Incommensurable Uses: RLUIPA's Equal Terms Provision and Exclusionary Zoning in River of Life Kingdom Ministries v. Village of Hazel Crest

IntroductionIn 2010, President Obama sparked controversy when he asserted the right of Muslims to equal treatment under the law in his comments on the Ground Zero mosque.1 This controversy illustrates how equality in the context of religious freedom is a polarizing concept in the realm of public opinion.2 The U.S. Courts of Appeal have been forced to confront this controversy head-on when applying the "equal terms" provision of the Religious Land Use and Institutionalized Persons Act (RLUIPA).3 The equal terms provision prohibits the government from imposing land-use regulations that treat religious institutions "on less than equal terms" than nonreligious institutions.4 During RLUIPA's tenyear history, courts have adopted different tests to the equal terms provision. 5 In 2010, in River of Life Kingdom Ministries v. Village of Hazel Crest, the U.S. Court of Appeals for the Seventh Circuit decided that the appropriate solution to this problem was to carve out a compromise between religious institutions, municipalities, the federal government, and the courts for control over land-use regulations.6 As a result, the Seventh Circuit affirmed the denial of Village of Hazel Crest's motion for a preliminary injunction against enforcement of the zoning regulation.7Part I of this Comment outlines the background and holding of River of Life.8 Part II then traces the relationship between different constructions of the equal terms provision and the modes of control over land-use regulation.9 Part II then explores the Seventh Circuit's efforts to strike a compromise with its "accepted zoning criteria" test.10 Finally, Part III argues that River of Life demonstrates how equal treatment within the context of exclusionary zoning is in fact impossible.11 In effect, River of Life puts control over zoning regulations into the courts and out of the hands of religious institutions.12I. Divergent Applications of RLUIPA's Equal Terms Provision and the Seventh Circuit's Search for a CompromiseThe River of Life Kingdom Ministries is a small church that occupies a warehouse in Chicago Heights, Illinois.13 In 2007, the church wanted to relocate to a building in the nearby Village of Hazel Crest.14 That building, however, was in an area designated by the town's zoning ordinance as a commercial district.15 The zoning ordinance had been amended to exclude new non-commercial uses so the district around the train station could be revitalized as a commercial center.16 The ordinance therefore excluded churches and other non-commercial institutions like community centers, schools, and art galleries.17On February 15, 2008, the River of Life Kingdom Ministries sued the Village of Hazel Crest under RLUIPA's equal terms provision and moved for a preliminary injunction against the enforcement of the zoning ordinance.18 The district judge denied the motion, and a panel of the Seventh Circuit Court of Appeals affirmed that the church was unlikely to prevail when the case was fully litigated.19 The Seventh Circuit then granted a rehearing en banc due to a disagreement among the circuits as to the proper test for applying the equal terms provision.20 It ultimately created its own "accepted zoning criteria" test that compromised between religious institutions, municipalities, the federal government, and the courts for control over land-use regulations.21A. RLUIPA and the Circuit SplitRLUIPA is the latest chapter in a long struggle between the courts, the federal government, and municipalities over religious liberty.22 In River of Life, the Seventh Circuit had to determine the proper standard for applying RLUIPA's equal terms provision to the church's petition.23 The equal terms provision 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."24 The circuit courts have struggled to apply the equal terms provision and have disagreed on two points: (1) how to compare religious institutions to secular ones, and (2) the level of scrutiny to apply for instances of unequal treatment. …