The plaintiff in The Life Center Inc. v. City of Elgin, Illinois (N.D. Ill. 2013), is a religious-based organization that provides services to pregnant women, including spiritual support, free reproductive healthcare information, and limited ultrasound services.  Life Center describes its services as providing “a message of hope by sharing the truth of God’s love for them and the life they can find in and through Jesus Christ.”  In 2010, Life Center began providing its services from a recreational vehicle that it parked in various commercial lots located throughout the City with the permission of the parking lot owners.  Life Center asserts that its mobile facility is particularly well-suited to its cause because it provides a level of anonymity to women unwilling or unable to go to a permanent facility.

Life Center alleges that the City consistently approved its applications for temporary use permits to operate its mobile facility in parking lots in the City until August 2012, when a city employee instructed it to cease operations based on a recent amendment to the City’s zoning code.  The amendment limited temporary use permits to a certain number of days each year.

The Temporary Use Provision, as amended, provides:

USE, TEMPORARY:  A “land use” which is established for a fixed period of time with the intent to discontinue such use on the expiration of the time period . . . .

Number And Duration:  No more than four (4) temporary uses shall be conducted on the same “zoning lot” within a calendar year.  No single temporary use shall be established or operate for more than thirty (30) days, and the total number of days for all temporary uses established or operating on the same “zoning lot” within a calendar year shall not exceed sixty (60) days. . . .  Except as provided for an “intermittent temporary use”, the days a temporary use operates or is otherwise open or available to the general public shall be consecutive, and each such time period shall constitute one of the four (4) allowable temporary uses within a calendar year.

The zoning code defines the term “land use” as “[t]he purpose or type of activity for which land, or the structure or building thereon, is designed and intended, or for which it is occupied or maintained.”  The zoning code also defines the term “structure” as “[a]nything manufactured, constructed, or composed of parts joined in some definite manner that requires a location on the ground or that is attached to something that has a location on the ground,” and “[s]tructures shall include, but shall not be limited to buildings, antennas, signs, fences, and off street parking facilities.”

Life Center sued in federal court, alleging violations of RLUIPA, the U.S. Constitution, and state law.  Relevant to the District Court’s analysis were Life Center’s claims that the Temporary Use Provision, based on the definitions of “land use” and “structures” in the zoning code, was unconstitutionally overbroad and vague.  The District Court, citing Supreme Court precedent, observed that “[f]acial invalidation for technical overbreadth is a strong medicine, . . . and is inappropriately employed unless the statute substantially criminalizes or suppresses otherwise protected speech vis-à-vis its plainly legitimate sweep.”  City Council v. Taxpayers for Vincent, 466 U.S. 789, 800-01 (1984).  Further, the District Court stated that “[i]n the context of First Amendment protected speech, the Supreme Court has ‘recognize[d] a second type of facial challenge, whereby a law may be invalidated as overbroad if a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.’”  United States v. Stevens, 130 S.Ct. 1577, 1587 (2010).

The District Court agreed with Life Center, concluding that the definitions of “structure” and “land use” in the zoning code and the Temporary Use Provision were overly broad and unduly burdensome.  In particular, the Court provided as an example that

“[a] flag joined to the pole that is attached to a building might technically fall under the definition of structure that is governed by the Temporary Use Provision.  The property owner would thus be required to pay a $190 fee to hang the flag and would be limited as to the number of days per year that the owner can hang the flag.  The City has provided no justification for restricting such activity in such a broad and sweeping manner."

Further, the District Court found that the Temporary Use Provision is unconstitutionally vague because “it fails to clearly indicate to the public how it may comply with the provision.  As indicated above, the application of the Temporary Use Provision could be construed to apply to innocuous activities such as putting up a flag.  A member of the public is thus left to speculate whether he or she is going to face prosecution by the City if he or she does not first obtain a $190 permit for the flag.  This in turn makes it possible for the City to arbitrarily and selectively target members of the public by acting within the vague parameters of the Temporary Use Provision.”  The District Court granted summary judgment in favor of Life Center.

This case, however, is not over and will certainly be on our “cases to watch list,” as the City has taken an appeal to the Seventh Circuit.  The District Court’s finding that the definitions of “land use” and “structures” as found in the City’s zoning code are facially unconstitutional may have far-reaching implications for all municipalities, as those terms are found in many zoning ordinances across the country.  For our municipal attorneys and planners out there, you may want to take a hard look at your zoning code to see how these terms are defined.

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Photo of Evan Seeman Evan Seeman

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of…

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of an amicus curiae brief at the petition stage before the United States Supreme Court in a RLUIPA case entitled City of San Leandro v. International Church of the Foursquare Gospel.

Evan serves as the Secretary/Treasurer of the APA’s Planning & Law Division. He also serves as the Chair of the Planning & Zoning Section of the Connecticut Bar Association’s Young Lawyers Section, and is the former Co-Chair of its Municipal Law Section. He has been named to the Connecticut Super Lawyers® list as a Rising Star in the area of Land Use Law for 2013 and 2014. He received his B.A. in political science and Russian studies (with honors) from Trinity College in Hartford, Connecticut, where he was selected as the President’s Fellow in the Department of Modern Languages and Literature. Evan received his Juris Doctor at the University of Connecticut School of Law, where he served on the Connecticut Law Review. While in law school, he interned with the Connecticut Office of the Attorney General in the environmental department, and served as a judicial intern for the judges of the Mashantucket Pequot Tribal Court. Following law school, Evan clerked for the Honorable F. Herbert Gruendel of the Connecticut Appellate Court.