Case Information
*1 Before C UDAHY , R IPPLE and W OOD , Circuit Judges . R IPPLE , 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 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 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 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 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 6
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”).
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. 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.
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. 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). 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.
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- *10 10
dation on July 9, 2002.
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 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,” 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 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 14
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.
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.
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.
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
,
In
Schad
,
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
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
,
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]
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
,
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.
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,
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 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. 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,
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
“must ensure that the government’s characterization is
sincere.”
Mercier v. Fraternal Order of Eagles
,
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- 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 28
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
,
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 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
,
We now turn to Lemon ’s third factor, whether the munici- pality has entangled itself excessively with religion. Vision *30 30
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”).
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
,
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
,
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
,
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 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).
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,
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 37 of the Assembly Ordinance.
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 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.
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. 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 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
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,
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
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
.,
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
,
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
,
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
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
,
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
,
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 47 Vision’s application for a special use permit in May 2002, 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 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 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 2002 [26] 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.
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
,
[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 originally authorized, irrespective of subsequent zoning or a change in zoning classifications.
Pioneer Trust & Savings Bank v. Cook County
,
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
.,
Conclusion
For the reasons set forth in the foregoing opinion, we affirm the judgment of the district court.
A FFIRMED A true Copy:
Teste:
_____________________________ Clerk of the United States Court of Appeals for the Seventh Circuit USCA-02-C-0072—11-7-06
Notes
[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).
[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).
[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] 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] See Board Meeting Minutes, R.99, Ex.14 at 4 (describing the project as a “high-density proposal in a low-density commu- nity”).
[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...)
[11] (...continued) Assembly Ordinance was enacted,” they were not subject to the same size restrictions as Vision. R.157 at 20.
[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
,
[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)).
[13] This provision is made applicable to the states and its politi- cal subdivisions, including municipalities, through the Four- teenth Amendment.
[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.
[15] See also discussion infra at 42 (discussing whether, in the context of RLUIPA § 2(a)(1), these limitations are reasonable).
[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
,
[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
,
[17] Regardless, Vision’s arguments on both legal theories are the same. See Appellant’s Br. at 21-29.
[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
,
[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).
[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.
[21] See also discussion supra at 33-34.
[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.
[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.
[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).
[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.
[27]
Cf. Dausch v. Rykse,