Petra Presbyterian Church v. Village of Northbrook

• Decision Date: 07 June 2007
• Docket Number: No. 06-1329.,06-1329.
• Parties: PETRA PRESBYTERIAN CHURCH, Plaintiff-Appellant, v. VILLAGE OF NORTHBROOK, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

489 F.3d 846

PETRA PRESBYTERIAN CHURCH, Plaintiff-Appellant, v. VILLAGE OF NORTHBROOK, Defendant-Appellee.

No. 06-1329.

United States Court of Appeals, Seventh Circuit.

Argued October 18, 2006.

Decided June 7, 2007.

Rehearing and Rehearing En Banc Denied July 3, 2007.

John W. Mauck (argued), Mauck & Baker, Chicago, IL, for Plaintiff-Appellant.

Steven M. Elrod (argued), Adam M. Kingsley, Holland & Knight, Chicago, IL, for Defendant-Appellee.

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" 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. Membership organizations, such as community centers, youth centers, fraternal associations, and political clubs were permitted in the zone, but not churches unless the Village'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 preliminary 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 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, landowners 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 legislative process that resulted in the adoption of a revised ordinance in 2003 that banned all membership organizations (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 zoning 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 successfully under RLUIPA — Petra had already filed the present suit, which initially challenged just the 1988 ordinance.

The state court issued a preliminary injunction prohibiting Petra from "using the indoor premises [of the property] for assembly purposes" or "occupying the indoor premises 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 worship 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, 223 Ill.2d 607, 308 Ill.Dec. 379, 861 N.E.2d 944, 950 (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, 369 Ill.App.3d 664, 308 Ill.Dec. 9, 860 N.E.2d 853, 856-58 (2006), National Advertising Co. v. Village of Downers Grove, 204 Ill.App.3d 499, 149 Ill.Dec. 604, 561 N.E.2d 1300, 1304-05 (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. And anyway the judge did Petra a favor by relinquishing jurisdiction 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 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 reasonably relying on the invalidity of the 1988 ordinance, which arbitrarily treated religious membership organizations 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, 113 S.Ct. 2217, 124 L.Ed.2d 472 (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 proposition that the Village should not have discriminated in the industrial zone in favor of secular membership organizations it does not follow that when it eliminated the discrimination 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 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 industrial 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 therefore 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 ordinance 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...