churches, would, under the amendments, be permitted in residential zoning districts.
On December 13, 2010 the Church filed a seven-count declaratory judgment action for injunctive relief and on December 15, 2010 the City adopted the proposed amendments. The primary issue on appeal was whether the Church had a substantial likelihood of success on the merits.
Turning to the question of whether the Church was entitled to vested rights since although the use was not permitted as of right, it was permitted in the district subject to special permit. To prove this, the Church would have to demonstrate that there was a “probability” that the City would have issued the building permit. The Court said that the Church knew when it entered into the contract that the property was zoned for commercial and that churches were allowed only subject to special permit, and that the Church “decided to assume the ordinance was invalid and proceeded, at its own risk…” The Court said “a party does not have a vested right to assume that the ordinance was invalid and proceed in violation of it.” The Court said that “the church could not reasonably rely on the illegality of the preamendment zoning ordinance when entering into a contract and expending money on an effort to purchase the property. Nor could it assume that if the city amended its ordinance, it would decide to permit a church on the property rather than prohibit all noncommercial uses…”
Lastly, with respect to the Church’s claim that the new zoning ordinance violates the State Civil Rights Act because it has the effect of excluding Hispanic church members from their right to local a church on the property in question, the Court disagreed and said that the zoning ordinance excludes from the commercial district not just churches but any secular assemblies, and permits only uses that will produce taxable income, which has been deemed to be a legitimate goal of zoning by the 7th Circuit (see, River of Life Kingdom Ministries, 61 F.3d 367).
Christian Assembly Rios De Agua Viva v City of Burbank, 2011 WL 1227835 (Ill. App. 1 Dist. 3/31/2011)
The opinion can be accessed at: http://www.state.il.us/court/Opinions/AppellateCourt/2011/1stDistrict/March/1103822.pdf
