In an important decision for local governments, the Illinois Appellate Court on March 6, 2015 issued its decision in Joan Dachs Bais Yaakov Elementary School (“JDBY”) v. City of Evanston. The decision, particularly the Appellate Court’s assessment of comparators and its willingness to look past some boorish comments by a local official, may prove damaging to religious use applicants asserting claims under the Religious Land Use and Institutionalized Persons Act’s (RLUIPA) equal terms provision.
The case involves a proposed Jewish elementary school by plaintiff JDBY on property zoned for industrial use in the City of Evanston. After the City denied its application to rezone the subject property, JDBY alleged the City treated it on less than equal terms with four others uses that had obtained rezoning approval from the City (townhomes, work-live condos, a gas station, and a shopping center). While the Appellate Court assumed without deciding that these other uses were “assemblies,” it nonetheless concluded that they could not be deemed valid comparators because those other uses are taxable uses that continue to pay property taxes while the proposed school use would not be required to pay taxes.
Municipalities that treat religious uses unequally because of their tax exempt status often end up on the losing side of a RLUIPA case. See, for example, Fortress Bible Church v. Feiner, 694 F.3d 208, 214 (2d Cir. 2012). The concept that tax-paying uses may not be fair comparators is remarkable and in many instances will prove damaging to religious applicants.
By its very nature, an as-applied equal terms claim requires that a religious use be compared with a secular use. In most municipalities, religious uses are exempt from real property taxes while most secular uses are not. It appears that the Appellate Court’s property tax distinction now gives local governments a new shield to defend against some RLUIPA claims.
The Appellate Court also rejected JDBY’s nondiscrimination claim. Such claims are similar to equal terms claims in that they may be supported by religious (as opposed to secular) comparators being treated better than the complaining plaintiff. While establishing a comparator is not necessary to prevail on a nondiscrimination claim, evidence of discriminatory intent is a must. In this case, JDBY pointed to an email from the City’s zoning administrator to an alderwoman regarding the proposed Jewish school as evidence of discriminatory intent:
Even though I am unconvinced by this rather un-kosher logic, the zoning ordinance makes it clear that it is the Council that determines a unique use, on recommendation from the Plan Commission. As Zoning Administrator, I am limited to reviewing the application for completeness and assessing if the applicant has standing. I have been advised by the Law Department to accept a complete application (still waiting for this), and schedule it for a public hearing. We will, of course, submit a Staff report regarding the merits of the application versus the requirements and standards of the Zoning [Ordinance] (parting the Red Sea would be easier, I would say right now), but it looks like it will be up to you and your colleagues to make the determination. (emphasis added).
However, even though the Appellate Court noted that the zoning administrator’s comments were offensive and inappropriate, it did not find them determinative because other agency members were ultimately responsible for deciding the rezoning application, and each testified that they were not influenced by the email.
Lastly, the Appellate Court was not persuaded by JDBY’s claim that Vineyard Christian Fellowship of Evanston, which had obtained a special permit to use property in the immediate vicinity of the proposed Jewish school as a church, was a valid comparator. The Court reasoned that the distinction between the grant of special permit for the church use and the rezoning application for the proposed Jewish school were too dissimilar and necessitated rejection of any claim that the church was a valid comparator.
The trial court decision in this matter, affirmed by the Appellate Court, is available here.
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