Petra Presbyterian v. Village Northbrook ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1329
PETRA PRESBYTERIAN CHURCH,
Plaintiff-Appellant,
v.
VILLAGE OF NORTHBROOK,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 C 1936—Blanche M. Manning, Judge.
____________
ARGUED OCTOBER 18, 2006—DECIDED JUNE 7, 2007
____________
Before POSNER, EVANS, and SYKES, Circuit Judges.
POSNER, Circuit Judge. This suit, filed in federal district
court by Petra, a Presbyterian church that caters to Korean-
Americans, charges the Village of Northbrook, a suburb
of Chicago, with violating the Religious Land Use and
Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc
et seq. So far as relates to this case, the Act (RLUIPA)
forbids a local government to “impose or implement a
land use regulation in a manner that” either “imposes a
substantial burden on the religious exercise of a person,
including a religious assembly or institution, unless the
government demonstrates that imposition of the burden”
2 No. 06-1329
is pursuant to “a compelling governmental interest,” or
“treats a religious assembly or institution on less than
equal terms with a nonreligious assembly or institution.”
Id., §§ 2000cc(a)(1), (b)(1). “[R]eligious exercise” is defined
to include the “use, building, or conversion of real property
for the purpose of religious exercise.” § 2000cc-5(7)(B). The
district court granted summary judgment in favor of the
Village. 409 F. Supp. 2d 1001 (N.D. Ill. 2006).
In the spring of 2000, Petra discovered a property in
Northbrook containing a warehouse that it wanted to
convert to a church and an office building that it wanted
to use for classrooms. But the property was located in a
part of Northbrook that under the Village’s then zoning
ordinance (adopted in 1988) was zoned industrial. Mem-
bership organizations, such as community centers, youth
centers, fraternal associations, and political clubs were
permitted in the zone, but not churches unless the Vil-
lage’s board of trustees was persuaded first to rezone
the property to “institutional buildings” (the only zone
in which churches are permitted) and then to issue a
special permit allowing a church in the rezoned property.
Of the eleven applications for rezoning and permits under
the 1988 ordinance made by churches, Petra’s was the
only one not granted.
In September of 2000, when Petra had not yet bought
the property that it had its eye on, it submitted an
informal request for rezoning and for a permit to the
Village’s board of trustees. The board conducted a pre-
liminary review on the basis of which it made comments
favorable to the proposal, but without ruling on it. Petra
then signed a contract to purchase the property (for $2.9
million) but made the purchase contingent on its being
permitted to use the warehouse as a church. Petra also filed
No. 06-1329 3
a formal application with the board for the necessary
rezoning and permit. At a hearing on the application
conducted by the Village’s planning commission, which
advises the board of trustees on land-use matters, land-
owners in the industrial zone expressed opposition, and
the commission recommended that Petra’s application
be denied. Without taking a formal vote, the board of
trustees directed its staff “to prepare documents that
would be consistent with denial of” Petra’s application.
Fearing the preclusive effect of a formal denial, Petra
withdrew its application. But then, remarkably, it went
ahead and bought the warehouse, albeit at a reduced
price of $2.6 million, and began using it as a church.
RLUIPA had been enacted in 2000, and it caused the
Village fathers to become concerned that the Village’s 1988
zoning ordinance, by treating religious organizations
less favorably than other membership organizations,
might violate the “less than equal terms” provision of the
new statute. The following year the board began a legisla-
tive process that resulted in the adoption of a revised
ordinance in 2003 that banned all membership organiza-
tions (not just churches) from the industrial zone. Existing
organizations were grandfathered, but of course not
Petra, which had never received permission to operate a
church in the zone.
Shortly after the enactment of the new ordinance, the
Village sought an injunction in state court against Petra.
But it based its claim not on Petra’s violating the zon-
ing code but on Petra’s violating the Village’s building
code. Maybe the board of trustees was skittish about
relying on an ordinance that might be challenged suc-
cessfully under RLUIPA—Petra had already filed the
present suit, which initially challenged just the 1988
ordinance.
4 No. 06-1329
The state court issued a preliminary injunction prohibit-
ing Petra from “using the indoor premises [of the property]
for assembly purposes” or “occupying the indoor prem-
ises of the property in numbers exceeding 60 persons
total at one time limited to general business purposes for
meetings, classes, choir practice, office and business use,
and washroom use.” The district judge interpreted the
injunction as “prevent[ing] Petra from conducting wor-
ship services and limiting occupancy to 60 persons at all
other times.” The preliminary injunction was issued in
2003, and the following year the state court issued a
permanent injunction to the same effect.
Petra’s main argument is that it acquired a “vested right”
to operate its warehouse as a church. A doctrine of
Illinois law allows in some circumstances a land use to
continue after a zoning change that would ban it, e.g., 1350
Lake Shore Associates v. Healey, 861 N.E.2d 944, 950 (Ill.
2006), but only if the use was authorized by the zoning
ordinance as it stood before the change. E.g., id.; City of
Elgin v. All Nations Worship Center, 860 N.E.2d 853, 856-58
(Ill. App. 2006), National Advertising Co. v. Village of Downers
Grove, 561 N.E.2d 1300, 1304-05 (Ill. App. 1990). And that is
not the case here. Anyway, no claim under state law is
before us. The district court relinquished supplemental
jurisdiction over Petra’s Illinois “vested rights” claim. Petra
argues that that was error, that though a state law claim it
arises under federal law. The argument makes no sense.
The judge did Petra a favor by relinquishing jurisdic-
tion over the state law claim, because if it were before us
we would reject it on the merits, as a misreading of
Illinois law.
Petra argues in the alternative for a federal “vested
rights” doctrine on the basis of various provisions of the
No. 06-1329 5
Constitution, and on RLUIPA. The argument, peppered
with mysterious references to a “federal zoning law,” is
difficult to follow. As near as we can understand it, Petra
is claiming that when it bought the property it was reason-
ably relying on the invalidity of the 1988 ordinance,
which arbitrarily treated religious membership organiza-
tions worse than other membership organizations, thus
violating not only RLUIPA but also the free-exercise clause
of the First Amendment. E.g., Church of the Lukumi Babalu
Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532-34 (1993). (The
“less than equal terms” provision of RLUIPA codifies
that constitutional prohibition. Midrash Sephardi, Inc. v.
Town of Surfside, 366 F.3d 1214, 1232 (11th Cir. 2004).) As
a result of that reliance, Petra contends that it obtained an
indefeasible right to use the warehouse for a church even
if the 2003 ordinance, which would forbid such use,
is valid.
We cannot find any basis, whether in cases or other
conventional sources of law, or in good sense, for the
proposition that the federal Constitution forbids a state
that has prevented a use of property by means of an invalid
(even an unconstitutional) enactment to continue to
prevent that use by means of a valid one. From the proposi-
tion that the Village should not have discriminated in the
industrial zone in favor of secular membership organiza-
tions it does not follow that when it eliminated the dis-
crimination by banning all membership organizations from
the zone, this entitled the victim of the discrimination to
claim, by way of remedy, discrimination in its favor. So
strange a rule of estoppel could hardly be thought an
imperative of due process, especially since, although
property rights are protected (to a degree) by the due
process clauses of the Constitution, the scope of those
6 No. 06-1329
rights is determined by state law within broad limits that
include the conditions under which a governmental act
can render a property right indefeasible. Crown Media,
L.L.C. v. Gwinnett County, 380 F.3d 1317, 1325 and n. 18
(11th Cir. 2004); Coral Springs Street Systems, Inc. v. City of
Sunrise, 371 F.3d 1320, 1333 (11th Cir. 2004); Lakeview
Development Corp. v. City of South Lake Tahoe, 915 F.2d
1290, 1294-95 (9th Cir. 1990).
And if there were such a rule of constitutional law
(“vesting by estoppel”), it would be inapplicable to this
case. If the 1988 ordinance violated RLUIPA, as Northbrook
comes close to conceding, Petra didn’t have to comply with
it. But that doesn’t mean that it acquired an immunity from
all zoning regulation. It knew or should have known that
Northbrook could redo its ordinance to comply with the
“less than equal terms” provision of RLUIPA in one of two
ways: by permitting religious organizations in the indus-
trial zone, or by forbidding all membership organizations
in the zone. Petra could not reasonably assume that the
Village would choose the first option. And since it there-
fore did not reasonably rely on the illegality of the 1988
ordinance in going ahead and buying the property, but
instead assumed the palpable risk that a new, valid ordi-
nance would continue the ban on its desired use of the
property, it has no ground for blocking the Village from
enforcing the amended ordinance against it, on the theory
that the Village pulled the rug out from under it by chang-
ing the ordinance.
Petra also seeks damages for the period during which it
was enjoined from operating the warehouse as a church.
The injunction has become final, and the judgment of a
state court cannot be appealed to any federal court other
than the Supreme Court. E.g., Exxon Mobil Corp. v. Saudi
No. 06-1329 7
Basic Industries Corp., 544 U.S. 280, 283-86 (2005); Burke v.
Johnston, 452 F.3d 665, 667 (7th Cir. 2006). If Petra has a
claim for damages that is not dependent on invalidating
the injunction, it is time barred. Petra filed the present
suit in March of 2003. The applicable statute of limitations,
the parties agree, is two years, so that to be timely Petra’s
claim had to arise no earlier than March of 2001. The
district court thought it arose in December 2000 because
that was when Petra first “knew about the constitutional
infirmity” of the 1988 ordinance. 409 F. Supp. 2d at 1006.
Petra argues that its claim did not arise until May 2001,
when the board signaled unmistakably that it would
not grant Petra a special permit by directing its staff to
prepare documents consistent with the denial of Petra’s
application.
The date on which Petra first learned that the 1988
ordinance might violate RLUIPA was not the date on
which its claim arose. Mere knowledge of the existence
of an invalid law that might be applied to one is not an
injury, and a tort claim does not arise until there is an
injury, e.g., Palmer v. Board of Education, 46 F.3d 682, 685
(7th Cir. 1995); Diaz v. Shallbetter, 984 F.2d 850, 855 (7th Cir.
1993), Miller v. Philadelphia Geriatric Center, 463 F.3d 266,
271 (3d Cir. 2006), or until the injury (and who caused it) is
discovered or should have been discovered. E.g., id.;
Behavioral Institute of Indiana, LLC v. Hobart City of Common
Council, 406 F.3d 926, 929 (7th Cir. 2005); McIntyre v. United
States, 367 F.3d 38, 51-52 (1st Cir. 2004); Corcoran v. New
York Power Authority, 202 F.3d 530, 544 (2d Cir. 1999).
Indeed, before there is an injury, there is no standing to sue
for damages because no damages have accrued, Love
Church v. City of Evanston, 896 F.2d 1082, 1085-86 (7th Cir.
1990), and obviously a statute of limitations cannot begin
to run before the prospective plaintiff could sue.
8 No. 06-1329
But December 2000 is when Petra’s claim arose, because,
as the district judge noted elsewhere in her opinion, that
was when Petra entered into the first contract to buy
the warehouse. Although the purchase was contingent
on Petra’s being able to overcome the religious exclusion
in the 1988 zoning ordinance, the contingency was a
negative consequence of the ordinance because Petra
had to pay the seller $300,000 to compensate him for
the risk that the deal would fall through and he would
have to find another buyer. The $300,000 figure is the
difference between the $2.6 million sale price in the sec-
ond contract, which was not contingent on Petra’s ob-
taining approval to use the property for religious purposes,
and the $2.9 million price in the first contract, which
was contingent on that approval. If the ordinance was
invalid and therefore religious organizations had the
same rights in the industrial zone as other membership
organizations that, so far as appears, differ from religious
ones only in being secular, then were it not for the ordi-
nance Petra would have purchased the property with-
out conditions and begun operating the warehouse as a
church without facing an injunction. So its claim did arise
more than two years before it sued, and is therefore time-
barred.
That leaves Petra’s challenge to the current ordinance,
which it would like enjoined so that it can at last convert
the warehouse to a church. This might seem an exercise
in futility, since the injunction based on the building
code remains in effect, though Petra could always ask the
court that issued it to dissolve or modify it. But it appears
that if the zoning ordinance were invalidated, the Village
would issue a permit to Petra to retrofit the building
to bring it into compliance with the building code, and
No. 06-1329 9
that if Petra did that the state court would lift the injunc-
tion. So Petra’s challenge to the ordinance is not moot.
The new ordinance does not violate the “less than equal
terms” provision of RLUIPA. So the question is whether
it imposes a substantial burden on the exercise of religious
rights by Petra and its flock not offset by a compelling
governmental interest. The ban on churches in the indus-
trial zone cannot in itself constitute a substantial burden
on religion, because then every zoning ordinance that
didn’t permit churches everywhere would be a prima
facie violation of RLUIPA. Civil Liberties for Urban Believers
v. City of Chicago, 342 F.3d 752, 760-62 (7th Cir. 2003);
Midrash Sephardi, Inc. v. Town of Surfside, supra, 366 F.3d
at 1226-28; San Jose Christian College v. City of Morgan Hill,
360 F.3d 1024, 1034-35 (9th Cir. 2004); see also Love Church
v. City of Evanston, supra, 896 F.2d at 1086-87. Religious
organizations would be better off if they could build
churches anywhere, but denying them so unusual a
privilege could not reasonably be thought to impose a
substantial burden on them. As we explained in Sts.
Constantine & Helen Greek Orthodox Church, Inc. v. City of
New Berlin, 396 F.3d 895, 900 (7th Cir. 2005), “the ‘substan-
tial burden’ provision backstops the [Act’s] explicit prohi-
bition of religious discrimination . . . . If a land-use
decision . . . imposes a substantial burden on religious
exercise . . . and the decision maker cannot justify it, the
inference arises that hostility to religion, or more likely
to a particular sect, influenced the decision.” Unless the
requirement of substantial burden is taken seriously,
the difficulty of proving a compelling governmental
interest will free religious organizations from zoning
restrictions of any kind.
When there is plenty of land on which religious organiza-
tions can build churches (or, as is common nowadays,
10 No. 06-1329
convert to churches buildings previously intended for
some other use) in a community, the fact that they are not
permitted to build everywhere does not create a substan-
tial burden. What is true is that, as in Sts. Constantine &
Helen Greek Orthodox Church, Inc. v. City of New Berlin, supra,once the organization has bought property reasonably
expecting to obtain a permit, the denial of the permit may
inflict a hardship on it. Id. at 898-900. In that case the
denial was so utterly groundless as to create an inference
of religious discrimination, so that the case could equally
have been decided under the “less than equal terms”
provision of RLUIPA, which does not require a showing
of substantial burden. But Petra had no reasonable ex-
pectation of obtaining a permit. Having decided to go
ahead and purchase the property outright after it knew
that the permit would be denied, Petra assumed the risk
of having to sell the property and find an alternative site
for its church should the denial be upheld (or, if illegal,
legally reimposed), just like any other religious organiza-
tion that wanted to build in the industrial zone.
Any such organization would have to show that a
paucity of other land available for churches made the
exclusion from the industrial zone a substantial burden
to it. E.g., San Jose Christian College v. City of Morgan Hill,
supra, 360 F.3d at 1034-35. Petra did not attempt to show
this. Northbrook concedes that the two residential zones
(R-1 and R-2) that are the only zones in which churches are
permitted by the new ordinance without a permit are
“basically built up,” so that to build a church in one of
those zones a religious organization would have to buy
lots with existing homes and demolish them. But there is
no evidence concerning the availability of land in the
other zones where churches are allowed to operate with a
No. 06-1329 11
permit—other residential zones, commercial zones, office
zones, the institutional building zone, and a combined
residential/limited-commercial zone—or the difficulty
of obtaining a permit for a church in those zones.
The Village argues, unnecessarily and none too persua-
sively, that it has a compelling interest in keeping reli-
gious organizations, along with other membership organi-
zations, out of the industrial zone, even if a substantial
burden on religious observance results. It has an interest,
certainly. The industrial zone contains factories and
warehouses that generate substantial truck traffic. It has
toxic wastes, too—and no sidewalks. The traffic and
its associated noise are a source of inconvenience, an-
noyance, and even danger (especially given the absence of
sidewalks) to patrons of membership organizations,
including any churchgoers. The industrial users of the
zone objected to the grant of a permit to Petra because
they are worried about possible tort liability, and also that
restrictions on their own activities might be imposed in
order to protect pedestrians. And since Illinois has rejected
the doctrine of “coming to the nuisance,” e.g., City of Pana
v. Central Washed Coal Co., 102 N.E. 992, 998 (Ill. 1913);
Oehler v. Levy, 85 N.E. 271, 273-74 (Ill. 1908); Wheat v.
Freeman Coal Mining Corp., 319 N.E.2d 290, 294 (Ill. App.
1974), owners who put their property to a sensitive use,
as by using it for church services, might sue the industrial
users for nuisance even though the latter had preceded
them in the zone. If, moreover, the use of the zone ever
became predominantly nonindustrial, the zone might be
rezoned to ban industrial uses. Chicago Title & Trust Co. v.
County of Cook, 457 N.E.2d 1326, 1331-33 (Ill. App. 1983); see
also Fifteen Fifty North State Building Corp. v. City of Chicago,
155 N.E.2d 97, 101-03 (Ill. 1958).
12 No. 06-1329
The problem with Northbrook’s effort to show that
these considerations create a compelling governmental
interest in barring churches from the industrial zone is
that until RLUIPA was enacted, and indeed for years
afterward, the Village was content to allow membership
organizations other than churches to buy land and build
freely in the zone, no permit required. But the absence of
a compelling governmental interest is not relevant to a
RLUIPA claim unless the challenged restriction on the
use of property imposes a substantial burden on the
religious organization, and this, as we said, Petra has
failed to show.
None of Petra’s other claims has merit enough to warrant
discussion. The judgment of the district court is
AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-7-07