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Christian Assembly Rios de Agua Viva v. City of Burbank

United States District Court, N.D. Illinois, Eastern Division

February 21, 2017



          SARA L. ELLIS United States District Judge.

         Looking for a new home for its growing congregation, Plaintiff Christian Assembly Rios de Agua Viva (the “Church”) entered into a contract to purchase property in the City of Burbank, Illinois (the “City”). In order to use that property for religious purposes, the Church had to obtain a special use permit (“SUP”). After the City denied the SUP, the Church terminated the contract and filed this lawsuit, seeking to recover damages from the City for alleged violations of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc, the First and Fourteenth Amendments, the Illinois Constitution, and Illinois state laws.[1] The parties have now filed cross-motions for summary judgment. The City seeks summary judgment on the Church's RLUIPA substantial burden and equal terms claims, the remaining equal protection claim, and the free exercise claim, while the Church asks the Court to find that it is entitled to judgment as a matter of law on the equal terms claim and set that claim for trial on damages. Because the Church had no reasonable expectation of using the property for religious purposes, any delay, uncertainty, and expense the Church experienced or incurred while the City considered the SUP application and amended its zoning ordinance did not constitute a substantial burden. Thus, the Court grants the City summary judgment on the substantial burden and free exercise claims. But because the City has not produced evidence justifying the treatment of churches on less than equal terms than seemingly similar secular institutions under the ordinance requiring the Church to obtain an SUP, the Court finds that that ordinance violated RLUIPA's equal terms provision. And because the Court concludes that the Church may recover damages for this violation even though the City denied the SUP application under the amended ordinance, which does not have an equal terms problem, a jury must determine the Church's damages. Finally, as neither party meaningfully addresses the equal protection claim so as to allow a merits decision at this stage, that claim also will proceed to a jury trial.


         The Church, with a largely Hispanic membership of approximately 250 individuals who attend weekly services, meets at 6132 S. Kedzie in Chicago, Illinois. But because that facility does not meet all its needs and many of the Church's members had moved to the suburbs, the Church began searching for a new location in the suburbs. Its search extended to southwest suburban Burbank, where the Church's pastor, Luis Ruiz, and at least twelve other member families lived.

         In August 2010, after an approximately three and a half year search, the Church entered into a contract to purchase property at 8100 South Parkside Avenue in Burbank. The approximately four acre property includes four structures totaling approximately 27, 000 square feet. The Church planned to renovate the property to accommodate a 428 seat sanctuary, allowing it to grow slowly and without the limits of the space of its current location. Ruiz thought moving to Burbank would grow the church and make it easier for those members living in the suburbs to attend services. The property also provided the Church with the opportunity to offer additional classes on Sundays. Ruiz further envisioned developing a more effective youth outreach program at the property.

         A restaurant-the Old Barn-previously occupied the property, but the property stood vacant since October 2008, when the owners of the property filed for bankruptcy. As of October 2010, the property had an appraised as-is market value of $1, 445, 000 and an as-complete market value of $2, 260, 000. The Church, however, agreed to a purchase price of $900, 000 with the bankruptcy estate. The bankruptcy court approved the contract on September 22, 2010, and the Church paid $50, 000 in an escrow money deposit. The contract included a zoning contingency, which provided that if the Church did not obtain the requested zoning approvals on or before January 28, 2011, it could terminate the contract and receive back its earnest money.

         The property, located in the “C” commercial district, is the second largest commercially-zoned property in the City. Before December 15, 2010, Burbank's zoning code (the “Prior Ordinance”) listed 114 permitted uses in the “C” commercial district. This included various non-religious assembly uses, including dance studios, schools, and halls; physical fitness facilities; business associations; labor associations; civic, social, and fraternal associations; political organizations; and undertaking and funeral parlors. Under the Prior Ordinance, churches could locate as of right in two of the City's four residential districts. But to locate in the “C” commercial district, churches had to obtain a SUP.[3] The Prior Ordinance also listed forty-nine specific uses that required a SUP to be allowed in any district, residential or commercial.

         The City has a standard procedure to process zoning applications, including SUPs. After SUP applications are filed, the Building Commissioner (who, at all relevant times, was Frank Kainrath) reviews them. The Building Commissioner then refers the matter to the City's Zoning, Planning, and Development Commission (the “Zoning Commission”), a three-member advisory body that conducts a public hearing and makes a recommendation on the SUP application to the City Council. The Zoning Commission typically meets the first Tuesday evening of every month. A notice of the public hearing must be published in a local newspaper no less than fifteen and no more than thirty days before the date of each hearing. Before the public hearing, the Building Commissioner makes an administrative recommendation on the SUP application to the Zoning Commission. The Zoning Commission then conducts a public hearing, after which it takes an oral vote on the SUP application. The recommendation is not finalized until the next monthly meeting, however, when the Zoning Commission approves the minutes of the prior meeting. At that point, the Zoning Commission forwards its recommendation to the City Council. The City Council first considers the Zoning Commission's recommendation at a regularly scheduled Committee of the Whole meeting and then votes on it at a City Council meeting. Although the City Council typically meets three times per month, in December it only holds one formal City Council meeting and one Committee of the Whole meeting, where it discusses pending items but takes no votes. Kainrath testified that the SUP decisionmaking process typically takes three to four months.

         On October 8, 2010, the Church applied for a SUP, tendering the $1, 200 filing fee and indicating in a cover letter to Kainrath that it tendered the application at that time so that it “can be on the originally scheduled November calendar for Committee and Council hearings and for decision before the City in December.” Doc. 107-2 at 2. The Church further indicated that “[t]iming is of the essence with regard to this particular transaction in that it is in the Bankruptcy Court and delay could cause the Church to lose its contract on the property given the Court's demanding timetable.” Id. Kainrath reviewed the application and submitted a report to the Zoning Commission, indicating that he did not recommend approval of the SUP as the property was “the last large “C” district left in Burbank for development” and felt “it is not in the best interest of the community due to the loss of the historic use and tax monies.” Doc. 107-1 at 2.

         Although the Zoning Commission typically meets on the first Tuesday of every month, it did not meet on November 2, 2010, the first Tuesday of November, which happened to be election day. Michael Looney, chairman of the Zoning Commission, testified that as the Stickney Township Democratic Committeeman, he was performing election-related work from about 5:00 a.m. until 10:00 p.m. that day. Similarly, the remaining members, Robert Schmidt and Robert Contreras, also engaged in political activities that day. Knowing of these election activities at least a month beforehand, the Zoning Commission never scheduled its November meeting and did not publish the required notice of hearing. The decision not to hold the meeting, however, was made on October 8, the same day the City received the Church's SUP application. But the decision not to hold a meeting on election day was not without precedent. The Zoning Commission also had not held November meetings due to elections in 2002, 2004, 2008, and 2012, although it did call its regular meeting in 2006 during an election year.

         On November 12, 2010, attorneys for the Church sent the Zoning Commission a letter requesting the issuance of the SUP application in a timely manner. The letter explained that the Prior Ordinance violated RLUIPA and the Equal Protection Clause of the Fourteenth Amendment because the Prior Ordinance permitted non-religious assemblies, but not religious assemblies, as of right in the “C” commercial district. The Church indicated it might consider legal action if the City denied the Church's SUP application.

         At the same time the City was purportedly considering the Church's SUP application, it also set about to amend the Prior Ordinance to require uses in “C” commercial districts to be tax generating. When Burbank's mayor, Harry Klein, learned of the Church's SUP application, he spoke to Ruiz and told Ruiz that he wanted to maintain the property as a tax-producing property. Klein determined the City should preserve the property for future commercial use, referring the matter to the City's attorneys to determine if anything in the Prior Ordinance would “seriously hurt any commercial real estate” in the City. Doc. 106 ¶ 30. This led the City attorneys to draft a zoning amendment.

         On November 18, 2010, the City published a Legal Notice of Public Hearing in the Burbank-Stickney Independent newspaper, announcing a December 15, 2010 hearing to consider this proposed amendment to the Prior Ordinance. The Legal Notice read in part:

Permitted and special uses in “C” Commercial Districts are proposed to be limited 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 business. 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.

Doc 107-6 at 2.

         The Church learned of the proposed amendment on November 29, 2010. In response, the Church filed suit against the City in federal court on December 3 but then voluntarily dismissed the case on December 13. Despite knowing of the proposed amendment, the Church proceeded with its SUP application. The Zoning Commission held its initial hearing on the application on December 7, unanimously recommending denial of the SUP because of the loss of taxable real estate. A hearing on the SUP application was scheduled before a committee of the City Council on January 19, 2011 and before the full City Council on January 26, 2011. On December 13, 2010, the Church filed another complaint, but this time in the Circuit Court of Cook County, seeking an injunction ordering the City to allow the Church to use the property as a church. On December 14, the day before the hearing on the proposed change to the Prior Ordinance, the state trial court denied the Church's motion for preliminary injunction.

         On December 15, 2010, the City Council held a public hearing on the proposed amendment. The City Council appointed itself as the Zoning Commission to conduct a hearing on the amendment. Klein indicated this was for the Church's benefit, “in the interest of time due to respect to [the Church's members]” so that they would “know where [they] stand.” Doc. 106 ¶ 35. After adjourning the Zoning Commission hearing, the City Council reconvened and passed the amendment. The amendment (the “Amended Ordinance”) allows churches, temples, and places of worship in “R” single family residence districts, “R-1” single family residence districts, “R-2” limited multi-family residence districts, and “R-3” multi-family residence districts. All tax exempt uses, residential uses, and uses otherwise permitted or allowed as special uses in residential zoning classifications are expressly prohibited in “C” commercial districts, however. This means that, under the Amended Ordinance, unless they are grandfathered, no churches may locate in “C” commercial districts.

         Despite the passage of the Amended Ordinance and the Zoning Commission's recommendation against approval of the SUP application, the Church pressed forward. The Church appealed the denial of its TRO and preliminary injunction to the Illinois Appellate Court on December 29, 2010. Counsel for the Church also contacted the City attorney to inquire whether the January 19, 2011 hearing on the Church's SUP application would go forward with the Church being able to present witnesses. The City attorney responded that the City Council Committee of the Whole would hold its regular meeting that day and that the Church and the public would be allowed to speak. The City attorney further indicated that the Church could proceed with its petition or withdraw it. On January 19, 2011, at its Committee of the Whole meeting, the City Council received the Zoning Commission's recommendation on the Church's SUP application and indicated that the City Council would take up the matter the following week. At that January 26, 2011 meeting, the City Council unanimously denied the SUP application based on the fact that the Amended Ordinance did not allow the applied for use as a special use in the “C” commercial district.

         The contract for the property allowed the Church to terminate the contract if it did not obtain zoning approval within 120 days or as extended at the Church's option for two additional thirty-day periods. On January 31, 2011, the parties amended the contract to reduce the sales price to $850, 000, waive the zoning approval requirement, and schedule the closing within twenty-one days from the date of the amendment. But the closing never occurred. On February 22, 2011, the Illinois Appellate Court heard oral argument on the Church's appeal of the state trial court's preliminary injunction denial and issued a bench ruling advising that it would affirm the denial.[4] Additionally, back taxes and liens on the property had accumulated to the point that, by February 2011, the Trustee for the bankruptcy estate could not deliver clear title to the property to the Church at the reduced purchase price.[5]

         The Church used the Trustee's inability to deliver clear title as the reason to terminate the contract for the property on March 22, 2011. The Church later admitted that it also determined not to move forward because it had become clear it was unlikely to obtain the right to use the property for religious assembly. The Church received all but $200 of its earnest money back. But it did not recover other expenses expended in pursuit of the property, including attorneys' fees and $6, 000 on a survey ...

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