A federal court in Illinois ruled that the legal rights of churches were not violated by a city zoning ordinance that required churches to obtain a special use permit.

Church Law and Tax2002-05-01


Key point 7-06.2. Some courts permit local zoning commissions to restrict the location of churches in residential areas.

Zoning Law and Churches

* A federal court in Illinois ruled that the legal rights of churches were not violated by a city zoning ordinance that required churches to obtain a special use permit before locating in certain commercial and manufacturing districts. Several churches sued the City of Chicago challenging the constitutionality of a city ordinance requiring churches to obtain special use permits in order to operate in commercial and business areas. The Chicago zoning ordinance divides the city into several districts including Residence ("R"), Business ("B"), Commercial ("C"), and Manufacturing ("M"). Each zone contains various sub-districts. The ordinance also sets forth the uses allowed within each sub-district. Approximately 40% of the city is zoned as R districts, with the remaining parts of the city divided into B, C, or M districts. Within each sub-district, certain uses are allowed as of right ("permitted uses"), while other uses are allowed as "special uses" and require approval from the city’s zoning board of appeals ("ZBA") and still other uses are prohibited under any circumstances. The ZBA will consider an application for a special use permit only after a public hearing. In considering whether to grant a special use permit, the ZBA makes a determination as to what impact the special use will have on other entities in the district. Upon receiving an application, the ZBA often notifies the alderman of the respective ward for which the special use permit application was filed and may consider the input of the alderman on whether a special use permit should be granted for a particular location. Additionally, the ZBA permits neighbors and community groups to testify at its hearings concerning the pending application.

The zoning ordinance treats churches as follows: (a) within all R districts, churches are permitted uses as of right; (b) within all B districts, churches are special uses, and thus must obtain a permit to locate in these areas; (c) within C1, C2 and C3 districts, churches are also special uses; and (d) within the C4 district and all M districts, churches are not permitted.

The churches asserted that they are required to obtain special use permits to locate in B and C districts, while other similar uses may locate in B, C and M districts as permitted uses. In response to this litigation, the city amended the zoning ordinance. Under the amended ordinance, "clubs and lodges," "meeting halls," and "recreation buildings and community centers" are now required to obtain special use permits to locate in B and C districts, the same as churches. However, unlike churches, none of these allegedly similar uses are permitted uses in all R districts. Further, with respect to only churches, the amendments to the zoning ordinance removed the requirement for a special use permit that an applicant affirmatively demonstrate the proposed use is "necessary for the public convenience at that location."

equal protection of the laws

The churches argued that the zoning ordinance violated the constitution’s "equal protection clause" which mandates that no state shall "deny to any person within its jurisdiction the equal protection of the laws." This clause, noted the court, is "essentially a direction that all persons similarly situated should be treated alike." In order for a statute that treats different groups differently to be constitutional, it ordinarily must have a "rational purpose," and this requirement was met. The court observed,

By authorizing churches to operate in R districts as a permitted use of right, the city recognizes the historical connection between strong and healthy residential communities and churches. Outside these residential districts, though, the city reasonably maintains churches are less suited to B and C districts, since the goals of these districts to promote business and commerce may be hurt by such non-commercial uses. Such broad generalizations may not always be helpful, so the city recognizes exceptions to this general rule. The ordinance contains a mechanism to allow churches to obtain special use permits to operate in B and C districts. However, in B and C districts, the quarrel between churches and industrial uses might be so significant that the city could rationally conclude the two uses cannot share the area. From the perspective of community management, there are clear economic and social justifications for the city’s overall zoning scheme, and these reasons have nothing to do with religion …. Thus, the city’s decision to more extensively regulate churches in B, C, and M districts than in R districts is rational.

The court conceded that if a law treats a group differently because of its religion, then the law must be supported by a compelling government interest to be valid. The court concluded that this more difficult standard did not apply in this case since the zoning ordinance did not regulate religious beliefs or compel individuals to perform any acts contrary to their beliefs. Rather, it simply "limited the location of church buildings, which is not the regulation of belief, any more than regulating the location of the Chicago Tribune building is the regulation of the newspaper’s first amendment-protected product."

freedom of religion

The churches claimed that the zoning ordinance violated their first amendment right to the free exercise of religion. The court disagreed, noting that in 1990 the United States Supreme Court ruled that a law that is neutral and of general applicability is presumably valid even if it adversely impacts religious practices. Employment Division v. Smith, 494 U.S. 872 (1990). The court concluded that the Chicago zoning ordinance was neutral and of general applicability, and did not single out churches for adverse treatment. As a result, it did not violate the first amendment. It observed, "The requirement that an individual must go through the processes and meet the standards, is a requirement imposed on all special use applicants, regardless of the character of the proposed use. Therefore, the zoning ordinance and related provisions are valid neutral and generally applicable zoning regulations that impose no substantial burden to the free exercise of religion."

Religious Land Use and Institutionalized Persons Act

The court rejected the churches’ claim that the zoning ordinance violated the recently passed Religious Land Use and Institutionalized Persons Act of 2000. It observed, "Assuming that RLUIPA is constitutional, it does not affect the outcome, because RLUIPA is inapplicable to the present matter by its own terms …. The city amended its zoning ordinance and adjusted its policies concerning special use permits and related districts. By removing any potential substantial burden, the city has avoided the threat of heightened scrutiny under RLUIPA."

The court was referring to the following provision in RLUIPA: "A government may avoid the preemptive force of any provision of this chapter by changing the policy or practice that results in a substantial burden on religious exercise, by retaining the policy or practice and exempting the substantially burdened religious exercise, by providing exemptions from the policy or practice for applications that substantially burden religious exercise, or by any other means that eliminates the substantial burden."

Application. Many churches have been frustrated by the requirement that they obtain a special permit in order to locate in a particular area. This case illustrates that such restrictions may be valid so long as they do not single out churches for harsher treatment. Further, the protections of the Religious Land Use and Institutionalized Persons Act may be avoided if a city amends a zoning ordinance to remove any potential "substantial burden" on religious exercise. C.L.U.B. v. City of Chicago, 157 F.Supp.2d 903 (N.D. Ill. 2001).

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