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Christian Assembly Rios De Agua Viva v. the City of Burbank

March 31, 2011


Appeal from the Circuit Court of Cook County. ILLINOIS, Honorable Michael Hyman, Judge Presiding.

PRESIDING JUSTICE QUINN delivered the judgment of the court, with opinion. Justices Murphy and Steele concurred in the judgment and opinion.


Plaintiff, Christian Assembly Rios de Agua Viva, appeals from an order of the circuit court denying its emergency motion for a preliminary injunction seeking a declaration that it may operate a church on property that it has a contract to purchase, notwithstanding the City of Burbank's zoning ordinance that does not permit such use. For the reasons set forth below, we affirm the circuit court.


Christian Assembly Rios de Agua Viva (church) is a church with a largely Hispanic membership that currently meets at 6132 South Kedzie Avenue on the south side of Chicago, Illinois. Due to its growing congregation, the church decided to look for a larger building in the south suburbs, where many of its members reside. The church found a suitable property at 8100 South Parkside Avenue in Burbank, Illinois, the site of a former restaurant called The Old Barn, which is now in bankruptcy. On August 12, 2010, the church entered into a real estate contract with the trustee in bankruptcy to purchase the property for $900,000. The church paid $50,000 in earnest money, as required by the contract, $10,000 of which became nonrefundable on November 29, 2010. The contract contained a zoning contingency, which provided as follows:

"Buyer shall have one hundred twenty (120) days from the Contract Date to determine the zoning classification for the premises and, if necessary, to obtain a zoning change to allow the premises to be used as a church.

Buyer shall have the right to extend the Governmental Approval Period two (2) times for periods of thirty (30) days each upon written notice to Seller from Buyer given within said Governmental Approval Period (as the same may have been previously extended) accompanied by the deposit with escrowee of the sum of Fifteen Thousand and No/100 Dollars ($15,000) of additional earnest money for each such extension. Fifty percent (50%) of each additional earnest money deposit shall become nonrefundable upon deposit; however one hundred percent (100%) of each additional earnest money deposit shall be applied to the Purchase Price at closing.

If Buyer for any reason is not satisfied with the zoning, Buyer may, upon written notice given to seller within the Governmental Approval Period (as the same may have been previously extended), terminate this Contract and receive back the earnest money (except non-refundable portions as provided herein)."*fn1

The church has obtained a commitment for a $600,000 mortgage loan, which also can be withdrawn if the church cannot obtain proper zoning.

At the time the church signed the contract, the property in question was zoned "C" commercial district under the City of Burbank's zoning ordinance. The zoning ordinance included 114 permitted uses in the C district, many of which were business and retail in nature. However, several "service" uses were also permitted in the C district, including "business associations," "labor associations," "civic, social and fraternal associations," and "political organizations." Churches, however, were not a permitted use in a C district and were allowed only as a "special use." Under section 6-1 of the zoning ordinance, special uses are uses "that may or may not be appropriate in a particular location depending on a weighing in each case of the public need and benefit against the local impact and effect." In order to obtain a special use permit, a property owner must make an application, submit to a public hearing, and establish that the proposed use meets several specific criteria set forth in the ordinance.

On October 7, 2010, the church submitted an application for a special use permit to the city along with a letter stating that it had a legal right pursuant to the equal protection clause of the Illinois Constitution (Ill. Const. 1970, art. I, §2) and the Illinois Religious Freedom Restoration Act, (775 ILCS 35/15 (West 2008)) to locate a church on the property.

On November 18, 2010, the city published a notice of public hearing regarding a proposed amendment to its zoning ordinance, which would limit permitted and special uses in the C commercial district "to commercial retail stores, service establishments, and professional offices that generate tax revenues, maintain the City's tax base and allow for convenient locations for the public to shop, obtain services and conduct businesses." The notice stated that "all tax exempt uses, residential uses and uses otherwise permitted or allowed as special use in a residential zoning classification are proposed to be prohibited." The proposed amended ordinance, however, would permit noncommercial assembly uses, including churches, in residential zoning districts.

On December 7, 2010, the city's zoning, planning and development commission heard the church's special use permit application. Following the public hearing, the commission recommended against granting a special use permit to the church because of the "lack of tax revenue" the proposed use would generate.

On December 13, 2010, plaintiff filed a seven-count declaratory judgment action in the circuit court of Cook County alleging, inter alia, that in denying its special use permit application, the city violated (1) the equal protection clause and the church's right to free exercise of religion under the Illinois Constitution; (2) section 15 of the (775 ILCS 35/15 (West 2008)), (3) the church's vested right to use the property as a church, and (4) section 5(a)(2) of the Illinois Civil Rights Act of 2003 (740 ILCS 23/5(a)(2) (West 2008)). The next day, December 14, 2010, the church filed an emergency motion for a temporary restraining order/preliminary injunction asking that the trial court (1) declare that the church has a legal right to use the property as a church ...

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