Posted by: Patricia Salkin | November 18, 2009

7th Circuit Holds Locality Seeking to Create a Commercial Area Can Exclude Non-Commercial Uses Without Violating RLUIPA

The River of Life Kingdom Ministries sought to relocate its 67-member congregation from a crowded warehouse that it shared with two other churches to a “fixer-upper” blighted property it purchased in the Village.  The Church wanted to do more for the community including promoting literacy, empowering communities, developing leaders, transforming economic conditions, and improving the quality of life for local citizens – all through the teaching and application of the principles of the word of God. The property was located in the Village’s “Service Business District,” which permitted a number of commercial uses but not religious services. The Village had established a series of zoning ordinances and a tax increment financing (TIF) plan to “provide an attractive commercial area that enhanced the regional image” of the area and to revitalize the area. The Church bought the property knowing of the applicable zoning ordinance but hoped that it would be able to obtain a special use permit (which was not available under the zoning in effect at the time of the application).  Although the Church initially entered into a purchase contract for the property contingent upon receiving a special use permit, for an unknown reason, it later waived the contingency and purchased the property. After the Church’s request for a permit was denied, it filed a suit under the Religious Land Use and Institutionalized Persons Act (RLUIPA) to allow it to locate in the Service Business District, and sought a preliminary injunction to allow it to locate on the property while the RLUIPA suit was proceeding. During the pendency, the Village amended its ordinance to exclude from the District, among other things, community centers, non-religious schools, meeting halls, art galleries, and recreational buildings. Both sides concede that this was done to bring the applicable ordinance into compliance with RLUIPA.

The District Court denied the preliminary injunction request and the Church appealed.

The Seventh Circuit upheld the denial, concluding that the Church had only a slim chance of success on the merits, and that any irreparable harm it might suffer does not significantly outweigh the potential harm to the Village.  The Court said that the important consideration is the proper interpretation of the statutory (RLUIPA) phrase “less than equal,” noting that “the statute does not state explicitly whether this language means religious and non-religious institutions must always be treated identically in land-use regulations, or whether regulations can differentiate between them for legitimate, non-religious reasons.” The Circuit Court found persuasive the approach adopted by the Third Circuit which provides that “if a land use regulation treats religious assemblies or institutions on less than equal terms with non-religious assemblies or institutions that are no less harmful to the governmental objectives in enacting the regulation, that regulation-without more-fails under RLUIPA.” See, Lighthouse Institute for Evangelism, Inc. v. City of Long Beach, 510 F. 3d 253 (2007).  The Court further found that Congress did not intend for strict scrutiny to apply in the Equal Terms analysis because if they did, they would have specifically said so like they did in the substantial burden provision of the statute.  Therefore, the Court found little similarity between the Church and the permitted uses in the District, noting that the Village sought to create a tax revenue-generating commercial district, and that the all of the permitted entities are commercial in nature, which churches, meeting halls, community centers and schools are not.   The Court concluded that, “A locality seeking to create a commercial area should be able to exclude non-commercial uses that do not contribute to its goal without violating RLUIPA.”  Therefore, the Church had a slim chance of success on the merits and the Court upheld the denial of the preliminary injunction to allow the Church to locate in the District.

Rive of Life Kingdom Ministries v. Village of Hazel Crest, 2009 WL 3429103 (C.A. 7 (ILL) 10/27/2009).

The opinion can be accessed at:

Special thanks to Daniel Dalton, Esq. for sharing this case.

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