Posted by: Patricia Salkin | March 9, 2017

Fed. Dist. Court in IL Holds City’s Ordinance Violated RLUIPA’s Equal Terms Provision

Christian Assembly Rios de Agua Viva entered into a contract to purchase property in the City of Burbank, Illinois. However, in order to use that property for religious purposes, the Church had to first obtain a special use permit (“SUP”). After the City denied the SUP, the Church terminated the contract and filed this lawsuit to recover damages from the City for alleged violations of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) along with several other claims.

In reviewing the motion to dismiss, the Court narrowed the scope of the Church’s RLUIPA substantial burden claim after determining that the Church could proceed based only on the theory that “the delay, uncertainty, and expense that accompanied its SUP application, which allowed the City time to amend the Prior Ordinance so as to prohibit the Church from using the property as it wished” constituted a substantial burden. Here, despite assuming the risk that the City would not approve its SUP application or that the City would amend the Prior Ordinance so as to completely foreclose the use of the property for religious purposes, the Church proceeded with its SUP application. In doing so, the Church expended time and money and faced uncertainty in the process over a three to four month period. As such, the Church had no reasonable expectation of using the property for religious purposes; therefore, any delay, uncertainty, or expense the Church experienced or incurred while the City considered the SUP application and adopted the Amended Ordinance was found to not constitute a substantial burden. Additionally, the court held that the month delay in the review of the Church’s application could not be considered material; as the record indicated that the City typically took three to four months to provide decisions on SUP applications. Accordingly, the court granted summary judgment for the City on the substantial burden claim. Furthermore, because the court found the Church could prevail on its RLUIPA substantial burden claim, the court likewise granted the City summary judgment on the free exercise claim.

Next, the Church made a facial challenge to the Prior Ordinance, claiming that at the time it entered into the contract to purchase the property and applied for the SUP, the Prior Ordinance violated RLUIPA’s equal terms provision. Specifically, the Prior Ordinance allowed dance studios, schools, halls, business associations, labor associations, civic, social, and fraternal associations, political associations, and funeral parlors as permitted uses in the “C” commercial district, while Churches required a SUP to locate in the “C” commercial district. Since the City failed to provide any evidence substantiating its treatment of churches from non-religious assemblies allowed as of right in the “C” commercial district under the Prior Ordinance, the court held that the Prior Ordinance violated the equal terms provision on its face. As to damages, the court held that regardless of whether the Church’s equal terms claim was considered a facial or as applied challenge, the Church “already suffered an injury from the unconstitutional ordinance” because it could not purchase the property under the terms of its original contract as a result of the Prior Ordinance.

Christian Assembly Rios De Agua Viva v. City of Burbank, Illinois, 2017 WL 677794 (ND IL 2/21/017)


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