The Northern District of Illinois recently had an opportunity to apply the Seventh Circuit’s “accepted zoning criteria” RLUIPA Equal Terms test to a plaintiff’s request for a preliminary injunction in Truth Foundation Ministries, NFP v. Village of Romeoville, Case No. 15 C 7839.  The court concluded that Truth Foundation Ministries (“TFM”) did not have a substantial likelihood of success on the merits of its Equal Terms Clause (Section 2000cc(b)(1)) and Exclusions and Limits Clause (Section 2000cc(b)(3)(A) and (B)) claims.

Case Background: TFM has a congregation of approximately 80 individuals primarily from Africa. TFM provides “special services for its members, speaking in their local African dialects which ‘means they feel they are back home worshiping.’”  In April, 2012, TFM signed a seven year lease to conduct services in a 4,350 square foot space within the Village’s M-R (Light Manufacturing Research Park) District.  Under the lease, TFM was specifically responsible for determining whether its proposed use (a church) was allowed under applicable zoning.

Unfortunately for TFM, a “church” is not allowed by right or by special permit within the M-R zone.  In fact, churches are not allowed within five zoning districts that cover 36.3% of the Village.  Churches are permitted in four districts (12.1% of the Village), although two of the “allowed” districts require a special use or conditional use permit and have size and frontage requirements.  The remaining districts allow churches as a special use, although they must meet certain restrictions including a three-acre lot minimum.

The Village sent a letter to TFM on February 26, 2015, stating that TFM was in violation of the zoning code.  TFM claims it was surprised by the letter since the Village had inspected the property in 2012 and 2013 and did not raise any zoning code violations.  The Village claims that it became aware of the zoning concerns only after TFM began actively operating as a church, attracting a large number of cars and causing parking violations.

RLUIPA Claims:  TFM moved for a preliminary injunction on its RLUIPA “facial” and “as applied” claims only.  It did not plead a violation of RLUIPA’s Substantial Burden provision.  The court first reviewed TFM’s Total Exclusion claim under Section 2000cc(b)(3)(A), which reads that no government shall “totally exclude religious assemblies from jurisdiction.”  Since churches are only prohibited in 36.3% of the Village, the court found that this claim was unlikely to succeed.

The court next considered the claim that the Village “unreasonably limits religious assemblies, institutions, or structures within a jurisdiction.” 42 U.S.C. § 2000cc(b)(3)(B).  TFM claimed that the restrictions placed on churches, even in zoning districts where they are allowed, effectively limit the properties available for small churches like TFM.  Given TFM’s “undeveloped record,” the court was unable to find TFM had a substantial likelihood of success on the merits.

Relying on the Seventh Circuit’s decision in River of Life Kingdom Ministries v. Vill. of Hazel Crest, Ill., 611 F.3d 367(7th Cir. 2010) (en banc), the court also found little likelihood of success on TFM’s Equal Terms claim.  In River of Life, the Seventh Circuit considered what type of land use makes a valid comparator to determine potential unequal treatment of a religious institution.  The Circuit Court slightly modified the Third Circuit’s test, developed in Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253 (3d Cir. 2007), by shifting the focus from the government’s subjective purpose in enacting the zoning ordinance (referred to as “regulatory purpose” in the Third Circuit) to what the Seventh Circuit calls “accepted zoning criteria.”  The Seventh Circuit stated that it was concerned that the Third Circuit’s “regulatory criteria” test was too subjective and that it would be more objective to focus on “accepted zoning criteria” based on the text of the zoning regulations themselves (as opposed to external sources).

TFM argued Equal Terms was violated because “[p]ublic, quasi-public, and governmental buildings and facilities” that includes museums and art galleries are allowed within the M-R district.  The court found TFM failed to show a “relationship between the comparative uses and accepted zoning criteria [in the Village code].”

The court found that TFM did not provide any argument related to the eight enumerated points listed in the M-R district’s intent and purpose subsection, which indicate that the M-R district is meant to preserve manufacturing or industrial businesses.  Also, testimony from the Village indicated that the allowance for art galleries or museums was intended for artisans who work in the district and wants to display some of their work.  In terms of TFM’s as-applied challenge, it failed to identify any specific comparator within the M-R district that was treated more favorably.

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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 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 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.