Agenda - Planning Commission - 04/01/2010

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Zoning Bulletin February 25, 2010 I Volume 4 I No. 4 should have permitted the Church to use the site plan review process de- spite the fact that is was not located on a major or arterial street. The Circuit Court found in favor of the City. The Church appealed. The Court's Decision: Judgment of Circuit Court affirmed as to validity of Ordinance. The Appellate Court of Illinois, Second District, held that § 5.14-2(e) of the Ordinance did not violate church members' First Amendment rights. The court explained: The free exercise clause of the First Amendment to the United States Constitution, made applicable to state and local gov- ernments by the 14th Amendment, provides that no law may prohibit the free exercise of religion. An ordinance that places a burden on reli- gious exercise does not violate the First Amendment's free exercise clause if: (1) the ordinance is "neutral, generally applicable, and otherwise val- id" and the burden is an "incidental effect" of the ordinance; or (2) the ordinance is "hostile to the free exercise of religious beliefs," but is "jus- tified by a compelling governmental interest" and is "narrowly tailored to that interest." Here, the court found that the Ordinance "as a whole [was] facially neu- tral." As it did with other nonreligious uses, it permitted churches as special uses in all zoning classifications. "The mere inclusion of churches within a group of similar uses that must seek special use permits [was] not suffi- cient to show facial discrimination against religious uses." Furthermore, the court said that § 5.14-2(e) had to be viewed within the context of § 5.14 as a whole. Likewise, the overall effect of § 5.14 was to "grant churches a benefit, the opportunity to bypass the special use application process that other, non -religious land uses must go through." This did "not demonstrate any hostility to religion." Accordingly, the court concluded that § 5.14-2(e) did not discriminate on its face against churches. The court also found no evidence that the city applied the provisions § 5.14 in a manner that discriminated against the Church. Section 5.14 allowed churches to use the site plan review process only if they met all specified requirements, including that of § 5.14-2(e). Section 5.14 did not grant the city the power to waive any of those requirements. "The de- termination that noncomplying churches should submit to the special use process rather than seek waivers on a case -by -case basis is not irrational." See also: Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 113 S. Ct. 2217, 124 L. Ed. 2d 472 (1993). See also: Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752 (7th Cir. 2003). Case Note: The Church also contended that § 5.14-2(e) violated the Illinois Religious Freedom Restoration Act (the "-IRFRA") (775 ILCS 35/1 et seq.). The court disagreed, finding that under the plain Ian- ® 2010 Thomson Reuters 9 69