Agenda - Planning Commission - 04/01/2010

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February 25, 2010 I Volume 4 I No. 4 Zoning Bulletin Validity of Zoning Regulation —City ordinance allows churches that meet certain requirements to avoid special use permit application process Church contends one such requirement violates the first amendment right to free exercise of religion Citation: Our Savior Evangelical Lutheran Church v. Saville, 2009 WL 5196591 (Ill. App. Ct. 2d Dist. 2009) ILLINOIS (12/31/09)—This case addressed whether a city ordinance, which placed requirements on churches in order for them to be eligible for exemption from needing a special use permit, violated the First Amendment. The Background/Facts: Our Savior Evangelical Lutheran Church (the "Church") sought to construct: an addition to the Church's sanctuary; a covered drop-off entrance; a driveway; and a new parking lot. In fur- therance of that plan, the church submitted to the city's planning com- mission two applications: (1) a site plan review application, pursuant to § 5.14-2(h)(1) of the city's zoning ordinance (the "Ordinance"); and (2) a special use permit application. Under the Ordinance, churches were: permitted as a special use in all zoning districts; and listed as one of several enumerated special uses permitted in specified zoning districts. Under § 5.14-2(h)(1) of the Ordi- nance, churches that met certain listed requirements related to setbacks, green space, lighting, and parking could avoid having to seek a special use permit. One of those listed requirements, specified under § 5.14- 2(e), provided that churches must "abut an arterial or major collector street ...." Churches meeting those requirements could proceed under "the less onerous and less discretionary site plan review process." Thus, here, the Church sought to use the site plan review process, but filed the special use permit application in case it was not permitted to use the site plan review process. Eventually, the city's Zoning Board of Appeals and the city council (collectively, the "City") denied the Church's applications. The Church filed suit, appealing that decision. In that action, among other things, the Church challenged the validity of § 5.14-2(e). The Church contended that § 5.14-2(e) violated "church members' first amendment rights to the free exercise of religion, by discriminating on its face against churches and also as applied to the Church in this case." More specifically, the Church argued that § 5.14-2(e)'s require- ment that churches abut major or arterial streets discriminated on its face against churches, "imposing a substantial burden on churches that is not imposed on any other, nonreligious use." Also, the Church ar- gued that § 5.14-2(e) was applied in a manner that discriminated against the Church. Since the City did not believe that the Church's expansion plans would create any traffic problems, the Church argued that the City 8 ® 2010 Thomson Reuters 68