The opinion of the court was delivered by: Rebecca R. Pallmeyer, District Judge.
MEMORANDUM OPINION AND ORDER
Few principles are more venerable or more passionately held in American society than those of local control over land use and the right to assemble and worship where one chooses. On occasion, these principles conflict, and the right to assemble in a location of choice must be balanced against the need of a city to continue to grow economically, to provide adequate municipal services to its residents, and to continue to attract businesses and consumers. Plaintiff Vineyard Christian Fellowship of Evanston, Illinois ("Vineyard"), an incorporated church, owns property within Defendant Evanston's ("Evanston" or "City") city limits but is barred by the City's zoning ordinance from using the property for worship or prayer. Vineyard has brought a twelve-count complaint under 42 U.S.C. § 1983, alleging that Evanston's zoning laws on their face and as applied against Vineyard violate Sections 15 and 20 of the Illinois Religious Freedom Restoration Act ("IRFRA"), 775 ILCS 35/15 and 775 ILCS 35/20 (Count I); the Equal Protection Clause (Count II), Free Exercise Clause (Count III), First Amendment rights of free assembly (Count IV) and freedom of speech (Count V) of the United States Constitution; the rights of religious freedom (Count VI), freedom of speech (Count VII), freedom of assembly (Count VIII), and equal protection (Count IX) of the Illinois Constitution; Illinois zoning standards (Counts X and XI), and the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), 42 U.S.C. § 2000cc, et seq. (Count XII). Vineyard seeks a declaratory judgment as well as injunctive and other relief.
After this action was removed to federal court, the court heard evidence at a bench trial between January and March 2001. The following constitute the court's findings of fact and conclusions of law pursuant to FED. R. CIV. P. Rule 52. For the reasons set forth below, the court enters judgment in favor of Vineyard with respect to Counts II, IV, V, VII, VIII, and IX. As to the remaining counts, the court enters judgment in favor of Evanston. Finally, the court notes that, as the following discussion demonstrates, it might well be a simple matter for the City to amend its zoning ordinance in such a way as to satisfy the equal protection and free speech concerns at issue in this case.
Vineyard commenced this action against Evanston in the Circuit Court of Cook County, Illinois on January 12, 2000. Defendant then removed the case to federal court on February 9, 2000. Vineyard filed an amended complaint for declaratory judgment, injunctive and other relief on October 11, 2000. The United States has intervened, arguing on behalf of the RLUIPA's constitutionality, but not taking a position as to whether Vineyard's rights have been violated. The court heard arguments on Vineyard's motion for a preliminary injunction in December 2000 and directed Evanston to permit Vineyard to hold worship services on its property on Christmas Eve and New Year's Eve in 2000. Vineyard Christian Fellowship v. City of Evanston, N.D. Ill., No. 00 C 798 (Dec. 12, 2000). A bench trial was held in early 2001. Except with regard to damages, the matter has been fully briefed by the parties. This opinion follows.
Plaintiff Vineyard has worshiped in various Evanston locations for approximately twenty-five years. (Transcript ("Tr.") 283.) Its congregation is a member of the worldwide Association of Vineyard Churches (Tr. 66), and it is undisputed that the religious beliefs of Vineyard's members are sincere.
Vineyard's total average weekly attendance in 2000 was approximately 623 (of whom 503 were adults), down from approximately 660 in 1999, and 745 in 1997. (Tr. 266-67.) The church's Sunday morning worship service is one of the largest congregational gatherings in Evanston. (Tr. 83.) More than three-quarters of the church's membership live within five miles of the City, with one-third of its members residing in Evanston, making Evanston the center of the radius within which Vineyard's members live. (Tr. 282-83.)
Evanston is a municipal corporation and is a home rule unit of local government under Illinois law. (Answer to Complaint ("Ans.") ¶ 4.) The City is bounded on the east by Lake Michigan, on the north by the Village of Wilmette, on the west by the Village of Skokie, and on the south by the City of Chicago, and has a total area of approximately 8.5 square miles. (Tr. 929, 1141.) The City thus has no room for geographical expansion and has been almost completely developed for some time. (Tr. 518.)
On April 26, 1993, the City adopted the Evanston Zoning Ordinance ("the Ordinance"), Ordinance No. 43-0-93. (City of Evanston Zoning Ordinance, Joint Exhibit 1; Ans. ¶ 8.) The Ordinance has been subsequently amended. (Ans. ¶ 8.) The Ordinance is designed to enforce the City's Comprehensive General Plan ("General Plan"), which is a document articulating the City's values and objectives for land use, public transportation, the location of schools, and other urban planning matters. (Tr. 933; Evanston Comprehensive General Plan of 1986, Plaintiff's Exhibit ("PX") 46; Evanston Comprehensive General Plan of 2000, PX 47.) The City Council adopted new general plans in 1986 and 2000. (Id.) The Ordinance divides the City into 30 base zoning districts and 4 "overlay" districts.*fn1 (Ordinance § 6-7-1.) The districts include the O1 Office District in which the subject property has been located at all relevant times, residential districts, business districts, commercial districts, downtown districts, as well as several special purpose districts. (Id.) Other than the property owned by Vineyard, there are no churches located in any of the City's four O1 Districts. (Tr. 953.)
As described in the Ordinance, O1 Office Districts are intended to provide appropriate locations for "contemporary, moderately low rise office developments" with particular attention to medical offices and financial office centers. (Ordinance § 6-15-2-1.) Permitted uses, which are allowed as a matter of right in O1 Districts, include cultural facilities, financial institutions, government institutions, hotels, offices, public utilities, and restaurants. (Id. at § 6-15-2-2.) Special uses in O1 Districts, which must be individually approved by the City Council, include child care centers, commercial indoor recreation facilities, commercial parking garages, commercial parking lots, drive-through facilities (accessory only),*fn2 membership organizations, multiple family dwellings, retail goods establishments, retail services establishments, and planned developments. (Id. at § 6-15-2-3.)
Vineyard asks the court to give careful attention to the correspondences between its proposed use of the property and the definitions of at least one of these permitted uses and one of the special uses which may be allowed in the O1 District. First, "cultural facility" is defined by the Ordinance as "an indoor theater, auditorium, or other building or structure designed, intended or used primarily for musical, dance, dramatic or other performances or a library, museum or gallery operated primarily for the display, rather than the sale, of works of art." (Id. at § 6-18-3.) Second, the Ordinance defines "membership organization" as "[l]ands, buildings or portions thereof, or premises owned or operated by an organization of a professional, business, trade, civic, social, fraternal, political, or religious nature operating on a membership basis and engaged in promoting the interest of their members." (Id. at § 6-18-3.)
The Ordinance defines a "religious institution" as "a church, synagogue, temple, meetinghouse, mosque or other place of religious worship, including any accessory use or structure, such as a school, daycare center or dwelling." (Id. at § 6-18-3.) Under this definition, religious institutions are a permitted use in eight of the city's base zoning districts and are designated as special uses in fourteen other districts, but are forbidden in O1 Districts. (Id.) Specifically, religious institutions are permitted as of right in three of the City's business districts, three commercial districts (including one mixed-use commercial district), the downtown "fringe" district, a manufacturing district, and the "university lakefront campus district." (See generally Zoning Ordinance.) Religious institutions are permitted as special uses in several residential districts as well as three downtown districts, a manufacturing district, an industrial district, and three campus-related districts. (Id.)
Approximately 90 religious institutions are currently located in the City (Tr. 1141), and an estimated 90% of the City's geographic area lies in zoning districts in which churches are either permitted or special uses. (Tr. 399, 1140; Graphic of City of Evanston, Defendant's Exhibit ("DX") 5.) Churches are permitted as of right in only 10% of this area; in the other 90%, they are special uses requiring permission from the City Council on a case-by-case basis. (Tr. 411; Permissibility of Religious Institutions within the City of Evanston graphic, PX 45.)
D. Vineyard's Search for Property
Any new large congregation or worshiping community would have difficulty finding space in Evanston unless it were able to buy property from a dying congregation within the City. (Tr. 601). Vineyard has made a significant effort to find alternate properties, and in 1997 purchased the subject property, located in an O1 District, despite its knowledge that the use Vineyard intended for the property was not permitted under the Ordinance. (Tr. 148-50, Ans. ¶¶ 7, 11.) It had sought its own property since 1985, and during the process made written offers for nine different locations, as well as more than one offer for certain locations. (Tr. 92, 285.) Vineyard hired a professional real estate broker to assist its search from 1992 to 1996, and its minister, Mr. William Hanawalt, visited at least 59 properties during this period. (Tr. 300-01, 89-90, Vineyard Real Estate Search Table, PX 12.) The church considered properties between Lake Michigan to the east, Wilmette to the north, the Edens Expressway to the west, and the Rogers Park neighborhood to the south. (Tr. 621-22, 681-82.)
Among the properties Vineyard considered were churches that have been closed, former schools, former theaters, commercial property, and an empty lot. (Tr. 214-16, PX 12.) In several instances, landowners refused to sell or rent to Vineyard because they did not want non-retail uses mixed with retail uses on their property. (Tr. 217.) Thus, when Vineyard approached the Dempster Street Plaza and the Main Street Plaza for either rental space or purchasing a subdivision, the landowners in question declined to negotiate on the ground that covenants with existing tenants precluded the transactions. (Id.)
The church also asked Mr. Eric Eriksson, a practicing architect from its congregation, to assist its search. (Tr. 621.) Beginning in 1985 on a volunteer basis, and continuing on from 1988 or 1989 on a paid basis, Mr. Eriksson considered approximately 80 properties, and visited at least 60 in the course of this search. (Tr. 621, 623.) Vineyard has continued to seek alternate sites after purchasing the subject property and has also considered at least four other sites during the pendency of this lawsuit. (Tr. 214, 257-58; Supplemental Affidavit of Vineyard Pastor William C. Hanawalt of 4/17/02 ("Hanawalt Supp. Aff.") ¶ 4.)
On February 11, 1992, more than a year before the passage of the Ordinance, Vineyard pastor William Hanawalt sent a letter asking the chairman and members of the City's Planning and Development Committee to consider allowing churches in city areas zoned for manufacturing. (Letter of 2/11/92 from Vineyard Executive Pastor Hanawalt to City Planning and Development Committee, DX 6.) The letter indicated that Vineyard was only able to find suitable real estate for its purposes in warehouse-type buildings located in manufacturing zones. (Id.) In this letter, Mr. Hanawalt conceded that it would be "very undesirable for a large church to displace sales tax generating business/commercial property with our required parking and buildings and have a giant `hole' in a retail area that is relatively empty six days a week." (Id.) The court understands that the letter pre-dates Vineyard's interest in and purchase of the subject property, and the record does not reveal how the subject property was zoned before the ordinance was passed. Vineyard made a series of offers to purchase industrial or manufacturing real estate, but for various reasons the deals fell through. (Tr. 89-101.) There is no evidence in the record that the City responded directly to Mr. Hanawalt's letter, but the City partially complied with Vineyard's request by amending the draft Ordinance to make some of the manufacturing zones places where churches may operate as special uses. (Tr. 293.)
The property ("the subject property" or "1800 Ridge") at issue in this case is located at 1800 Ridge Avenue in Evanston. The property's lot is approximately 200 feet deep with approximately 175 feet of frontage along the west side of Ridge Avenue opposite the intersection of Clark Street. (Tr. 754; Evanston Ridge-Vineyard Subdivision, PX 16.) At an unspecified date in the 1920s, the property was used by a Methodist church.*fn3 (Tr. 634-636.) The property is now improved with a two-story building, which is approximately 70 years old and has a square footage of between 35,000 and 39,000 feet.*fn4 (Tr. 754.) The building was originally built to house an auto dealership before being converted into office use by the American Hospital Supply Company in the 1970s. (Tr. 1055). After American Hospital Supply left Evanston in the mid-to-late 1980s, the building was used intermittently for office purposes, and then in 1996 its owner (presumably American Hospital Supply) went into bankruptcy before selling the property to Mark Realty in 1996 (Tr. 536-37).
Vineyard considered purchasing the subject property on several occasions. (Tr. 100, 102.) Because the building is not large enough to accommodate all of Vineyard's members at a single worship service, when the church first considered the property at an unspecified date in the early 1990s, members still hoped they would one day find a larger site.*fn5 (Tr. 100.) Mr. Hanawalt was familiar with the building from the outside, and finally visited the inside of the property in 1996. (Tr. 102-03.) He was aware that the building was empty intermittently throughout the early 1990's. (Tr. 103.)
On August 23, 1996, Vineyard signed a contract ("the Contract") to buy the subject property from Mark Realty for $1,100,000. (Real Estate Sale Contract of 8/23/96, PX 13.) The Contract contained a zoning contingency that allowed Vineyard to extend the closing date until January 15, 1997 to "obtain all zoning, subdivision and other approvals and/or permits necessary and reasonably acceptable to [Vineyard] for [Vineyard's] use of the Property as a church." (Id. ¶ R-6.) The Contract also provided that if Vineyard were unable to obtain zoning approval by the required date, it could either terminate the contract and forfeit its $20,000 earnest money or avail itself of successive "zoning extensions," moving the closing until February 15, March 15, and April 15, 1997 at the cost of $10,000, $15,000 and $20,000, respectively. (Id.) In April 1997, Vineyard amended the contract by initially waiving the zoning contingency, and subsequently negotiating an additional extension for the closing date, and agreeing to a per diem payment to Mark Realty until the closing took place. (Tr. 148-49; Letter from Seller's Counsel Marjorie C. Howard to Vineyard Counsel Mark Robert Sargis of 4/30/1997 ("Howard Letter"), PX 14.) Mark Realty conveyed the deed to Vineyard on May 8, 1997. (Ans. ¶ 7; Howard Letter; Special Warranty Deed of 5/8/97, PX 17.)
The subject property was appraised at $1,850,000 in July 2000. (Tr. 1074-75.) As of the time of the hearing, Vineyard had listed the property for sale at $2,500,000 (Tr. 287-88, 319), and an offer in that amount has been received apparently contingent upon securing approval for condominium development. As of July 2, 2002, Vineyard had not accepted this offer.
F. Vineyard's Efforts to Amend the Ordinance
After entering into the contract to purchase 1800 Ridge, Vineyard filed (1) a Petition for Text Amendment to § 6-15-2-3 of the Ordinance to add "Religious Institutions" as a permitted use or, in the alternative, a special use in the O1 District; and (2) an application for special use requesting that Vineyard be allowed to use the subject property as a religious institution.*fn6 (Petition to Amend Evanston Zoning Ordinance, PX 3; City of Evanston Application for Special Use ("First Special Use Application"), PX 4.) These applications were made pursuant to the City's coordinated Review and Approval procedure. (Tr. 360; Ordinance § 6-3-4-8.) Under that procedure, initially, an individual or organization files a petition with the zoning administrator's office. A hearing is then scheduled before the City Plan Commission ("Plan Commission"). If the matter deals with a specific piece of property, the zoning administrator notifies neighbors, property owners, and taxpayers of record within 500 feet. (Tr. 350.) After the hearing, the Plan Commission makes a recommendation as to whether the City Council should adopt an ordinance granting the petition amendment or not. The City Council then considers the recommendation and either adopts or does not adopt the amendment. (Tr. 351.) If the applicant for an amendment also seeks a special use (in anticipation of the City Council granting the request for the amendment), the applicant can follow the "coordinated procedure," in which the City Zoning Board of Appeals ("Zoning Board") conducts a hearing on the special use simultaneous to the hearing on the amendment. Sometimes the Zoning Board and the Plan Commission hold joint hearings to consider both requests. (Tr. 352.)
The Plan Commission acted favorably on Vineyard's Petition for Text Amendment. On December 11, 1996, the Plan Commission recommended that the City Council amend the Ordinance to include "religious institutions" among the special uses listed for the O1 District. (Ans. ¶ 39.) The Zoning Board also acted favorably, approving Vineyard's Application for Special Use on February 4, 1997. The Plan Commission issued its written recommendation in favor of Vineyard's Petition on February 12, 1997. (Id.; Plan Commission Recommendation of 2/12/97, PX 6; Memo from Arthur Alterson, Evanston Zoning Administrator, to David Jennings, Traffic Engineer, of 2/14/97.)
Evanston's City Council was less favorably disposed. On May 5, 1997, the City Council voted to reject the Plan Commission's recommendation. Having thus refused to amend the Ordinance to include "religious institutions" among the special uses in O1 Districts, the City Council did not vote on the Board of Appeals' recommendation that Vineyard be granted a special use to use the subject property as a church. (Ans. ¶ 49; Minutes from Evanston City Council Meeting of May 5, 1997, PX 15.)
Despite this setback, Vineyard proceeded to complete the purchase of the subject property two days later, on May 7, 1997. (Tr. 151.) Reverend Hanawalt explained that Vineyard concluded that the subject property would be useful for the church's operations, offices, and other cultural activities, even if it could not be used for worship services. (Tr. 151-52.) And he was optimistic that once the City Council saw that Vineyard had tax exempt status anyway, the Council would no longer have any incentive to bar Vineyard from holding worship services at the site. (Tr. 152-153.)
On July 20, 1998, Vineyard filed suit in state court to challenge the City's denial of Vineyard's zoning requests. Vineyard Christian Fellowship of Evanston v. City of Evanston, 98 CH 9541; (Ans. ¶ 65.) Vineyard voluntarily dismissed the suit without prejudice on January 12, 1999. (Id. ¶ 66.)
On March 15, 1999 Vineyard again filed with the City (1) a Petition for Text Amendment to Section 6-15-2-3 of the Ordinance to add "Religious Institutions" as either a permitted or special use in O1 Districts, and (2) an Application for Special Use requesting that the subject property be allowed for use as a religious institution. (Petition to Amend the Evanston Zoning Ordinance of 3/15/99, PX 22; Application for Special Use of 3/15/99, PX 23; Ans. ¶ 67.) These applications were similar to the zoning applications that the church had submitted in 1996 and 1997, and were again filed under the City's coordinated Review and Approval procedure. (Ans. ¶ 68; Tr. 388; Ordinance § 6-3-4-8.)
The results of Vineyard's second application echoed those of its first. On April 6, 1999, the Zoning Board voted to grant a special use to permit the subject property to be used for a religious institution; the Board issued a written recommendation on May 12, 1999. (Ans. ¶ 69; City Zoning Board of Appeals Recommendation of 5/12/99, PX 27.) On April 14, 1999, the City Plan Commission voted to amend the text of the Ordinance to include "religious institutions" among the special uses listed for the O1 District; on May 11, the Commission issued its written recommendation to that effect. (Ans. ¶ 70; City Zoning Plan Commission Recommendation of 5/11/99, PX 26.) On June 28, 1999, the City Council voted to reject the Plan Commission's recommendation to approve the amendment of the Ordinance's text, and consequently did not vote on Vineyard's application for special use. (Ans. ¶ 71; City Council Minutes of 6/28/99, PX 31.)
G. Vineyard's Current Use of 1800 Ridge and
other Properties in Evanston
From 1991 to the present, Vineyard's congregation has rented space at Evanston High School under a series of annual leases that allow use on Sunday morning only. (Answer to Plaintiff's Request to Admit ("Ans. to Pl.'s Req.") ¶ 78; Tr. 246-47; Leases between Vineyard and Evanston Township High School District 202, PX 1.) The church uses the high school only for Sunday worship and children's Sunday School; accordingly, Vineyard has had to rent at least ten other facilities for baptisms, weddings, and funerals. (Tr. 250-51; 273.)
Holding weekly worship services at a rented location has been burdensome to Vineyard and its congregation. Renting space for worship has required Vineyard volunteers to prepare the rented space for worship on a weekly basis; exposed the church to temporary or permanent displacement; required it to accept its landlord's lighting and sound preferences; and raised security concerns for church members interacting with other people using the high school's facilities on weekends. (Tr. 251-52.) Renting the high school auditorium and exercising various options within the rental lease costs Vineyard almost $100,000 a year for a 90 minute service each week (PX 1; Tr. 253); Mr. Hanawalt estimates that if worship were permitted at the 1800 Ridge location, Vineyard's cost to operate the property seven days a week, even including the additional expense for worship services, would be approximately $120,000 a year.*fn7 (Tr. 253; Hanawalt Supp. Aff. ¶ 7.) S o o n a f t e r purchasing the subject property, Vineyard began using the building's second floor for administrative offices and other church-related administrative activities, including seminars; classes; meetings; counseling; a tape and book library; meals; and rehearsals for and recordings of musical, dramatic and dance productions. (Tr. 171.) Vineyard's original plan for the subject property included a sanctuary on the first floor. (Tr. 301.) After the City voted for the first time, in 1997, not to amend the Ordinance, Vineyard built a multi-purpose auditorium, which occupies the western two-thirds of the ground floor. (Tr. 174-75; Subject Property Floor Plan, PX 35.) The central part of the floor is a lobby area with a kitchen. (Tr. 175; PX 35.) The eastern portion of the floor, which now houses approximately 500 fixed seats, is an undeveloped area which Vineyard would like to use for worship. (Tr. 175.) In operating the auditorium as a cultural facility, Vineyard has hosted concerts, lectures, theatrical events, coffeehouses, Christmas pageants, wedding receptions, dances, photography exhibits, and guitar classes. (Tr. 174, 177, 189-90.) Vineyard typically uses the auditorium three or four times a week for large group meetings, leadership training, educational events, youth events, liturgical dance presentations, coffeehouses and other musical events, and music rehearsals. (Tr. 190-91.) Vineyard has not used the subject property for worship services, except for services on December 24 and 31, 2000, pursuant to a preliminary injunction granted by this court. Vineyard Christian Fellowship v. City of Evanston, N.D. Ill., No. 00 C 0798 (Dec. 12, 2000).
Vineyard has found the subject property useful for all permitted uses: owning 1800 Ridge has saved time on publicity; has made Vineyard's facilities accessible, easy to find, and close to public transportation; has been convenient for Vineyard's counseling ministry; and has made members of the congregation feel safe parking for night meetings. (Tr. 258-59.)
Evanston acknowledges that from 1997 to the present, neither Vineyard's uses of the subject property, nor parking incident to Vineyard's activities, has had any adverse effect on properties adjacent to or in the immediate neighborhood of the subject property. (Defendant's Response to Request to Admit ("Def.'s Adm.") ¶ 17, Supplemental Answers to Request to Admit ¶ 18.) The City concedes further that Vineyard's actual use of the subject property from 1997 until now has not caused any problems or adverse effect with regard to the environment, pollution, noise, water, sewer, public health, safety, or public morals. (Supplemental Answers to Request to Admit ¶¶ 30, 32, 36, 42.) The City has neither cited Vineyard for any violations nor commenced any enforcement action under the Ordinance with regard to Vineyard's actual uses of the subject property since its acquisition. (Response to Pl.'s Request to Admit, ¶ 48, Tr. 708.)
H. Vineyard's Proposed Uses of the Property
Vineyard's zoning applications proposed a worship auditorium of 700 seats for the east side of the subject property's first floor. If the church is allowed to proceed, it will "probably" initially construct a sanctuary with the 500 fixed seats that currently occupy the eastern third of 1800 Ridge's first floor. (Tr. 186.) In summarizing this proposal, the church's pastor noted that Vineyard's congregation has shrunk, that it had been given the 500 fixed seats by a school, and that it would ...