Opinion

Vision Church, United Methodist v. Village of Long Grove

468 F.3d 975
2006 WL 3197659

Court: Court of Appeals for the Seventh Circuit
Filed: Nov 7, 2006
Status: Published
Author: Ripple
On the bench: Cudahy, Ripple, Wood
Nature of suit: civil
Cited by: 11 cases
Authority: More cited than 61.7%

holding that village’s approval of church’s special use permit for new sanctuary construction with restrictions on future building and church activity limitations during the week imposed “no more than incidental burdens on the exercise of religion”

How later courts described this case

holding that village’s approval of church’s special use permit for new sanctuary construction with restrictions on future building and church activity limitations during the week imposed “no more than incidental burdens on the exercise of religion”
finding that the zoning requirements applied to deny a special use permit to allow construction of church complex on the plaintiffs property were applied equally to secular and religions institutions alike
holding that a plaintiff making a claim under RLUIPA section 2(b)(1) need not identify a nonreligious comparator that is "similarly situated in all relevant respects"
vested right in zoning classification would have made Illinois involuntary annexation statute "meaningless"

Written by the judges who cited it.

The opinion

In the

United States Court of Appeals

For the Seventh Circuit

____________

Nos. 05-4144 & 05-4234

VISION CHURCH, UNITED METHODIST,

Plaintiff-Appellant,

and

NORTHERN ILLINOIS CONFERENCE OF UNITED

METHODIST CHURCH and C. JOSEPH SPRAGUE,

presiding Bishop (now by succession,

Bishop Hee-Shoo Jung),

Intervenors-Appellants,

VILLAGE OF LONG GROVE,

Defendant-Appellee.

____________

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 03 C 5761—Charles R. Norgle, Sr., Judge.

____________

ARGUED MAY 2, 2006—DECIDED NOVEMBER 7, 2006

____________

Before CUDAHY, RIPPLE and WOOD, Circuit Judges.

RIPPLE, 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

2 Nos. 05-4144 & 05-4234

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.

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

Nos. 05-4144 & 05-4234 3

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

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).

4 Nos. 05-4144 & 05-4234

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

Nos. 05-4144 & 05-4234 5

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 Nos. 05-4144 & 05-4234

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”).3

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.

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”).

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.

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).

Nos. 05-4144 & 05-4234 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.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 Nos. 05-4144 & 05-4234

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.

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).

Nos. 05-4144 & 05-4234 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 2000.9

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-

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).

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 Nos. 05-4144 & 05-4234

dation on July 9, 2002.10

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

See Board Meeting Minutes, R.99, Ex.14 at 4 (describing the

project as a “high-density proposal in a low-density commu-

nity”).

Nos. 05-4144 & 05-4234 11

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,”

12 Nos. 05-4144 & 05-4234

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

Nos. 05-4144 & 05-4234 13

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 Nos. 05-4144 & 05-4234

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 20.11

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...)

Nos. 05-4144 & 05-4234 15

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.

(...continued)

Assembly Ordinance was enacted,” they were not subject to the

same size restrictions as Vision. R.157 at 20.

16 Nos. 05-4144 & 05-4234

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.

Nos. 05-4144 & 05-4234 17

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, 452 U.S. 61

(1981)).

In Schad, 452 U.S. 61, the Supreme Court addressed the

claims of an adult bookstore in Camden County, New

Jersey, against the Borough of Mount Ephraim. Inside the

bookstore were “coin-operated devices by virtue of

which a customer could sit in a booth, insert a coin, and

watch an adult film,” id. at 62; the Borough found that

18 Nos. 05-4144 & 05-4234

this activity violated § 99-15B of its zoning ordinance, under

which “nude dancing[] is not a permitted use in any

establishment in [its jurisdiction],” id. at 65 (internal quota-

tion marks omitted). The bookstore challenged the “imposi-

tion of criminal penalties under [the zoning] ordinance,”

claiming that the prohibition on live entertainment “violated

[its] rights of free expression guaranteed by the First and

Fourteenth Amendments of the United States Constitution.”

Id. The Supreme Court agreed and held that the ordinance

as applied to the bookstore was constitutionally infirm:

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

Nos. 05-4144 & 05-4234 19

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,

316 F.3d 702, 716 n.21 (7th Cir. 2003), must be supported by

“sufficient justification,” Schad, 452 U.S. at 67, and be

narrowly tailored to that justification, see id. at 68.

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

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, 204 F. Supp. 2d 857

(E.D. Pa. 2002) (upholding RLUIPA against the claim that

Congress exceeded its authority under the Commerce Clause

when it adopted the legislation; also holding that RLUIPA’s

substantial burden, equal terms and exclusion provisions do

(continued...)

20 Nos. 05-4144 & 05-4234

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, 452 U.S. at 76

(“Here, the Borough totally excludes all live entertainment,

including nonobscene nude dancing that is otherwise

protected by the First Amendment.” (emphasis added)); id.

(distinguishing Young v. American Mini Theatres, Inc., 427

U.S. 50 (1976), on the ground that the Court in Young “did

not purport to approve the total exclusion from the city of

theaters showing adult, but not obscene, materials” (empha-

sis added)); id. at 66 (“[T]he 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” (emphasis added)); see also Ben’s

Bar, Inc., 316 F.3d at 716 n.21 (classifying Schad as address-

ing an “ordinance [that] completely prohibit[ed] the expressive

conduct at issue” (emphasis added)). The same is true of

(...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)).

Nos. 05-4144 & 05-4234 21

section 2(b)(3)(A) of RLUIPA. See 42 U.S.C. § 2000cc(b)(3)(A)

(prohibiting the “total[] exclu[sion] [of] religious assemblies”

(emphasis added)).

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.

22 Nos. 05-4144 & 05-4234

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, 452 U.S. at 64-66. Here, by contrast,

if the conditions set forth in the Village’s zoning code are

fulfilled, a church may be built on property zoned for

residential use. Cf. R.V.S., L.L.C. v. City of Rockford, 361 F.3d

402, 409 (7th Cir. 2004) (holding that an ordinance permit-

ting nude dancing only as a special use did not “amount[]

to a total ban on protected activity,” because it placed

restrictions only on the location of such businesses). Thus,

we conclude that the Village Zoning Regulations do not

violate the First Amendment protections recognized in

Schad or RLUIPA § 2(b)(3)(A).

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

Nos. 05-4144 & 05-4234 23

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.

24 Nos. 05-4144 & 05-4234

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, 393 U.S. 97, 104 (1968)). “When the government

acts with the ostensible and predominant purpose of

advancing religion, it violates that central Establishment

Clause value of official religious neutrality, there being

no neutrality when the government’s ostensible object is

to take sides.” McCreary, 125 S. Ct. at 2733. Specifically,

a government policy or practice violates the Establish-

This provision is made applicable to the states and its politi-

cal subdivisions, including municipalities, through the Four-

teenth Amendment.

Nos. 05-4144 & 05-4234 25

ment Clause if (1) it has no secular purpose, (2) its primary

effect advances or inhibits religion, or (3) it fosters an

excessive entanglement with religion. Lemon v. Kurtzman,

403 U.S. 602, 612-13 (1971); see also McCreary, 125 S. Ct. at

2733 (reaffirming Lemon’s “three familiar considerations

for evaluating Establishment Clause claims”). “The Estab-

lishment Clause also prohibits the government from

favoring one religion over another without a legitimate

secular reason.” Kaufman v. McCaughtry, 419 F.3d 678, 683

(7th Cir. 2005); see also Berger v. Rensselaer Cent. Sch. Corp.,

982 F.2d 1160, 1168-69 (7th Cir. 1993) (“Under the Establish-

ment Clause, the government may not aid one religion, aid

all religions or favor one religion over another.”).

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

26 Nos. 05-4144 & 05-4234

“must ensure that the government’s characterization is

sincere.” Mercier v. Fraternal Order of Eagles, 395 F.3d 693, 704

(7th Cir. 2005). In the present case, the Village contends that

the land use regulations are justified by the goals of the

Village’s Comprehensive Plan—that of minimizing develop-

ment and maximizing open space. Although we express

some concern about the general course of events in this

case,14 we ultimately find this secular purpose to be

“sincere.” Id. The Comprehensive Plan discusses repeatedly

the “semi-rural” nature of the Village, the community’s

emphasis on “open space,” and the importance of conform-

ing development to these goals. R.99, Ex.3 at 01-1. As the

Plan itself states:

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-

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.

Nos. 05-4144 & 05-4234 27

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 Nos. 05-4144 & 05-4234

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, 395 F.3d at 705. The primary question is

“whether, irrespective of the government’s actual purpose,

the practice under review in fact conveys a message of

endorsement or disapproval.” Books v. City of Elkhart, 235

F.3d 292, 302 (7th Cir. 2000) (internal quotation marks

omitted).

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

Nos. 05-4144 & 05-4234 29

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, 395 F.3d at

705.

We now turn to Lemon’s third factor, whether the munici-

pality has entangled itself excessively with religion. Vision

See also discussion infra at 42 (discussing whether, in the context

of RLUIPA § 2(a)(1), these limitations are reasonable).

30 Nos. 05-4144 & 05-4234

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”).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, 492 U.S. 573, 612 (1989),

the Supreme Court held unconstitutional the placement of a

(continued...)

Nos. 05-4144 & 05-4234 31

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, 493 U.S. 378, 393 (1990) (internal quotation

marks omitted). This inquiry requires examination of “the

character and purposes of the institutions that are benefit-

ted, the nature of the aid that the State provides, and the

resulting relationship between the government and the

religious authority.” Id. (internal quotation marks omitted).

Moreover, the advancement or inhibition of religion must be

more than de minimis. See Tanford v. Brand, 104 F.3d 982, 986

(7th Cir. 1997). The general rule is that, to constitute exces-

sive entanglement, the government action must involve

(...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, 492 U.S. at 612 (“To be sure, some Christians

may wish to see the government proclaim its allegiance to

Christianity in a religious celebration of Christmas, but the

Constitution does not permit the gratification of that desire,

which would contradict the logic of secular liberty it is the

purpose of the Establishment Clause to protect.” (internal

citations and quotation marks omitted)). The same is true of Lee

v. Weisman, 505 U.S. 577 (1992), in which the Supreme Court held

that, “[a] school official, the principal, decided that an invocation

and a benediction should be given; this is a choice attributable to

the State, and from a constitutional perspective it is as if a

state statute decreed that the prayers must occur.” Id. at 587. In

sum, under these precedents, so long as the conduct is “attributed

to” the government entity or municipality, id., it is subject to the

constitutional limitations of the Establishment Clause.

32 Nos. 05-4144 & 05-4234

“intrusive government participation in, supervision of, or

inquiry into religious affairs.” United States v. Indianapolis

Baptist Temple, 224 F.3d 627, 631 (7th Cir. 2000) (discussing

the taxation of religious institutions).

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, 320 F.3d 698, 702 (7th

Cir. 2003). However, in its meetings discussing these

conditions, the Commission defined a “major activity” as a

non-“religious event[]” that “anticipate[s] [the] use[] of

Nos. 05-4144 & 05-4234 33

more than 50 percent of the parking spaces.” R.98, Ex.11 at

3. Reading the record as a whole, it appears that the Com-

mission’s primary concern was traffic control, rather than

controlling the congregation’s religious worship. In any

event, the issue is not ripe for extended analysis. These

conditions were raised by the Village during late 2000

negotiations over annexation; they were not raised again

after the involuntary annexation of Vision’s property in

proceedings related to Vision’s application for a special use

permit in 2002. If this matter were to arise again in proceed-

ings related to Vision’s next application for a special use

permit, the Church of course would be free to raise the issue

anew.

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, 342 F.3d 752,

762-63 (7th Cir. 2003) (hereinafter “CLUB”). The Free

Exercise Clause, the Supreme Court has noted, “withdraws

from legislative power, state and federal, the exertion of any

34 Nos. 05-4144 & 05-4234

restraint on the free exercise of religion. Its purpose is to

secure religious liberty in the individual by prohibiting any

invasions thereof by civil authority.” Jimmy Swaggart

Ministries, 493 U.S. at 384 (internal quotation marks omit-

ted). The relevant inquiry is two-fold. First, we examine

whether the law being challenged is “neutral and of general

applicability.” Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah, 508 U.S. 520, 531 (1993). If not, it “must be justified

by a compelling governmental interest and must be nar-

rowly tailored to advance that interest.” Id. at 531-32. This

does not end the inquiry, however: “[A] regulation neutral

on its face may, in its application, nonetheless offend the

constitutional requirement for governmental neutrality if it

unduly burdens the free exercise of religion,” in which case

there must be “a compelling governmental interest

justif[ying] the burden.” Jimmy Swaggart Ministries, 493 U.S.

at 384-85 (internal quotation marks omitted).

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

Nos. 05-4144 & 05-4234 35

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).

Regardless, Vision’s arguments on both legal theories are the

same. See Appellant’s Br. at 21-29.

36 Nos. 05-4144 & 05-4234

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, 342 F.3d at 761. Similarly,

interpreting the First Amendment, the Supreme Court has

found a “substantial burden” to exist when the government

put “substantial pressure on an adherent to modify his

behavior and to violate his beliefs.” Hobbie v. Unemployment

Appeals Comm’n of Florida, 480 U.S. 136, 141 (1987) (internal

quotation marks omitted).18 With this analytical framework

in mind, we now turn to Vision’s specific arguments.

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

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, 456 F.3d 978, 988-89 (9th Cir. 2006) (“[F]or a land use

regulation to impose a substantial burden, it must be oppressive

to a significantly great extent. That is, a substantial burden on

religious exercise must impose a significantly great restriction or

onus upon such exercise.” (internal quotation marks omitted;

alteration in original)); Midrash Sephardi, Inc. v. Town of Surfside,

366 F.3d 1214, 1227 (11th Cir. 2004) (“We have held that an

individual’s exercise of religion is ‘substantially burdened’ if a

regulation completely prevents the individual from engaging in

religiously mandated activity, or if the regulation requires

participation in an activity prohibited by religion.”).

Nos. 05-4144 & 05-4234 37

of the Assembly Ordinance.19

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

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).

38 Nos. 05-4144 & 05-4234

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.

Nos. 05-4144 & 05-4234 39

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.

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.

40 Nos. 05-4144 & 05-4234

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