Posted by: Patricia Salkin | November 13, 2010

Illinois Appeals Court Upholds City’s Location Limitation on Churches Finding it was neither Facially Unconstitutional nor Invalid As-Applied

The church wanted to add on to its facilities, extend its parking lot, add a driveway, and add a covered drop-off entrance. To get the necessary permits for this project, the church sought either a site-plan review from the city’s zoning board of appeals (which was the easiest route) or, alternatively, a special use permit from the city council. The city’s zoning administrator determined that the site-plan-review process did not apply because the church did not meet the location requirements of the city’s zoning ordinance, and that a special use permit was required to override a previously-issued special use permit on the church’s property. The city’s zoning board of appeals affirmed the zoning administrator’s decision. The city’s planning commission voted unanimously to approve the special use permit as proposed by the church, and it forwarded its recommendation to the city council. The city council initially denied the special use permit, but after staff recommendation of a new proposal, the city council approved a plan allowing the church to build the addition to its facilities. But the plans for the parking lot, driveway, and covered drop-off were removed from the proposal. The church sued, and the trial court granted judgment for the city. The church appealed.

In regards to the zoning board of appeals’ refusal to allow the site-plan review of the church’s proposal, the church challenged the constitutionality of the location limitation in the city’s zoning ordinance. The church contended that this provision violates the church members’ First Amendment rights to free exercise of religion by discriminating against churches on its face, and also as applied to the church in this case. The appellate court determined, however, that this provision did not violate the First Amendment because it was a facially neutral law of general applicability. In addition, it did not discriminate against religion because it, in fact, benefitted religious institutions over non-religious institutions by providing them with an opportunity to by-pass the special-use-permit process. The church’s as-applied challenge was rejected as well because the provision’s requirements applied to all churches. Furthermore, the provision did not violate the Illinois Religious Freedom Restoration Act (775 ILCS 35/1) because the provision imposed a reasonable limitation on religious institutions-not a substantial burden. Therefore, the appellate court affirmed the trial court’s judgment for the city on these grounds.

With respect to the special use permit, the appellate court first determined that the city council denied the special use permit application, rather than approving it with conditions, because the church did not support, approve of, or ask for the conditions. In reality, the city council denied the church’s only application for a special use permit, and then later approved a proposal submitted by city staff, not the church. The appellate court then determined that a new standard of review applied to this case because a new law on the standard of review of zoning cases went into effect during the pendency of this appeal. The trial court examined the case under the standard of review at the time, which was the manifest weight of the evidence. Since then, the new law requires that all challenges to zoning decisions receive de novo judicial review of a legislative decision, and this has been interpreted to mean that the courts must review the case under the factors enunciated in LaSalle National Bank v. County of Cook, 12 Ill. 2d 40 (1957). Therefore, the appellate court remanded this issue back to the trial court for the appropriate review.

Our Savior Evangelical Lutheran Church v.Saville, 397 Ill. App. 3d 1003 (2d Dist. 2009), app. den. 236 Ill. 2d 508 (2010) 

The December 2009 opinion can be accessed at: http://www.state.il.us/court/Opinions/AppellateCourt/2009/2ndDistrict/December/2080105.pdf 

This abstract was reported in the Illinois Municipal Leagues’s on-line service at: http://www.iml.org/page.cfm?key=3991&parent=2494


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