The Word Seed Church v. Village of Hazel Crest

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

WORD SEED CHURCH, et al.,

Plaintiffs, Case No. 20 C 7725

v. Judge Harry D. Leinenweber

VILLAGE OF HAZEL CREST,

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiffs the Word Seed Church and Civil Liberties for Urban

Believers motion for a preliminary injunction and a declaratory

judgment, pursuant to FED. R. CIV. P. 57 and 65 (Dkt. No. 4) is

denied.

I. BACKGROUND

Plaintiffs the Word Seed Church and Civil Liberties for Urban

Believers filed this motion seeking a preliminary injunction

pursuant to Rule 65 and a declaratory judgement pursuant to

Rule 57. Plaintiffs allege that the Zoning Ordinance governing

land use in the Village of Hazel Crest (the “Village” or “Hazel

Crest”) unreasonably limits their First Amendment Free Exercise

rights, as protected under the Religious Land Use and

Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc, et.

seq., and the Fourteenth Amendment’s Equal Protection Clause and

is causing them serious, irreparable harm. The facts necessary to

resolve Plaintiffs’ motion are set forth below.

A. The Parties

1. The Word Seed Church

The Word Seed Church is a seven-member congregation in the

south suburbs of Chicago. (Compl. ¶ 7, 13, Dkt. No. 1.) From its

founding in 2000, until 2012, Word Seed met and worshipped at the

home of its former Pastor, Katherine Brownlee. (Id. ¶ 15.) In 2012,

Word Seed purchased property in south suburban Markham, Illinois,

but was forced to sell that property in 2017 as a result of business

redevelopment in the City of Markham. (Id. ¶ 17.) Following the

sale of the Markham property, Word Seed resumed meeting and

worshipping in Pastor Brownlee’s home, and in 2018 moved its

congregation to the home of its current pastor, Keinon Washington.

(Id. ¶¶ 18–19.) Word Seed has renewed its search for a permanent

facility and intends to buy property in Hazel Crest or one of the

surrounding south suburbs of Chicago, Illinois. (Compl. ¶ 27.)

2. Civil Liberties for Urban Believers

The Civil Liberties for Urban Believers (“CLUB”) is an

“unincorporated association of churches.” (Compl. ¶ 7.) CLUB

“exists to promote the religious liberty of urban churches and

believers.” (Id.) Word Seed is a member of CLUB. (Id.)

B. Village of Hazel Crest’s Zoning

Regulations and Procedures

1. Overview of the Zoning Ordinance

Hazel Crest adopted the current version of its Zoning

Ordinance on January 29, 1997. (Zoning Ordinance at 1, Sawyer

Decl., Ex. 1, Dkt. No. 18-1.) The Zoning Ordinance lists a variety

of purposes including to “promote and to protect the public health,

safety, morals, comfort, convenience, and the general welfare of

the people” of Hazel Crest and to “protect residential, business,

and manufacturing areas alike from harmful encroachment by

incompatible uses and to insure no land shall be usurped by

inappropriate uses.” (Id.) To achieve these objectives, Hazel

Crest’s Zoning Ordinance divides the Village into the following

districts:

•

4 residential districts (R-0, R-1, R-2, R-3);

•

1 “Special Planned Development” district (SPD);

•

1 office, research and compatible use district

(M-OR);

•

2 business districts (B-1, B-2); and

•

1 limited manufacturing (M-1)

(Id. at 15–29; Zoning Map, Compl., Ex. B, Dkt. No. 15-3.) For each

district, the Zoning Ordinance sets out certain specifications

such as, minimum lot area (see, e.g., Zoning Ordinance § 7.3 (c)),

building height (see, e.g., id. § 7.3(f)), and the size of a

building’s front, side, and rear yards. (See, e.g., id. §§ 7.3(h)–

(j).)

In addition to the land and building size requirements, the

Zoning Ordinance also sets out permitted and special uses within

each district. The Zoning Ordinance defines a “permitted use” as

a purpose or activity “which may be lawfully established in a

particular district or districts, provided it conforms with all

requirements, regulations and performance standards (if any) of

such district.” (Id. at 9.) A “special use” is a purpose or

activity “which because of its unique characteristics cannot be

properly classified as a permitted use in any particular district

or districts.” (Id.) Authorization to engage in a special use “may

or may not be granted” after Hazel Crest has considered “the impact

of such use upon neighboring land” and “the public need for the

particular use at the particular location.” (Id.) Finally, based

upon an occupant’s use of the property, the Zoning Ordinance

prescribes additional requirements for the building or property.

Article XIII also sets out regulations for off-street parking,

including the location of such parking, the size of each parking

space, and the number of spots needed for particular building uses.

(Id. § 12.2.)

2. The “Special Use” Approval Process

Occupants wishing to operate an enumerated special use in one

of Hazel Crest’s districts must obtain a special use permit.

Permits are issued only after land users submit a special use

application to the Village’s Zoning Administrator. (Id.

§ 13.8(D).) The special use application is reviewed by the

Village’s 9-person Planning and Zoning Commission (the “Zoning

Commission”). (Id. §§ 13.3(A), 13.8(E).) The Zoning Commission

then prepares a written report outlining their findings, which

must address the following:

(1) That the establishment, maintenance, or

operation of the special use will not be detrimental

to or endanger the public health, safety, morals,

comfort or general welfare.

(2) That the special use will not be injurious to

the use and enjoyment of other property in the

immediate vicinity for the purposes already

permitted, nor substantially diminish and impair

property values within the neighborhood.

(3) That the establishment of the special use will

not impede the normal and orderly development and

improvement of surrounding property for uses

permitted in the district.

(4) That adequate utilities, access roads,

drainage and/or other necessary utilities have been

or are being provided.

(5) That adequate measures have been or will be

taken to provide ingress and egress so designed as

to minimize traffic congestion in the public

streets.

(6) That the special use shall in all other

respects conform to the applicable regulations of

the district in which it is located, except as such

regulations may in each instance be modified by the

village board pursuant to the recommendations of the

planning and zoning commission.

(7) Each adult use shall be a minimum of one

thousand (1,000) feet from the property line of

another adult use.

(8) Each adult use shall be a minimum of one

thousand (1,000) feet from any previously existing

church, school, library, park or other publicly

operated recreational facility.

(9) All distances specified shall be measured by

following a straight line, without regard to

intervening structures, from the nearest point on

the property line or zoning district boundary line

from which the proposed use is to be separated to

the nearest point of the property on which the

proposed use is to be located.

(10) No alcoholic beverages shall be sold, served

or consumed within the premises of an adult use.

(Id. §§ 13.3(B), 13.8(E).) The Zoning Commission’s written

recommendation is submitted to the Village Board of Trustees (Id.

§ 13.3(B).) Following a public hearing, the Village Board of

Trustees will authorize or deny the proposed special use. (Id.)

3. Churches

Hazel Crest’s Zoning Ordinance expressly prohibits church

services in all business districts. (Id. at 19.) Churches are not

listed as a permissible or special use in the residential district

R-0, the “Special Planned Development” district, the office,

research and compatible use district, or the limited manufacturing

district. (Id.at 15, 22–29.)

Churches are permitted as a special use in residential

districts R-1, R-2, and R-3. (Id. 15–19.) As a special use,

Churches operating in R-1, R-2, and R-3 must maintain a floor area

ratio—the ratio of the building’s area to the total area of the

land—of no more than .6. (Id. §§ 7.3(E), 7.4(E), 7.5(E).) In

districts R-1 and R-2, all special use buildings more than 35 feet

tall must increase the size of their front, side, and back yards

by two (2) feet, for every one (1) foot over 35 feet. (Id.

§§ 7.3(k), 7.4(k).) No such change in yard size is required in

district R-3. (Id. § 7.5.) Finally, churches must provide one (1)

off-street parking space for every seven (7) seats in its building.

(Id. § 12.2(J)(10).)

4. The 2008 Amendment

Hazel Crest has provided a copy of Ordinance 07-2008, entitled

“An Ordinance Amending the Hazel Crest Zoning Ordinance by Amending

the Permitted and Special Uses in the B-2 Zoning District.” (2008

Zoning Amend. at 4–5, Sawyer Decl., Ex. 1-A, Dkt. No. 18-2.) The

2008 Amendment removes a number of permitted and special uses from

the business districts, including art galleries, funeral parlors,

meeting halls, daycare centers, libraries, recreational buildings

and community centers. (Compare Zoning Ordinance at 20–22 with

2008 Zoning Amend. at 3–4.)

According to the Village, this amendment “was never

codified.” (Supp. Resp. at 3, Dkt. No. 17.) The 2008 Amendment is,

however, part of the record in River of Life Kingdom Ministries v.

Vill. of Hazel Crest, Ill., 2008 WL 4865568, at *2–*3 (N.D. Ill.

2008). In River of Life, the district court concluded that the

2008 Amendment was “entitled to a presumption of validity” because

Hazel Crest made a “prima facie showing” that the Village complied

with the legal requirements for amending the Zoning Ordinance. Id.

at *3. The district court, and later the Seventh Circuit on appeal,

considered the 2008 Amendment when ruling on the River of Life

Kingdom Ministries’ motion for a preliminary injunction. See River

of Life Kingdom Ministries v. Vill. of Hazel Crest, Ill., 585 F.3d

364, 369 (7th Cir. 2009) (“River of Life I”) reh'g en banc sub

nom. River of Life Kingdom Ministries v. Vill. of Hazel Crest,

Ill., 611 F.3d 367, 373–74 (7th Cir. 2010) (en banc) (“River of

Life II”).

5. Deposition of Elliot Eldridge

On February 19, 2021 and February 24, 2021 Plaintiffs deposed

Elliot Eldridge, the Building and Zoning Administrator for the

Village of Hazel Crest. Mr. Eldridge’s testimony was taken in

response to questions posed by the Court after review of the

parties’ briefing on this motion for a preliminary injunction.

(See 2/10/21 Minute Entry, Dkt. No. 23.).

Mr. Eldridge testified that the purpose of Hazel Crest’s

Zoning Ordinance is to ensure that land use does not adversely

impact “the citizens or the properties around it.” (2/19/21 Tr. at

6, Dkt. No. 26.) Mr. Eldridge explained that the Village’s

secretary is responsible for codifying changes to the Zoning

Ordinance. (Id. at 51.) He could not explain, however, the reason

that the 2008 Amendment had not been codified. (Id.)

Mr. Eldridge also testified regarding the special use permit

application process. Mr. Eldridge stated that there is a $400

application fee but could not testify as to the expenses that may

be incurred by an applicant to prepare their application. (Id. at

15–17.) Once submitted, a special use permit application is

circulated to the Zoning Commission for their review, after which

a public hearing is scheduled. (Id. at 15–16.) Prior to the public

meeting, applicants are required to provide notice of their special

use permit application to all residents within 250 feet of the at-

issue property. (Id. at 14–15.)

At the public hearing before the Zoning Commission, the

special use applicant presents their proposed land use and may

receive questions from the Zoning Commission. (Id. at 17.) The

hearing is also open to the public, who may voice their opinions

on the proposal. (Id. at 20.) If the Zoning Commission has follow-

up requests the applicant will need to return for a follow-up

hearing. (Id. at 18.) After evaluating the proposed special use,

the Zoning Commission makes a recommendation to the Board of

Trustees on whether to approve the application. (Id. 17–18)

Applicants must then appear before the Village Board of Trustees,

who will vote to approve or deny the special use permit

application. (Id. at 17-18.)

The Zoning Commission meets monthly and the Village Board of

Trustees meets twice per month, providing regular opportunities

for applicants to present their materials and move the process

forward. (Id. at 18–19.) According to Mr. Eldridge, the total time

needed to secure approval for a special use permit depends on the

completeness of the information submitted to the Zoning

Commission. (Id.) During Mr. Eldridge’s five-year tenure, four

special use permit applications have come before the Zoning

Commission. (Id. at 32.) During this time, only one special use,

a sign, was approved and moved forward. (Id. at 34.) The approval

process for the sign took “a couple [of] months.” (Id.) The other

special uses considered by the Zoning Commission included an

application for a strip mall which was not recommended to the

Village Board after two Zoning Commission meetings. (Id. at 33,

79) and an application related to a daycare facility which was

withdrawn following just one Zoning Commission meeting. (Id. at

33–34, 77–78.) Finally, Mr. Eldridge explained that a special use

permit application for a cell tower was pending for approximately

six months because many citizens attended the public hearings and

the Zoning Commission had significant follow-up questions. (Id.

33, 78–79.) Mr. Eldridge stated that the special use permit for

the cell tower was initially approved, but the applicant made some

subsequent procedural errors that required resubmission, and that

resubmitted application was not approved. (Id. at 78.)

Mr. Eldridge also explained that the Village allows land users

to propose amendments to the Zoning Ordinance. (Id. at 131–32.) A

“text amendment” revises the Zoning Ordinance, to permit a

particular use or activity. (Id.) At a hearing on March 16, 2021,

counsel for Hazel Crest also identified a “MAP amendment” which

rezones a specific piece of property to permit a particular use or

activity. (3/16/21 Tr. at 11.) According to Mr. Eldridge, the

amendment process is similar to a special use permit application.

An amendment is first proposed to the Zoning Commission. (2/19/21

Tr. at 131–32.) The Zoning Commission will review and make a

recommendation to the Village Board of Trustees. (Id.) During the

March 16, 2021 hearing, counsel for Hazel Crest further explained

that in his experience zoning amendments are commonplace in most

communities, however Hazel Crest is “something of a dormant

community because there is not much development activity one way

or another.” (3/16/21 Tr. at 11–12.)

During his deposition, Mr. Eldridge identified 15 churches

currently operating in Hazel Crest. (Id. at 51.) Fourteen of the

fifteen churches are located in Hazel Crest’s residential

districts. (Id. at 101–19). The final church, Valley Kingdom

Ministries, is located in an industrial park. (Id. at 101.) The

churches operating in Hazel Crest do so in a variety of facilities,

from large venues, to small constructed structures, to converted

homes, and a condominium. (Hazel Crest Church Photos, 2/19/21 Dep.

Tr., Def. Ex. 3, Dkt. No. 26-2.) Mr. Eldridge also explained that

Hazel Crest operates a Clergy Committee which is comprised of

churches in the Village that make recommendations to the Village

Board for advancing spiritual morale in the community. (2/19/21

Tr. at 119–20.)

Mr. Eldridge testified that under the Zoning Ordinance all

property zoned as R-1, R-2, and R-3 is eligible for a special use

permit to operate a church. (Id. at 102–03.) He further explained

that he understood there to be dozens of vacant lots in the R-1,

R-2, and R-3 districts. (Id.) Mr. Eldridge also reviewed a map of

available residential properties, for which Word Seed could apply

for a special use permit. (Id. at 41–44.) Mr. Eldridge later

identified two churches, Bethel Apostolic Church and Greater Faith

Pentecostal Church, that may no longer be active and whose

buildings could be of use to Word Seed. (Id. at 104, 108–09.) Mr.

Eldridge further stated that potential land users wishing to locate

in Hazel Crest can meet with the Village manager to “discuss their

location and what they want[] to do.” (Id. at 87.)

Finally, Mr. Eldridge explained that he understood Word Seed

had reached out to Hazel Crest regarding the property located at

1822 W. 170th St. (Id. at 170.) The building was previously used

as a post office and then was remodeled to be used as a daycare

facility, using Tax Increment Financing (TIF) funds, meaning

public funds were invested into the renovations in an effort to

assist with Hazel Crest’s revitalization efforts. (Id. at 133–34.)

Because Hazel Crest invested public funds in the property to drive

commerce, the Village advised that it would not consider allowing

a church to operate at that location. (Id. at 134.) According to

Mr. Eldridge, there has been no additional contact between Word

Seed and Hazel Crest. (Id.)

II. LEGAL STANDARD

Rule 65 governs the entry of a preliminary injunction. FED.

R. CIV. P. 65. A preliminary injunction is an “extraordinary and

drastic remedy” that is available only when “the movant, by a clear

showing, carries the burden of persuasion.” Goodman v. Ill. Dep't

of Fin. & Prof'l Reg., 430 F.3d 432, 437 (7th Cir. 2005) (quoting

Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)) (emphasis in

original). A party seeking a preliminary injunction must establish

four elements: (1) a likelihood of success on the merits; (2) the

movant will suffer irreparable harm in the absence of preliminary

relief; (3) the balance of equities tips in the movant’s favor;

and (4) an injunction is in the public interest. Ill. Republican

Party v. Pritzker, 973 F.3d 760, 762 (7th Cir. 2020) (quoting

Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008)). To

establish a likelihood of success on the merits the movant “need

not show that it definitely will win the case,” but the “mere

possibility of success is not enough.” Id. at 762–63. The Court

reviews the record before it, including “memoranda, depositions,

affidavits, exhibits and testimony of witnesses submitted by the

parties in support of their respective positions” to determine

whether the movant met their burden. Thomas Nelson Inc. v. Henry

Regnery Co., 375 F.Supp. 335, 339 (N.D. Ill. 1974).

If Plaintiffs establish a likelihood of success on the merits,

the Court will weigh the remaining factors. Factors 2, 3, and 4

“are interdependent: the greater the likelihood of success on the

merits, the less net harm the injunction must prevent in order for

preliminary relief to be warranted.” Judge v. Quinn, 612 F.3d 537,

546 (7th Cir.2010). Consequently, these factors are not weighed in

isolation. Instead, the Court applies a “sliding scale” approach

under which “the more likely the plaintiff will succeed on the

merits, the less the balance of irreparable harms need favor

plaintiff's position.” Turnell v. Centimark Corp., 796 F.3d 656,

662 (7th Cir. 2015). This analysis “is not mathematical in nature,

rather it is more properly characterized as subjective and

intuitive, one which permits district courts to weigh the competing

considerations and mold appropriate relief.” Ty, Inc. v. Jones

Group, Inc., 237 F.3d 891, 895–96 (7th Cir. 2001) (internal

quotation marks and citations omitted).

Rule 57 governs declaratory judgments. FED. R. CIV. P. 57. The

Declaratory Judgment Act, 28 U.S.C. § 2201 et seq., further gives

the Court discretion to “declare the rights and other legal

relations of any interested parties seeking such a declaration.”

28 U.S.C. § 2201. The Court has broad discretion to hear a

declaratory judgment action and should do so where the resolution

will “clarify[] and settl[e] the legal relations at issue and . . .

terminate and afford relief from the uncertainty, insecurity, and

controversy giving rise to the proceeding.” Tempco Elec. Heater

Corp. v. Omega Eng'g, Inc., 819 F.2d 746, 749 (7th Cir. 1987)

(internal quotation marks omitted).

III. DISCUSSION

Plaintiffs seek to preliminarily enjoin Hazel Crest from

enforcing various restrictions on religious land use and ask the

Court to declare that the Zoning Ordinance violates the RLUIPA and

the Fourteenth Amendment. In response, Defendant challenged

Plaintiffs’ standing to bring the underlying lawsuit. The Court

analyzes each argument below, beginning with the threshold issue

of Plaintiffs’ standing.

A. Standing

The authority of this Court extends only to actual cases and

controversies, as defined by Article III of the U.S. Constitution.

U.S. Const. art. III, § 2, cl. 1. The standing doctrine defines

what makes an action a case or controversy and thus justiciable

under Article III. Lujan v. Def. of Wildlife, 504 U.S. 555, 560

(1992). Standing has three elements: (1) an “injury in fact”; (2)

a causal connection between the injury and the complained of

conduct; and (3) a likelihood that the injury will be redressed by

a favorable decision. Id. The parties only dispute whether the

Plaintiffs have established an injury in fact. Word Seed and CLUB,

as the parties “invoking federal jurisdiction bear[] the burden of

establishing these elements.” Id. at 561. Both have met this

burden.

1. The Word Seed Church

Word Seed has standing to bring the instant action.

Article III requires that Word Seed’s complained of injury be

“concrete and particularized” and “actual or imminent, not

conjectural or hypothetical.” Susan B. Anthony List v. Driehaus,

573 U.S. 149, 158 (2014) (quoting Lujan, 504 U.S. at 560) (internal

quotation marks omitted). Word Seed is not required to expose

itself to liability as a prerequisite to challenging Hazel Crest’s

zoning ordinance. Id. Instead, Word Seed has standing to seek pre-

enforcement review of a statute where the threat of enforcement is

imminent. Id. Word Seed meets the “injury in fact” requirement

based on an alleged future injury because the complaint

establishes: (1) an intent to engage in conduct with a

constitutional interest; (2) the desired conduct is proscribed by

statute; and (3) there is a credible threat of prosecution. Id.

Word Seed has established each of the three elements necessary for

standing based on future injury. First, Word Seed has alleged an

intent to engage in conduct with a constitutional interest. Word

Seed intends “to purchase property in the Village of Hazel Crest”

for religious assembly and worship. (Compl. ¶ 27.) Word Seed has

even identified the property at 1822 W. 170th St. in Hazel Crest

as for sale and one that that meets the church’s needs and is

within its budget. (Id. ¶ 28.) Word Seed’s religious exercises are

protected by the establishment, free exercise, and assembly

clauses of the First Amendment. U.S. Const. amend. I.

Second, despite the church’s intent to purchase property in

Hazel Crest Word Seed’s operation of a church is at least in part

proscribed by Hazel Crest’s Zoning Ordinance. Churches are

expressly prohibited in business districts and not listed as

permissible or special uses in residential district R-0, the

“Special Planned Development” district, the office, research and

compatible use district, or the limited manufacturing district.

(Zoning Ordinance at 15, 19, 22–29.) In addition, while churches

are permitted in the R-1, R-2, and R-3 districts, they are

characterized as “special use” and require approval from the

Village Board of Trustees. (Zoning Ordinance at 15–19, 38.) Word

Seed, therefore, cannot operate as of right anywhere in Hazel

Crest.

Finally, Word Seed faces a credible threat that Hazel Crest

will enforce its Zoning Ordinance. In the criminal context, the

threat of enforcement is credible “when a plaintiff's intended

conduct runs afoul of a criminal statute and the Government fails

to indicate affirmatively that it will not enforce the statute.”

Commodity Trend Serv., Inc. v. Commodity Futures Trading Comm'n,

149 F.3d 679, 687 (7th Cir. 1998). The Seventh Circuit has

indicated that the same is true in the civil context. Citing to

the foregoing quote, the Seventh Circuit affirmed that plaintiffs

need not give government entities the opportunity to exercise their

enforcement discretion. Six Star Holdings, LLC v. City of

Milwaukee, 821 F.3d 795, 803–04 (7th Cir. 2016.) There is no

evidence to suggest that Hazel Crest will not enforce the Zoning

Ordinance. To the contrary, Hazel Crest has defended the ordinance

both in the briefing on the instant motion and in response to a

similar challenge in 2008. (Supp. Resp. at 2–5, Dkt. No. 114.)

River of Life II, 611 F.3d at 367.

Because Word Seed has adequately alleged that it is likely to

experience a future injury, it has satisfied the “injury-in-fact”

requirement. Word Seed has also pled the remaining elements of

standing, causation and redressability. As alleged in the

complaint, Word Seed’s inability to purchase land in Hazel Crest

is caused by the village’s zoning ordinance. (Compl. ¶ 29–43.)

Finally, Word Seed has alleged that the church has the funds to

purchase property in Hazel Crest. (Id. ¶¶ 14, 28.) Thus, if the

church successfully challenges Hazel Crest’s zoning ordinance, it

will be able to buy property, thereby addressing its alleged harm.

2. Civil Liberties for Urban Believers

CLUB also has standing to bring the instant action. The

complaint includes just a single paragraph regarding CLUB, an

association of churches to which Word Seed belongs. (Compl. ¶ 7.)

The lone allegation regarding the association does not allege that

CLUB has been directly harmed or will be directly harmed by Hazel

Crest’s zoning ordinance. (Id.) CLUB’s lack of direct harm is not

fatal, however, because “an association may have standing solely

as the representative of its members.” Warth v. Seldin, 422 U.S.

490, 511 (1975). An association has Article III standing on behalf

of its members where: “[1] its members would otherwise have

standing to sue in their own right; [2] the interests it seeks to

protect are germane to the organization's purpose; and [3] neither

the claim asserted nor the relief requested requires the

participation of individual members in the lawsuit.” Hunt v. Wash.

State Apple Advert. Comm'n, 432 U.S. 333, 343 (1977).

The elements of associational standing are present here.

First, Word Seed is a party to this action and has standing. Thus,

at least one CLUB member would have standing to sue in their own

right. Warth, 422 U.S. at 511 (“The association must allege that

its members, or any one of them, are suffering immediate or

threatened injury as a result of the challenged action.”). Second,

CLUB alleges that it “exists to promote religious liberty of urban

churches and believers.” (Compl. ¶ 7.) CLUB challenges Hazel

Crest’s Zoning Ordinance on the grounds that it restricts the free

exercise of religion, an interest clearly germane to the promotion

of religious liberty. See C.L.U.B. v. City of Chicago, 1996 WL

89241 at *14 (N.D. Ill. Feb. 27, 1996) (concluding CLUB’s interest

in a similar RLUIPA challenge was germane to its purpose). Finally,

Plaintiffs seek a declaratory judgment and an injunction. (Compl.

at 18–19.) This type of “prospective relief will usually inure to

the benefit of the members actually injured and thus” individual

member participation is typically unnecessary. Retired Chicago

Police Ass'n v. City of Chicago, 7 F.3d 584, 603 (7th Cir. 1993).

For these reasons, Word Seed and CLUB have standing to bring the

present lawsuit.

B. The Preliminary Injunction

Plaintiffs’ claims are primarily based violations of RLUIPA.

“Congress enacted RLUIPA and its sister statute, the Religious

Freedom Restoration Act of 1993 (“RFRA”), 107 Stat. 1488, 42 U.S.C.

§ 2000bb et seq., ‘in order to provide very broad protection for

religious liberty.’” Holt v. Hobbs, 574 U.S. 352, 357 (2015)

(quoting Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 693

(2014)). “RLUIPA is the latest of the long-running congressional

efforts to accord religious exercise heightened protection from

government-imposed burdens, consistent with [Supreme Court]

precedents.” Cutter v. Wilkinson, 544 U.S. 709, 714 (2005).

Plaintiffs’ allege that Hazel Crest impermissibly restricts

religious assembly. Specially, Plaintiffs allege that the Zoning

Ordinance: (1) violates RLUIPA’s prohibition of treating religious

assembly or institution and similar secular land uses on unequal

terms (Count I); (2) violates the Equal Protection Clause by

treating secular assembly more favorably than religious assembly

(Count II); (3) violates RLUIPA’s prohibition on imposing

unreasonable limitations religious exercise (Counts III and V);

(4) violates RLUIPA’s prohibition on imposing regulations that

totally exclude religious assemblies (Count IV); and (5) imposes

unconstitutionally vague standards granting the Village

impermissible discretion (Count VI). Plaintiffs only argue that

they have a reasonable likelihood of success and are therefore

entitled to a preliminary injunction based on Counts I–III.

For the reasons set forth below, the current record does not

establish a likelihood of success on the merits on Counts I–III.

Consequently, the motion for a preliminary injunction is denied.

1. Count I: The RLUIPA Equal Terms Provision

(42 U.S.C. § 2000cc(b)(1))

RLUIPA’s Equal Terms Provision, 42 U.S.C. § 2000cc(b)(1),

states that “No government shall impose or implement a land use

regulation in a manner that treats a religious assembly or

institution on less than equal terms with a nonreligious assembly

or institution.” 42 U.S.C. § 2000cc(b)(1). Count I of the complaint

raises a facial challenge to the Zoning Ordinance, alleging that

Hazel Crest places religious land use “on less than equal terms

with nonreligious assembly uses” in violation of the RLUIPA Equal

Terms Provision. (Comp. ¶ 47.) To succeed on a facial challenge,

Plaintiffs must establish that “no set of circumstances exists

under with the [Zoning Ordinance] would be valid.” Wash. State

Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008).

The Seventh Circuit provides that a regulation violates the

Equal Terms Provision “only if it treats religious assemblies or

institutions less well than secular assemblies or institutions

that are similarly situated as to” the accepted zoning criteria.

River of Life II, 611 F.3d at 368, 370 (adopting a revised version

of the Third Circuit’s test for a violation of the Equal Terms

Provision of the RLUIPA). To succeed on the merits, Plaintiffs

need to demonstrate that comparable secular land uses are not

treated the same “from the standpoint of an accepted zoning

criterion, such as ‘commercial district,’ or ‘residential

district,’ or ‘industrial district.’” Id. at 373.

In River of Life, the en banc Seventh Circuit ultimately

adopted the aforementioned test to scrutinize Hazel Crest’s Zoning

Ordinance—the same ordinance at issue in this litigation. In 2006,

the River of Life church purchased property in Hazel Crest’s B-2

district. River of Life I, 585 F.3d at 368. The B-2 district was,

and still is, designated as a TIF district, meaning public funds

are invested into improvements to assist with revitalization

efforts. Id. Even though the Zoning Ordinance prohibits churches

from operating in business districts, the River of Life Church

applied for a special use permit. Id. at 369. The Village Board of

Trustees denied the application. Id. The River of Life Church filed

a suit and alleged, much like Plaintiffs here, that the Zoning

Ordinance violated RLUIPA’s Equal Terms Provision by excluding

religious activities, but not similarly situated secular

assemblies from the Hazel Crest business districts. Id. River of

Life also sought a preliminary injunction. Id. While the motion

for a preliminary injunction was pending before the district court,

Hazel Crest “amended its ordinance to also exclude community

centers, non-religious schools, meeting halls, art galleries, and

recreational buildings, among other uses, from zone B–2.” Id.

The district court denied River of Life’s motion for a

preliminary injunction, as did a 3-judge panel on the Seventh

Circuit. Id. at 369, 377. The en banc Seventh Circuit affirmed

both prior orders, concluding River of Life had a low chance of

success on the merits. River of Life II, 611 F.3d at 374. The en

banc Seventh Circuit explained that the “[e]xclusion of churches

from a commercial zone . . . is not unique to the Village of Hazel

Crest.” Id. at 373. Looking to the 2008 Amendment to the Zoning

Ordinance, the Seven Circuit concluded that “this case is

straightforward because, after the amendment to its zoning

ordinance, Hazel Crest really was applying conventional criteria

for commercial zoning in banning noncommercial land uses from a

part of the village suitable for a commercial district because of

proximity to the train station.” Id. at 373–74.

Word Seed and CLUB raise a nearly identical claim to the one

rejected by the Seventh Circuit in River of Life. Remarkably,

Plaintiffs fail to even acknowledge the River of Life’s dispositive

holding, let alone offer a single explanation why this Court should

reach a different conclusion. The closest Plaintiffs come is their

sur-reply, which addresses the 2008 Amendment. While the Court

acknowledges that in the intervening decade Hazel Crest has failed

to codify or even publish to its website the 2008 Amendment,

Plaintiffs sur-reply offers no evidence to suggest that the 2008

Amendment has been abandoned or has gone unenforced. Plaintiffs

are free to explore the 2008 Amendment in discovery and make

further arguments about its validity in later briefing. At this

stage, however, the record offers no reason to reject the

previously validated 2008 Amendment, and thus the Court declines

to do so at this time. Accordingly, River of Life remains good

law, and the exclusion of religious land use from Hazel Crest’s

business districts still does not violate the Equal Terms

Provision.

Word Seed also argues that the Zoning Ordinance permits

assembly halls outside the business district as of right, while

religious uses are either excluded or required to obtain a special

use permit results in facially unconstitutionally disparate

treatment. Applying the River of Life rule, the Court must analyze

the zoning criteria, to determine whether similarly situated

secular and religious entities are treated the same. River of

Life II, 611 F.3d at 368, 370; see also Truth Found. Ministries v.

Vill. Of Romeoville, 387 F.Supp.3d 896, 916–17 (N.D. Ill. 2016)

(applying the River of Life standard). Here, Plaintiffs have only

provided a list of purportedly similar secular assembly uses that

are permitted as of right outside the business districts. (Compl.

¶ 32.) This is insufficient. To demonstrate a high likelihood of

success on the merits, Plaintiffs must offer evidence or argument

comparing the secular land uses to religious land use, such that

the Court might conclude there is unequal treatment in the zoning

designations. Without this additional evidence, the Court cannot

conclude that Plaintiffs have a high likelihood of demonstrating

that the decisions on how to treat religious land use outside the

business district were not based on neutral, land-use reasons.

2. Count II: The Equal Protection Clause

of the Fourteenth Amendment

The Fourteenth Amendment’s Equal Protection Clause guarantees

that “No State shall make or enforce any law which shall . . .

deny to any person within its jurisdiction the equal protection of

the laws.” U.S. Const. amend. XIV § 1. Count II alleges that Hazel

Crest “does not treat similarly situated assembly uses equally” in

violation of the Equal Protection Clause. (Compl. ¶ 51.)

The threshold question for constitutional challenges is the

level of scrutiny applicable to the claim. Government actions that

classify by race, alienage, or national origin “are subjected to

strict scrutiny and will be sustained only if they are suitably

tailored to serve a compelling state interest.” City of Cleburne,

Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). Government

actions that interfere with fundamental rights, like freedom of

speech or religion, are subjected to heightened scrutiny. Vision

Church v. Vill. of Long Grove, 468 F.3d 975, 1000 (7th Cir. 2006).

An action that does not implicate a suspect class or a fundamental

right, is subject to a rational basis test. Id.

On its face, the Zoning Ordinance does not classify property

use on the basis of race, alienage, or national origin. The Court

has already determined that the record does not suggest that the

Zoning Ordinance facially discriminates on the basis of religion.

Thus, for the purposes of this preliminary injunction motion the

Court will apply rational basis scrutiny to the Plaintiffs’ Equal

Protection claim. Id. To succeed, Plaintiffs “must demonstrate

‘governmental action wholly impossible to relate to legitimate

governmental objectives.’” Id. at 1001 (quoting Patel v. City of

Chicago, 383 F.3d 569, 572 (7th Cir.2004)). At this stage, however,

there is no such evidence on the record. The Seventh Circuit has

already recognized that Hazel Crest’s Zoning Ordinance is tied to

the Village’s legitimate interest in developing their business

districts. River of Life II, 611 F.3d at 373–74. Furthermore, the

record is silent as the purpose, or lack thereof, behind the zoning

decisions for the remaining districts. The Court therefore cannot

conclude that Plaintiffs have a likelihood of success as to

Count II.

3. Count III: The RLUIPA Unreasonable Limits Provision

(42 U.S.C. § 2000cc(b)(3)(B))

RLUIPA’s Unreasonable Limits Provision, 42 U.S.C.

§ 2000cc(b)(3)(B), prohibits any “land use regulation that . . .

unreasonably limits religious assemblies, institutions, or

structures within a jurisdiction.” 42 U.S.C. § 2000cc(b)(3)(B).

Count III raises two challenges to the Unreasonable Limits

Provision. Plaintiffs first allege that Hazel Crest’s special use

permit process “unreasonably limits religious assemblies.” (Compl.

¶ 54.) Plaintiffs also allege that the Zoning Ordinance imposes

unreasonable limits because it “exclude[s] churches from all

zoning districts other than three residential districts which are

already substantially developed as residential units.” (Id. ¶ 55.)

Plaintiffs do not make clear whether Count III raises a facial or

as applied challenge to the Unreasonable Limits Provision. Even

so, given the underdeveloped record before the Court, at this stage

both challenges have a low likelihood of success on the merits.

A facial challenge must establish that “no set of

circumstances exists under with the [Zoning Ordinance] would be

valid.” Washington State Grange, 552 U.S. at 449. To succeed on an

as applied challenge Plaintiffs must establish that in this

context, application of the Zoning Ordinance violates RLUIPA’s

Unreasonable Limits Provision. Truth Foundation Ministries, 387

F.Supp.3d at 910 n.4 (limiting an as applied challenge the movant’s

particular circumstances). When examining a claim under the

Unreasonable Limits Provision, the legislative history advises

that “[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.’” Vision Church, 468 F.3d 975 at 990

(quoting 146 Cong. Rec. E1563 (daily ed. Sept. 22, 2000) (statement

of Rep. Canady)). For a facial challenge the Court will evaluate

what is reasonable as compared to all churches. Truth Foundation

Ministries, 387 F.Supp.3d at 913. For an as applied challenge the

Court will look to what is reasonable for small churches similarly

situated to Word Seed. Id. at 914.

The Court first considers whether characterizing religious

use as a special use in districts R-1, R-2, and R-3 is an

unreasonable limitation. As a special use churches must comply

with the special use floor area ratio, yard size, and parking

requirements in each residential zone. (Id. §§ 7.3 (e), 7.3(k),

7.4(k), 12.2(J)(10).) In addition, to operate as a special use in

Hazel Crest land users obtain a special use permit. (Id. § 13.)

The application for the special use permit is reviewed by the

Zoning Commission, based on the criteria set forth in the Zoning

Ordinance. (Id. §§ 13.3(B), 13.3(E).) Following a public hearing,

the Zoning Commission makes a recommendation to the Village Board

of Trustees who ultimately decide whether to approve or deny the

application. (Id. § 13.3(B).) According to Plaintiffs, the

totality of these limits is unreasonable and violates the RLUIPA.

At this stage, the record offers little evidence to support

Plaintiffs’ claim that the designation of churches as a special

use in residential districts violates the Unreasonable Limits

Provision. To start, Plaintiffs’ contend that the special use

permit application process is “onerous and highly discretionary”

and “unreasonably exposes [Word Seed] to ‘delay, uncertainty, and

expense.’” (Mem. at 13.) But the Seventh Circuit has already

rejected generic assertions that a special use permit application

process is highly discretionary where, as is the case here, “the

Village's Zoning Regulations [] set forth the various factors to

be considered by the Board in addressing an application for a

special use.” Vision Church, 468 F.3d at 990. In addition, there

are currently more than a dozen churches operating in Hazel Crest.

Without more evidence about when and under what processes the

presently operating churches were established, the Court is

unlikely to conclude that there is no set of circumstances where

the special use regulations present valid limitations on religious

exercise.

The record also lacks details on the financial and time

investment necessary to complete Hazel Crest’s special use permit

application process. Plaintiffs allege that special use applicants

will need to hire experts to conduct traffic studies, engineers,

architects, and surveyors which will cost tens of thousands of

dollars and take anywhere from 6 to 12 months to complete. (Compl.

¶ 39–41.) As to timing, the only evidence on the record estimates

the Village’s time to review and make a decision once an

application is submitted. On that point, Mr. Eldridge testified

that timing depends on the preparedness of the applicant and

whether the Zoning Commission or the Village Board of Trustees

have any follow-up questions. (2/19/21 Tr. at 17–19.) Mr. Eldridge

further explained that while some more complex applications have

taken more than six months, it is possible that a well put together

application could receive approval on a much shorter timeline.

(Id.) Moreover, even if Plaintiffs’ estimate of 6 to 12 months for

approval is accurate, the record presents no evidence that

religious applications take longer than secular applications or

are approved at a much lower rate.

Relatedly, Plaintiffs’ also estimate that a special use

permit application requires an investment of tens of thousands of

dollars. On its own, this estimate fails to establish unreasonable

limits. First, the record provides no documentation to support

this estimate. Second, even if the estimate is accurate, the record

does not yet establish the economics of religious organizations,

such as the cost of starting and running a church and providing

for a church congregation. Plaintiffs must establish a record that

the special use permit application cost, whether for all churches

in a facial challenge or similarly situated churches in an as

applied challenge, is unreasonable. No such financial record

exists at this stage.

Based on the underdeveloped record, the Court has no basis to

evaluate the experience of churches more generally or a smaller

subset of churches comparable to Word Seed, to determine whether

the special use designation places unreasonable limits on

religious land use. Consequently, at this stage Plaintiffs’

challenge to the special use designation as a violation of the

Unreasonable Limits Provision, whether facial or as applied, does

not have a high likelihood of success on the merits.

The Court next considers whether restricting religious land

use to three residential districts is an unreasonable limitation.

Plaintiffs allege that the Zoning Ordinance unreasonably limits

churches by only permitting religious land use in the substantially

developed residential districts. (Compl. ¶ 55.) Plaintiffs argue

that the special use limitations imposed on churches further limit

the available properties that may be suitable for Word Seed to

purchase and develop. (Mem. at 13.) According to Plaintiffs these

limits are particularly onerous in light of Word Seed’s “size and

limited resources.” (Id. at 12)

As to availability, Mr. Eldridge testified that there are

many vacant lots and properties that are ripe for redevelopment in

the Hazel Crest residential districts, as well as a number of

churches that may no longer be operational and may be willing to

sell their property to Word Seed. (2/19/21 Tr. at 41–42, 102–04,

108–09.) The record also establishes that the Zoning Ordinance

does not totally foreclose religious use ever being permitted

outside the residential zones. While the Zoning Ordinance

currently forbids religious land use in the business districts,

Mr. Eldridge explained that land users could pursue an amendment.

(Id. at 131.) Indeed, during the March 16, 2021 hearing, Hazel

Crest’s attorney noted that “the Village Board may love [an

amendment]. Why? Because it brings traffic to the shopping center

at times.” (3/16/21 Tr. at 21.) Word Seed appears to have attempted

to open lines of communication with respect to the property at

1822 W. 170th St. (2/21/19 Tr. at 170.) But these conversations

ceased when Hazel Crest stated that they would not consider a

religious use on that the property, which was redeveloped using

government TIF funds. (Id.) As Mr. Eldridge acknowledged, however,

there are various vacant properties in the business districts, not

all of which are TIF investments. (See, e.g., id. at 38, 59, 62.)

On this record, the Court is unable to fully understand the

availability of property in Hazel Crest that would be suitable for

Word Seed. But even if it was, the record remains deficient.

Plaintiffs concede that “Hazel Crest is a mature community with

existing homes on almost every lot.” (Mem. at 13.) Plaintiffs do

not go on, however, to establish that the challenge in identifying

suitable residential land is the result of limitations imposed by

the Zoning Ordinance, and not simply the limited availability of

land in a mature community. This is true whether considered in the

context of all churches or a smaller subset of churches similarly

situated to Word Seed.

In addition, the present record only includes generic

information about the financial challenges Word Seed faces finding

property in the residential districts. This is also insufficient.

That Word Seed has an annual income of just $17,000 is just the

starting point. The Court does not look at whether the Zoning

Ordinance excludes Word Seed in its current financial state, but

whether the Zoning Ordinance effectively limits all churches, in

a facial challenge, or similarly situated churches, in an as

applied challenge, based on the necessary financial investment to

purchase and develop land in Hazel Crest. The record, however,

simply does not provide an estimate for the cost of buying and

developing both secular and religious use land in Hazel Crest. Nor

does it grapple with the fact that fifteen churches of various

sizes already exist in Hazel Crest, with one small enough to

operate out of a condominium. (2/19/21 Tr. at 51, 118-19.) Absent

these comparators and an acknowledgment that more than a dozen

churches have made the necessary financial investment, the Court

cannot determine whether the Zoning Ordinance is reasonable, “in

light of all the facts.” Vision Church, 468 F.3d at 990. At this

stage, the record does not support a conclusion that Plaintiffs

are likely to succeed on a facial challenge to the Unreasonable

Limits Provision.

For all the foregoing reasons, Plaintiffs have a low

likelihood of success on Counts I–III. Having concluded that the

Plaintiffs have a low likelihood of success, the Court will not

consider the remaining preliminary injunction factors.

C. Declaratory Judgment

Plaintiffs also seek a declaratory judgement under Rule 57.

Plaintiffs ask the Court to declare the following: (1) the

“specific provisions in the Village’s zoning ordinance, and its

implementation of the same as applied to religious assemblies

violate” the RLUIPA and the Equal Protection Clause; (2)

“Section 8.1 of the Village’s zoning ordinance which prohibits

church services ‘in any building designed for a business use’ is

invalid as excessively discretionary” and violates the Equal Terms

Provision and the Equal Protection Clause; and (3) “the Village’s

special use standards are unconstitutionally vague and grant

unbridled discretion to Village officials.” (Mot. at 2–3, Dkt.

No. 4.)

The Seventh Circuit has recognized that it is “well settled

that the federal courts have discretion to decline to hear a

declaratory judgment action, even though it is within their

jurisdiction.” Tempco Elec. Heater, 819 F.2d at 747. Courts have

exercised that authority where a plaintiff “seeks a declaratory

judgment that substantially overlaps its substantive claims.”

Vill. of Sugar Grove v. F.D.I.C., 2011 WL 3876935, at *9 (N.D.

Ill. Sept. 1, 2011). Here, Plaintiffs’ request for declaratory

relief asks the Court to declare that the Zoning Ordinance violates

the RLUIPA and the Constitution, for the same reasons alleged in

Counts I–VI. Because the declaratory judgment issues are

duplicative of the substantive claims, the Court declines to hear

the motion for declaratory judgment at this stage of the

proceeding—well before the parties have taken discovery.

In addition, for the reasons set forth in Section III.B.,

supra, based on the current record Plaintiffs have a low likelihood

of success on the merits. For these same reasons, the current

record is insufficient to grant declaratory relief. For this

separate reason, the Court also declines to hear the motion for

declaratory judgment.

For these reasons Plaintiffs’ motion for declaratory action

pursuant to Rule 57 is denied.

Iv. CONCLUSION

For the reasons stated herein, Plaintiffs’ motion for a

preliminary or permanent injunction and a declaratory judgment

(Dkt. No. 4.) is denied.

IT IS SO ORDERED.

Chttirh.

«Harry D. Leinenweber, Judge

United States District Court

Dated: 4/12/2021

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