The District Court for the Northern District of Illinois granted a preliminary injunction prohibiting the City of Markham from requiring the Original Bible Church of Illinois to obtain conditional use approval to use property it leases as a church.
The Original Bible Church (“Church”) leases property owned by its pastor in a “neighborhood shopping district” of the City of Markham (“City”). The City’s zoning code does not require Plan Commission approval for certain “permitted uses” in neighborhood shopping districts, such as grocery stores, restaurants, and theaters, but does require such approval for “conditional uses,” such as churches.
The Church brought suit against the City, alleging that this zoning scheme violates RLUIPA’s equal terms, unreasonable limitation, and substantial burden provisions, as well as the Illinois Religious Freedom Restoration Act and the First Amendment Free Exercise Clause. The Church’s complaint sought declaratory, compensatory, and injunctive relief, but the Court limited its decision to the Church’s request for a preliminary injunction (see Preliminary Injunction Order).
Preliminary injunctions, under federal law, may only be granted upon a showing that the moving party is likely to succeed on the merits, has no adequate legal remedy, and will suffer irreparable harm if the injunction is not granted. In assessing whether the injunction was proper as against the City, the Court explained:
The church has a likelihood of success on its RLUIPA equal-terms claim because, by subjecting the church to prior approval on its location and development when the city does not impose such a requirement on a theater in the very same district, the city has imposed a requirement that treats religious assembly on less than equal terms with nonreligious assembly.
Furthermore, the Court determined that, in the absence of an injunction, the Church and its congregation would suffer uncertainty and anxiety over whether it will ever find a home. This anxiety “touches on an intangible right that cannot be compensated with money.” The Court’s brief opinion assumes, with no analysis, that a theater is an adequate secular “comparator” for the purpose of the Church’s RLUIPA equal terms claim. The lack of analysis is rather surprising, given that the Seventh Circuit has adopted an “accepted zoning criteria” RLUIPA equal terms test, whereby a court must examine the text of the zoning regulations themselves in order to determine the regulatory purpose of a given zoning district and whether distinctions made between uses furthers such purpose. (See River of Life Kingdom Ministries v. Vill. of Hazel Crest, Ill., 611 F.3d 367 (7th Cir. 2010) (en banc)).
Interestingly, this is the second time in two years that the City of Markham has been to court on alleged RLUIPA violations (see our discussion of Church of Our Lord Savior and Jesus Christ v. City of Markham, available here). In 2015, the District Court for the Northern District of Illinois considered and declined to dismiss claims brought by the Church of Our Lord Savior and Jesus Christ against the City under RLUIPA’s substantial burden provision (see Memorandum Opinion and Order). These claims arose from the City’s denial of a conditional use permit for the Church of Our Lord Savior and Jesus Christ to operate on its property in a one-family residential district. Upon review, the Court noted that the specific facts surrounding the City’s denial remain unclear, and the City’s only proffered explanation, that the property did not provided enough parking, could not properly be considered on a motion to dismiss.
More recently, after reviewing the parties’ summary judgment motions and supplemental briefs, the Court entered an order striking each motion pending submission and review of the Church of Our Lord Savior and Jesus Christ’s application for a variance regarding the amount of parking required (see Order, dated Aug. 4, 2016).