Civil Liberties for Urban Believers, Christ Center, Christian Covenant Outreach Church v. City of Chicago

Appellants, an association of Chicago-area churches and five individual member churches thereof, appeal from the district court's entry of summary judgment in favor of Appellee, the City of Chicago, on Appellants' claims challenging the Chicago Zoning Ordinance ("CZO"), 17 MUNICIPAL CODE OF CHICAGO, ILL., §§ 1-11, under the federal Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 UNITED STATES CODE § 2000cc et seq., and the United States Constitution. For the reasons set forth below, we affirm the decision of the district court.

The CZO broadly divides the city into R, B, C, and M zones for residential, business, commercial, and manufacturing uses, respectively. Each zone, in turn, is subdivided into numbered districts and subdistricts. A majority of Chicago land available for development is zoned R. The CZO's stated purposes include the following: (i) "to promote and to protect the public health, safety, morals, comfort, convenience, and the general welfare of the people," and (ii) "to protect the character and maintain the stability for residential, business, commercial, and manufacturing areas within the City, and to promote the orderly and beneficial development of such areas." See 17 MUN. CODE CHI. § 2(1), (3)(2001). Churches are permitted uses as of right in all R zones, but are termed Variations in the Nature of Special Uses ("Special Use") in all B zones as well as C1, C2, C3, and C5 districts. All Special Uses, whether of a religious or nonreligious nature, require approval by the Zoning Board of Appeals ("ZBA") following a public hearing. See id. §§ 7.3-1(4), 8.4, 9.4, & 11.10. Special Use approval is expressly conditioned upon the design, location, and operation of the proposed use consistent with the protection of public health, safety, and welfare, and the proposed use must not substantially injure the value of neighboring property. See id. § 11.10-4. Factoring such expenses as application, title search, and legal fees, as well as appraisal and neighbor notification costs, the aggregate cost of obtaining Special Use approval approaches $5000. Before a church may locate in a C4 district or an M zone, the Chicago City Council must vote in favor of a Map Amendment, effectively rezoning the targeted parcel. See id. §§ 9.4-4, 10, & 11.9. Development for church use of land consisting of two or more acres (necessary for congregations exceeding roughly 500 members) requires approval by City Council vote of a Planned Development. See id. § 11.11-1(a) & 11.11-3.

Civil Liberties for Urban Believers ("CLUB") is an unincorporated association of 40 to 50 Chicago-area religious or not-for-profit Illinois corporations ranging in size from 15 to 15,000 congregants. Five of these individual member churches1 joined CLUB as plaintiffs in an action challenging the validity of the CZO. The district court summarized as follows the encounters of the five individual plaintiff churches with Chicago's zoning framework as alleged in Appellants' complaint:

Christ Center began meeting in a high school auditorium in 1990, but soon experienced difficulties at this location due to various school functions that interrupted weekly worship. As a result, Christ Center began searching for a building to purchase. The church was unsuccessful in locating an appropriate building in any R districts. In the summer of 1992, Christ Center located a suitable building at 1139-43 West Madison in Chicago. The building was located in a C district and Christ Center promptly applied for a special use permit. After completing the application process, Christ Center reached out to gain the support of neighbors and Alderman Theodore Mazola. Most neighbors favored a taxpaying entity in the neighborhood rather than a church and Alderman Mazola stated that he would support the church's special use permit on any street but Madison. The Zoning Board eventually convened a special hearing on September 18, 1992. On October 18, 1992, the special use permit was denied. Christ Center subsequently found a second building in an M district at 123 South Morgan. The owner of the building also agreed to provide financing. However, the Chicago Department of Planning and Development informed Christ Center that it would oppose any rezoning application because the particular area was designated to become an entertainment area and the presence of a church would inhibit such development. Christ Center subsequently choose not to file an application for rezoning. In the fall of 1993, Christ Center obtained property at 4445 South King Drive, successfully obtained a special use permit and now operates a church at this location. Christ Center now claims that it paid substantial sums in attorneys fees, appraisal fees, zoning application charges, title charges and other expenses attempting to find suitable property.

Between 1986 and the summer of 1988, Christian Bible met in a private home. The church eventually outgrew this space and began meeting in a funeral home. The funeral home, however, proved aesthetically and administratively problematic. In 1990, Christian Bible located a suitable building in a B district at 83rd and Essex. Alderman Beavers promptly informed Christian Bible that "he would not allow" a church at that location. Consequently, Christian Bible did not apply for a special use permit at this location. In March 1991, Christian Bible purchased property in another B district at 513-23 East 75th Street. The Park Manor Neighbors Association and Alderman Steele both opposed the church's special use permit application. On May 17, 1991, the permit was denied. Christian Bible then unsuccessfully attempted to sell the building for 10 months. In February 1992, Christian Bible renovated the building to enhance its appearance. During these renovations, the church rented space at another location, or held meetings at private homes. Christian Bible later reapplied for a special use permit which was granted on August 20, 1993 with the support of neighbors in the district. Christian Bible now claims the delay in obtaining a special use permit prevented the church from obtaining a real estate tax exemption. The church further alleges that it also paid substantial sums in expenses related to the application process and also suffered a decrease in membership. Christian Bible now owns and meets at a church at 6210 S. St. Louis and has successfully obtained a special use permit to operate the church. From February, 1988 to December, 1993, Mount Zion rented space in a C district at 4545 North Kedzie. During this period, Mount Zion never applied for a special use permit. In 1990, a [Chicago] inspector ordered Mount Zion to vacate the building. In April 1993, Mount Zion located suitable rental property at 3949 North Pulaski, and applied for a special use permit. During this process, the Zoning Board informed Mount Zion that the building lacked adequate parking accommodations for a church and both the building and each parking lot would require special use permits. Alderman Wojcik and a neighborhood group also opposed Mount Zion's application. Consequently, Mount Zion withdrew its application for a special use permit. Mount Zion now owns and meets in a church at 3807 N. Lavergne.

On November 1, 1992, Christian Covenant first rented property in a C district. The owner of the building offered to co-sign a loan enabling Christian Covenant to purchase the property. However, [Chicago] inspectors ordered Christian Covenant to stop using the building as a church without a special use permit. As a result, Christian Covenant did not purchase the building out of fear [Chicago] would not allow the building to be used as a church without a special use permit. Christian Covenant now owns and meets in a church located in an R district.

Between 1990 and 1992, His Word met in the basement of a private home until membership outgrew these accommodations. In 1992, His Word located a suitable building in a C district at 1616 West Pershing. On March 27, 1992, the church signed a purchase contract contingent upon the grant of a special use permit. After filing their special use permit application, His Word met with neighbors in the district who generally supported it. Alderman Patrick Huels stated he would neither support nor oppose the application. On three separate occasions, at the request of Alderman Huels, the [ZBA] postponed a hearing on His Word's application. On October 14, 1992, Alderman Huels introduced an amendment to the [CZO] to rezone the property located at 1616 West Pershing from a C district to an M district. After a hearing on December 10, 1992, Alderman William Banks and other aldermen on the Chicago Committee on Zoning of the Chicago City Council voted to recommend approval of the amendment. Both His Word and Citibank, the owner of the building, opposed the rezoning. On December 15, 1992, the Chicago City Council voted to enact the rezoning amendment changing 1616 West Pershing from a C district to an M district. His Word subsequently withdrew its application for a special use permit; the church spent a considerable sum on filing, attorney's and appraiser's fees. His Word now owns and meets in a church located in an R district.

Civil Liberties for Urban Believers v. Chicago, 157 F.Supp.2d 903, 907-08 (N.D.Ill. 2001).

This appeal from the district court's summary judgment ruling in favor of Chicago on Appellants' fourth amended complaint reaches us via a long and tortuous procedural path.2 Appellants amended their original complaint to remove claims challenging the CZO under the federal Religious Freedom Restoration Act, 42 U.S.C.2000bb et seq. ("RFRA"), after the Supreme Court invalidated relevant provisions of RFRA in City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). In February 2000, in response to Appellants' remaining constitutional challenges to the CZO's designation of churches vis-à-vis various nonreligious assembly uses in B, C, and M zones, the City Council amended the CZO to require clubs, lodges, meeting halls, recreation buildings, and community centers to obtain Special Use approval in order to locate within any B and C zones and a Map Amendment in order to locate within any M zone. The amendments also (i) exempt churches from the requirement that a Special Use applicant affirmatively demonstrate that the proposed use "is necessary for the public convenience at that location" and (ii) provide that a Special Use permit shall automatically issue in the event that the ZBA fails to render a decision within 120 days of the date of application. Several months thereafter, Congress reacted to the Supreme Court's decision in City of Boerne with the enactment of RLUIPA and Appellants subsequently amended their complaint once more to include claims against Chicago pursuant to RLUIPA.3

In addition to the RLUIPA claim, Appellants' final amended complaint argued, in part, that the CZO and the administrative and legislative processes for obtaining Special Use, Map Amendment, and Planned Development approval violate Appellants' rights to (i) free exercise of religion, speech, and assembly under the First Amendment of the United States Constitution, (ii) equal protection under the Fourteenth Amendment of the United States Constitution as well as the Illinois Constitution, and (iii) procedural due process under the Fourteenth Amendment of the United States Constitution. Appellants also claimed that the rezoning of 1616 West Pershing Road ("Pershing") violated His Word's constitutional rights.4

In granting summary judgment in favor of Chicago, the district court determined that the February 2000 amendments to the CZO removed "any potential substantial burden" on religious exercise, such that Chicago

avoid[ed] the preemptive force of any provision of [RLUIPA] by changing the policy or practice that result[ed] in a substantial burden on religious exercise, by retaining the policy or practice and exempting the substantially burdened religious exercise, by providing exemptions from the policy or practice for applications that substantially burden religious exercise, or by any other means that eliminate[ed] the substantial burden.

42 U.S.C. § 2000cc-3(e). With respect to Appellants' equal protection claims, the district court concluded that Chicago's zoning scheme is rationally related to a legitimate government purpose and thus constitutional. The district court also rejected Appellants' due process claims, noting that City Council and ZBA legislative procedures and practices afforded Appellants what minimal process is due in zoning cases. In its discussion of Appellants' First Amendment claims, the district court explained that the CZO and its Special Use provisions are neutral and generally applicable law which do not impermissibly burden the free exercise of religion, and that the operation of a church is subject to zoning laws, even where such operation involves conduct within the core of the First Amendment — here, religious speech and assembly. Finally, while acknowledging that the conduct of Alderman Huels in connection with the Pershing rezoning was "egregious" and perhaps "dishonorable", the district court relied on this Court's decision in Biblia Abierta, 129 F.3d at 901-02, to conclude that such legislative action was constitutional insofar as it (i) afforded His Word procedural due process, (ii) was taken subject to neutral and generally applicable ordinances, and (iii) was rationally related to Chicago's legitimate interests in developing the commercial areas adjacent to the parcel while avoiding land-use conflicts.

The district court subsequently denied Appellants' motion, pursuant to Rule 59(e) of the Federal Rules of Civil Procedure ("FRCP"), to reconsider its summary judgment. See Civil Liberties for Urban Believers v. Chicago, 2002 WL 485380, No. 94 C 6151 (N.D.Ill. Mar. 29, 2002). This appeal ensued.

We review the district court's grant of summary judgment de novo. See, e.g., Freedom From Religion Foundation v. Bugher, 249 F.3d 606, 610 (7th Cir.2001). Summary judgment is proper where there is no genuine issue as to any material fact. Such is the case where the nonmoving party has failed to make a sufficient showing on an essential element of his case with respect to which he has the burden of proof, because a complete failure of proof concerning an essential element of his case necessarily renders all other facts immaterial. In such a case, the moving party is entitled to judgment as a matter of law and summary judgment must issue against the nonmoving party. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); FED. R. CIV. P. 56(c).

Appellants argue that the CZO violates RLUIPA's substantial burden provision, which requires land-use regulations that substantially burden religious exercise to be the least restrictive means of advancing a compelling government interest, see 42 U.S.C. § 2000cc(a), as well as its nondiscrimination provision, which prohibits land-use regulations that either disfavor religious uses relative to nonreligious uses or unreasonably exclude religious uses from a particular jurisdiction, see 42 U.S.C. § 2000cc(b).5

In order to prevail on a claim under the substantial burden provision, a plaintiff must first demonstrate that the regulation at issue actually imposes a substantial burden on religious exercise. RLUIPA defines "religious exercise" to encompass "any exercise of religion, whether or not compelled by, or central to, a system of religious belief," including "[t]he use, building, or conversion of real property for the purpose of religious exercise." 42 U.S.C. § 2000cc-5(7). This definition reveals Congress's intent to expand the concept of religious exercise contemplated both in decisions discussing the precursory RFRA, see, e.g., Hicks v. Garner, 69 F.3d 22, 26 n. 22 (5th Cir.1995) (collecting cases defining "substantial burden on religious exercise" under RFRA), and in traditional First Amendment jurisprudence, see, e.g., Hernandez v. Commissioner, 490 U.S. 680, 699, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989) (religious exercise as "the observation of a central religious belief or practice" (citations omitted)); Thomas v. Review Bd. of the Indiana Employment Sec. Div., 450 U.S. 707, 718, 101 S.Ct. 1425, 67 L.Ed.2d 624, (1981) (religious exercise as behavior and beliefs compelled by a particular religion); Sherbert v. Verner, 374 U.S. 398, 404, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) (religious exercise as adherence to the central precepts of a religion). Although the text of the statute contains no similar express definition of the term "substantial burden," RLUIPA's legislative history indicates that it is to be interpreted by reference to RFRA and First Amendment jurisprudence. See 146 CONG. REC. 7774-01, 7776 ("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"). Chicago cites a decision of this Court which held that, within the meaning of RFRA, a substantial burden on religious exercise "is one that forces adherents of a religion to refrain from religiously motivated conduct, inhibits or constrains conduct or expression that manifests a central tenet of a person's religious beliefs, or compels conduct or expression that is contrary to those beliefs." Mack v. O'Leary, 80 F.3d 1175, 1179 (7th Cir.1996) (vacated on other grounds). Substituting RLUIPA's broader definition of religious exercise, which need not be "compelled by or central to" a particular religion, for that articulated in Mack, the meaning of "substantial burden on religious exercise" could be read to include the effect of any regulation that "inhibits or constrains the use, building, or conversion of real property for the purpose of religious exercise." Such a construction might lend support to Appellants' contention that the CZO, insofar as it contributes to other existing constraints upon the use of specific parcels as churches, substantially burdens religious exercise. However, this cannot be the correct construction of "substantial burden on religious exercise" under RLUIPA. Application of the substantial burden provision to a regulation inhibiting or constraining any religious exercise, including the use of property for religious purposes, would render meaningless the word "substantial," because the slightest obstacle to religious exercise incidental to the regulation of land use — however minor the burden it were to impose — could then constitute a burden sufficient to trigger RLUIPA's requirement that the regulation advance a compelling governmental interest by the least restrictive means. We therefore hold that, in the context of RLUIPA's broad definition of religious exercise, a land-use regulation that imposes a substantial burden on religious exercise is one that necessarily bears direct, primary, and fundamental responsibility for rendering religious exercise — including the use of real property for the purpose thereof within the regulated jurisdiction generally — effectively impracticable.

Appellants contend that the scarcity of affordable land available for development in R zones, along with the costs, procedural requirements, and inherent political aspects of the Special Use, Map Amendment, and Planned Development approval processes, impose precisely such a substantial burden. However, we find that these conditions — which are incidental to any high-density urban land use — do not amount to a substantial burden on religious exercise. While they may contribute to the ordinary difficulties associated with location (by any person or entity, religious or nonreligious) in a large city, they do not render impracticable the use of real property in Chicago for religious exercise, much less discourage churches from locating or attempting to locate in Chicago. See, e.g., Love Church v. City of Evanston, 896 F.2d 1082, 1086 (7th Cir. 1990) ("Whatever specific difficulties [plaintiff church] claims to have encountered, they are the same ones that face all [land users]. The harsh reality of the marketplace sometimes dictates that certain facilities are not available to those who desire them"). Significantly, each of the five individual plaintiff churches has successfully located within Chicago's city limits. That they expended considerable time and money so to do does not entitle them to relief under RLUIPA's substantial burden provision. See, e.g., Stuart Circle Parish v. Board of Zoning Appeals of Richmond, 946 F.Supp. 1225, 1237 (E.D.Va.1996) ("It is well established that there is no substantial burden placed on an individual's free exercise of religion where a law or policy merely `operates so as to make the practice of [the individual's] religious beliefs more expensive.'") (quoting Braunfeld v. Brown, 366 U.S. 599, 605, 81 S.Ct. 1144, 6 L.Ed.2d 563, (1961) (plurality opinion)). Otherwise, compliance with RLUIPA would require municipal governments not merely to treat religious land uses on an equal footing with nonreligious land uses, but rather to favor them in the form of an outright exemption from land-use regulations. Unfortunately for Appellants, no such free pass for religious land uses masquerades among the legitimate protections RLUIPA affords to religious exercise.

Though the substantial burden and nondiscrimination provisions are operatively independent of one another, RLUIPA's governmental discretion provision, 42 U.S.C. § 2000cc-3(e), upon which the district court relied in order to find that the February 2000 CZO amendments corrected any violation of the substantial burden provision, appears not to reflect this distinction. That subsection provides, in part, that "a government may avoid the preemptive force of any provision of [RLUIPA] by changing the policy or practice that results in a substantial burden on religious exercise." 42 U.S.C. § 2000cc-3(e) (emphasis added). Rather than remove any substantial burden on religious exercise, however, the February 2000 amendments simply place churches on an equal footing with nonreligious assembly uses, thereby correcting any potential violation of the nondiscrimination provision. Despite subsection 2000cc-3(e)'s reference to removal of a "substantial burden," we read it to afford a government the discretion to take corrective action to eliminate a nondiscrimination provision violation, whether or not it was the result of a substantial burden on religious exercise. Thus do we find that, under RLUIPA's governmental discretion provision, the February 2000 amendments to the CZO render RLUIPA's nondiscrimination provision inapplicable to this case.6

Insofar as Appellants cannot demonstrate on these facts that the CZO substantially burdens religious exercise, and because the February 2000 Amendments to the CZO bring it into compliance with RLUIPA's nondiscrimination provision, Appellants fail to make a sufficient showing on essential elements of their RLUIPA claims. Chicago is therefore entitled to summary judgment on those claims.

Having found RLUIPA inapplicable to the facts of this case, we need not address the issue of RLUIPA's constitutionality, raised by the parties as well as the United States of America, as Intervenor, and various Amici Curiae.

Under the Free Exercise Clause of 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. Prior to RLUIPA's enactment, two Supreme Court decisions held that 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 interest. Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990); Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993). Appellants cite Smith and Hialeah as additional authority for application of the compelling governmental interest and least restrictive means tests to the CZO, not unlike those urged under RLUIPA.

Appellants first argue that the CZO lacks facial neutrality because, like the law at issue in Hialeah, the CZO "refers to a religious practice" — use of property as a church — "without a secular meaning discernable from the language or context." 508 U.S. at 530, 113 S.Ct. 2217. In that case, the City of Hialeah reacted to the intention of practitioners of the Santería religion to establish a church within city limits by passing ordinances banning public ritual sacrifice, a distinguishing element of the Santería religious tradition. The Court explained that a law is not neutral if its object "is to infringe upon or restrict practices because of their religious motivation," and then found that the Hialeah ordinances' use of the words "sacrifice" and "ritual", which have "strong religious connotations," was evidence of their purposeful targeting of Santería practices. Appellants assert by analogy that the CZO's explicit inclusion of "church" among the various land uses it regulates indicates that it discriminates against churches on its face. Unlike the Hialeah ordinances, however, the text of the CZO includes "church" as just one among many and varied religious and nonreligious regulated uses.7 More importantly, nothing in the record suggests, nor do Appellants articulate in anything but conclusory terms, that the object and purpose of the CZO are anything other than those expressly stated therein. See 17 MUN. CODE CHI. § 2.

In addition to their facial challenge under the Free Exercise Clause as interpreted in Hialeah, Appellants allege that the CZO was not neutrally applied to His Word during the course of Alderman Huels' successful efforts to initiate the rezoning of 1616 West Pershing Road.8 While they concede that Alderman Huels may not be held personally liable for his actions based on our decision in Biblia Abierta, 129 F.3d at 901-02, Appellants argue that his actions were legislative acts which improperly targeted His Word. However,

[m]unicipal liability attaches only where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered. The fact that a particular official — even a policy-making official — has discretion in the exercise of particular functions does not, without more, give rise to municipal liability based on an exercise of that discretion.

Pembaur v. Cincinnati, 475 U.S. 469, 481-82, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). Here, the possibility that Alderman Huels' motives for wanting to have the property rezoned were illicit in no way demonstrates that the City Council and the Mayor, who have final authority under state law to enact city ordinances, see 65 I.L.C.S. §§ 5/1-2-1(2), endorsed any such motives. Absent some evidence that the policy-making body, in this case the City Council, approved both the rezoning and the illicit motivation therefor — and Appellants offer none — Chicago cannot be held liable for Alderman Huels' actions. See, e.g., City of St. Louis v. Praprotnik, 485 U.S. 112, 128-30, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (plurality opinion); id. at 140-42, 108 S.Ct. 915 (Brennan, J., concurring in the judgment).

Appellants also contend that the CZO is not generally applicable, in that the Special Use, Map Amendment, and Planned Development processes create discretionary, individualized exemptions to the CZO which are then impermissibly withheld from churches. As support for this proposition, they cite the Supreme Court's pronouncement that "[i]n circumstances in which individualized exemptions from a general requirement are available, the government `may not refuse to extend that system to cases of "religious hardship" without compelling reason.'" Hialeah, 508 U.S. at 537, 113 S.Ct. 2217 (quoting Smith, 494 U.S. at 884, 110 S.Ct. 1595 (citation omitted)). Even assuming, arguendo, that the burdens incidental to churches seeking Special Use, Map Amendment, or Planned Development approval amount to "religious hardship" within the meaning of the Court's decision in Hialeah, Appellants appear to confuse exemption from a particular zoning provision (in the form of Special Use, Map Amendment, or Planned Development approval) with exemption from the procedural system by which such approval may be sought. Under the CZO, these alternate avenues of zoning approval are not merely available to any would-be applicant, as Hialeah requires. They are mandatory. In short, no person, nor any nonconforming land use, is exempt from the procedural system in place for Special Use, Map Amendment, or Planned Development approval specifically, or the CZO generally. Furthermore, the experiences of plaintiff churches Christ Center and Christian Bible, each of which was initially denied — and subsequently granted — Special Use approval, demonstrates that Chicago has extended Special Use exemptions to churches. It is clear to this Court that it is neither the policy nor the practice of Chicago to refuse to extend to churches its system of individualized exemptions and, thus, that the CZO is a generally applicable system of land-use regulation.

In Smith, the Supreme Court noted that, in cases implicating the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and freedom of association, the First Amendment may subject the application to religiously motivated action of a neutral, generally applicable law to a heightened level of scrutiny. Smith, 494 U.S. at 881-82, 110 S.Ct. 1595. Seizing upon this principle, Appellants maintain that their Free Exercise claim involves hybrid rights of free exercise, freedom of speech, freedom of assembly, and equal protection, such that Chicago must justify the CZO's incidental burdens on church location with a compelling state interest. Based on the analyses of Appellants' speech, assembly, and equal protection claims that follow, however, we find them individually lacking the merit necessary to withstand summary judgment. We agree with the Court of Appeals for the Ninth Circuit that "a plaintiff does not allege a hybrid rights claim entitled to strict scrutiny analysis merely by combining a free exercise claim with an utterly meritless claim of the violation of another alleged fundamental right." Miller v. Reed, 176 F.3d 1202, 1207-08 (9th Cir.1999). Accord, e.g., Swanson v. Guthrie Independent School District, 135 F.3d 694, 700 (10th Cir.1998); Brown v. Hot, Sexy and Safer Productions, Inc., 68 F.3d 525, 539 (1st Cir.1995); Kissinger v. Board of Trustees, 5 F.3d 177, 180 (6th Cir.1993). Appellants have identified no constitutionally protected interest upon which the CZO infringes, as they must in order to establish a hybrid rights claim requiring heightened scrutiny.

Of Appellants' remaining constitutional claims, the first alleges that the CZO violates Appellants' First Amendment rights to freedom of speech and freedom of assembly because the CZO is neither (i) content neutral nor (ii) narrowly tailored to serve a legitimate governmental objective and (iii) does not leave open ample channels of alternative communication. See Ward v. Rock Against Racism, 491 U.S. 781, 782, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (articulating these three criteria for valid time, place, and manner restrictions on speech and assembly). Appellants state in conclusory terms that the CZO discriminates against religious uses, is "irrational and arbitrary," restricts churches to R zones, and is not narrowly tailored. They also state that the CZO's requirement that churches occupying more than two acres obtain Planned Development approval creates a practical ban on large churches. As discussed previously, the CZO is neutral and generally applicable and places churches on a footing equal with, if not superior to, that of nonreligious assembly uses. Similarly, to the extent that the CZO incidentally regulates speech or assembly within churches, such regulation is motivated not by any disagreement that Chicago might have with the message conv