Love Church v. City of Evanston

• Decision Date: 20 March 1987
• Docket Number: No. 86 C 9850.,86 C 9850.
• Citation: 671 F. Supp. 508
• Parties: LOVE CHURCH, an Illinois not-for-profit corporation, and Marzell Gill, an individual, Plaintiff, v. CITY OF EVANSTON, an Illinois municipal corporation, Defendant.
• Court: U.S. District Court — Northern District of Illinois

671 F. Supp. 508

LOVE CHURCH, an Illinois not-for-profit corporation, and Marzell Gill, an individual, Plaintiff, v. CITY OF EVANSTON, an Illinois municipal corporation, Defendant.

No. 86 C 9850.

United States District Court, N.D. Illinois, E.D.

March 20, 1987.

John W. Mauck, Richard Baker, Thomas Cameron, Friedman and Mauck, Chicago, Ill., for plaintiff.

Jack Siegel, Siegel and Warnock, Chicago, Ill., for defendant.

MEMORANDUM OPINION

GRADY, Chief Judge.

This case is before us on the motion of plaintiffs Marzell Gill ("Gill") and Love Church, Inc. ("Love Church") for summary judgment pursuant to Federal Rule of Civil Procedure 56 and the motion of defendant City of Evanston ("Evanston") to dismiss the complaint for lack of a case or controversy and/or failure to state a claim. For the reasons below, we deny plaintiffs' motion for summary judgment and grant in part defendant's motion to dismiss.

FACTS

Plaintiff Love Church is a not-for-profit corporation established in June 1985. Complaint, Affidavit of Marzell Gill at ¶ 2. Gill is Love Church's pastor. Id. at ¶ 3. Love Church's congregation is comprised of approximately 30 young "working class" black men and women residing in and around Evanston.¹Id. The church is not affiliated with any denomination, although it believes in traditional Christian teachings. Id. at ¶¶ 4, 5. Love Church's congregation meets every Sunday to practice its religion but has no permanent house of worship and instead has convened in public halls and private homes. Complaint at ¶¶ 8, 16, 17. Since April 1986, Love Church has sought to lease property on which to hold services and run a Sunday/nursery school. Id. at ¶ 18.

Love Church has yet to obtain a lease and has been meeting in a 900 square foot apartment of one of its congregants. Id., Affidavit of Gill at ¶ 19; see also Plaintiff's Motion for Summary Judgment, Supplemental Affidavit of Gill at ¶ 2.²

Plaintiffs allege that Evanston's Zoning Ordinance ("Ordinance") has made it impossible for Love Church to obtain a suitable lease. Complaint at ¶¶ 19, 20. Churches are not permitted uses anywhere in the city of Evanston, although Evanston allows churches in any residential or business/commercial district provided they secure special use permits. Id. at ¶ 7; Ordinance §§ 6-5-2(b); 6-7-2-2; 6-7-3-16(B).³ To obtain a permit, the applicant files a detailed plan for the proposed special use and pays a fee of between $370 and $480. Id. at ¶ 10. Evanston's Zoning Board then publishes notices concerning the proposed use and holds a hearing "within a reasonable time," approving or denying the use. Id. at ¶¶ 12, 13; see also Ordinance § 6-12-4(B). A decision is usually rendered in four to six months. Id. at ¶ 14. Ordinance § 6-11-13 provides for misdemeanor fines of $25 to $500 a day for each violation of the ordinance.

Plaintiffs claim that because of their limited finances they must include a contingency clause in any lease they negotiate. The clause would have the effect of voiding the lease should Evanston deny plaintiffs the special use permit. Gill states that none of the landlords he has negotiated with would agree to a contingency clause because they would have had to take their property off the market for four to six months with no certainty of leasing. Id., Affidavit of Gill at ¶¶ 11, 12; see also Supplemental Affidavit at ¶ 1. Plaintiffs attack the constitutionality of the ordinance on various grounds: as violative of the Fourteenth Amendment's Due Process and Equal Protection Clauses, as repugnant to the First Amendment's Establishment and Free Exercise Clauses, and as a prior restraint on their freedom of expression. Id. at ¶¶ 23-27. Plaintiffs argue that the ordinance is unconstitutional on its face or as applied to them in this case and move for summary judgment. Evanston denies the unconstitutionality of its ordinance and challenges plaintiffs' standing to sue.

DISCUSSION

As a threshold issue, we must determine whether plaintiffs have standing to sue. Article III of the Constitution limits the power of the judiciary to the resolution of "cases" or "controversies." Foster v. Center Township of La Porte County, 798 F.2d 237 (7th Cir.1986). The concept of standing derives from the case or controversy requirement. Id. at 241. In order for a party to have standing to sue, the party must personally suffer actual or threatened injury as a result of defendant's putatively unconstitutional conduct; the injury must fairly be traced to the challenged action; and the injury must be one that can likely be redressed by the court's favorable decision. Id. at 241, 242 (citing Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982)).

Evanston argues that plaintiffs have suffered no actual or threatened injury because they have neither applied for, nor have they been denied, a special use permit for any location. Defendant's Memorandum in Support of Motion to Dismiss at 5 ("Defendant's Mem."). The city has not, and intimates it will not, prosecute plaintiffs for assembling or worshiping in places other than a formal church. Id. at 5. Plaintiffs, on the other hand, argue that "but for" the Evanston ordinance they could have signed leases at four locations. Plaintiffs' Answer and Brief to Motion to Dismiss at 2 ("Plaintiffs' Brief"). Evanston argues that "the reluctance of property owners to lease to the plaintiffs is not the City's doing." Defendant's Mem. at 2. Indeed, plaintiffs admit that "the necessity of having a special use permit contingency clause has kept the church from obtaining a meeting place." Plaintiffs' Brief at 1, 2. Yet plaintiffs stress that their financial circumstances leave them no alternative negotiating strategy. Id.

We agree with Evanston that plaintiffs have no standing to sue, but only insofar as they allege a violation of due process. Plaintiffs have raised no case or controversy regarding the enforcement of the ordinance. Evanston's ordinance is presumptively valid. Cosmopolitan National Bank v. County of Cook, 116 Ill. App.3d 1089, 1094, 72 Ill.Dec. 564, 569, 452 N.E.2d 817, 822 (1st Dist.1983). Plaintiffs have neither leased property nor applied for a special use permit. We presume Evanston will fairly apply the ordinance; if plaintiffs apply for a permit at an appropriate site, a permit presumably will issue. If a permit does not issue, then plaintiffs will have standing to bring a suit for violation of due process. See Lubavitch v. Evanston, 112 Ill.App.3d 223, 67 Ill.Dec. 863, 445 N.E.2d 343 (1st Dist.1982) (where plaintiff, after meeting all the criteria, was arbitrarily denied a special use permit, court ordered defendant to issue the permit).

Plaintiffs do present a case or controversy, however, on their Free Exercise and Equal Protection Clause claims.⁴ Evanston has no zone where churches can establish themselves without special use permits. Their injury — the inability to obtain a lease — is fairly traceable to Evanston's ordinance. No matter where plaintiffs go in Evanston, they would have to insist on a clause making the lease contingent on Evanston granting them a special use permit. Plaintiffs allege this special use procedure is unconstitutional in at least two ways. First, it burdens their ability to freely worship by hindering — indeed extinguishing — their capacity to lease property. Complaint at ¶¶ 25, 26, 30(b). Second, they argue that this ordinance distinguishes between religious and secular uses of land, permitting secular uses (such as theatres) to establish themselves without special use permits, while always requiring special use permits for religious uses. Id. at ¶ 26. Both the Free Exercise and the Equal Protection claims attack the validity of the requirement for a permit. Where plaintiffs challenge the constitutionality of having to go though an administrative procedure, they need not go through that procedure in order to have standing. Entertainment Concepts, Inc. III v. Maciejewski, 631 F.2d 497, 500 (7th Cir.1980). Because plaintiffs' interests are directly affected by the ordinance, they have standing to attack it. American Booksellers Association, Inc. v. Hudnut, 771 F.2d 323, 326 (7th Cir.1985) (citing Buckley v. Valeo, 424 U.S. 1, 11-12 and note 10, 96 S.Ct. 612, 630-631, and note 10, 46 L.Ed.2d 659 (1976)). We will now turn to plaintiffs' substantive claims.

First Amendment Claims

Plaintiffs claim the ordinance violates their First Amendment rights by establishing a religion, restraining their freedom of expression, and burdening their practice of religion. The First-Amendment states, "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press...." Two of plaintiffs' arguments show themselves to state no claim and can be disposed of with little difficulty. Regarding the Establishment Clause, regulations which reflect a clearly secular purpose do not run afoul of the clause. Lemon v. Kurtzman, 403 U.S. 602, 612, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971). The ordinance and the criteria for special use permits express the clearly secular purpose of protecting the health, safety, morals, and welfare. See Ordinance at § 6-1-2. The Lemon Court expressly stated "Fire inspections and building and zoning regulations ... are examples of necessary and permissible state contacts." Lemon 403 U.S. at 614, 91 S.Ct. at 2112. Accordingly, plaintiffs do not state a claim under the Establishment Clause.

Plaintiffs prior restraint claim stems from the allegation that the ordinance is overbroad. Complaint at ¶ 30(d). An ordinance may be constitutionally invalid if it is written so broadly that it may inhibit — have a "chilling effect" and act as a "prior restraint" — on protected speech. Schultz v. Frisby, 807 F.2d 1339, 1349 (7th Cir.1986) (quoting Los Angeles v. Taxpayers for Vincent, ...