delivered the judgment of the court, with opinion.
Justiсes Murphy and Steele concurred in the judgment and opinion.
OPINION
Plaintiff, Christian Assembly Rios de Agua Viva, appeals from an order of the circuit court denying its emergency motion for a preliminary injunction seeking a declaration that it may operate a church on property that it has a contract to purchase, notwithstanding the City of Burbank’s zoning ordinance that does not permit such use. For the reasons set forth below, we affirm the circuit court.
I. BACKGROUND
Christian Assembly Rios de Agua Viva (church) is a church with a largely Hispanic membership that currently meets at 6132 South Kedzie Avenue on the south side of Chicago, Illinois. Due to its growing congregation, the church decided to look for a larger building in the south suburbs, where many of its members reside. The church found a suitable property at 8100 South Parkside Avenue in Burbank, Illinois, the site of a former restaurant called The Old Barn, which is now in bankruptcy. On August 12, 2010, the church entered into a real estate contract with the trustee in bankruptcy to purchase the property for $900,000. The church paid $50,000 in earnest money, as required by the cоntract, $10,000 of which became nonrefundable on November 29, 2010. The contract contained a zoning contingency, which provided as follows:
“Buyer shall have one hundred twenty (120) days from the Contract Date to determine the zoning classification for the premises and, if necessary, to obtain a zoning change to allow the premises to be used as a church.
Buyer shall have the right to extend the Governmental Approval Period two (2) times for periods of thirty (30) days each upon written notice to Seller from Buyer given within sаid Governmental Approval Period (as the same may have been previously extended) accompanied by the deposit with escrowee of the sum of Fifteen Thousand and No/100 Dollars ($15,000) of additional earnest money for each such extension. Fifty percent (50%) of each additional earnest money deposit shall become nonrefundable upon deposit; however one hundred percent (100%) of each additional earnest money deposit shall be applied to the Purchase Price at closing.
If Buyer for any reason is not satisfied with the zoning, Buyer may, upon written notice given to seller within the Governmental Approval Period (as the same may have been previously extended), terminate this Contract and receive back the earnest money (except non-refundable portions as provided herein).” 1
The church has obtained a commitment for a $600,000 mortgage loan, which also can be withdrawn if the church cannot obtain proper zoning.
At the time the church signed the contract, the prоperty in question was zoned “C” commercial district under the City of Burbank’s zoning ordinance. The zoning ordinance included 114 permitted uses in the C district, many of which were business
On Octоber 7, 2010, the church submitted an application for a special use permit to the city along with a letter stating that it had a legal right pursuant to the equal protection clause of the Illinois Constitution (Ill. Const. 1970, art. I, §2) and the Illinois Religious Freedom Restoration Act (the Act) (775 ILCS 35/15 (West 2008)) to locate a church on the property.
On November 18, 2010, the city published a notice of public hearing regarding a proposed amendment to its zoning ordinance, which would limit permitted and special uses in the C commercial district “to cоmmercial retail stores, service establishments, and professional offices that generate tax revenues, maintain the City’s tax base and allow for convenient locations for the public to shop, obtain services and conduct businesses.” The notice stated that “all tax exempt uses, residential uses and uses otherwise permitted or allowed as special use in a residential zoning classification are proposed to be prohibited.” The proposed amended ordinance, however, would permit noncommercial assembly uses, including churches, in residential zoning districts.
On December 7, 2010, the city’s zoning, planning and development commission heard the church’s special use permit application. Following the public hearing, the commission recommended against granting a special use permit to the church because of the “lack of tax revenue” the proposed use would generate.
On December 13, 2010, plaintiff filed a seven-count declaratory judgment action in the circuit court оf Cook County alleging, inter alia, that in denying its special use permit application, the city violated (1) the equal protection clause and the church’s right to free exercise of religion under the Illinois Constitution; (2) section 15 of the Act (775 ILCS 35/15 (West 2008)), (3) the church’s vested right to use the property as a church, and (4) section 5(a)(2) of the Illinois Civil Rights Act of 2003 (740 ILCS 23/5(a)(2) (West 2008)). The next day, December 14, 2010, the church filed an emergency motion for a temporary restraining order/preliminary injunction asking that the trial court (1) declare that the church has a legal right to use the property as a church notwithstanding the zoning ordinance; (2) grant an injunction against the city and its agents from enforcing its zoning code and from preventing plaintiff from using the property as a church; and (3) requiring the city to immediately permit the church to use the property as a church. The trial court held a hearing on that same day and denied the plaintiff’s motion.
On December 15, 2010, the city adopted Ordinance No. 35—12—10, “An Ordinance Providing for a Comprehensive Amendment to the Burbank Zoning Code for the City of Burbank, Cook County, Illinois,” which prohibits any noncommercial use from locating in the C district. Burbank Ordinance No. 35—2—10 (2010). On December 29, 2010, the plaintiff filed a notice
II. ANALYSIS
To establish entitlement to preliminary injunctive relief, a plaintiff must show (1) a clearly ascertainable right in need of protection, (2) that he will suffer irreparable harm without protection of that right, (3) that there is no adequate remedy at law, and (4) that there is a substantial likelihood of success on the merits of the underlying action. Caro ex rel. State v. Blagojevich,
The primary issue raised in this appeal is whether the church has a substantial likelihood of success on the merits of its underlying action. The parties agree that under the city’s recently amended zoning ordinance, a church is not a permissible use on the property in question. Plaintiff argues, however, that it has a vested right to use the property in accordance with the provisions of the preamended zoning ordinance, which permitted churches as a special use in a C commercial district. Defendant argues that plaintiff does not have a vested right in the preamended zoning statute and that since a church is not a permitted use in a C district, the trial court did not err in denying plaintiffs motion for a preliminary injunction.
The general rule is that a landowner has no right to continuation of an existing zoning classification. 1350 Lake Shore Associates v. Healey,
“ ‘[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 probаbility of its issuance, such party has a vested property right and he may complete the construction and use of the premises for the purposes originally authorized, irrespective of subsequent zoning or a change in zoning classification.’ ” Healey,223 Ill. 2d at 615 (quoting People ex rel. Skokie Town House Builders, Inc. v. Village of Morton Grove,16 Ill. 2d 183 , 191 (1959)).
Therefore, in order for a landowner to invoke the vested-rights rule, “ ‘he must show (1) that there was a ‘probability’ that [municipal approval] would issue and (2) that a substantial change in positiоn was incurred based upon this probability.’ ” Bank of Waukegan v. Village of Vernon Hills,
Plaintiff argues, however, that it has satisfied the “probability of the issuance of a building permit” requirement of the vested-rights doctrine because the preamendment ordinance, which permitted churches only as a special use while allowing other fоrms of nonreligious assembly, including business, labor and political associations as a permitted use, violated Illinois law and, therefore, was not enforceable. In particular, plaintiff contends that the equal protection clause of the Illinois Constitution (Ill. Const. 1970, art. I, §2) prohibits the city from treating a church differently from other assembly uses absent a compelling government interest and that the city’s preamended ordinance violated section 15 of the Act (775 ILCS 35/15 (West 2008)), which prohibits the government from substantially burdening a person’s exercise of religion, absent a showing that the burden furthers a compelling governmental interest and is the least restrictive means of furthering that interest. In effect, plaintiff argues that it believed that the city’s preamendment zoning ordinance violated Illinois law and could be successfully challenged, and therefore, there was a probability that a building permit would be issued.
An analogous argument was raised in City of Elgin v. All Nations Worship Center,
In the interim, the city amended its zoning ordinance to provide that churches could be permitted as a conditional use in RB residence business districts, NB neighborhood business districts, and AB аrea business districts. Similar nonreligious uses would also have to apply for a conditional use permit in those districts. The city then moved to dismiss All Nations’ counterclaims arguing that any defects in the zoning ordinance were cured by the amendment. The trial court agreed and dismissed the counterclaims. On appeal, All Nations did not dispute that the amendment cured perceived problems with the zoning ordinance but argued that the trial court erred in dismissing its counterclaims, because prior to the amendment it acquired a vestеd right to continue to operate without obtaining a conditional use permit. All Nations contended that because the zoning ordinance was unconstitutional before the amendment, it should be treated as though it never existed and All Nations should be permitted to use the property any way it wished. All Nations,
The Second District Appellate Court found a “fatal flaw” in All Nations’ arguments in part because “vested rights are acquired by attempting to comply with an ordinance as written.” All Nations,
Similarly, in this case, the plaintiff knew when it entered into the contract with the bankruptcy trustee that the property was zoned C commercial district and that churches were only allowable as a special use and not as a permitted use in that district. Plaintiff decided to assumе the ordinance was invalid and proceeded, at its own risk, to enter into a contract and expend funds to purchase the property for use as a church. If plaintiff had done so in compliance with the ordinance, it might be able to claim a vested right in the old ordinance, but as the court held in All Nations, a party does not have a vested right to assume that the ordinance was invalid and proceed in violation of it.
Plaintiff contends that the holding in All Nations was repudiated by our supreme court in an opinion issued one day later in 1350 Lake Shore Associates v. Healey,
We disagree with plaintiffs assertion that Healey repudiates All Nations. In Healey, an apartment building was a permitted use at the time the plaintiff sought to develop the property, and the supreme court rejected the trial court’s finding that once a landowner learns that the zoning ordinance might be changed, he can no longer rely in good faith on the probability that a zoning certificate will be issued. Conversely, in this case, a сhurch was not a permitted use under the statute, so at no time could the plaintiff rely in good faith on the probability that the city would approve such use.
We also note that in Petra Presbyterian Church v. Village of North-brook,
Meanwhile, due to concerns that its zoning ordinance violated the RLUIPA, the village amended its zoning ordinance to ban all membership organizations, not just churches, from the industrialized zone. Shortly thеreafter, the village sought and was granted a preliminary injunction against the church in state court on the grounds that the church was violating the village’s building code. The church then filed suit in federal court, arguing that by prohibiting it from operating a church on the property, the village violated the RLUIPA. Petra,
The court noted that Petra alternatively argued for a federal vested-rights doctrine, asserting that “when it bought the property it was reasonably relying on the invalidity of the 1988 ordinance, which arbitrarily treated religious membership organizations worse than other membership organizations, thus violating not only RLUIPA but also the free-exercise clause of the First Amendment.” Petra,
“We cannot find any basis, whether in cases or other conventional sources of law, or in good sense, for the proposition that the federal Constitution forbids a state that has prevented a use of property by means of an invalid (even an unconstitutional) enactment to cоntinue to prevent that use by means of a valid one. ***
*** If the 1988 ordinance violated RLUIPA, as Northbrook comes close to conceding, Petra didn’t have to comply with it. But that doesn’t mean that it acquired an immunity from all zoning regulation. It knew or should have known that Northbrook could redo its ordinance to comply with the ‘less than equal terms’ provision of RLUIPA in one of two ways: by permitting religious organizations in the industrial zone, or by forbidding all membership organizations in the zone. Petra could not reasonably assume that the Village would choose the first option. And since it therefore did not reasonably rely on the illegality of the 1988 ordinance in going ahead and buying the property, but instead assumed the palpable risk that a new, valid ordinance would continue the ban on its desired use of the property, it has no ground for blocking the Village from enforcing the amended ordinance against it, on the theory that the Village pulled the rug out from under it by changing the ordinance.” (Emphasis in original.) Petra,
In this case, as in Petra, the church could not reasonably rеly on the illegality of the preamendment zoning ordinance when entering into a contract and expending money in an effort to purchase the property. Nor could it assume that if the city amended its ordinance, it would decide to permit a church on the property rather than prohibit all noncommercial uses, as it did. It is true, as plaintiff asserts, that Petra does not directly address Illinois’s vested-rights law because as the court stated, the federal district court relinquished jurisdiction over that issue. However, the reаsoning in that case is persuasive and supports our finding that in this case the church could not claim a vested right in the city’s preamended zoning ordinance.
We also note that, as in Petra, in this case the church’s contract to purchase the property was made contingent upon the church obtaining proper zoning. Although this is not definitive on the probability issue, it belies the church’s argument that it believed that there was a probability that the city would issue a special use permit and is further evidence that the churсh at least thought there was a likelihood that it would not be allowed to use the property as a church.
Lastly, we address plaintiff’s argument that it is entitled to use the property as a church because the city’s new zoning ordinance, enacted on December 15, 2010, violates the congregations’ rights under
Because plaintiff failed to establish that there was a “probability” that the city would approve its request to use the property as a church, it did not have a vested right to do so, and the trial court did not err in denying its motion for a preliminary injunction. We note that the real estate contract signed by the plaintiff permits it to terminate the contract if it is not satisfied with the zoning and receive back its earnest money less the nonreiundable portions. Although it is true, as the church asserts, thаt it will have forfeited a fair amount in earnest money, as well as legal fees and other expenses, that is a risk that it undertook when it entered into a contract to purchase property that was not zoned for use as a church.
III. CONCLUSION
For the foregoing reasons, we affirm the circuit court.
Affirmed.
Notes
The trustee in bankruptcy and the church agreed to change the contract date from August 12, 2010, to September 30, 2010. Therefore, the church had until January 28, 2011, to obtain zoning approval from the city and the two 30-day government approval periods expire on February 27, 2011, and March 29, 2011.