River of Life Kingdom Ministri v. Village of Hazel Crest ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2819
R IVER OF L IFE K INGDOM M INISTRIES,
Plaintiff-Appellant,
v.
V ILLAGE OF H AZEL C REST,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 C 950—Joan B. Gottschall, Judge.
A RGUED O CTOBER 22, 2008—D ECIDED O CTOBER 27, 2009
Before C UDAHY, M ANION, and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. River of Life Kingdom Minis-
tries (“the Church”) attempted to relocate its congrega-
tion from a crowded warehouse in Chicago Heights to
its very own property—a dated fixer-upper in a blighted
community in the Village of Hazel Crest. The problem
was the Village had a zoning ordinance in place that
designated the area a “Service Business District.” The
ordinance permitted a number of commercial uses for the
2 No. 08-2819
property, but not religious services. The Church was
aware of this ordinance, but it bought the property
anyway hoping it would receive a special use permit, a
form of relief, which, unbeknownst to the Church, was no
longer available under the current zoning ordinance. So
the Church sued the Village under the Religious Land
Use and Institutionalized Persons Act (“RLUIPA”) to
allow it to relocate to the business district. Before the
case could be decided on the merits, the Church filed a
motion for preliminary injunction to allow it to relocate
to the property in the interim. The district court denied
the motion and the Church appealed. We conclude that
the Church has only a slim chance of success on the
merits and that any irreparable harm it may suffer does
not significantly outweigh the potential harm to the
Village. As a result, we affirm the district court’s denial
of the Church’s motion for preliminary injunction.
I. BACKGROUND
River of Life Kingdom Ministries is a nonprofit religious
organization with approximately sixty-seven members.
Every Sunday, approximately thirty members of the
Church assemble for worship in a Chicago Heights ware-
house that it rents from a larger church. (About half of
its members regularly attend services.) It also holds
weekly Wednesday-night Bible study sessions and a
women’s ministry every third Saturday of the month. In
addition to these services, the Church wanted to do
more for its members and the community. Among its
goals were promoting literacy, empowering communities,
No. 08-2819 3
developing leaders, transforming economic conditions,
and improving life, health, and safety for local citizens, all
through the teaching and application of the principles
of the word of God. River of Life Kingdom Ministries, Inc.
Business Plan 1.1. For these purposes, its current location
was unsuitable. It only had access to the warehouse for
five to six hours a week, the facility was continually
dirty and lacked heat and air conditioning, and, to top it
off, it had to share the space with two other churches.
In the fall of 2006, the Church decided to purchase
its own facility and focused its attention on the property
at 16842 Park Avenue in the Village of Hazel Crest,
a suburb twenty-five miles south of Chicago with a popu-
lation near 15,000. The property is located in the oldest
part of the Village (called Hazel Crest Proper), which is
marred by vacant storefronts, run-down houses, and
underperforming public schools. This part of the Village
has been in serious decline since the 1990s. To the
Church, this neighborhood in economic decline presented
a valuable opportunity to implement its ministry goals
and to contribute to neighborhood revitalization
through a “grass roots, hands on approach . . . .” Among
the activities planned to implement its goals were: Bible
study for the residents, seminars, mentoring programs,
tutorial services, and even a few small businesses to
help spur the local economy.1
1
The Church hoped to open a bookstore that would also sell
hand-crafted spa and beauty products and also planned to
make office space available for start-up businesses.
4 No. 08-2819
By the time the Church began negotiations with the
property owner on the terms of the sale, the Village had
adopted a series of zoning ordinances and established a
Tax Increment Financing (“TIF”) plan. The Village’s
objective was to “provide an attractive commercial area
that enhanced the regional image of Hazel Crest” and,
particularly, to revitalize the run-down area near the
Metra train station. Pursuant to this goal, Hazel Crest
Proper (the “B-2 Service Business District”) under the
Village’s zoning ordinance was designated a TIF district.
This allowed the municipality to invest public funds in
improvements to the area, including building new infra-
structure and land acquisition. As the redevelopment
kicked in, the additional tax revenue generated would
then be used to repay the municipality. The zoning ordi-
nance, which implemented the redevelopment plan,
allowed general commercial and retail uses, gas stations,
hotels, taverns, offices, and meeting halls to locate in the
area as permitted uses. There is some indication, however,
that the revitalization planned by the Village is still a
few years and a few million dollars away from realization.2
The Village’s zoning regulations prompted the Church
to include a contingency in the sales contract con-
ditioning closing on its ability to obtain a special use
permit. However, due to erroneous legal advice or mis-
taken reliance on an outdated 1998 ordinance, the Church
2
According to the Village, the total timeline for the plan
was 23 years, and we are in year 9. Also, at the time of this
appeal, the Village has raised approximately $500,000 of the
$12 million required.
No. 08-2819 5
later waived this contingency and purchased the property
in October 2007. Soon after, the Church filed an ap-
plication for special permission to use the property,
which the Village denied. The Church also applied for a
special-use exception which the Village Board of Trustees
also denied.
On February 15, 2008, the Church filed a complaint and
motion for a temporary restraining order and preliminary
injunction to prevent the Village from enforcing the
zoning ordinance. The five-count complaint alleged that
the ordinance violated the First Amendment, the Equal
Protection clause, and the Substantial Burden and Equal
Terms provisions of RLUIPA. The district court denied
the temporary restraining order; however, while the
motion for preliminary injunction was still pending before
the court, the Village amended its ordinance to also
exclude community centers, non-religious schools,
meeting halls, art galleries, and recreational buildings,
among other uses, from zone B-2. Both parties appear to
concede that the strategy for this amendment was to
bring the zoning ordinance into compliance with RLUIPA.
The district court allowed the Village to supplement
the record with the amended ordinance, and it then
6 No. 08-2819
denied the Church’s motion for preliminary injunction.3
It is from this order that the Church now appeals.
II. ANALYSIS
“[A] preliminary injunction is an extraordinary and
drastic remedy, one that should not be granted unless the
movant, by a clear showing, carries the burden of persua-
sion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)
(citation omitted). To obtain such relief, the moving
party must first demonstrate that it has a reasonable
likelihood of success on the merits, lacks an adequate
remedy at law, and will suffer irreparable harm. See Girl
Scouts of Manitou Council, Inc. v. Girl Scouts of U.S., Inc.,
549 F.3d 1079, 1086 (7th Cir. 2008). The court must then
balance, on a sliding scale, the irreparable harm to the
moving party with the harm an injunction would cause
to the opposing party. Id. The greater the likelihood of
success, the less harm the moving party needs to show to
obtain an injunction, and vice versa. Id. The court must
also consider whether the public interest “will be harmed
sufficiently that the injunction should be denied.”
Christian Legal Soc’y v. Walker, 453 F.3d 853, 859 (7th Cir.
2006). We review the district court’s legal conclusions
3
The Church did not adequately brief, and the district court
did not consider, the First Amendment or Equal Protection
claims. The Church’s brief focuses solely on the violation of
RLUIPA’s Equal Terms provision; therefore, we limit our
review to this issue. See Hentosh v. Herman M. Finch Univ.
of Health Scis./The Chi. Med. Sch., 167 F.3d 1170, 1173 (7th Cir.
1999) (“Arguments not raised in an opening brief are waived.”).
No. 08-2819 7
de novo, its findings of fact for clear error, and its balanc-
ing of harms for abuse of discretion. Coronado v. Valleyview
Pub. Sch. Dist. 365-U, 537 F.3d 791, 795 (7th Cir. 2008).
A. Church is Unlikely to Succeed on the Merits
The first part of our analysis requires us to address the
strength of the Church’s suit. The Church argues that the
ordinance violates the Equal Terms provision of RLUIPA,
which states: “No government shall impose or imple-
ment a land use regulation in a manner that treats a
religious assembly or institution on less than equal terms
with a non-religious assembly or institution.” 42 U.S.C.
§ 2000cc(b)(1). We review de novo the district court’s
determination that the Church is likely to succeed on the
merits of its RLUIPA claim. See Christian Legal Soc’y,
453 F.3d at 859.
The Church claims that the Village’s ordinance, even as
amended, violates the Equal Terms provision because it
allows non-religious assemblies to locate within the B-2
district. Relying on Midrash Sephardi, Inc. v. Town of
Surfside, 366 F.3d 1214, 1230 (11th Cir. 2004), the Church
interprets the term “assembly” to include gymnasiums,
health clubs, salons, day care centers, and hotels, all of
which are permitted uses under the Village’s ordinance.
The Church argues that, because the ordinance allows
these assemblies but excludes the Church’s proposed
use, the ordinance treats religious assemblies on less
than equal terms with non-religious ones, thus violating
RLUIPA. The Village, on the other hand, argues that it
cured any potential RLUIPA concerns after its amendment
8 No. 08-2819
removed “meeting halls” and other non-commercial
institutions from the list of permissible uses. According
to the Village, hotels, commercial gyms, health clubs,
and the other uses raised by the Church cannot be con-
sidered assemblies, even under Midrash’s definition. The
Village also directs our attention to the Third Circuit’s
approach in Lighthouse Institute for Evangelism, Inc. v. City
of Long Branch, which requires a plaintiff to identify a
better-treated non-religious institution that is similarly
situated in regards to the regulatory purposes of the land-
use regulation. 510 F.3d 253 (3d Cir. 2007). This ap-
proach, the Village argues, is even more favorable to its
position although it still believes it will prevail under
either standard. We have not had the opportunity to
discuss at length the contours of the Equal Terms provi-
sion, but we benefit from the Third and Eleventh Circuits’
No. 08-2819 9
thoughtful discussion on the issue. 4 We analyze their
holdings accordingly.
In Midrash, the Eleventh Circuit held that a town’s
ordinance that prevented a synagogue from relocating
in the business district violated RLUIPA’s Equal Terms
provision. The district in question was created to “provide
for retail, shopping and personal service needs of
the town’s residents and tourists,” but also permitted
theaters, restaurants, private clubs, and lodge halls
within its boundaries. Id. at 1220. Using the “ordinary or
natural meaning” of “assembly,” as defined by Webster’s
and Black’s Law Dictionary, the court found that private
clubs and lodges were also assemblies similarly situated
to churches and synagogues. Id. at 1230-31. Therefore, to
4
In Vision Church v. Village of Long Grove, we quoted Konikov v.
Orange County, 410 F.3d 1317, 1324 (11th Cir. 2005), which
stated that there were three kinds of Equal Terms statutory
violations, the first one being “a statute that facially differenti-
ates between religious and non-religious assemblies or institu-
tions . . . .” 468 F.3d 975, 1003 (7th Cir. 2006). We also noted that
we had not yet explored fully the contours of the Equal Terms
provision, id., and the case did not provide any further oppor-
tunity to do so. The plaintiff in Vision Church only challenged
the special use permit requirement in the ordinance, and we
held that the provision did not differentiate between religious
and non-religious institutions; nor was there any other
evidence of discriminatory intent. See id. We did not determine
whether, for purposes of comparison under the Equal Terms
provision, the plaintiff must show that it is similarly situated
to other non-religious assemblies in relation to local govern-
ment objectives.
10 No. 08-2819
exclude synagogues but permit private clubs was to
treat a religious assembly on less than equal terms with
a non-religious one. Id. at 1231. Although the court
found that the ordinance violated RLUIPA, its inquiry
did not stop there. The court applied strict scrutiny,
determining whether the ordinance was narrowly
tailored to advance a compelling interest. Id. Relying on
the Supreme Court’s decision in Church of the Lukumi
Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), it
determined that laws which were not neutral or gen-
erally applicable were subject to strict scrutiny. Id. at 1232.
It then extended this principle to RLUIPA cases, stating:
RLUIPA’s equal terms provision codifies the Smith-
Lukumi line of precedent. . . . A zoning law is not
neutral or generally applicable if it treats similarly
situated secular and religious assemblies differ-
ently because such unequal treatment indicates
the ordinance improperly targets the religious
character of an assembly. Thus a violation of § (b)’s
equal treatment provision, consistent with the
analysis employed in Lukumi, must undergo
strict scrutiny.
Id.
The Third Circuit, on the other hand, adopted a slightly
different approach. A church argued that a plaintiff
alleging a violation of the Equal Terms provision need only
show that the city’s regulation treats a non-religious
assembly better than a religious assembly without regard
to the objectives of the regulation. Lighthouse, 510 F.3d at
264. The court disagreed. It reasoned that Congress in-
No. 08-2819 11
tended to codify the existing free exercise clause jurispru-
dence, all of which considered regulations presumptively
valid if they were neutral and of general applicability.
Id. In other words, facial differentiation between
religious and non-religious institutions alone was insuf-
ficient to demonstrate that the ordinance was non-neu-
tral. Only when the institutions had the same effect on the
city’s objectives was the regulation discriminatory. The
court also declined to incorporate strict scrutiny into
the Equal Terms provision. Section (a)(1) of RLUIPA
(the “Substantial Burden” provision) includes express
language applying strict scrutiny to land regulations that
impose a substantial burden on a person’s religious
exercise. The absence of such language in the Equal Terms
provision, according to the court, demonstrated Congress’s
intent not to include it. Id. at 269. As a result, the Third
Circuit held that “if a land-use regulation treats religious
assemblies or institutions on less than equal terms with
non-religious assemblies or institutions that are no less
harmful to the governmental objectives in enacting the
regulation, that regulation—without more—fails under
RLUIPA.” Id. at 269. Applying this interpretation, the court
struck down the city’s ordinance. It found that the ordi-
nance violated RLUIPA because nothing in the record
explained how the excluded religious assemblies harmed
the city’s objectives more so than the included non-reli-
gious assemblies. Id. at 272.
The difference between both approaches likely compels
a different result here. The Third Circuit’s interpretation
makes it difficult for the Church’s claim to survive. The
non-religious “assemblies” the Church identified (com-
12 No. 08-2819
mercial gymnasiums, health clubs, salons, day care
centers, and hotels), assuming they are indeed assemblies,
are all commercial entities that contribute to the business
district in ways a church cannot. Midrash’s interpretation
of the Equal Terms provision, adopted by the district
court, significantly improves the Church’s likelihood of
success. It would only need to demonstrate that one of
the permitted uses was an “assembly” to establish a
RLUIPA violation, and, thus, require us to apply strict
scrutiny. It is debatable whether a day care center, a
hotel, or a gymnasium can be considered an assembly,
but the Church would have at least some non-negligible
chance to win on the merits. As a result, we must first
determine whether the district court applied the correct
standard in finding that the Church’s RLUIPA claim had
a slight likelihood of success. The important question here
is the proper interpretation of “less than equal.” The
statute does not state explicitly whether this language
means religious and non-religious institutions must
always be treated identically in land-use regulations, or
whether the regulations can differentiate between them
for legitimate, non-religious reasons.
The Third and Eleventh Circuits are in agreement, and
the legislative history suggests that RLUIPA codified in
September 2000 the existing Free Exercise clause juris-
prudence. Lighthouse, 510 F.3d at 264 (citing 146 Cong.
Rec. S7774, 7776 (July 27, 2007) (Senate Sponsor’s state-
ment) (“Sections 2(b)(1) and (2) . . . enforce the Free
Exercise Clause rule against laws that burden religion
and are not neutral and generally applicable.”)); Midrash,
366 F.3d at 1232. We find the Third Circuit’s reasoning
No. 08-2819 13
persuasive because we believe it is more consistent with
Congress’s intent and with the case law interpreting the
Free Exercise clause.
The Supreme Court has clearly stated that the right of
free exercise of religion does not require us to invalidate
neutral laws of general applicability. Employment Div.,
Dept. of Human Res. of Or. v. Smith, 494 U.S. 872, 879 (1990).
Laws that depart from this principle of neutrality are
subject to strict scrutiny. Id. There are two ways in which
a law can discriminate against religious conduct. The
first is facially. In Church of the Lukumi Babalu Aye, Inc. v.
City of Hialeah, for instance, the Supreme Court stated that
“[a] law lacks facial neutrality if it refers to a religious
practice without a secular meaning discernible from the
language or context.” 508 U.S. 520, 533 (1993) (emphasis
added). In that case, the challenged ordinances prohibited
the “sacrifice” of animals within the city limits, but ex-
empted “slaughtering” (defined as “the killing of animals
for food”) by “ ‘licensed establishment[s]’ of animals
‘specifically raised for food purposes.’ ” Id. at 536. The
plaintiff argued that the words “sacrifice” and “ritual” had
strong religious connotations and that the use of those
terms in the ordinances demonstrated a lack of facial
neutrality. Id. at 533-34. The Court disagreed, holding
that “sacrifice” and “ritual” had secular meanings, and
that the ordinance defined them without reference to
religious practices. Id. at 534.
An ordinance also lacks neutrality if its object is to
suppress religious practice. Id. at 534. The Court in
Lukumi found persuasive the fact that the Santeria church’s
14 No. 08-2819
rituals were “almost the only conduct subject to [the
ordinances],” the stated government interests could have
been addressed with narrower regulations, and that
statements from city officials indicated hostility towards
the religion. Id. at 535, 539. This led the Court to conclude
that the object of the ordinances was to prohibit the
church’s religious practice. Since this demonstrated a
lack of neutrality, the Court applied strict scrutiny before
finding that the law violated the Free Exercise clause of
the First Amendment. Id. at 546-47.
We assume that Congress, consistent with the Free
Exercise cases, did not intend to invalidate neutral laws
of general applicability. And the Supreme Court ex-
plained in Lukumi, that a law is non-neutral if it “refers to
a religious practice without a secular meaning discernible
from the language or context” or if its object was to
suppress religious practice. Lukumi, 508 U.S. at 533-34
(emphasis added). So the question is whether an
ordinance that permits some non-religious assemblies
but excludes religious assemblies can be considered,
without more, discriminatory or non-neutral. We agree
with the Third Circuit in finding that it cannot.
The Eleventh Circuit’s approach would find a zoning
ordinance non-neutral and not of general applicability
(and thus apply strict scrutiny), any time a church is
precluded from locating in an area that permits non-
religious assemblies. Adopting the Eleventh Circuit’s
definition of “assembly”—“a company of persons collected
together in one place [usually] and usually for some
common purpose (as deliberation and legislation, worship,
No. 08-2819 15
or social entertainment),” Midrash, 366 F.3d at 1230—
would significantly expand the scope of local ordinances
implicated under RLUIPA. There is no shortage of
hypotheticals demonstrating the dangers of such an
expansive reading of the Equal Terms provision. See, e.g.,
Lighthouse, 510 F.3d at 268 (“[I]f a town allows a local, ten-
member book club to meet in the senior center . . . , it must
permit a religious assembly with rituals involving the
sacrificial killings of animals or the participation of wild
bears [ ] to locate in the same neighborhood . . . .”); Centro
Familiar Cristiano Buenas Nuevas v. City of Yuma, 615
F. Supp. 2d 980, 994 (D. Ariz. 2009) (a zoning ordinance
that permits only one assembly but excludes all others
will violate RLUIPA unless it also permits all types of
religious assemblies). Indeed, the Eleventh Circuit recog-
nized that the “mention of church or synagogue,” or, in
this case, its omission from a list of permissible uses, “does
not destroy a zoning code’s neutrality.” Midrash, 366
F.3d at 1232-33 (citing Walz v. Tax Comm’n of New York
City, 397 U.S. 664 (1970) (Harlan, J., concurring)). That is
because a law that refers to a religious practice but has a
discernible secular meaning is not facially discriminatory
as we understand it in the Free Exercise context. Lukumi,
508 U.S. at 533-34. The same is true for zoning ordinances.
Land use regulations generally include or exclude a
number of entities. And the fact that a church is one of
them does not render the law facially discriminatory.
See Civil Liberties for Urban Believers v. City of Chi., 342
F.3d 752, 763 (7th Cir. 2003) (finding an ordinance
facially neutral when the ordinance did not include a
church as a permitted use, but instead designated it a
16 No. 08-2819
special use requiring approval from the Zoning Board of
Appeals). Furthermore, that a zoning ordinance permits
a non-religious assembly but excludes a religious
assembly does not indicate that its object was to target
religious practice. There are a number of legitimate
secular reasons for permitting some assemblies while
excluding others, some of which are even stated in the
ordinance themselves. The Eleventh Circuit’s approach
makes no inquiry into any of them before determining
whether an ordinance violates RLUIPA. It presumes
an illicit motive, and, as a result, it potentially subjects to
strict scrutiny laws that may be considered neutral and
generally applicable under our Free Exercise jurisprudence.
Comparing the effect of the included and excluded
assemblies on the local government’s stated goals before
finding a RLUIPA violation presents a more workable
standard. It allows the court to determine whether the
ordinance targets religious assemblies for non-secular
reasons or whether it is indeed neutral and generally
applicable. We believe this interpretation, adopted by the
Third Circuit, is more consistent with congressional intent,
which was to codify the Free Exercise jurisprudence.
Merely pointing to any differential treatment between
both groups is not enough. That would only lead us to the
conclusion that religious assemblies are automatically
entitled to all benefits extended to the non-religious; we
do not believe this is what the Supreme Court or Congress
intended. Cf. Grace United Methodist Church v. City of
Cheyenne, 451 F.3d 643, 651 (10th Cir. 2006) (“[W]e have
already refused to interpret Smith as standing for the
No. 08-2819 17
proposition that a secular exemption automatically
creates a claim for a religious exemption.”).
The impact of the broad interpretation the Church
urges us to adopt cannot be alleviated by applying
strict scrutiny to RLUIPA violations. Although the Sub-
stantial Burden provision makes reference to strict scru-
tiny, the Equal Terms provision does not. For our pur-
poses, Congress’s silence is instructive. See Russello v.
United States, 464 U.S. 16, 23 (1983) (“[W]here Congress
includes particular language in one section of a statute
but omits it in another section of the same Act, it is gen-
erally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.”). The
strict scrutiny requirement is more than just a legal stan-
dard. If used as the Church suggests, it has the potential
to significantly impede the ability of local governments to
pass legislation that place incidental burdens on any
religious practice. To the Supreme Court in Smith, requir-
ing the government to demonstrate a compelling interest
in all Free Exercise cases produced a “private right to
ignore generally applicable laws,” a “constitutional
anomaly” which the Court found unacceptable. 494 U.S.
at 886. If Congress meant to apply strict scrutiny to vio-
lations of the Equal Terms provision as well, it would
have said so in the statute. Therefore, we also agree with
the Third Circuit in finding that a violation of section (b),
by itself, is sufficient to invalidate a land use regulation.
Applying this framework to the facts of this case, we see
little similarity between the Church and the permitted or
special uses in the B-2 district. The Church argues that it
was unlawfully excluded from the district because the
18 No. 08-2819
Village still allowed other non-religious uses such as
commercial gymnasiums, health clubs, salons, day care
centers, and hotels. Assuming some of the permitted uses
may be considered assemblies, their effect on the Village’s
goals are sufficiently distinguishable to remove any
suspicion of religious gerrymandering. The Village
sought to create a tax revenue-generating commercial
district centered near the mass transit area. The permitted
entities are all commercial in nature, while churches,
meeting halls, community centers, and schools (which
are all uses excluded from the ordinance after the amend-
ment) are not. A locality seeking to create a commercial
area should be able to exclude non-commercial uses that
do not contribute to its goal without violating RLUIPA.
As a result, the Church’s likelihood of success on the
merits is slight at best.
B. Church Will Suffer Irreparable Harm
Although the Church has a low probability of success in
its RLUIPA claim, we recognize that “bright lines do not
always mark the difference between no chance and slight
chance.” See AM Gen. Corp. v. DaimlerChrysler Corp.,
311 F.3d 796, 831 (7th Cir. 2002). The purpose of our
analysis is to reduce the cost of error. Id. Assuming the
Church’s likelihood of success reaches the non-negligible
threshold, we conclude that it would not be entitled to
a preliminary injunction.
At stake in this appeal is the Church’s ability to move
forward with its plans to relocate to Hazel Crest, and to
carry out its neighborhood redevelopment plans in the
interim, while the case is pending in the district court. A
No. 08-2819 19
preliminary injunction would do just that. Of course, this
means that the Village would be forced to grant a
zoning exception to the Church, in a district reserved
for commercial development. As a result, we address
whether the Church will suffer irreparable harm if it is
not allowed to relocate immediately, and, if so, whether
it exceeds the harm an injunction would cause to the
Village.
Irreparable harm is a type of injury that “cannot be
repaired, retrieved, put down again, atoned for . . .” and is
not compensable in monetary terms. Graham v. Med. Mut.
of Ohio, 130 F.3d 293, 296 (7th Cir. 1997); see also East St.
Louis Laborers’ Local 100 v. Bellon Wrecking & Salvage Co., 414
F.3d 700, 703-04 (7th Cir. 2005). In assessing the risk of
irreparable harm, our focus is not simply what the
Church will lose by an unfavorable ruling, but rather on
the harm of error. In other words, assuming the Church
ultimately wins this case on the merits and receives all
the relief it seeks, “what irreparable harm would the
denial of a preliminary injunction cause to the [Church]”?
DaimlerChrysler Corp., 311 F.3d at 831. This is just another
way of asking: what is the harm in waiting for a final
adjudication on the merits?
The Church believes that we should presume
irreparable harm because it alleged a violation of
RLUIPA, which protects the constitutional right of reli-
gious exercise in the land use context. We recognize
that the loss of First Amendment rights constitutes irrepa-
rable harm. Christian Legal Soc’y, 453 F.3d at 867 (citing
Elrod v. Burns, 427 U.S. 347, 373 (1976)). But the inter-
20 No. 08-2819
section between RLUIPA and the First Amendment is
only partial, because RLUIPA extends the Free Exercise
clause jurisprudence to the land use context. For
instance, RLUIPA’s Equal Terms provision applies to
laws that do not necessarily impose a substantial
burden on religious practices; but such laws do not
violate the Free Exercise Clause of the First Amendment,
even if they have incidental effects on a religion. Lukumi,
508 U.S. at 531-32; see also Civil Liberties for Urban Believers,
342 F.3d at 766 (holding that whatever obstacles the
zoning ordinance presented to the church’s ability to
locate did not regulate or interfere with its ability to
“adhere to the central tenets of [its members’] religious
beliefs.”). Since we cannot presume that RLUIPA and
First Amendment violations are one and the same, a
plaintiff alleging irreparable harm as a result of a RLUIPA
violation must explain how the challenged law or regula-
tion affects his religious exercise. For our purposes, the
Church must explain how the inability to relocate to the
Village’s TIF District inhibits its religious exercise or
otherwise creates irreparable harm. See Lighthouse, 510
F.3d 253, 274 (3d Cir. 2007).
Location, according to the Church, is critical to the
success of its mission, and a zoning ordinance that pre-
vents it from relocating to the blighted area of Hazel Crest
Proper prevents it from carrying out its ministry effec-
tively. The Church plans to “empower communities” and
“transform economic conditions” using a grassroots
approach that includes a women’s ministry, literacy
programs, assistance with small business ventures, and
other forms of community revitalization. A location
No. 08-2819 21
where it can be a “focal point” and remain in close proxim-
ity to Hazel Crest’s poorer communities and schools
with low reading scores is instrumental to the Church’s
mission. To that end, we agree with the district court
that the Church’s inability to relocate can be considered
irreparable harm. It limits the reach of its ministry, even
if temporarily, and, by extension, inhibits its religious
exercise. See Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir.
1996) (“[I]t is the alleged violation of a constitutional right
that triggers a finding of irreparable harm . . . although
plaintiff’s free exercise claim is statutory rather than
constitutional, the denial of a plaintiff’s right to the free
exercise of his religious beliefs is a harm that cannot be
adequately compensated monetarily.”).
C. Church’s Harm Does Not Outweigh Village’s Harm
The next step in our analysis is to balance the potential
harm to both parties. For this inquiry, we apply a “sliding
scale” approach. The less likely a plaintiff is to win on
the merits, the more heavily the balance of harm must
weigh in his favor to warrant a preliminary injunction.
Girl Scouts of Manitou Council, Inc. v. Girl Scouts of U.S.,
Inc., 549 F.3d 1079, 1086 (7th Cir. 2008). Since we found
the Church’s likelihood of success to be slim at best, it
must show that it will suffer irreparable harm that sig-
nificantly outweighs the harm to the Village.
We agree with the district court that the potential harm
to the Village’s revitalization goals weighs heavily against
granting the Church’s request for injunctive relief. The
subject property is located in an area slated for extensive
22 No. 08-2819
redevelopment. The Village planned to invest over
$12 million dollars in public funds ($200,000 of which it
has already spent) to improve infrastructure and the
overall appearance of the area. Given the close proximity
to the train station, the Village hoped to attract businesses
to serve the “convenience, shopping, dining and service
needs” of the residents and commuters—a transit-oriented
commercial area. In return, the Village hoped to generate
tax revenue that it could use to repay the municipality,
as required by the TIF plan. The Church is correct in
pointing out that the loss in revenue alone does not
constitute irreparable harm, see Graham, 130 F.3d at 296,
and, based on the record, we see little progress made in
the redevelopment plan since it was instituted in
January 2001. However, allowing the Church to relocate
to the subject property, even temporarily, would result
in land use that is incompatible with the Village’s redevel-
opment plan. The plan relies primarily on its ability to
attract private investment, and, as the district court
noted, uncertainty over the Village’s ability to enforce its
zoning ordinance, or the future direction of the commu-
nity, would likely compromise this goal in the future.
“When you reach a certain critical mass of retail you get
more retail.” In other words, if a church can set up shop
in the B-2 district, potential investors may have less
confidence that the Village can turn the district into a
“transit-oriented commercial area,” or otherwise carry out
its development goals. This presents a significant but
unquantifiable threat to the Village’s redevelopment plan.
Furthermore, we recognize that the purpose of the
ordinance was to carry out a “traditional and long
No. 08-2819 23
accepted function of government”: promoting economic
development. Kelo v. City of New London, Conn, 545 U.S.
469, 484 (2005). The relief sought by the Church inter-
feres with the Village’s ability to carry out its traditional
functions and enact measures that it believes are in its
citizens’ best interests. This is indeed another type of
harm that must be taken into account when balancing
hardships. See Heideman v. South Salt Lake City, 348 F.3d
1182, 1191 (10th Cir. 2003). Assuming the ordinance does
not violate either RLUIPA or the Constitution (and it
appears that it doesn’t, based on our analysis in the
previous section) the Village would be injured by post-
poning its enforcement. See id.
At this point, we do not need to pinpoint exactly where
the balance of harm lies. Both parties have important
interests at stake. The Hazel Crest Proper location is
instrumental to the Church’s mission, but the Church
considered other locations and price was also an
important factor in selecting the subject property. Simi-
larly, an injunction that allows the Church to relocate
may create further obstacles in the Village’s attempts to
attract private investment; yet before the most recent
amendment, the Village was willing to allow a number
of other non-commercial uses to locate in the B-2
district without concern for the long-term effects on its
redevelopment plan. Without determining whether the
district court abused its discretion, we can say, at the
least, that the Church’s harm does not significantly out-
weigh that of the Village. And, given the minimal pros-
pects of success on the merits, we need not address the
24 No. 08-2819
other elements to conclude that the Church is not
entitled to a preliminary injunction.
III. CONCLUSION
The judgment of the district court is A FFIRMED.
10-27-09