Fraternite Notre Dame, Inc. is suing the County of McHenry, Illinois, over the County’s denial of a petition to amend a conditional use permit.  Notre Dame’s mission includes various charitable activities, such as a daily soup kitchen, a weekly food pantry, and an after-school program.  In 2005, Notre Dame obtained conditional use approval to develop its 65-acre property in the agricultural zoning district with a monastery, church, seminary, convent, retreat center, bakery, printing press, and cemetery subject to various conditions.  But when it petitioned the County’s Board to amend the conditional use permit to allow further development of its property, the request was denied.

Although Notre Dame obtained approval of its first application, it alleges in its complaint that it has experienced religious discrimination and harassment ever since.  It claims that “opponents of the petition commented that they would make the ‘penguins’ (a derogatory reference to Catholic nuns) want to move back to Chicago, and that the cassocks and habits worn by the Order’s priests and nuns would make them ‘easy targets in their gun sights.’”  Reportedly, statues of Mary and Jesus were desecrated, with the words “go away” and several profanities being sprayed on Mary’s face with black paint.

In September 2014, Notre Dame submitted a petition to amend the conditional use permit to develop an additional 30 acres it had acquired.  It sought to construct a barn, a commercial kitchen to make wine and brew beer, a school with attached dormitory (80 students), nursing home (50 beds), and a gift shop to sell pastries, religious and inspirational articles, and wine and beer made on-site.  It also requested height variations for the school and nursing home (from the maximum 35 feet to 55 feet).

The County’s Board denied the application, citing concerns that the uses would create traffic congestion and harm the environment, after the zoning board of appeals had recommended approval of the petition 4-3.  During the hearing before the ZBA, the Chairman “observed that it seemed opponents of the petition were singling out the Fraternite Notre Dame for special treatment.”  Notre Dame alleges this much in its complaint, as it claims that the County violated the Equal Protection Clause, RLUIPA’s equal terms and substantial burden provisions, Substantive Due Process, and state law.  It points to other secular uses it asserts were treated better than its proposed use, including three schools, a nursing home, and golf course.  The ZBA Chairman stated: “Since I’ve been on the board we’ve had 25 churches in the county that have been proposed, not one of which has been turned down, none of which have ever been restricted as to what type of events they could have on their church grounds.”

This case may present an interesting question as to the scope of what constitutes religious exercise under federal law.  The Second Circuit stated in Westchester Day School v. Village of Mamaroneck:

[W]e expressed doubt as to whether RLUIPA immunized all conceivable improvements proposed by religious schools.  That is to say, to get immunity from land use regulation, religious schools need to demonstrate more than that the proposed improvement would enhance the overall experience of its students …  For example, if a religious school wishes to build a gymnasium to be used exclusively for sporting activities, that kind of expansion would not constitute religious exercise.  Or, had the ZBA denied the Westchester Religious Institute’s 1986 request for a special permit to construct a headmaster’s residence on a portion of the property, such a denial would not have implicated religious exercise.  Nor would the school’s religious exercise have been burdened by the denial of a permit to build more office space.  Accordingly, we suggested the district court consider whether the proposed facilities were for a religious purpose rather than simply whether the school was religiously affiliated.

It is not clear whether the County will challenge whether each and every development Notre Dame seeks is intended for a religious purpose.

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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 Dwight Merriam Dwight Merriam

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of…

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of Certified Planners, a former Director of the American Planning Association (APA), a former chair of APA’s Planning and Law Division, Immediate Past Chair of the American Bar Association’s Section of State and Local Government Law, Chair of the Institute of Local Government Studies at the Center for American and International Law, a Fellow of the Royal Institution of Chartered Surveyors, a Fellow of the American Bar Foundation, a member of the Rocky Mountain Land Use Institute National Advisory Board, a Fellow of the Connecticut Bar Foundation, a Counselor of Real Estate, a member of the Anglo-American Real Property Institute, and a Fellow of the American College of Real Estate Lawyers.

He teaches land use law at the University of Connecticut School of Law and at Vermont Law School and has published over 200 articles and eight books, including Inclusionary Zoning Moves Downtown, The Takings Issue, The Complete Guide to Zoning, and Eminent Domain Use and Abuse: Kelo in Context. He is the senior co-author of the leading casebook on land use law, Planning and Control of Land Development (Eighth Edition). Dwight has written and spoken widely on how to avoid RLUIPA claims and how to successfully defend against them in court. He is currently writing a book on the subject, RLUIPA DEFENSE, for the American Bar Association.

Dwight has been named to the Connecticut Super Lawyers® list in the area of Land Use Law since 2006, is one of the Top 50 Connecticut Super Lawyers in Connecticut, and is one of the Top 100 New England Super Lawyers (Super Lawyers is a registered trademark of Key Professional Media, Inc.). He received his B.A. (cum laude) from the University of Massachusetts, his Masters of Regional Planning from the University of North Carolina, where he was the graduation speaker in 2011, and his J.D. from Yale. He is a featured speaker at many land use seminars, and presents monthly audio land use seminars for the International Municipal Lawyers Association. Dwight has been cited in the national press from The New York Times to People magazine and has appeared on NBC’s The Today Show, MSNBC and public television.

Dwight also had a career in the Navy, serving for three tours in Vietnam aboard ship, then returning to be the Senior Advisor of the Naval ROTC Unit at the University of North Carolina in Chapel Hill where he taught Defense Administration and Military Management as an Assistant Professor in the undergraduate and graduate curriculum in Defense Administration and Military Management. He left active duty after seven years to attend law school, but continued on for 24 more years as a reserve Surface Warfare Officer with two major commands, including that of the reserve commanding officer of the Naval Undersea Warfare Center. He retired as a Captain in 2009 after 31 years of service.

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.