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.