Original Photography by Kevin Dooley (Some Rights Reserved)
Original Photography by Kevin Dooley (Some Rights Reserved)

A federal court in Illinois, in Church of Our Lord and Savior, Jesus Christ v. City of Markham, Illinois (N.D. Ill. 2015), dismissed some of the Church’s religious land use claims while allowing others to proceed. The case is important for a couple of reasons. First, it serves as a welcome reminder for local governments that “RLUIPA does not authorize any kind of relief against public employees.” Second, its interpretation and application of RLUIPA’s substantial burden provision appears to go against a recent Seventh Circuit decision applying the same provision in a prisoner case, Schlemm v. Wall (7th Cir. 2015).

The Church, which had been operating at its current location for 10 years “without issue,” brought the lawsuit after the City issued a summons for the Church to cease its operations due to safety violations or else obtain a conditional use permit. According to the Church, building and fire inspectors approved the Church’s use of the property, but the City’s Planning Board denied the Church a permit without explanation. The Church alleged violations of RLUIPA’s substantial burden and nondiscrimination provisions, the First Amendment’s Free Exercise Clause, Illinois’ Religious Freedom Restoration Act, and other state law. The City of Markham, its mayor, and several of its aldermen were sued in their individual capacities and were named as defendants.

First, the Court dismissed all RLUIPA claims against the City’s mayor and aldermen because the statute does not authorize relief against public employees. See Vinning-El v. Evans, 657 F.3d 591, 592 (7th Cir. 2011) (citing Nelson v. Miller, 570 F.3d 868 (7th Cir. 2009)). The Court also dismissed the RLUIPA nondiscrimination claim against the City. RLUIPA’s nondiscrimination provision provides that “[n]o government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination.” 42 U.S.C. § 2000cc(b)(2). Because the Church failed to allege any facts to support its nondiscrimination claim, the Court dismissed this allegation.

Next, the Court considered, and declined to dismiss, the Church’s RLUIPA substantial burden claim. The Court noted that the availability of alternative locations for the Church to operate and the City’s reason for denying the Church’s permit were not clear and, therefore, dismissal of the substantial burden claim would be premature.

The Court’s interpretation of RLUIPA’s substantial burden provision is significant. As we reported in our prior post, the Seventh Circuit, in Schlemm, recently appeared to alter the substantial burden standard for courts considering claims within the circuit. Schlemm concluded that the Supreme Court’s decisions in Holt v. Hobbs and Burwell v. Hobby Lobby Stores, Inc., articulated a substantial burden standard “much easier to satisfy” than that used in another RLUIPA case, Eagle Cove Camp & Conference Center, Inc. v. Woodboro (7th Cir. 2013) (“to be substantial, a burden must be ‘one that necessarily bears direct, primary, and fundamental responsibility for rendering religious exercise … effectively impracticable.’”) (prior post about Eagle Cove available here). It is interesting to note that the Court did not even refer to Schlemm when allowing the Church’s substantial burden claim to proceed, and instead operated under the traditional standard used to assess such claims in the Seventh Circuit.

Because the RFRA and free exercise claims are subject to virtually the same analysis as the RLUIPA substantial burden claim, the Court also allowed those claims to proceed. The Court dismissed the Illinois Open Meeting Act claim as time-barred, but allowed the Church to move forward with its claim that the City’s decision was arbitrary and capricious in violation of Illinois’ constitution.

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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.

Photo of Karla Chaffee Karla Chaffee

Karla L. Chaffee is a member of Robinson+Cole’s Real Estate + Development Group and is based in the Boston office, focusing on a variety of land use and environmental matters. Karla’s interest in RLUIPA began in law school when she co-authored, “Six

Karla L. Chaffee is a member of Robinson+Cole’s Real Estate + Development Group and is based in the Boston office, focusing on a variety of land use and environmental matters. Karla’s interest in RLUIPA began in law school when she co-authored, “Six Fact Patterns of Substantial Burden in RLUIPA: Lessons for Potential Litigants,” (with Dwight Merriam) published in Albany Government Law Review (Spring 2009). Karla has continued to write and speak on RLUIPA and has represented clients in several federal proceedings, including RLUIPA, First Amendment, and Equal Protection claims. In addition to her RLUIPA practice, Karla has litigated complex environmental matters, defending claims under Massachusetts Chapter 21E. Karla’s transactional experience includes pre-acquisition and pre-financing due diligence, environmental risk assessment and risk mitigation. She also represents clients seeking local zoning approvals and counsels them on the impact of proposed or recently enacted land use legislation, as well as on land use trends across the country.

Karla is also a proud member of Robinson+Cole’s Pro Bono Committee and is dedicated to maintaining pro bono work as part of her practice. Her pro bono clients include individuals and families seeking asylum in the United States. She has also represented nonprofit organizations in obtaining tax-exempt status and has served as legal counsel in a zoning appeal for a nonprofit association created to support and protect a national park.

Photo of John Peloso John Peloso

John Peloso, a partner in the firm’s Real Estate Litigation Group, is a trial lawyer who represents companies, municipalities, and individuals in a wide range of matters. At the administrative, trial, and appellate levels, John counsels clients and litigates real property disputes, including…

John Peloso, a partner in the firm’s Real Estate Litigation Group, is a trial lawyer who represents companies, municipalities, and individuals in a wide range of matters. At the administrative, trial, and appellate levels, John counsels clients and litigates real property disputes, including real estate, land use, environmental, and tax matters, including RLUIPA and eminent domain matters.

In the area of real estate litigation, John represents institutional, municipal, and individual clients in disputes involving title, zoning, wetlands, land use, RLUIPA, eminent domain, and other real property rights. He also represents clients in all aspects of commercial lease and other real estate transactional disputes. In the area of real property tax litigation, he represents institutional and individual clients in proceedings at the regulatory, administrative, and trial levels. In this regard, he has dealt with specialized issues involving among other things, the valuation of high-tech software, wireless communications equipment, contingency fee tax audits, special use properties, and the impact of environmental conditions on the valuation of real property.

Prior to joining Robinson+Cole, John was a member of the litigation department at White & Case LLP in New York City, where he concentrated his practice in complex commercial, property and securities litigation.