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.