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PETRA PRESBYTERIAN CHURCH v. VILLAGE OF NORTHBROOK

August 28, 2003

PETRA PRESBYTERIAN CHURCH, PLAINTIFF, VS. VILLAGE OF NORTHBROOK, DEFENDANT


The opinion of the court was delivered by: Nan Nolan, Magistrate Judge

REPORT AND RECOMMENDATION

Plaintiff Petra Presbyterian Church ("Petra") seeks a preliminary injunction prohibiting defendant Village of Northbrook (the "Village") from enforcing a zoning ordinance that bans worship services at certain property owned by Petra. The motion was referred to this Court for an evidentiary hearing and a Report and Recommendation as to whether the motion should be granted. In making its recommendation on this matter, the Court has considered the facts and documents set forth in the complaint and the parties' briefs and submissions, as well as the witness testimony and exhibits presented at a hearing on June 23 and continued on June 24 and 25 and July 18, 2003. For the reasons set forth below, the Court recommends that Petra's motion for a preliminary injunction be denied.

FACTUAL BACKGROUND

Petra was chartered as an Illinois not-for-profit corporation in 1994. Its congregation is a member of Midwestern Presbyterian Churches, an association of mostly Korean churches, and it [ Page 2]

is undisputed that the religious beliefs of Petra's 175 members are sincere. Tr. 85-86, 157, 173. The Village is an Illinois municipal corporation.

A. The Zoning Code

The Village of Northbrook Zoning Code dates back to 1964 but was substantially amended in 1988. The 1988 Code identified 24 separate districts within Northbrook, including eight residential districts (R-l to R-8), five commercial districts (C-1 to C-5), five office districts (O-l to 0-5), two industrial districts (1-1 and I-2) and an institutional buildings district (IB). The Village adopted the federal government's Standard Industrial Classification System, which is a system of classifying the various types of land uses. The Village then determined whether each type of land use was permitted as of right, permitted with a special permit, or not allowed at all in each district. See, e.g., PX 4; Tr. 219-20, 244, 262-63. Northbrook is largely developed and special permits allow the Village to regulate land use to preserve the character of a particular area and to protect the public health and safety. Tr. 245, 317-18, 333, 401-03; PI. Mem., Ex. B. According to Thomas Poupard, the Village's Director of Community Planning, the Board of Trustees (the "Board") has very limited discretion to deny a special permit, hi his view, if a particular use is allowed in a district with a special permit, that use is presumed to be valid unless the Village demonstrates that it will have an adverse effect on the neighborhood or public health and safety. Tr. 289-90, 303, 321-22, 331-32. Nevertheless, he conceded that under the terms of the zoning code, the applicant appears to bear the burden of demonstrating that a particular use is valid. Tr. 432, 434-35; PX 2, 2d Supp.

Under the 1964 Code, religious organizations were allowed as of right in residential districts but could not be located in any business or manufacturing districts. In 1985 or 1986, the [ Page 3]

Village added a requirement that religious organizations obtain a special permit in order to locate in the residential districts. Tr. 294-95. When the Village amended the ordinance in November 1988, it excluded religious organizations from all districts except the IB (institutional buildings) zone. The IB zone did not exist under the 1964 Code but was created to accommodate such facilities as libraries, schools, and public, semi-public and religious institutions. Facilities that were occupied by these organizations prior to the 1988 amendment were re-designated as IB zones and allowed to remain as legal, nonconforming uses in any districts that had otherwise become unavailable to them under the amended code. See PX 4; Tr. 296-97, 482. The only other way to create an IB zone was to apply for rezoning of the property in question. Thus, under the 1988 Code, a religious organization seeking to operate within Northbrook for the first time had to (1) seek rezoning of the property to IB, and (2) obtain a special permit from the Village. Tr. 320, 325-26, 426.

Unlike religious organizations, all other membership organizations were allowed as of right in five commercial districts (C-l to C-5), three office districts (O-2 to O-4) and one industrial district (1-1 Restricted Industrial), and were allowed with a special permit in a fourth office district (O-5). They could also apply to rezone property as IB. PX 4. According to Poupard, other membership organizations were allowed in the particular I-I district at issue here — Sky Harbor Industrial Park — to accommodate union halls, chambers of commerce and other organizations that would complement area businesses. Tr. 335-36. However, organizations such as community centers, youth groups, and art, music and language schools, which arguably do not complement the neighborhood industry, were also allowed in that district. Tr. 425. [ Page 4]

B. Petra's Search for Property

Prior to October 2001, Petra did not own any property and, thus, rented space in other churches to conduct its worship services, marriage ceremonies, baptisms and other religious activities. Petra first rented space at the United Methodist Church in Chicago but in 1997 or 1998, it moved to the Holy Trinity Lutheran Church in Glenview, Illinois (the "Lutheran Church"). Tr. 30, 56-57. Petra conducts worship services at the Lutheran Church on Sunday afternoons and has also used the facility for weddings, baptisms, bible studies and retreats, subject to the Lutheran Church's schedule. In exchange, Petra makes a monthly offering to the church of $500 and assists with repairs and other maintenance and improvement projects. Tr. 32-34, 55, 57, 61, 96, 102-03, 108, 165.

Beginning in 1995, Petra began searching for a building of its own. It formed a six-member committee responsible for finding an appropriate property and started a fundraising campaign to help finance the purchase. However, Petra was unable to find an existing church for sale in the desired location and at the right price. Tr. 34-36, 38. Petra ultimately hired a professional real estate agent to assist with the search. Tr. 38.

C. The Property

In September 2000, Petra found 3005 MacArthur Boulevard in Northbrook (the "Property"), an approximately four-acre parcel with a large office building and an adjacent open-span building formerly used as a warehouse. Cmplt. ¶ 2. The Property is located within Sky Harbor Industrial Park, a T-shaped area of land in northwest Northbrook that is an I-1 district consisting mainly of offices and manufacturing facilities. The buildings surrounding Petra house various businesses, including a grinding, polishing and stamping business, a tool and die [ Page 5]

company, a heating and air conditioning company, an electrical contractor, a plumbing company and a laboratory. Tr. 115, 192-93, 200-01. These businesses utilize such materials as abrasives, lasers, and flammable liquids and chemicals. Tr. 273-79. Large semi-trucks drive through the area to pick up and drop off materials, though there was no clear testimony as to the frequency of this activity. Sky Harbor is bordered by residential districts on approximately half of its perimeter and is adjacent to a school for children in kindergarten through eighth grade. Tr. 255-56, 257-58. According to Wayne Hansen, the Village's Director of Development, these areas are separated from Sky Harbor by buffers, screening, and landscaping. Tr. 190, 194, 265-66. Sky Harbor also has numerous picnic tables and a few leisure areas, presumably for use by area employees and factory workers. Tr. 136, 141-43, 253, 255-56.

Petra had several meetings with its realtor to discuss the possibility of rezoning the Property from 1-1 to IB as required by the 1988 Code, and hired an attorney specializing in zoning law to assist with the process. Tr. 43-44, 391, On September 29, 2000, Petra requested preliminary comments from the Board on its application for rezoning of the Property. On October 10, 2000, the Board conducted a preliminary review of Petra's application and shortly thereafter on December 3, 2000, Petra entered into a contract to purchase the Property for $2.9 million. The contract included a zoning contingency clause that allowed Petra to terminate the contract if it did not obtain the required rezoning. Tr. 46.

The Village's Plan Commission held public hearings on the rezoning issue on February 20 and April 3, 2001. PX 12, 13. Based on discussions with, and comments from the Plan Commission, Petra submitted a list of 13 conditions it agreed to follow in using the Property, including limiting its occupancy rates and landscaping the premises. On April 17, 2001, the Plan [ Page 6]

Commission recommended against approving Petra's application, concluding that Petra required too many restrictions to be a successful operation in the 1-1 district. Tr. 381-87, 458-65; PX 7, 2d Supp. On May 8, 2001, the Board considered Petra's rezoning application and asked the Village staff to prepare documents relating to a denial of the application. Before the Board had a chance to take any formal action on the rezoning, however, Petra withdrew its application on the advice of its realtor and attorney. DX 6; Tr. 47, 73, 117, 388-90.

In addition to withdrawing its rezoning application, Petra also exercised its option to terminate the contract. In September 2001, however, Petra revived the contract, this time without a zoning contingency, and agreed to purchase the Property for $2.6 million — $300,000 less than the original purchase price.*fn1 Tr. 74, 117. Petra closed on the Property on October 8, 2001.

D. The Amendments to the Ordinance

In or about June 2001, the Village began the process of reviewing the zoning regulations governing religious and membership organizations within Northbrook. DX 1. On October 30, 2001, the Plan Commission and the Community Relations Commission held a joint meeting on the issue, and it went before the Board on a preliminary review in April 2002. Tr. 340. The Village held public workshops to discuss proposed amendments to the Zoning Code on October 15, November 5 and November 19, 2002, and held three additional public hearings on December 3, 2002 and January 7 and 21, 2003. DX 1; Tr. 340. Members of the clergy were invited to attend all of the hearings and workshops and Petra representatives were present for most or all of them. Tr. 340-41. [ Page 7]

At the hearing on January 21, 2003, the Plan Commission recommended approval of amendments to the 1988 Code. DX 1; Tr. 342. The Board received the Plan Commission's recommendations on February 11, 2003 and referred them to the Planning and Zoning Committee, which reviewed them on February 25, 2003. Petra representatives attended the February 25 meeting but did not make any comments regarding the proposed amendments. Tr. 341-42. On April 22, 2003, the Board approved and adopted the amendments. Under this revised April 2003 Code, religious organizations are permitted as of right in two residential districts (R-l and R-2), and can locate in 16 additional districts with a special permit (R-3 to R-8, C-l to C-3, C-5, O-2 to 0-5, IB and RLC). Other membership organizations are allowed in 10 districts with a special permit (C-l to C-3, C-5, O-2 to 0-5, IB and RLC). Tr. 311-12, 327-28. Poupard testified that the Village decided to exclude all membership organizations from the 1-1 district because it determined that none of the organizations was appropriate in an industrial zone. Tr. 345, 545-46. Non-religious membership organizations already within the I-1 district, however, were allowed to stay as legal, nonconforming uses. Tr. 345, 348-49, 479; PX 9.

On June 12, 2003, the Village discovered what it calls "scrivener's errors" in the April 2003 Code. Specifically, the Village neglected to (1) prohibit Membership and Sports and Recreation Clubs in the C-4, I-1 and I-2 districts; (2) prohibit Physical Fitness Facilities in the 1-1 district; and (3) provide that Membership and Sports and Recreation Clubs are a special permit use in the Open Space (OS) and IB districts. Petra makes much of the fact that it highlighted these inconsistencies for the Village in its June 3, 2003 Trial Brief and that the Board passed the April 2003 amendments as written. In any event, on June 16, 2003, the Board passed a [ Page 8]

supplemental amendment to the zoning code, retroactively effective on May 3, 2003, reflecting the above changes. DX 2; Tr. 506-11, 516.

E. Petra's Use of the Property

Deacon David Lee, Ruling Elder Suk Keun Kim, and Pastor Seung-Hun Kim all testified regarding the activities Petra conducts at the Property, which bears the sign "Petra Mission Center." Tr. 177, They each stated that Petra has been holding bible studies, prayer meetings and choir practices at 3005 MacArthur since the October 2001 closing date. Tr. 49-51, 52-53, 90-93, 94-95, 166-68, 185. In earlier depositions the witnesses indicated that Petra was not using the Property for anything but an office; however, the Court notes that English is not the witnesses' first language and credits the testimony offered at the hearing on this issue. In any event, Petra admits that it does not have a permit to conduct these religious activities. Tr. 184, 185. Village Director of Development Hansen testified that a permit is required because the religious activities are not accessory uses to office space, which is the Property's principal use. Tr. 217-18, 393-94. The Village first learned that Petra is conducting bible studies, prayer meetings and choir practices at the Property during the June 2003 hearing. Tr. 207-08, 352, 406.

Petra is not the only organization using the Property. Salitek, a media broadcasting company, Lee & Lee Group, Korean Christian TV Broadcast, and the Milal Mission for disabled persons all operate out of 3005 MacArthur, rent free. Tr. 65-66, 81, 164, 166, 169, 172, 178-79. Petra does not have a permit to conduct programs for the disabled. Tr. 184.

On May 4, 11 and 18, 2003, Petra held Sunday worship services at 3005 MacArthur for the first time since its purchase. Tr. 53-54, 70, 118-19. On May 16, 2003, the Village notified Petra that it was violating the Village's building code by having so many people on the premises. [ Page 9]

Petra held services in its 238-space parking lot on May 25 and June 1, 2003 but ultimately returned to the Lutheran Church as of June 15, 2003. Tr. 55-56, 119, 209. On or about June 18, 2003, the Circuit Court of Cook County entered a preliminary injunction preventing Petra from using the Property for Sunday worship services because the Property ...


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