Vision Church United v. Village Long Grove , 468 F.3d 975 ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 05-4144 & 05-4234
VISION CHURCH, UNITED METHODIST,
Plaintiff-Appellant,
and
NORTHERN ILLINOIS CONFERENCE OF UNITED
METHODIST CHURCH and C. JOSEPH SPRAGUE,
presiding Bishop (now by succession,
Bishop Hee-Shoo Jung),
Intervenors-Appellants,
v.
VILLAGE OF LONG GROVE,
Defendant-Appellee.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 C 5761—Charles R. Norgle, Sr., Judge.
____________
ARGUED MAY 2, 2006—DECIDED NOVEMBER 7, 2006
____________
Before CUDAHY, RIPPLE and WOOD, Circuit Judges.
RIPPLE, Circuit Judge. In 2003, Vision Church, United
Methodist (“Vision”) filed the present action against the
Village of Long Grove, Illinois (“Village”); Vision alleged
that the Village’s denial of Vision’s application for voluntary
2 Nos. 05-4144 & 05-4234
annexation, its involuntary annexation of Vision’s property,
its enactment of a municipal Public Assembly Ordinance,
and its denial of Vision’s applications for a special use
permit to build and occupy a church on real property it had
purchased violated the First and Fourteenth Amendments
to the Constitution of the United States, the Religious Land
Use and Institutionalized Persons Act of 2000 (“RLUIPA”),
see 42 U.S.C. § 2000cc, and various Illinois laws. The district
court granted summary judgment in favor of the Village on
October 7, 2005. Vision now appeals. For the reasons set
forth in the following opinion, we affirm the judgment of
the district court.
I
BACKGROUND
A. Facts
1. Application for Annexation
Vision is a religious corporation of the State of Illinois
currently located in Mundelein, Illinois; it was founded
in 1981, joined the United Methodist denomination in
1988, and adopted the name “Vision Church, United
Methodist” in August 2001. Its membership, which cur-
rently totals approximately 120 persons, consists primarily
of Korean-Americans.
The Village of Long Grove is an 18-square mile commu-
nity located in Lake County, Illinois, with a population of
approximately 6,000. According to the Village’s “Compre-
hensive Plan,” it is dedicated to preserving its “rural
character,” to the “provision of a quiet countryside” and to
the enjoyment of “open space.” R.98, Ex.3 at 02-1, 03-1. The
Zoning Regulations of the Village of Long Grove (“Zoning
Nos. 05-4144 & 05-4234 3
Regulations”) govern the building and location of public
buildings, including religious institutions; under the Zoning
Regulations, religious institutions are permitted as “special
uses” in areas zoned as “R1,” “R2” and “R3” Residential
Districts, as are schools, fire stations and sewage treatment
facilities.1 See Zoning Regulations: The Village of Long
Grove § 5-4-2-2, R.99, Ex.2 (hereinafter “Zoning Regula-
tions”) (setting forth the special uses allowed in a “R1”
district); id. § 5-4-3-2 (same for “R2”); id. § 5-4-4-2 (same for
“R3”); see also id. § 5-11-6(D) (setting forth the procedures
governing the Village’s consideration of an application for
the “special use” of a property).
Prior to 1999, Vision was located in Park Ridge, Illinois. In
1999, however, it began looking for a new church site:
It expected its membership to grow significantly in the
upcoming years and desired a larger facility. It purchased
a 27.40-acre vacant plot in unincorporated Lake County,
Illinois, in September 2000, “with [the] intention to build
a church there.” R.1-1 at 3. “[M]any Korean-American
immigrants in the Chicago-area and families in the congre-
gation had moved to Lake County,” making the site ideal
1
The Village’s Zoning Regulations divide land into the following
zoning districts: Residential (“R1,” “R2” and “R3”); Historic
Business (“B1”); Suburban Business (“B2”); Office and Re-
search (“O&R”); Office (“O”); and Open Space (“OS-N,” “OS-P”
and “OS-R”). See Zoning Regulations: The Village of Long Grove
§ 5-3-1, R.99, Ex.2 (hereinafter “Zoning Regulations”). Each of the
zones provide for “special uses.” Id. § 5-2-11. To obtain a special
use permit, an applicant must be in a district where the use is
permitted as a “special use” and must meet the standards for
qualifying as a special use set forth in § 5-11-6(D) of the Zoning
Regulations. See id. § 5-11-6(D).
4 Nos. 05-4144 & 05-4234
for the construction of a new church facility. R.177-2, Ex.76
at 2.
At the time of purchase, Vision’s property was zoned
for church development under the Lake County Zoning
Code; however, Vision desired to build the church within
the incorporated municipality of the Village of Long Grove.
Reverend Soon-Chang Jang, the head pastor of Vision
Church, has explained that “Vision wanted to build a
good relationship with the Long Grove residents,” and
believed that being within the Village would further this
goal. Id. at 5. Therefore, on June 6, 2000, Vision applied to
the Village of Long Grove for annexation under 65 ILCS
5/7-1-8. See 65 ILCS 5/7-1-8 (“Any territory which is
not within the corporate limits of any municipality but
which is contiguous to a municipality at the time of annex-
ation . . . may be annexed to the municipality . . . [by] a
written petition signed by the owners of record . . . . A
majority vote of the corporate authorities then holding office
is required to annex.”). In its application, Vision requested
as a condition of annexation that the Village zone its
property “Residential (R2)” and grant Vision a “special use”
permit to construct a church complex on the property.
R.177-1, Ex.52 at 1. It proposed plans for a 99,000-square
foot church facility, consisting of five main buildings and an
over 1,000-seat sanctuary.
Soon after the submission of this application, Vision and
the Village entered negotiations over the conditions of
annexation. During these negotiations, the Village expressed
concern about the size of the church complex and its
compatibility with the Village’s goal of protecting natural
resources and maximizing open space. In December 2000, at
the Village’s request, Vision agreed to submit revised plans;
in March 2001, its representatives presented these revisions
Nos. 05-4144 & 05-4234 5
to the Plan Commission of the Village of Long Grove (“Plan
Commission”). Under the new plans, the size of the church
complex had been decreased to 56,200 square feet, consist-
ing of three main buildings (a sanctuary, an administration
building and a Sunday school building); the sanctuary
would seat 600 instead of 1,000; and parking spaces were
reduced from 400 to 240.
In addition, Vision agreed to comply with some, but not
all, of the Village’s conditions on construction. For example,
it agreed to remove the “Fountain, Chapel in the Woods and
Outdoor Amphitheater” from the plan, to mark “[a]ll
wetland and conservancy soils . . . as lowland conservancy
easements,” and to serve the religious facilities “by on-site
waste disposal systems and/or septic systems.” R.98, Ex.14
at 2 (describing the conditions); see also id., Ex.15 at 1
(accepting the conditions). However, in a letter dated
August 6, 2001, Vision refused to consent to the following
limitations: (1) that “easement language . . . be placed on site
plan indicating no future structures or impervious parking
allowed”; (2) that “[t]he area marked ‘playing field’ on the
east side of the plan . . . be marked ‘Natural Landscaped
Area’ . . . and no organized outside activities . . . be allowed
in the area”; and (3) that “[o]nly two services Sunday or
holidays excepting weddings and funerals [be held]. And no
more than one major activity each week Monday through
Friday, excepting weddings and funerals.” Id., Ex.14 at 2; see
also id., Ex.15 at 1 (rejecting the conditions). Specifically,
Vision claimed that the second condition was inconsis-
tent with its intention “to have a playground for children”;
it claimed that the third limitation “necessarily entangle[d]
the Village in the operations of the Church.” Id., Ex.15 at 1.
On August 7, 2001, the Plan Commission voted to recom-
6 Nos. 05-4144 & 05-4234
mend the denial of Vision’s application for annexation.2 On
August 14, this recommendation was accepted by the Long
Grove Board of Trustees (“Board”).3
2. Involuntary Annexation and the Public Assembly
Ordinance
In May 2001, while Vision’s application for annexation
still was pending with the Plan Commission, a local devel-
oper, Joseph Valenti, also applied for voluntary annexation
of his land. Valenti owns 120 acres of land adjacent to
Vision’s property; like Vision, Valenti wanted his land to be
within the Village’s corporate boundaries. He further
requested that, upon annexation, the Village rezone his land
“Residential.” The Plan Commission recommended ap-
proval of Valenti’s application on September 4, 2001.4 The
Board accepted this recommendation on October 9, 2001.
2
See also Plan Commission Agenda, R.100, Ex.21 at 2 (summariz-
ing the Plan Commission’s objections to the revised plans,
including “the size of the parking lot; the buildings having
been reduced by only a few thousand square feet; the future
growth . . . ; and the setting of precedent for future develop-
ment on large parcels within the Village”).
3
No action was taken at this time with regard to Vision’s
application to rezone its land as a Residential District or for a
special use permit. In the absence of annexation, the Village did
not possess jurisdiction over Vision’s property and, therefore, had
no authority to address these matters.
4
Vision alleges that the Village “accelerated public hearings and
development approvals” for Valenti’s annexation application, in
order to facilitate the subsequent involuntary annexation of
Vision’s property. See R.1-1 at 5 (noting that, typically, approval
of an application for annexation takes far longer than 90 days).
Nos. 05-4144 & 05-4234 7
As a result of the annexation of Valenti’s property,
Vision’s land was surrounded on all sides by property
within the Village’s corporate boundaries. Under 65 ILCS
5/7-1-13, the Village therefore had the authority to involun-
tarily annex Vision’s property without regard to the condi-
tions of annexation previously set by Vision. See 65 ILCS
5/7-1-13 (“Whenever any unincorporated territory contain-
ing 60 acres or less, is wholly bounded by [] one or more
municipalities . . . that territory may be annexed by any
municipality by which it is bounded in whole or in part, by
the passage of an ordinance to that effect after notice is
given as provided in this Section.”). On October 23, 2001,
the Village passed an ordinance annexing Vision’s property.
See An Ordinance Annexing the Surrounded Property at the
Southwest Corner of Gilmer and North Krueger Roads, R.1-
1, Ex.D at 1-2 (noting that because “the unincorporated
territory [owned by Vision] is contiguous to and totally
surrounded by the Village of Long Grove,” with proper
notice, it may be annexed under 65 ILCS 5/7-1-13). The
Village zoned the property “R2” Residential, the zoning
classification sought by Vision in its June 2000 application
for annexation.5
5
The involuntary annexation of Vision’s property terminated its
application for approval of building plans with Lake County.
When purchased by Vision, the property in question was lo-
cated in Lake County. Vision thereafter applied for voluntary
annexation to the Village; as an alternative to annexation, it
also applied at this time for permission from Lake County to
build a church complex on the property. Because Lake County
Zoning Code requires neither a special permit nor rezoning of the
property, at the time of the involuntary annexation Vision merely
was awaiting approval of building plans by the Lake County
(continued...)
8 Nos. 05-4144 & 05-4234
In November 2001, the Manager of the Village of Long
Grove, Cal Doughty, introduced an amendment to the
Village’s Zoning Regulations, entitled, “An Ordinance
Amending the Village Code Regarding Public Assemblies”
(the “Assembly Ordinance”). The Ordinance restricts the
size and capacity of buildings used for “public assembly,”
such as “religious institutions, aquariums, libraries, muse-
ums, private schools, and other similar uses,” R.1-1, Ex.F at
1.6 Specifically, it provides that a complex comprised of
three buildings located on fifteen or more acres, but not
fronting a state highway, cannot exceed a total square
footage of 55,000.7 It also imposes restrictions on parking,
setbacks from the road and the flow of traffic. According to
the Village Planning and Development Committee, the
Ordinance is designed to preserve the status of the Village
(...continued)
Board. However, after the property was involuntarily annexed by
the Village of Long Grove, Lake County no longer had jurisdic-
tion to consider Vision’s plans or to approve the building of the
church complex.
6
Although the Village Zoning Regulations detailed the stan-
dards governing the approval of a special use application, prior
to the passage of the Assembly Ordinance, the Regulations did
not specify maximum capacity or size or minimum lot size for
buildings constructed on properties within the Village’s jurisdic-
tion.
7
The permissible square footage is 100,000 if the complex is
located on twenty or more acres and fronts a state highway; the
permissible square footage decreases if the complex contains one
or two, instead of three, buildings. See R.1-1, Ex.F at 1 (also
imposing various regulations on parking and maximum lot
coverage).
Nos. 05-4144 & 05-4234 9
as a “low density, residential community,” as desired by its
residents, and to thwart the development of buildings that
“defeat the very purpose of the scenic corridor.” R.100,
Ex.47 at 1-2. The Board enacted the Assembly Ordinance on
April 9, 2002; it was incorporated as section 5-11-6.1 of the
Zoning Regulations.
3. Vision’s 2002 Application for a Special Use Permit
After its involuntary annexation, Vision’s property was
zoned by the Village “R2” Residential, which permits the
construction of a religious facility with a special use permit.
On January 23, 2002, approximately four months prior to the
passage of the Assembly Ordinance, Vision applied for such
a permit. However, instead of the 56,200-square foot
complex discussed in March 2001 during negotiations over
voluntary annexation, Vision requested approval in its
special use application for a 99,000-square foot, 5-building,
1,000-seat sanctuary facility,8 similar to the facility originally
proposed in 2000.9
A public hearing was held on Vision’s application in May
2002, after the passage of the Assembly Ordinance. The Plan
Commission ultimately recommended the denial of Vision’s
request for a permit, given that the 99,000-square foot
complex far exceeded the permissible square footage for a
facility on property of this size and nature under the
Assembly Ordinance. The Board accepted this recommen-
8
See also Board Meeting Minutes, R.99, Ex.14 at 4 (describing the
terms of the 2002 application); see also R.177-1, Ex.72 (comparing
the 2001 and 2002 plans).
9
In June 2002, Vision presented amended plans for an 80,000-
square foot facility, but nevertheless asked the Plan Commission
to vote on the 99,000-square foot proposal.
10 Nos. 05-4144 & 05-4234
dation on July 9, 2002.10
Because its building plans have not yet been approved
by the Board, Vision temporarily has relocated to shared
space in Mundelein United Methodist Church in Mundelein,
Illinois.
B. District Court Proceedings
On August 18, 2003, Vision filed the present action in the
United States District Court for the Northern District
of Illinois; an amended complaint was filed in December
2004. Counts I, II and XI of the amended complaint chal-
lenge (1) the Village’s denial of Vision’s September 2000
application for annexation; (2) the Village’s involuntary
annexation of Vision’s property in October 2001; (3) the
Village’s passage of the Assembly Ordinance in April 2002,
limiting the size and capacity of buildings used for public
assembly; and (4) the Village’s denial of Vision’s application
for a special use permit in both 2000 and 2002. Vision
alleged that these actions “constitute[d] an infringement of
Vision’s First Amendment right to the free exercise of
religion,” R.62 at 11 (Count I); violated RLUIPA’s free
exercise provision, which prohibits land use regulations that
impose a substantial burden on religious exercise, see id. at
12 (Count II); and resulted in a “substantial[] burden[] [on]
Vision’s exercise of religion,” in violation of the Illinois
Religious Freedom Restoration Act of 1998, id. at 24 (Count
XI). Counts III and IV allege a violation of the First Amend-
ment Free Speech and Establishment Clauses. Counts V and
10
See Board Meeting Minutes, R.99, Ex.14 at 4 (describing the
project as a “high-density proposal in a low-density commu-
nity”).
Nos. 05-4144 & 05-4234 11
VI allege that the Village violated the Fourteenth Amend-
ment Equal Protection Clause and RLUIPA’s “[e]qual
terms” provision by
a. Allowing restaurants, tearooms, taverns and health
clubs as permitted uses in certain zones, but providing
no zone in which churches are permitted uses; and
b. Imposing more restrictive requirements upon Vision
than those imposed upon the six churches operating in
Long Grove.
c. Imposing more restrictive requirements upon Vision
than those imposed upon the schools directly to the
north of the subject property.
Id. at 15 (Count V); id. at 16 (Count VI).
Counts VII and VIII allege that, because the Village’s
Zoning Regulations “provide[] no zone in which Vision or
another newly arrived or newly formed church may
locate except by permission of the Village Board,” they
violate the First Amendment and RLUIPA’s prohibition
on the unreasonable exclusion of religious activity. Id. at
17 (Count VII); id. at 18 (Count VIII). Count IX alleges that
the Village’s denial of Vision’s applications for a special use
permit was arbitrary and capricious. See id. at 19-20 (claim-
ing that the Village’s denial of the 2001 permit application
was unjustified, and that the denial of the 2002 permit
application was unsupported by “any findings”). Finally,
Count X alleges that Vision had a “vested right to build a
church on [its] property” because it purchased the land on
the “good faith” belief that building and operating a church
was a permitted use of the land under the Lake County
Zoning Code; according to Vision, by “[i]nvoluntarily
annexing Vision’s property with the result that Vision
would not receive a building permit from Lake County,”
12 Nos. 05-4144 & 05-4234
and by “[p]assing the [Assembly Ordinance] with the result
that Vision’s proposed use could not be allowed under the
Long Grove zoning ordinance,” the Village impermissibly
interfered with Vision’s vested right. Id. at 21.
Vision requested that the district court issue a declaratory
judgment that “it may use its property in Long Grove as a
permitted use under Lake County or Long Grove zoning
code, whichever is least restrictive”; enjoin the Village from
further interfering with use of its property; and award
compensatory and punitive damages in the amount of
$5,000,000. Id. at 12. It also sought the award of attorneys’
fees and costs.
In October 2003, the Northern Illinois Conference of the
United Methodist Church (the “Conference”) and its
Presiding Bishop, C. Joseph Sprague, moved to intervene as
of right, see Fed. R. Civ. P. 24(a), or permissively, see id.
24(b)(2), for the purpose of “support[ing] . . . the causes of
action” of its member congregation, Vision Church. See R.10
at 1. As the Conference explained, Vision’s property in the
Village
is held subject to a trust clause in favor of the Confer-
ence and the larger denomination and is also subject
to reversionary rights in favor of the Conference. Thus,
any impairment of Vision Church’s constitutional and
statutory rights to build, occupy and worship on its
land in Long Grove is, by necessity, an affront to the
Conference’s distinct legal interests as well.
Id. at 1-2. On April 5, 2004, the district court granted the
Conference’s motion to intervene as of right under Rule
24(a).
On March 9, 2005, the Village filed a motion for summary
judgment on all counts; on this same day, Vision filed
Nos. 05-4144 & 05-4234 13
a cross-motion for summary judgment on Counts I, II, IV, V,
VI, VIII, IX and X. On October 18, 2005, the district court
granted summary judgment in favor of the Village on all
counts.
First, the district court held that Vision had not demon-
strated a violation of the Establishment Clause. It classi-
fied Vision’s challenge as directed exclusively at the Assem-
bly Ordinance and held that the ordinance is “secular in
purpose because it merely controls development, and not
Vision’s religious activities.” R.157 at 12. It also found that
the primary effect of the Assembly Ordinance is not to
inhibit or advance religion; the court rejected the signifi-
cance of the “temporal proximity between Vision’s involun-
tary annexation and the passage of the Public Assembly
Ordinance” and instead found dispositive the fact that the
ordinance applies to all public use facilities, religious and
non-religious alike, as well as that the Village did not
“affiliate[] itself with one religion, . . . thereby taking sides
against Vision.” Id. at 13. For these same reasons, the court
found no excessive entanglement with religion.
Second, the court concluded that the Assembly Ordinance
does not violate the Free Exercise Clause. “[R]estriction[s]
on the physical size of the proposed buildings” do not
necessarily “restrict[] [] Vision’s beliefs or customs.” Id. at
15. The size restrictions in this case are traceable to neutral
land planning goals; in addition, 55,000 square feet is
“ample space to house a congregation of 140 adults and 80
children comfortably.” Id.
The district court determined that Vision’s RLUIPA claims
fared no better. Section 2(a)(1) of RLUIPA prohibits the
imposition of a “substantial burden on the religious exercise
of a person, including a religious assembly or institution.”
42 U.S.C. § 2000cc(a)(1). Applying this test, the district court
14 Nos. 05-4144 & 05-4234
held that Vision “did not incur a ‘substantial burden’ for
purposes of the RLUIPA.” R.157 at 18. Because it could have
built a 55,000-square foot facility on the property, in compli-
ance with the Assembly Ordinance, “it was Vision, not the
Village,” that ultimately is responsible for the church not
being approved by the Plan Commission and the Board. Id.
The court also found that the “over fifty conditions” im-
posed on the “proposed development of the church com-
plex” did not constitute a substantial burden on religious
exercise because these conditions did not “render[] any
religious exercise on the property effectively impracticable.”
Id. at 18-19 (emphasis added). Moreover, the conditions did
not impact the Village’s ultimate decision not to approve
construction: Had Vision submitted a plan that complied
with the ordinance’s size restrictions, “there might be a
church complex today.” Id.
The district court similarly rejected Vision’s claims
with respect to RLUIPA § 2(b)(1), which prohibits the
“impos[ition] or implement[ation] [of] a land use regulation
in a manner that treats a religious . . . institution on less than
equal terms with a nonreligious . . . institution.” 42 U.S.C.
§ 2000cc(b)(1). According to the district court, Vision has not
“identified a non-religious group that has received more
favorable treatment,” given that “the Village . . . does not
apply the [Assembly] Ordinance only to religious institu-
tions, but evenly to all petitioners that come before the Plan
Commission,” including schools and existing churches
within the Village. R.157 at 20.11
11
The district court recognized that the schools across the
street from Vision’s property are larger than 55,000 square
feet; however, because they were “built in 1999, before the Public
(continued...)
Nos. 05-4144 & 05-4234 15
The district court next turned to Vision’s Fourteenth
Amendment equal protection claim. It held that the Assem-
bly Ordinance is subject only to rational basis scrutiny
because it is “facially neutral and generally applicable,” id.
at 24; it does not classify on the basis of race, gender,
national origin or religion, but rather only distinguishes
between public assembly and private locations. Further, the
size limitations imposed by the Assembly Ordinance are
rationally related to a legitimate government end—that of
carrying out the Village’s “stated planning goals . . . for a
quiet countryside, with an unhurried environment where
families can enjoy the open space.” Id. at 24.
Moreover, the court found that Vision had not demon-
strated that “it is a class of one,” who was “treated differ-
ently than others similarly situated” without a “rational
basis for the difference in treatment.” Id. at 22-23 (internal
quotation marks omitted). Vision had claimed that, to
build a restaurant or tavern, an owner need not obtain a
special use permit, but a permit is required to build a
church. However, according to the court, “these uses [are]
only allowed in the Village’s business district, as opposed to
the Residential district where Vision wishes to build,”
demonstrating that Vision is not “similarly situat[ed]” to
these institutions. Id. at 23. In sum, “Vision was treated
the same under the Ordinance as any other developer” who
sought to build a public assembly facility exceeding 55,000
square feet on a tract of land similar in size and location to
Vision’s property. Id. at 24.
11
(...continued)
Assembly Ordinance was enacted,” they were not subject to the
same size restrictions as Vision. R.157 at 20.
16 Nos. 05-4144 & 05-4234
The court also granted summary judgment to the Village
on Vision’s state law vested rights claim. Vision con-
tended that it had purchased the 27 acres in reliance on
the Lake County Zoning Ordinance, under which, at the
time of purchase, “a church was a permitted use, as of
right.” Id. at 27 (internal quotation marks omitted). The
district court rejected this claim. Vision’s vested rights
claim, it held, is grounded in the Lake County Zoning
Ordinance and therefore both the complaint and the remedy
sought is directed at the County; “[h]owever, Vision names
only the Village in its suit.” Id. Further, the court held that
Vision could not “establish that there was a probability of
municipal approval to build a church complex on its
property,” given that neither the Village nor Lake County
had offered any assurances regarding the issue. Id.
Additionally, the district court rejected Vision’s claim that
the Village’s denial of its application for a special use permit
in 2002 was “arbitrary and capricious.” Id. Not only is there
“no evidence that raises more than a scintilla of evidence to
show a genuine triable issue of material fact on this matter,”
but the Village cannot be sued for monetary relief under the
Illinois Tort Immunity Act, see 745 Ill. Comp. Stat. 10/2-104.
Lastly, in a footnote, the district court granted summary
judgment to the Village on Vision’s “exclusion” claims.
“There is no ‘exclusion’ clause in the First Amendment,”
the court concluded, “and therefore the court grants sum-
mary judgment on this Count.” R.157 at 11 n.2.
Vision timely appealed.
Nos. 05-4144 & 05-4234 17
II
DISCUSSION
We review the district court’s grant of summary judgment
de novo. See Sornberger v. City of Knoxville, 434 F.3d 1006,
1012 (7th Cir. 2006). In doing so, we must construe all facts
and reasonable inferences in the light most favorable to the
non-movant. See id. Summary judgment is proper if “the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986).
A. Vision’s “Exclusion” Claims
Vision first contends that the district court erred in
holding that “[t]here is no ‘exclusion’ clause in the First
Amendment” and that summary judgment was proper
on Count VII. R.157 at 11 n.2. According to Vision, the
Supreme Court previously has recognized that, when
activity protected by the First Amendment is “excluded” by
municipal ordinance, the municipality must “advance[]
sufficient justification” for its actions—a requirement that,
in turn, was codified in RLUIPA § 2(b)(3). Appellant’s Br. at
19 (discussing Schad v. Borough of Mount Ephraim, 452 U.S. 61(1981)).
In Schad, 452 U.S. 61, the Supreme Court addressed the
claims of an adult bookstore in Camden County, New
Jersey, against the Borough of Mount Ephraim. Inside the
bookstore were “coin-operated devices by virtue of
which a customer could sit in a booth, insert a coin, and
watch an adult film,” id. at 62; the Borough found that
18 Nos. 05-4144 & 05-4234
this activity violated § 99-15B of its zoning ordinance, under
which “nude dancing[] is not a permitted use in any
establishment in [its jurisdiction],” id. at 65 (internal quota-
tion marks omitted). The bookstore challenged the “imposi-
tion of criminal penalties under [the zoning] ordinance,”
claiming that the prohibition on live entertainment “violated
[its] rights of free expression guaranteed by the First and
Fourteenth Amendments of the United States Constitution.”
Id. The Supreme Court agreed and held that the ordinance
as applied to the bookstore was constitutionally infirm:
Whatever First Amendment protection should be
extended to nude dancing, live or on film, . . . the Mount
Ephraim ordinance prohibits all live entertainment in
the Borough: no property in the Borough may be
principally used for the commercial production of plays,
concerts, musicals, dance, or any other form of live
entertainment. . . . [A]s is true of other ordinances, when
a zoning law infringes upon a protected liberty, it must
be narrowly drawn and must further a sufficiently
substantial government interest. . . . The Village may
serve its legitimate interests, but it must do so by
narrowly drawn regulations designed to serve those
interests without unnecessarily interfering with First
Amendment freedoms.
Id. at 66, 68, 70 (internal quotation marks omitted). The
Supreme Court concluded that the Borough had not justified
adequately its substantial restrictions on live entertainment;
there was no evidence, the Court found, to support the
Borough’s claim that live entertainment brings with it a host
of problems, such as parking and trash. Id. at 74 (“[T]his
ordinance is not narrowly drawn to respond to what might
be the distinctive problems arising from certain types of live
entertainment, and it is not clear that a more selective
Nos. 05-4144 & 05-4234 19
approach would fail to address those unique problems if
any there are.”). In sum, Schad stands for the proposition
that an “ordinance [that] completely prohibit[s] the expres-
sive conduct at issue,” Ben’s Bar, Inc. v. Village of Somerset,
316 F.3d 702, 716 n.21 (7th Cir. 2003), must be supported by
“sufficient justification,” Schad, 452 U.S. at 67, and be
narrowly tailored to that justification, see id. at 68.
A similar First Amendment protection, albeit limited to
religious freedoms, is embodied in RLUIPA § 2(b)(3).
Section 2(b)(3) prohibits a “government” from
impos[ing] or implement[ing] a land use regulation
that—
(A) totally excludes religious assemblies from a
jurisdiction; or
(B) unreasonably limits religious assemblies, institu-
tions, or structures within a jurisdiction.
42 U.S.C. § 2000cc(b)(3).12
12
RLUIPA was enacted in the wake of the Supreme Court’s
decision in City of Boerne v. Flores, 521 U.S. 507 (1997), which
invalidated the Religious Freedom Restoration Act of 1993
(“RFRA”), insofar as that Act regulated state as well as fed-
eral action, on the ground that it exceeded Congress’ power
under the enforcement clause of the Fourteenth Amendment.
It should be noted that the Village does not challenge the
constitutionality of RLUIPA. See also Freedom Baptist Church of
Delaware County v. Township of Middletown, 204 F. Supp. 2d 857(E.D. Pa. 2002) (upholding RLUIPA against the claim that
Congress exceeded its authority under the Commerce Clause
when it adopted the legislation; also holding that RLUIPA’s
substantial burden, equal terms and exclusion provisions do
(continued...)
20 Nos. 05-4144 & 05-4234
According to Vision, because “[n]owhere in Long Grove
is a church a permitted use” but instead churches are
“allowed only as [] special use[s],” and because the right to
religious exercise therefore is “exercisable only at the
discretion of local governmental officials,” the municipality
has excluded the development of religious institutions
within its jurisdiction, in violation of the First Amendment
protections recognized by Schad and of RLUIPA § 2(b)(3)(A).
Appellant’s Br. at 19. We cannot agree. Schad applies only to
the complete and total exclusion of activity or expression
protected by the First Amendment. See Schad, 452 U.S. at 76(“Here, the Borough totally excludes all live entertainment,
including nonobscene nude dancing that is otherwise
protected by the First Amendment.” (emphasis added)); id.(distinguishing Young v. American Mini Theatres, Inc., 427
U.S. 50 (1976), on the ground that the Court in Young “did
not purport to approve the total exclusion from the city of
theaters showing adult, but not obscene, materials” (empha-
sis added)); id. at 66 (“[T]he Mount Ephraim ordinance
prohibits all live entertainment in the Borough: no property in
the Borough may be principally used for the commercial
production of plays, concerts, musicals, dance, or any other
form of live entertainment” (emphasis added)); see also Ben’s
Bar, Inc., 316 F.3d at 716 n.21 (classifying Schad as address-
ing an “ordinance [that] completely prohibit[ed] the expressive
conduct at issue” (emphasis added)). The same is true of
12
(...continued)
not violate the Free Exercise Clause of the First Amendment
but instead codify First Amendment jurisprudence); May-
weathers v. Terhune, 2001 WL 804140 (E.D. Cal. 2001) (uphold-
ing RLUIPA’s constitutionality). Cf. Charles v. Verhagen, 348 F.3d
601 (7th Cir. 2003) (in the context of a prisoner’s rights case,
upholding the constitutionality of 42 U.S.C. § 2000cc-1(a)).
Nos. 05-4144 & 05-4234 21
section 2(b)(3)(A) of RLUIPA. See 42 U.S.C. § 2000cc(b)(3)(A)
(prohibiting the “total[] exclu[sion] [of] religious assemblies”
(emphasis added)).
In the present case, the Village, by permitting churches
in all residential districts as a special use, has not completely
or totally excluded religious assemblies from its jurisdiction.
Six churches currently operate within the Village. Moreover,
Vision is permitted to build a church on the land as it is
currently zoned, provided that it applies for a special use
permit, complies with the procedures set forth in § 5-11-6(B)
and (C) of the Village Zoning Regulations, and fulfills the
standards governing the Board’s consideration of a special
use application set forth in § 5-11-6(D). Specifically, under
§ 5-11-6(D), the Board may grant a special use permit if the
special use:
1. Is deemed necessary for the public convenience
at that location;
2. Is so designed, located and proposed to be operated
that the public health, safety and welfare will be pro-
tected;
3. Will not cause substantial injury to the value of other
property in the neighborhood in which it is located; and
4. Except as may be recommended by the Plan Commis-
sion and approved by the Village Board and conforms,
except in the case of a planned development, to the
applicable regulations of the district in which it is to be
located.
Zoning Regulations § 5-11-6(D), R.99, Ex.2. In addition, § 5-
11-6.1, which codified the Assembly Ordinance, mandates
that Vision’s plans comply with certain size and capacity
restrictions.
22 Nos. 05-4144 & 05-4234
This case therefore is distinguishable from Schad, where
the zoning code excluded all live entertainment as a permis-
sible use in the Borough’s business district and did not set
forth a method by which to obtain a special use permit for
this activity. See Schad, 452 U.S. at 64-66. Here, by contrast,
if the conditions set forth in the Village’s zoning code are
fulfilled, a church may be built on property zoned for
residential use. Cf. R.V.S., L.L.C. v. City of Rockford, 361 F.3d
402, 409 (7th Cir. 2004) (holding that an ordinance permit-
ting nude dancing only as a special use did not “amount[]
to a total ban on protected activity,” because it placed
restrictions only on the location of such businesses). Thus,
we conclude that the Village Zoning Regulations do not
violate the First Amendment protections recognized in
Schad or RLUIPA § 2(b)(3)(A).
This does not end our inquiry, however. Section 2(b)(3) of
RLUIPA also prohibits a land use regulation that “unrea-
sonably limits religious assemblies, institutions,
or structures within a jurisdiction.” 42 U.S.C.
§ 2000cc(b)(3)(B). As the legislative history evidences,
“[w]hat is reasonable must be determined in light of all the
facts, including the actual availability of land and the
economics of religious organizations.” 146 Cong. Rec. E1563
(daily ed. Sept. 22, 2000) (statement of Rep. Canady). In this
case, we cannot conclude that requiring Vision to obtain a
special use permit to build and operate its church in a
residential district “unreasonably limits religious assem-
blies, institutions, or structures within a jurisdiction.” 42
U.S.C. § 2000cc(b)(3)(B). Vision’s primary argument on
appeal is that the Board’s discretion in granting a special use
permit is unbridled and therefore its consideration of
Vision’s application was unreasonable. We disagree. This is
not a case where the “state [has] delegate[d] essentially
standardless discretion to nonprofessionals operating
Nos. 05-4144 & 05-4234 23
without procedural safeguards.” Sts. Constantine & Helen
Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d
895, 900 (7th Cir. 2005). The Board’s discretion is narrowly
circumscribed by the Village’s Zoning Regulations, which
set forth the various factors to be considered by the Board in
addressing an application for a special use permit. See
Zoning Regulations § 5-11-6(D), R.99, Ex.2; id. § 5-11-6.1.
Even if the Zoning Regulations were to grant the Board
undue discretion, this does not demonstrate the violation of
RLUIPA § 2(b)(3)(B). The requirement that churches obtain
a special use permit is neutral on its face and is justified by
legitimate, non-discriminatory municipal planning goals. As
a general matter, special use designations are instruments of
municipal planning that allow city officials to retain review
power over land uses that, although presumptively allowed,
may pose special problems. In this case in particular, the
special use designation is substantially related to the
municipal planning goals of limiting development, traffic
and noise, and preserving open space; these goals, in turn,
are reflected in the Village’s Comprehensive Plan, “which
seeks to ensure that the semi-rural atmosphere of the
community is maintained while simultaneously permitting
a wide variety of quality development in character with the
existing motif of the community.” Comprehensive
Plan, R.99, Ex.3 at 01-1. To carry out this goal, the Village
also has required many secular institutions, including
“[s]chools, elementary and high, including playgrounds and
athletic fields,” “[u]tility and public service uses,” and
“[n]ursing homes,” to be approved as a special use in a
residential district. Zoning Regulations § 5-4-2-2, R.99, Ex.2.
Like these institutions, religious assemblies have a reason-
able opportunity to build within the Village, provided that
the requirements for a special use permit have been fulfilled.
24 Nos. 05-4144 & 05-4234
B. Establishment Clause
Vision next contends that the district court erred in
granting summary judgment to the Village on Count IV, its
claim that the Assembly Ordinance and the “special-use
standards” violate the First Amendment’s Establishment
Clause. Appellant’s Br. at 44. The district court held that the
Assembly Ordinance is secular in both purpose and effect
and did not risk excessive entanglement with religion.
Vision now responds that the Village’s other land use
regulations, and their application to Vision, violate
the Establishment Clause because they “benefit[] exist-
ing religious institutions over new ones.” Id.
The First Amendment to the Constitution of the United
States provides, in pertinent part, that “Congress shall make
no law respecting an establishment of religion . . . .” U.S.
Const. amend. I, cl. 1.13 In evaluating an Establish-
ment Clause claim, “[t]he touchstone for our analysis is
the principle that the ‘First Amendment mandates gov-
ernmental neutrality between religion and religion, and
between religion and nonreligion.’” McCreary County v.
ACLU, 125 S. Ct. 2722, 2733 (2005) (quoting Epperson v.
Arkansas, 393 U.S. 97, 104 (1968)). “When the government
acts with the ostensible and predominant purpose of
advancing religion, it violates that central Establishment
Clause value of official religious neutrality, there being
no neutrality when the government’s ostensible object is
to take sides.” McCreary, 125 S. Ct. at 2733. Specifically,
a government policy or practice violates the Establish-
13
This provision is made applicable to the states and its politi-
cal subdivisions, including municipalities, through the Four-
teenth Amendment.
Nos. 05-4144 & 05-4234 25
ment Clause if (1) it has no secular purpose, (2) its primary
effect advances or inhibits religion, or (3) it fosters an
excessive entanglement with religion. Lemon v. Kurtzman,
403 U.S. 602, 612-13 (1971); see also McCreary, 125 S. Ct. at
2733 (reaffirming Lemon’s “three familiar considerations
for evaluating Establishment Clause claims”). “The Estab-
lishment Clause also prohibits the government from
favoring one religion over another without a legitimate
secular reason.” Kaufman v. McCaughtry, 419 F.3d 678, 683
(7th Cir. 2005); see also Berger v. Rensselaer Cent. Sch. Corp.,
982 F.2d 1160, 1168-69 (7th Cir. 1993) (“Under the Establish-
ment Clause, the government may not aid one religion, aid
all religions or favor one religion over another.”).
Vision’s primary argument is that, by imposing restric-
tions on the construction of new churches, including the size
and capacity regulations set forth in the Assembly Ordi-
nance and the findings required by § 5-11-6(D) of
the Zoning Regulations, the Village discriminates against
the “practices of new religious assemblies.” Appellant’s Br.
at 44. According to Vision, these restrictions “make it
easier for the adherents of one or more sects to practice their
religions [while not] extend[ing] these benefits, however
slight, to the adherents of other sects.” R.89 at 3.
We agree with the district court that Vision has not
demonstrated that the Village’s land use regulations have
no secular purpose, that their primary effect advances or
inhibits religion or that they foster excessive entangle-
ment with religion. We first address whether the applicable
provisions—the Assembly Ordinance and the special use
standards—have a secular purpose. “In determining
whether a particular government action affecting a religious
symbol has a secular purpose, a government’s characteriza-
tion of its purpose is entitled to deference,” although courts
26 Nos. 05-4144 & 05-4234
“must ensure that the government’s characterization is
sincere.” Mercier v. Fraternal Order of Eagles, 395 F.3d 693, 704
(7th Cir. 2005). In the present case, the Village contends that
the land use regulations are justified by the goals of the
Village’s Comprehensive Plan—that of minimizing develop-
ment and maximizing open space. Although we express
some concern about the general course of events in this
case,14 we ultimately find this secular purpose to be
“sincere.” Id. The Comprehensive Plan discusses repeatedly
the “semi-rural” nature of the Village, the community’s
emphasis on “open space,” and the importance of conform-
ing development to these goals. R.99, Ex.3 at 01-1. As the
Plan itself states:
Since its incorporation in 1956, the residents of Long
Grove have diligently worked to develop and vigor-
ously supported a comprehensive plan which seeks to
ensure that the semi-rural atmosphere of the community
is maintained while simultaneously permitting a wide
variety of quality development in character with the
existing motif of the community. . . . Preserving Long
Grove’s semi-rural charm, while still permitting quality
development, is the most important goal of this Com-
prehensive Plan.
Id. Further, in describing the Village’s “Community Charac-
ter,” the Comprehensive Plan explains:
Long Grove’s unique community character sets it
apart from adjoining communities. The most critical of
the Village’s goals are the provision of a quiet country-
14
This case presents no claim that the Village has discriminated
against Vision on the basis of race or ethnicity and, of course,
we express no view on this issue.
Nos. 05-4144 & 05-4234 27
side, with an unhurried and unstructured environ-
ment where families can live and enjoy the open
space, and the preservation of community character
through Long Grove’s consistent and longstanding
efforts to maintain the qualities of such lifestyles.
Id. at 03-1.
The land use regulations challenged by Vision are tailored
to this secular purpose. The Assembly Ordinance applies to
all buildings used for “public assembly,” including not only
“religious institutions,” but also “aquariums, libraries,
museums, private schools, and other similar uses.” R.1-1,
Ex.F at 1. It limits the size of these buildings not on the basis
of their religious affiliation but on the basis of their location
and acreage. For example, if a plot of land fronts a state
highway, the owner can build a larger facility, in part
because the state highway can handle the traffic demands of
that facility; smaller plots that front only a county highway
are more limited and must build a smaller facility. Similarly,
the allegedly “discretionary special use process,” Appel-
lant’s Br. at 45, is justified by the secular goal of facilitating
municipal control of property uses that have a greater
“impact . . . upon neighboring lands,” Zoning Regulations
§ 5-11-6(A), R.99, Ex.2. The secular nature of the special use
standards is made evident by the Zoning Regulations
themselves: They apply not only to “churches,” but also to
those property uses that “may give rise to unique problems
with respect to their impact on neighboring property or
public facilities,” id. § 5-11-6(A)(2), including among other
things “[s]chools,” “[s]helters . . . for school bus transporta-
tion” and “[r]ecreational clubs,” id. § 5-4-2-2(A), (B), (E).
Second, the land use regulations challenged by Vision do
not have a primary effect of advancing or inhibiting reli-
gion, or, more specifically, advancing established churches
28 Nos. 05-4144 & 05-4234
over new churches. “In this prong, our focus is not on the
intent of the City, but on whether a reasonable person,
apprised of the circumstances surrounding the sale, would
conclude that the sale amounted to an endorsement of
religion.” Mercier, 395 F.3d at 705. The primary question is
“whether, irrespective of the government’s actual purpose,
the practice under review in fact conveys a message of
endorsement or disapproval.” Books v. City of Elkhart, 235
F.3d 292, 302 (7th Cir. 2000) (internal quotation marks
omitted).
We believe that a reasonable person would understand
the effect of the Assembly Ordinance and special use
requirements to be a limitation on Village development
generally, not on religion specifically. Notably, Vision does
not refute the claim that new churches are permissible under
the Village’s zoning ordinances; they, like other public
assembly buildings, merely must abide by the size and
capacity limitations set forth in the Assembly Ordinance
and, like other special uses, comply with the procedures set
forth in § 5-11-6 of the Zoning Regulations. Nor does Vision
make a compelling argument that these limitations are so
unreasonable as to demonstrate a First Amendment viola-
tion. Although Vision requested in 2002 that the Board vote
on its plans for a 99,000-square foot facility, it previously
had prepared plans for a 56,200-square foot facility, which
is only 1,200 square feet larger than the largest church
facility allowable under the Assembly Ordinance. According
to the record before us, a 55,000-square foot facility would
fulfill the needs of Vision’s 120-member (albeit growing)
congregation: Under its 56,200-square foot plan, Vision’s
facility would have consisted of three main buildings and a
600-seat sanctuary, and was estimated to be able to serve a
Nos. 05-4144 & 05-4234 29
congregation of between 800 and 1,000 persons.15 In sum,
Vision—and other new churches—reasonably and without
hardship could operate within the size and capacity restric-
tions imposed by the Village; we therefore conclude that the
Ordinance does not have a primary effect of advancing
or inhibiting religion.
The same is true of the standards governing the issuance
of a special use permit. Vision does not contend that, had it
met the size limitations imposed by the Assembly Ordi-
nance, it would have been denied a special use permit
because of the balancing of factors under § 5-11-6 of the
Village’s Zoning Regulations. Nor can it cite an example of
a church denied a special use permit, when it already had
fulfilled the requirements imposed by the ordinance.
Further, Vision fails to establish that the requirements
imposed on “new churches” are unreasonable or otherwise
impermissible: Indeed, to accept Vision’s position would be
to hold that a municipality could never change its zoning
regulations with the effect of mandating that new churches,
and other institutions, fulfill requirements not imposed on
churches previously constructed—a position we simply
cannot accept. Given that the zoning requirements are
applied equally to secular and religious institutions alike
and permit the construction of both institutions under
certain, limited circumstances, we believe that “no reason-
able person would believe that [the effect of the zoning
ordinances] was to advance religion.” Mercier, 395 F.3d at
705.
We now turn to Lemon’s third factor, whether the munici-
pality has entangled itself excessively with religion. Vision
15
See also discussion infra at 42 (discussing whether, in the context
of RLUIPA § 2(a)(1), these limitations are reasonable).
30 Nos. 05-4144 & 05-4234
contends that the Village has become involved intimately in
the religious exercise of its churches, including the “size and
aesthetics of their worship facilities, the hours of operation,
and the scheduling of religious activities.” Appellant’s Br.
at 45. To be sure, the Village’s Plan Commission, during
early negotiations with Vision over voluntary annexation,
requested that Vision consent to a number of conditions on
construction, including limitations on the future develop-
ment of church facilities and on the number and scope of
religious activities. See R.98, Ex.14 at 2 (requesting that
Vision restrict “outside activities” in the playing field); id.
(requesting that Vision agree to hold “[o]nly two services
Sunday or holidays excepting weddings and funerals. And
no more than one major activity each week Monday through
Friday, excepting weddings and funerals”).16
16
It cannot be argued plausibly that these conditions, which are
applications of a municipal policy, are not “laws” or legislative
actions within the scope of the Establishment Clause. The
Establishment Clause states that “Congress shall make no law
respecting an establishment of religion.” U.S. Const. amend. I.
This constitutional provision has been applied to the states
through the Fourteenth Amendment and has been interpreted as
“imposing . . . substantive limitations on the legislative power of
the States and their political subdivisions.” Santa Fe Indep. Sch.
Dist. v. Doe, 530 U.S. 290, 301 (2000). However, although the
conditions requested by the Village and rejected by Vision do not
involve the exercise of the municipality’s “legislative power” per
se, id., but rather more fairly are classified as the interpretation by
the municipality of policies already enacted by its legislative
body, the scope of the Establishment Clause has been interpreted
broadly by the Supreme Court and the courts of appeals. For
example, in Allegheny County v. ACLU, 492 U.S. 573, 612 (1989),
the Supreme Court held unconstitutional the placement of a
(continued...)
Nos. 05-4144 & 05-4234 31
However, to establish excessive entanglement with
religion, Vision must demonstrate “sponsorship, financial
support, and active involvement of the sovereign in reli-
gious activity.” Jimmy Swaggart Ministries v. Bd. of Equaliza-
tion of California, 493 U.S. 378, 393 (1990) (internal quotation
marks omitted). This inquiry requires examination of “the
character and purposes of the institutions that are benefit-
ted, the nature of the aid that the State provides, and the
resulting relationship between the government and the
religious authority.” Id. (internal quotation marks omitted).
Moreover, the advancement or inhibition of religion must be
more than de minimis. See Tanford v. Brand, 104 F.3d 982, 986
(7th Cir. 1997). The general rule is that, to constitute exces-
sive entanglement, the government action must involve
16
(...continued)
crèche in the lobby of a courthouse, even though this conduct did
not involve the exercise of legislative authority and did not even
“command or prohibit conduct,” Glassroth v. Moore, 335 F.3d
1282, 1293 (11th Cir. 2003) (discussing Allegheny County). See
Allegheny County, 492 U.S. at 612 (“To be sure, some Christians
may wish to see the government proclaim its allegiance to
Christianity in a religious celebration of Christmas, but the
Constitution does not permit the gratification of that desire,
which would contradict the logic of secular liberty it is the
purpose of the Establishment Clause to protect.” (internal
citations and quotation marks omitted)). The same is true of Lee
v. Weisman, 505 U.S. 577 (1992), in which the Supreme Court held
that, “[a] school official, the principal, decided that an invocation
and a benediction should be given; this is a choice attributable to
the State, and from a constitutional perspective it is as if a
state statute decreed that the prayers must occur.” Id. at 587. In
sum, under these precedents, so long as the conduct is “attributed
to” the government entity or municipality, id., it is subject to the
constitutional limitations of the Establishment Clause.
32 Nos. 05-4144 & 05-4234
“intrusive government participation in, supervision of, or
inquiry into religious affairs.” United States v. Indianapolis
Baptist Temple, 224 F.3d 627, 631 (7th Cir. 2000) (discussing
the taxation of religious institutions).
We cannot conclude that the conditions on construction
requested by the Village in the course of negotiations over
annexation with Vision rise to the level of excessive entan-
glement. First, the condition limiting future development is
wholly secular in nature and consistent with the goals of
maximizing open space and limiting Village development
set forth in the Comprehensive Plan. Notably, a similar
agreement was required of the public elementary schools
built across the street from Vision’s property, as a condition
of annexation and a special use permit. Second, the condi-
tion limiting use of the outdoor area on Vision’s plans
marked “playing fields” also is secular in nature. Members
of the Plan Commission expressed concern that this land, if
unrestricted, would be used for “carnivals or similar
activities”; they instead wanted the land, consistent with the
general goals of maximizing the ratio of development to
open space in the Village, to remain “permanently
unbuildable,” such that it would “mirror the Fields of Long
Grove,” a large open area on the other side of the road. R.98,
Ex.11 at 2. These neutral concerns do not impermissibly
involve the municipality in the religious affairs.
The third condition—the request that Vision limit its Sun-
day services to two, excepting weddings and funerals,
and limit its “major activit[ies]” during the week to one
per week—could be somewhat more problematic. See Alicea-
Hernandez v. Catholic Bishop of Chicago, 320 F.3d 698, 702 (7th
Cir. 2003). However, in its meetings discussing these
conditions, the Commission defined a “major activity” as a
non-“religious event[]” that “anticipate[s] [the] use[] of
Nos. 05-4144 & 05-4234 33
more than 50 percent of the parking spaces.” R.98, Ex.11 at
3. Reading the record as a whole, it appears that the Com-
mission’s primary concern was traffic control, rather than
controlling the congregation’s religious worship. In any
event, the issue is not ripe for extended analysis. These
conditions were raised by the Village during late 2000
negotiations over annexation; they were not raised again
after the involuntary annexation of Vision’s property in
proceedings related to Vision’s application for a special use
permit in 2002. If this matter were to arise again in proceed-
ings related to Vision’s next application for a special use
permit, the Church of course would be free to raise the issue
anew.
C. Free Exercise of Religion
Vision also contends that the district court erred in
dismissing its free exercise of religion claims under the First
Amendment and RLUIPA. The district court held that the
Village had not imposed any restriction on
Vision’s practices or beliefs; Vision now responds that “a
number of the Village’s actions” nevertheless “constitute
a substantial burden [on the exercise of religion] by caus-
ing delay, uncertainty and expense.” Appellant’s Br. at
21 (internal quotation marks omitted).
“Under the Free Exercise Clause of the First Amendment
of the United States Constitution, made applicable to
state and local governments by the Fourteenth Amendment,
no law may prohibit the free exercise of religion.” Civil
Liberties for Urban Believers v. City of Chicago, 342 F.3d 752,
762-63 (7th Cir. 2003) (hereinafter “CLUB”). The Free
Exercise Clause, the Supreme Court has noted, “withdraws
from legislative power, state and federal, the exertion of any
34 Nos. 05-4144 & 05-4234
restraint on the free exercise of religion. Its purpose is to
secure religious liberty in the individual by prohibiting any
invasions thereof by civil authority.” Jimmy Swaggart
Ministries, 493 U.S. at 384 (internal quotation marks omit-
ted). The relevant inquiry is two-fold. First, we examine
whether the law being challenged is “neutral and of general
applicability.” Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520, 531 (1993). If not, it “must be justified
by a compelling governmental interest and must be nar-
rowly tailored to advance that interest.” Id. at 531-32. This
does not end the inquiry, however: “[A] regulation neutral
on its face may, in its application, nonetheless offend the
constitutional requirement for governmental neutrality if it
unduly burdens the free exercise of religion,” in which case
there must be “a compelling governmental interest
justif[ying] the burden.” Jimmy Swaggart Ministries, 493 U.S.
at 384-85 (internal quotation marks omitted).
The protections embodied by the Free Exercise Clause
were codified in RLUIPA § 2(a)(1), which prohibits the
government from
impos[ing] or implement[ing] a land use regulation in a
manner that imposes a substantial burden on the
religious exercise of a person, including a religious
assembly or institution, unless the government demon-
strates that imposition of the burden on that person,
assembly, or institution—
(A) is in furtherance of a compelling governmental
interest; and
(B) is the least restrictive means of furthering that
compelling governmental interest.
42 U.S.C. § 2000cc(a)(1). Simply put, both the Free Exercise
Clause and RLUIPA provide that, if a facially-neutral law or
Nos. 05-4144 & 05-4234 35
land use regulation imposes a substantial burden on
religion, it is subject to strict scrutiny.
Given the similarities between RLUIPA § 2(a)(1) and First
Amendment jurisprudence, we collapse Vision’s claims for
the purpose of this analysis; this approach seems most
consistent with post-RLUIPA case law.17 Our sister cir-
cuits have defined RLUIPA’s substantial burden provi-
sion by reference to the Supreme Court’s free exercise
jurisprudence, finding this case law to be “instructive in
determining what Congress understood ‘substantial burden’
to mean in RLUIPA.” Midrash Sephardi, Inc. v. Town of
Surfside, 366 F.3d 1214, 1226 (11th Cir. 2004); see also
Guru Nanak Sikh Soc. of Yuba City v. County of Sutter, 456 F.3d
978, 988 (9th Cir. 2006). Similarly, RLUIPA’s legisla-
tive history indicates that the term “substantial burden” was
intended to be interpreted by reference to First Amendment
jurisprudence:
The Act does not include a definition of the term
“substantial burden” because it is not the intent of this
Act to create a new standard for the definition of
“substantial burden” on religious exercise. Instead, that
term as used in the Act should be interpreted by refer-
ence to Supreme Court jurisprudence. . . . The term
“substantial burden” as used in this Act is not intended
to be given any broader interpretation than the Supreme
Court’s articulation of the concept of substantial burden
or religious exercise.
146 Cong. Rec. S7774-01 (daily ed. July 27, 2000) (joint
statement of Senators Hatch and Kennedy).
17
Regardless, Vision’s arguments on both legal theories are the
same. See Appellant’s Br. at 21-29.
36 Nos. 05-4144 & 05-4234
Interpreting RLUIPA, we have held that a land use
regulation imposes a “substantial burden” on religious
exercise if it “necessarily bears direct, primary, and funda-
mental responsibility for rendering religious
exercise—including the use of real property for the purpose
thereof within the regulated jurisdiction generally—
effectively impracticable.” CLUB, 342 F.3d at 761. Similarly,
interpreting the First Amendment, the Supreme Court has
found a “substantial burden” to exist when the government
put “substantial pressure on an adherent to modify his
behavior and to violate his beliefs.” Hobbie v. Unemployment
Appeals Comm’n of Florida, 480 U.S. 136, 141 (1987) (internal
quotation marks omitted).18 With this analytical framework
in mind, we now turn to Vision’s specific arguments.
Vision’s primary arguments on appeal are that it was
“substantially burdened” by (1) the involuntarily annex-
ation of its property, which it claims was done with the
intent to “thwart Vision’s church,” Appellant’s Br. at 24; (2)
the Village’s conditions on annexation; and (3) the passage
18
This definition has received further definition by the lower
federal courts. See, e.g., Guru Nanak Sikh Soc. of Yuba City v. County
of Sutter, 456 F.3d 978, 988-89 (9th Cir. 2006) (“[F]or a land use
regulation to impose a substantial burden, it must be oppressive
to a significantly great extent. That is, a substantial burden on
religious exercise must impose a significantly great restriction or
onus upon such exercise.” (internal quotation marks omitted;
alteration in original)); Midrash Sephardi, Inc. v. Town of Surfside,
366 F.3d 1214, 1227 (11th Cir. 2004) (“We have held that an
individual’s exercise of religion is ‘substantially burdened’ if a
regulation completely prevents the individual from engaging in
religiously mandated activity, or if the regulation requires
participation in an activity prohibited by religion.”).
Nos. 05-4144 & 05-4234 37
of the Assembly Ordinance.19
Vision’s claim as it relates to involuntary annexation
does not state a valid cause of action under RLUIPA
§ 2(a)(1). That section forbids a government agency to
“impose or implement a land use regulation in a manner
that imposes a substantial burden on the religious exer-
cise of a person,” 42 U.S.C. § 2000cc(a)(1) (emphasis added);
“land use regulation,” in turn, has been defined as “a
zoning or landmarking law, or the application of such a law,
that limits or restricts a claimant’s use or development of
land,” 42 U.S.C. § 2000cc-5(5). “Under this definition, a
government agency implements a ‘land use regulation’ only
when it acts pursuant to a ‘zoning or landmarking law’ that
limits the manner in which a claimant may develop or use
property in which the claimant has an interest.” Prater v.
City of Burnside, 289 F.3d 417, 434 (6th Cir. 2002). The
process of annexation, whether voluntary under 65 ILCS
5/7-1-8 or involuntary under 65 ILCS 5/7-1-13, may indeed
make possible the subsequent zoning or marking of the
19
Vision makes two additional claims. First, it contends that the
differential treatment of it and the public schools across the street
constitutes a “substantial burden” on its religious exercise.
Appellant’s Br. at 23. This claim more appropriately is ad-
dressed in the context of Vision’s equal protection and RLUIPA
equal treatment claims. See infra. Second, Vision discusses
extensively the uncertainty and expense caused by the zoning
and approval process. We recognize that Vision purchased its
land in 1999 and, seven years later, still is seeking permission to
build on the land. However, we remind the plaintiff that “the
federal courts are ordinarily not vehicles to review zoning board
decisions,” and, in the absence of evidence tying the Board’s
actions to intentional discrimination, we decline to overturn the
Board’s decision on this basis. Harding v. County of Door, 870 F.2d
430, 432 (7th Cir. 1989).
38 Nos. 05-4144 & 05-4234
land; however, an annexation statute is not itself a “zoning”
or “landmarking” regulation and its application therefore
does not constitute government action covered by RLUIPA.
We cannot conclude that either the Village’s denial of
Vision’s application for annexation or its subsequent
involuntary annexation of Vision’s land constitutes a
violation of the Free Exercise Clause of the First Amend-
ment. As we noted in CLUB, “no Free Exercise Clause
violation results where a burden on religious exercise is the
incidental effect of a neutral, generally applicable, and
otherwise valid regulation, in which case such regulation
need not be justified by a compelling governmental inter-
est.” CLUB, 342 F.3d at 763; Midrash Sephardi, 366 F.3d at
1227 (“[W]e agree that ‘substantial burden’ requires some-
thing more than an incidental effect on religious exercise.”).
In this case, both annexation statutes are wholly neutral
and apply generally to all property owners seeking annex-
ation and to all persons owning property bounded on all
sides by property within the municipality. See 65 ILCS 5/7-
1-8, 13. To be sure, the Village admits that, in invoking its
powers under 65 ILCS 5/7-1-13, it sought to control the
future development of Vision’s property; but there is no
evidence that Village desired such control because Vision is
a religious institution or a religious institution of a certain
denomination. Nor is there evidence that the effects of the
Village’s actions were anything more than incidental: The
record evidence indicates that it is not because of the denial
of the 2000 application for annexation or because of the 2001
involuntary annexation that Vision’s church currently is not
being constructed; rather, it is because of Vision’s refusal to
abide by the size restrictions imposed by the Assembly
Ordinance that it later was denied a special use permit to
construct a church on its land.
Nos. 05-4144 & 05-4234 39
Vision next alleges that the Village improperly imposed
conditions on its annexation and approval for a special
use permit. This claim is covered by both RLUIPA and by
the First Amendment Free Exercise Clause.20 However, as
we explained in the context of the Establishment Clause, we
ultimately conclude that these conditions—which included
limitations on future development, on the use of a particular
outdoor area, and on Sunday and weekly activities—are no
more than incidental burdens on the exercise of religion.
Our analysis in CLUB is instructive. There, we rejected the
plaintiff’s suggested interpretation of “substantial burden,”
holding that, under such an interpretation, “the slightest
obstacle to religious exercise incidental to the regulation of
land use—however minor the burden it were to im-
pose—could then constitute a burden sufficient to trigger
RLUIPA’s requirement that the regulation advance a
compelling governmental interest by the least restrictive
means.” 342 F.3d at 761. Similarly, here, we find that the
conditions on construction impose only a minor burden on
Vision’s operations: The first two conditions are neutral and
traceable to municipal land planning goals. The latter
condition, limiting activities at the church, is more trouble-
some, as previously noted. However, a burden must be
more than a mere inconvenience to rise to the level of a
constitutional injury; it must place “significant pressure” on
Vision to “forego religious precepts” or to engage in
“religious conduct.” Midrash Sephardi, 366 F.3d at 1227.
20
Vision’s argument in effect challenges the application of
municipal standards governing the approval of property for a
special use, contained in § 5-11-6(D) of the Village Zoning
Regulations; these standards are part of a “zoning law” covered
by RLUIPA. The same is true of Vision’s challenge to the constitu-
tionality of the Assembly Ordinance, which amended the
Village’s Zoning Regulations.
40 Nos. 05-4144 & 05-4234
Because there is no evidence that these conditions affected
the Village’s later decision to forcibly annex the property, to
enact the Assembly Ordinance and ultimately to deny
Vision’s 2002 application for a special use permit, we cannot
conclude on this record that Vision has demonstrated a
substantial burden.21 Notably, the record indicates that, had
Vision complied with maximum size requirements imposed
by the Public Assembly Ordinance, there likely would be a
church complex currently being constructed, notwithstand-
ing its rejection during earlier negotiations of limitations on
future development, worship services and other institu-
tional activities.
Lastly, we turn to Vision’s contention that the enactment
of the Assembly Ordinance constitutes a “substantial
burden” on its right to the free exercise of religion. The
Assembly Ordinance is facially neutral; it applies to the new
construction of all public use buildings, regardless of their
purpose, including not only “religious institutions,” but also
“aquariums, libraries, museums, private schools, and other
similar uses,” R.1-1, Ex.F at 1. According to Vision, despite
its neutrality, the Ordinance was passed for the sole purpose
of forcing Vision to reduce the size of its proposed complex,
which, in turn, substantially burdens Vision’s potential
success. Besides temporal proximity between Vision’s
dispute with the Village over a special use permit and the
enactment of the Ordinance, there is no evidence in the
record to support this claim. Even if Vision was targeted by
the Assembly Ordinance, this does not mean that it was
targeted because of religion: The Plan Commission was
concerned about the size of the church complex and its
effect on the character of the Village, concerns separate and
21
See also discussion supra at 33-34.
Nos. 05-4144 & 05-4234 41
independent from the religious affiliation (or lack thereof)
of the institution seeking to build on the land.
Moreover, there is no triable issue of fact with respect to
whether the size, capacity and other restrictions imposed by
the Ordinance constitute a non-incidental, substan-
tial burden on the exercise of religion. Under the ordinance,
Vision would be permitted to build a 55,000-square foot
facility. As mentioned previously,22 experts estimate that a
facility of this size would be able to meet the needs of an 800
to 1,000 member congregation.23 Vision currently has 120
members. Although we recognize that Vision plans to grow
in size, we cannot fathom a situation in which limiting the
church to a three-building, 55,000-square foot facility would
impose an unreasonable and substantial burden on religious
exercise; the congregation would have to increase eight-fold
to reach its maximum capacity. Notably, the second set of
plans proposed by Vision in the course of early negotiations
totaled 56,200 square feet and consisted of three main
buildings (a sanctuary, an administration building and a
Sunday school building), a 600-seat sanctuary, and 240
parking spaces. Unlike in New Berlin, where the Appellant
would have been required to find “[an]other parcel of land
on which it could build its church,” City of New Berlin, 396
22
See supra at 29.
23
Specifically, Vision’s expert estimated that a 40,000-square
foot facility would accommodate a congregation with an aver-
age Sunday worship attendance of 500; in turn, average wor-
ship attendance typically is 60-80% of the total membership.
Vision’s expert further estimated that a facility of 75,000
square feet would be appropriate for a church with an average
worship attendance of 1,000, and a membership of 1,250 to
1,600 people.
42 Nos. 05-4144 & 05-4234
F.3d at 899, in this case, Vision was free to submit modified
plans to the Board that could have “cure[d] the problems
and deficiencies cited by the Board,” Westchester Day Sch. v.
Vill. of Mamaroneck, 386 F.3d 183, 188 (2d Cir. 2004) (finding
no “substantial burden” where this same opportunity was
available to the plaintiff).
D. Equal Protection
We next address Vision’s claim that the district court
erred in dismissing its equal protection claims under the
Fourteenth Amendment Equal Protection Clause and
RLUIPA’s equal terms provision. Vision contends that the
Village “applied its laws to treat Vision differently from
other assembly uses similarly situated or prima facie
identical in all relevant respects.” Appellant’s Br. at 42.
Specifically, Vision argues that it was treated less favorably
than “restaurants, tearooms, taverns and health clubs,”
which are permitted uses in some zones, while churches are
not permitted uses in any zone, id.; further, Vision contends
that it was treated less favorably than the “schools just
across [the] road from Vision’s property” because, although
they submitted identical petitions for a special use permit,
the school’s application was granted and Vision’s was
denied, id. Because the legal framework for analyzing
Vision’s Fourteenth Amendment and RLUIPA claims differ,
we address each in turn.
1. Fourteenth Amendment
The Equal Protection Clause of the Fourteenth Amend-
ment commands that no state shall “deny to any person
within its jurisdiction the equal protection of the laws,” U.S.
Const. amend. XIV, which essentially is a direction that all
Nos. 05-4144 & 05-4234 43
persons similarly situated should be treated alike, Plyler v.
Doe, 457 U.S. 202, 216 (1982). If a statute or municipal
ordinance classifies by race, alienage, or national origin, we
subject the legislative action to “strict scrutiny and [it] will
be sustained only if [it is] suitably tailored to serve
a compelling state interest”; “[t]hese factors are so sel-
dom relevant to the achievement of any legitimate state
interest that laws grounded in such considerations are
deemed to reflect prejudice and antipathy.” City of Cleburne
v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). Heightened
scrutiny also is appropriate when government action
interferes with a person’s fundamental rights, such as
freedom of speech or religion. See Eby-Brown Co., LLC v.
Wisconsin Dep’t of Agric., 295 F.3d 749, 754 (7th Cir. 2002). If
“no suspect class or fundamental right is involved,” how-
ever, “we employ a rational basis test to determine whether
the legislative act is constitutional.” Id.The municipal ordinances challenged by Vision do not
classify on the basis of race, alienage or national origin.
Further, as we conclude above, the Village’s Zoning Regula-
tions and the Public Assembly Ordinance do not discrimi-
nate on the basis of religion. We therefore apply only
rational basis scrutiny to Vision’s equal protection claims.
See Locke v. Davey, 540 U.S. 712, 720 n.3 (2004) (holding that,
where the challenged government action did not constitute
a “violation of the Free Exercise Clause,” only “rational-
basis scrutiny” was warranted). In other words, Vision must
demonstrate “governmental action wholly impossible to
relate to legitimate governmental objectives.” Patel v. City of
Chicago, 383 F.3d 569, 572 (7th Cir. 2004) (internal quotation
marks omitted). In pertinent part, to meet this standard,
Vision must demonstrate “malicious conduct” on the part of
government officials, or “conduct that evidences a spiteful
effort to ‘get’ him for reasons wholly unrelated to any
44 Nos. 05-4144 & 05-4234
legitimate state objective.” Id. at 573 (internal quotation
marks omitted).
This Vision cannot do. Vision points out that the Village’s
Zoning Regulations classify “restaurants, tearooms,
taverns and health clubs” as permissible uses in business
districts, while churches require a special use permit in
residential districts. But, like churches, schools also are not
permissible uses in residential districts, demonstrating
that the distinction between permissible and special uses
is not rooted in animosity towards religious institutions. See
Zoning Regulations § 5-4-2-2, R.99, Ex.2. Further, the
distinction can be traced to legitimate municipal land
planning goals. The special uses in residential districts
identified by the Zoning Regulations (i.e., schools, churches
and recreational clubs) and the special uses in business
districts (i.e., restaurant patios) raise unique concerns
such as traffic control, noise pollution, and a greater im-
pact on the landscape than more common uses. As the Third
Circuit observed, “a municipality may chart out a quiet
place where yards are wide, people few, and motor vehicles
restricted[.] [These] are legitimate guidelines in a land-use
project addressed to family needs.” Congregation Kol Ami v.
Abington Township, 309 F.3d 120, 135 (3d Cir. 2002) (internal
quotation marks omitted). Given these justifications for
differential treatment, we cannot conclude that municipal
officials acted “malicious[ly]” or irrationally. Patel, 383 F.3d
at 573.
Vision also suggests that it was irrational for the Village
to deny its application for annexation and a special use
permit, while granting an identical application in July 1999
from Kildeer School District for the annexation of land and
permission to build public elementary schools across the
street from Vision’s property. We cannot characterize
Nos. 05-4144 & 05-4234 45
these decisions as “wholly impossible to relate to legitimate
governmental objectives.” Id. at 572. Public schools
serve a unique public function, and, given the discretion
municipalities enjoy over annexation, see Barefoot v. City of
Wilmington, 306 F.3d 113, 121 (4th Cir. 2002), it certainly was
not irrational for the Village to want the School District’s
land to be within its municipal boundaries for the purpose
of serving its students. Further, conditions on construction
similar to those imposed on Vision, including a limitation
on future development, were placed on the School District.
See R.100, Ex.41 at 7-8. While Vision resisted the Village’s
request, the School District willingly agreed. In light of these
considerations, approving the annexation of the School
District’s property while denying the annexation of Vision’s
property was not irrational. The same is true of the denial of
Vision’s special use application in 2002:24 At the time that
Village addressed Vision’s special use application, it already
had passed the Assembly Ordinance, imposing size and
capacity limitations on the construction of a building used
for public assembly. To deny Vision’s application because
it failed to submit plans that complied with these restric-
tions is rationally related to the goals reflected in the
Assembly Ordinance.
24
Vision compares its application for a special use permit in 2000
to the elementary school’s similar application in July 1999.
However, because Vision’s application for annexation was denied
by the Village in 2000, the Village did not have jurisdiction to
grant or deny the special use permit; it never addressed or took
action on this application. Thus, for the purpose of the above
analysis, we consider only whether the Village’s denial of
Vision’s 2002 application for a special use permit lacked rational
basis.
46 Nos. 05-4144 & 05-4234
Vision also raises a “class of one” equal protection claim.
“We ha[ve] recognized equal protection claims brought by a
‘class of one,’ although we have acknowledged that it is
difficult to succeed with such a claim.” Maulding Dev., LLC
v. City of Springfield, 453 F.3d 967, 969 (7th Cir. 2006) (inter-
nal quotation marks omitted; alteration in original). To
establish a “class of one” claim, Vision must show that: “(1)
it has been intentionally treated differently from others
similarly situated; and (2) there is no rational basis for the
difference in treatment or the cause of the differential
treatment is a totally illegitimate animus toward [Vision].”
Id. at 970 (internal quotation marks omitted).
Vision cannot show that it was treated less favorably
than an institution similarly situated. “[R]estaurants,
tearooms, taverns and health clubs,” Appellant’s Br. at 42,
are not similarly situated: They are permitted uses in the
Village’s business district; by contrast, the church is zoned
“Residential.” The apt comparison would be to “[s]ingle-
family detached dwellings” and “[a]gricultural operations,”
which are “permitted uses” in residential districts, see
Zoning Regulations § 5-4-2-1, R.99, Ex.2, but Vision fails to
make this comparison. Vision also is not similarly situated
to the two elementary schools operated by the Kildeer
School District. In evaluating the requests for a special use
permit, Vision and the schools both were subject to the
inquiry mandated by § 5-11-6(D) of the Zoning Regulations,
which examines whether the special use “is deemed neces-
sary for the public convenience” and will “protect[]” “public
health, safety and welfare.” Id. § 5-11-6(D). In July 1999, this
issue was the sole inquiry mandated by the Zoning Regula-
tions, and the Village determined that the schools were
appropriate special uses. When the Village considered
Nos. 05-4144 & 05-4234 47
Vision’s application for a special use permit in May 2002,25
however, these standards had changed slightly: To obtain a
special use permit, Vision also needed to comply with the
size and capacity restrictions imposed by the Assembly
Ordinance, which had been passed by the Village Board the
month prior. Because the prevailing standards for granting
a special use permit in 1999 and in 2002 differed, we cannot
find Vision to be similarly situated to the schools for the
purpose of class of one analysis.
2. RLUIPA Equal Terms
“For purposes of a RLUIPA equal terms challenge, the
standard for determining whether it is proper to compare a
religious group to a nonreligious group is not whether one
is ‘similarly situated’ to the other, as in our familiar equal
protection jurisprudence.” Konikov v. Orange County, 410
F.3d 1317, 1324 (11th Cir. 2005). Instead, the pertinent
question is whether the “land use regulation . . . treats a
religious assembly or institution on less than equal terms
with a nonreligious assembly or institution.” 42 U.S.C.
§ 2000cc(b)(1). Although this court has not yet had an
opportunity to explore fully the contours of RLUIPA’s equal
terms provision, the Eleventh Circuit recently set forth
comprehensively what it described as the
three distinct kinds of Equal Terms statutory violations:
(1) a statute that facially differentiates between religious
and nonreligious assemblies or institutions; (2) a facially
25
See supra note 24 (limiting the court’s analysis to the rejection
of Vision’s 2002 special use application, and explaining that the
Village never acted on Vision’s earlier request for a special use
permit because it lacked jurisdiction over Vision’s property).
48 Nos. 05-4144 & 05-4234
neutral statute that is nevertheless “gerrymandered” to
place a burden solely on religious, as opposed to
nonreligious, assemblies or institutions; or (3) a truly
neutral statute that is selectively enforced against
religious, as opposed to nonreligious assemblies or
institutions.
Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward
County, 450 F.3d 1295, 1308 (11th Cir. 2006) (hereinafter
“Primera”).
With respect to RLUIPA § 2(b)(1), Vision challenges
only the special use permit requirements; it does not
claim that the Assembly Ordinance also violates the statute.
But the Zoning Regulations, particularly the section ad-
dressing special uses, does not “differentiate[] between
religious and nonreligious assemblies or institutions.” Id.
Nor does the facially neutral ordinance nevertheless target
religion through religious “gerrymander[ing].” Id. Lastly,
we cannot find that the special use requirements were
“selectively enforced” against Vision Church, such that
Vision was treated less favorably than another, non-reli-
gious institution. As explained above, the compar-
ison between Vision and the restaurants and tearooms
that are considered permitted uses in the business district is
not persuasive. Further, although under RLUIPA § 2(b)(1)
a plaintiff need not demonstrate disparate treatment
between two institutions similarly situated in all relevant
respects, as required under equal protection jurisdiction, the
fact that Vision and the elementary schools were subject to
different standards because of the year in which their
special use applications were considered compels the
conclusion that there was no unequal treatment. Cf. id. at
1310 (“[T]he School is simply not a valid comparator here
because the rezoning process is an entirely different form of
Nos. 05-4144 & 05-4234 49
relief from obtaining a variance.” (internal quotation marks
omitted)).
E. State Law Supplemental Claims
Vision argues that, as a matter of state law, the Village
arbitrarily and without reference to defensible standards
rejected its 200226 application for a special use permit. We
cannot accept this argument. Vision focuses in its brief on
the special use standards set forth in § 5-11-6(D) of the
Zoning Regulations. Specifically, Vision claims that it
“satisfied all the criteria necessary for issuance of a [per-
mit],” Appellant’s Br. at 35; it also challenges the special use
regulations as lacking “defensible standards,” id. at 37
(internal quotation marks omitted). Even if this were true,
however, Vision was not denied a special use permit on the
ground that the church would “cause substantial injury” to
neighboring properties or that it otherwise was not “neces-
sary for the public convenience,” or because it failed to meet
another criteria set forth in the Zoning Regulations. Zoning
Regulations § 5-11-6(D), R.99, Ex.2. Rather, the permit was
denied because Vision had submitted plans for the construc-
tion of a 99,000-square foot facility, which is 44,000 square
feet larger than that allowed under the Public Assembly
Ordinance. We already have determined that this legislation
is constitutional, and there is no evidence that its application
to Vision was arbitrary or capricious.
26
As in the context of Vision’s equal protection claims, we
limit our consideration of Vision’s claims to the Village’s denial of
Vision’s application for a special use permit in May 2002. See
supra notes 24-25.
50 Nos. 05-4144 & 05-4234
Vision also claims that the district court erred in granting
summary judgment to the Village on its state law
vested rights claim. The district court held that, even if
Vision had fulfilled the elements of a vested rights claim, the
proper course of action was to sue Lake County, not
the Village; further, it found that Vision could not “establish
that there was a probability of municipal approval to build
a church complex on its property.” R.157 at 27.
We understand why Vision has directed its claim at the
Village rather than the County. Its argument proceeds as
follows: It had a right, when it purchased the property, to
construct a church under Lake County Zoning Code; it
relied on this right in purchasing the property; upon
involuntary annexation by the Village, see 65 ILCS 5/7-1-13,
this right was taken away because the property no longer
was subject to Lake County’s zoning jurisdiction; therefore,
the Village is required to allow Vision to “complete the
construction and [to] use the premises for the purposes
originally authorized.” Appellant’s Br. at 30 (internal
quotation marks omitted).
Nevertheless, Vision has not established a valid vested
rights claim under Illinois law. Illinois courts generally
recognize that “there is no vested right in the continuation
of a zoning classification.” Furniture L.L.C. v. City of Chicago,
818 N.E.2d 839, 843 (Ill. App. Ct. 2004). However, the Illinois
Supreme Court has held:
[W]here there has been a substantial change of position,
expenditures or incurrence of obligations made in good
faith by an innocent party under a building permit or in
reliance upon the probability of its issuance, such party
has a vested property right and he may complete the
construction and use the premises for the purposes
Nos. 05-4144 & 05-4234 51
originally authorized, irrespective of subsequent zoning
or a change in zoning classifications.
Pioneer Trust & Savings Bank v. Cook County, 377 N.E.2d 21,
26 (Ill. 1978) (internal quotation marks omitted). As a result,
Illinois courts have found that, where a plaintiff purchases
and invests in property believing in good faith that it will
receive a building permit, the city cannot amend zoning
classifications to the builder’s detriment, making unavail-
able the intended use of the land. See, e.g., Furniture L.L.C.,
818 N.E.2d at 846.
However, there is no Illinois case law applying the
vested rights doctrine under the present circumstances—
where a plaintiff has relied to its detriment on a county
zoning ordinance, but sued a different government entity, the
municipality, for the disruption of this expectation. As a
federal court exercising supplemental jurisdiction over this
claim, we must be reluctant “to expand state law” in this
fashion. J.S. Sweet Co. v. Sika Chem. Corp., 400 F.3d 1028, 1034
(7th Cir. 2005).27 Moreover, to expand Illinois law to create
a remedy in this case would render 65 ILCS 5/7-1-13
meaningless. Title 65 ILCS 5/7-1-13 sets forth the limited
conditions under which involuntary annexation is permissi-
ble; because Vision’s property is bordered on all sides by
property within the Village’s corporate boundaries, the
Village was authorized to involuntarily annex the property
under the terms of the statute. Under Vision’s proposed
rule, the Village—and all other Illinois
municipalities—effectively would be stripped of the author-
27
Cf. Dausch v. Rykse, 52 F.3d 1425, 1438 (7th Cir. 1994) (Ripple,
J., concurring) (“[F]ederal courts sitting in diversity ought to
be circumspect in expanding the law of a state beyond the
boundaries established in the jurisprudence of the state.”).
52 Nos. 05-4144 & 05-4234
ity to annex any land that already is zoned for develop-
ment under county zoning code, contrary to the obvious
intent of the Illinois state legislature. See also IDX Sys. Corp.
v. Epic Sys. Corp., 285 F.3d 581, 586-87 (7th Cir. 2002) (noting
that “our task is to implement state law as state courts
would implement it” and holding that, if we believe that
state courts would find a “conflict” between the interpreta-
tion urged by the parties and a state statute, that interpreta-
tion must be invalidated). Because we believe that an Illinois
state court would not interpret a common law doctrine in a
manner that neutralizes the meaning of a state statute, we
cannot adopt the interpretation of the vested rights doctrine
advanced by Vision.
Conclusion
For the reasons set forth in the foregoing opinion, we
affirm the judgment of the district court.
AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-7-06