Cohen v. City of Des Plaines

• Decision Date: 06 December 1993
• Docket Number: No. 92-3503,92-3503
• Citation: 8 F.3d 484
• Parties: Harriet COHEN, Plaintiff-Appellee, v. CITY OF DES PLAINES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 484

8 F.3d 484

62 USLW 2283

Harriet COHEN, Plaintiff-Appellee, v. CITY OF DES PLAINES, Defendant-Appellant.

No. 92-3503.

United States Court of Appeals,

Seventh Circuit.

Argued May 12, 1993.

Decided Oct. 25, 1993.

Rehearing Denied Dec. 6, 1993.

John M. Duffy and Forest J. Miles (argued), Richard J. Witry, McCarthy, Duffy, Neidhart & Snakard, Chicago, IL, for plaintiff-appellee.

Richard T. Wimmer (argued), Arthur C. Thorpe, Patrick A. Lucansky, Klein, Thorpe & Jenkins, Chicago, IL, for defendant-appellant.

Before BAUER, KANNE and ROVNER, Circuit Judges.

KANNE, Circuit Judge.

Harriet Cohen sued the City of Des Plaines, Illinois, and various city officials, claiming that a provision of the city's zoning ordinance regulating the use of church property in a residential district violated the Establishment Clause of the First Amendment as well as her right to equal protection of the laws under the Fourteenth Amendment. The district court agreed, granted Cohen's motion for summary judgment, and subsequently awarded her damages. We find that the ordinance offends neither the First nor Fourteenth Amendment and therefore reverse.

I.

Harriet Cohen owns property in the city of Des Plaines on which stands a building formerly used as a church. The property is located within a district designated "R-2," or single-family residential, under the city's zoning ordinance. ¹ R-2 districts are reserved primarily for single-family dwellings, but the city's zoning regime permits other uses of property without requiring a special use permit. Paragraph 3.1.2.2 of the ordinance permits "[p]ublic schools, elementary and high or private schools having a curriculum the same as ordinarily given in a public elementary or high school, ... colleges, junior colleges, or universities." In addition, paragraph 3.1.2.6 permits "[c]hurches, temples, religious reading rooms, rectories and parish houses, including nursery schools operated in any of such buildings " (emphasis added). Finally, paragraph 3.1.2.16 allows operation of day care centers in R-2 districts only if the operator first obtains a special use permit from the city and complies with the various size, density, signage and safety requirements set forth in paragraphs 3.1.2.16.1 through 3.1.2.16.15.

Cohen owns and operates day care centers in Des Plaines and Arlington Heights, and initially sought to use her R-2 property to open another day care center. To that end, in April 1987, she filed an application for a special use permit with the city. The Des Plaines Plan Commission recommended to the mayor, city council, and Zoning Board of Appeals that the application be denied. The Zoning Board of Appeals then held a public hearing on the matter, at the conclusion of which the Board voted 6-0 to deny the request for a special use permit. Cohen's application was next taken up by the city council's Municipal Development Committee. The committee recommended that the application be denied by the full council, stating in its report, "The members did not feel that this was a good location [for a day care center] because all around the property in question is residential use." On September 21, 1987, the mayor and city council voted unanimously to deny Cohen's application.

Cohen sued the city and various city officials claiming that the city's zoning ordinance violated, among other things, the First Amendment's Establishment Clause and the Fourteenth Amendment's Equal Protection Clause. Both parties moved for summary judgment, which the district court granted to Cohen. Cohen v. City of Des Plaines, 742 F.Supp. 458 (N.D.Ill.1990). The court noted that in her Statement of Material Facts, Cohen had listed seven day care facilities that she claimed operated in religiously-affiliated buildings in areas zoned for residential use. Four of the centers were located in R-2 single-family districts, one in an R-4 multi-family district, and two in R-5 multi-family districts. Id. at 462-63. According to Cohen, each of the centers charged a fee for its services, advertised in the local yellow pages, and was licensed by the State to operate as a day care facility. Moreover, at least one was operated by a "for profit corporation." None, however, by virtue of their affiliation with a church, were required to obtain a special use permit from the city. Id. at 463.

The city contested that these facilities were day care centers under paragraph 1.2.17 of the zoning ordinance, which defines a "day care center" as

[a] specifically designed, reconstructed or remodeled structure other than a single-family residence simultaneously occupied by a single family, and licensed by the State of Illinois, providing day care services for compensation for more than eight (8) children during the day.

The city's zoning ordinance does not define "nursery school." The district court found that "there [was] no material difference between the activities engaged in by nursery schools and day care centers." Cohen, 742 F.Supp. at 464. The city had "failed to identify any material difference between the manner in which the facilities in church buildings that City calls 'nursery schools' provide child care services for a fee and the manner in which a 'day care center' such as Cohen's would provide those same services." Id. at 465.

Turning to the merits of the parties' arguments concerning the equal protection claim, the court determined that the city had "utterly failed to proffer any convincing reason for the distinction made by the Ordinance." Id. at 467. Indeed, the court found that the city had presented no evidence from which to rationally conclude that "church-affiliated child care facilities would have less of a detrimental impact on a residential neighborhood than any other day care center." Id. at 468. Thus, the court concluded that the ordinance violated the Fourteenth Amendment.

The court next considered Cohen's Establishment Clause claim. Applying the test set forth in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), the court found that the Des Plaines ordinance confers a benefit upon churches operating child care facilities on their premises that is unavailable to others who wish to operate day care centers in residential areas. Cohen, 742 F.Supp. at 470-71. The court concluded that "the sole effect of City's Ordinance is to lift from religious organizations, without any rational justification, a regulatory burden that is uniformly applicable to day care operators generally." Id. Accordingly, the ordinance violated the Establishment Clause. ²

The court subsequently held a bench trial to determine Cohen's damages. In the end, the court determined that Cohen was entitled to $824,793.15, comprising lost profits, loss of opportunity to establish a day care business, expenses incurred in attempting to obtain a special use permit, expenses relating to maintaining the property she owned, and emotional distress. The city filed a timely appeal and we have jurisdiction pursuant to 28 U.S.C. § 1291.

II.

The City appeals both the merits of the district court's decision as well as the award of damages. We find it necessary only to address the Establishment Clause and equal protection issues. In fact, because we find that an analysis of Cohen's Establishment Clause claim is largely dispositive of her equal protection complaint, we address the issues in that order.

Ordinarily, we review motions for summary judgment de novo to determine if a genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, 477 U.S. 242, 249-52, 106 S.Ct. 2505, 2510-12, 91 L.Ed.2d 202 (1986). In this case, the parties do not dispute the district court's factual findings, only the application of law to those facts. ³ Because the city does not contend that there is a genuine issue of material fact, but only that it is entitled to judgment as a matter of law on the record established in the summary judgment proceeding, we review the district court factual findings under the clearly erroneous standard. See May v. Evansville-Vanderburgh School Corp., 787 F.2d 1105, 1116 (7th Cir.1986). We cannot say that the district court's factual findings are clearly erroneous. Accordingly, we accept the finding that the city has allowed four facilities to provide child care services in R-2 districts without special use permits. We also accept the finding that there is no functional difference between day care centers and nursery schools for purposes of Des Plaines' zoning ordinance. That said, we turn to the merits.

The First Amendment states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." U.S. Const. amend. I. The Establishment Clause prohibits the government from promoting or affiliating with any religious doctrine or organization, County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 590, 109 S.Ct. 3086, 3099, 106 L.Ed.2d 472 (1989), and "is a specific prohibition on forms of state intervention in religious affairs...." Lee v. Weisman, --- U.S. ----, ----, 112 S.Ct. 2649, 2657, 120 L.Ed.2d 467 (1992).

As did the district court, we analyze the plaintiff's argument against the zoning ordinance using the trilogy of tests developed by the Supreme Court in Lemon. Though rumors of Lemon 's demise have abounded in the past several years, see e.g., Lee v. Weisman, --- U.S. at ----, 112 S.Ct. at 2687 (Scalia, J., dissenting); Allegheny, 492 U.S. at 655-56, 109 S.Ct. at 3134 (Kennedy, J., concurring in the judgment in part and dissenting in part); Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 346-49, 107 S.Ct. 2862, 2874-75, 97 L.Ed.2d 273 (1987) (O'Connor, J., concurring); Edwards v. Aguillard, 482 U.S. 578, 636-40, 107 S.Ct. 2573, 2605-07, 96 L.Ed.2d 510 (1987) (Scalia, J., dissenting); School Dist. of Grand Rapids v. Ball...