RLUIPA Defense: Illinois Appellate Court Interprets Equal Terms "Comparator" Favorably for Local Government
Although the ruling is unpublished, it is still an important one for Illinois municipalities. On March 6, 2015, the Illinois Appellate Court decided Joan Dachs Bais Yaakov Elementary School (“JDBY”) v. City of Evanston.
The case involved a proposed Jewish elementary school on property zoned for industrial use in the City of Evanston. After the City denied its application to rezone the subject property, JDBY alleged the City treated it on less than equal terms with four others uses that had obtained rezoning approval from the City (townhomes, work-live condos, a gas station, and a shopping center). The court, however, rejected JDBY's argument that these uses were valid comparators because unlike the proposed school, these other uses would pay property taxes.
By its very nature, an as-applied equal terms claim requires that a religious use be compared with a secular use. In most municipalities, religious uses are exempt from real property taxes while most secular uses are not. As a result, this court's property tax distinction provides local governments with a new defense against some RLUIPA claims.
JDBY also argued that the following email from the City’s zoning administrator to an alderwoman regarding the proposed Jewish school was evidence of discriminatory intent:
Even though I am unconvinced by this rather un-kosher logic, the zoning ordinance makes it clear that it is the Council that determines a unique use, on recommendation from the Plan Commission. As Zoning Administrator, I am limited to reviewing the application for completeness and assessing if the applicant has standing. I have been advised by the Law Department to accept a complete application (still waiting for this), and schedule it for a public hearing. We will, of course, submit a Staff report regarding the merits of the application versus the requirements and standards of the Zoning [Ordinance] (parting the Red Sea would be easier, I would say right now), but it looks like it will be up to you and your colleagues to make the determination. (emphasis added).
While the court found the zoning administrator’s comments offensive and inappropriate, it did not find them determinative because other agency members were ultimately responsible for deciding the rezoning application, and each testified that they were not influenced by the email.
Finally, the court rejected JDBY’s claim that a church that had been granted a special permit was a valid comparator, distinguishing special use permits from rezoning as too dissimilar.