In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-1432
THE CHURCH OF OUR LORD AND SAVIOR JESUS CHRIST,
Plaintiff-Appellant,
v.
CITY OF MARKHAM, ILLINOIS
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:15-cv-04079 — Ronald A. Guzmán, Judge.
____________________
ARGUED OCTOBER 31, 2018 — DECIDED JANUARY 17, 2019
____________________
Before FLAUM, EASTERBROOK, and BRENNAN, Circuit Judges.
BRENNAN, Circuit Judge. In the City of Markham, Illinois,
16018 South Spaulding Avenue (the “Property”) is home to
The Church of Our Lord and Savior Jesus Christ. We use the
word “home” literally and figuratively: the church converted
a single-family residence on the Property into its house of
worship. The Property’s location in a residential area, and the
church’s ensuing zoning battles with the city, give rise to this
lawsuit.
2 No. 18-1432
For more than 15 years, the church’s congregation has
gathered at the Property for worship services, choir rehears-
als, Bible studies, and the like. As the church grew, it remod-
eled the house to better accommodate its new purpose. This
brought the church into contact with the city’s administration
through permit applications, property inspections, and
similar zoning-related interactions.
The parties dispute what the city knew about the church’s
use of the Property, and when, but such issues are largely
irrelevant at this juncture. What matters (and is undisputed)
is that the city sought an injunction in state court to halt the
church’s operation on the Property without a conditional use
permit, prompting the church to file an application for such a
permit, which the city denied. All that occurred before this
case began.
Denied a conditional use permit and facing a possible
court order enjoining its operation, the church brought this
lawsuit challenging the city’s zoning code under the Religious
Land Use and Institutionalized Persons Act, 42 U.S.C.
§ 2000cc et seq. (“RLUIPA”), and the Illinois Religious Free-
dom Restoration Act, 775 ILL. COMP. STAT. 35/1 et seq. The
church contends the city’s zoning code treats religious uses of
property on unequal terms with analogous secular uses and
unreasonably limits where religious organizations may locate
in the city. The church also alleges the city’s insistence on a
conditional use permit has imposed a substantial burden on
its religious exercise.
Two years into this litigation, the city argued (for the first
time) that the church’s legal claims were not ripe because the
church never applied for variances from applicable parking
regulations. The district court ordered the church to apply for
No. 18-1432 3
such variances, and the city ultimately awarded them to the
church, along with a conditional use permit. Afterward, the
district court granted the city summary judgment, ruling the
church’s claims were not ripe when filed and rendered moot.
We reverse. The district court focused on the church not
applying for parking variances before the lawsuit. But that
issue is related only tangentially to the church’s claims, which
concern zoning use classifications, not parking. The ripeness
of the church’s claims does not hinge on pursuit of parking
variances that will not resolve them. Nor can a conditional use
permit from the city moot the church’s claim that such a
permit is not needed. The key question in this case is whether
operating a church on the Property is a permitted or condi-
tional use. The district court did not answer that question, but
it is the necessary starting point for resolving the church’s
legal claims.
I. Background
A. The City’s Zoning Regulations
The city employs a “cumulative” zoning scheme, desig-
nating 11 categories of “use districts.” CITY OF MARKHAM, ILL.,
ZONING CODE § 156.015. A “use” refers to “[t]he purpose for
which land or premises or a building or structure thereon is
designed, arranged, or intended, or for which it is occupied
or maintained, let or leased.” Zoning Code § 156.003. The
various use districts are ranked from the highest, most restric-
tive uses (R-1 One-Family Residential Districts) to the lowest,
least restrictive uses (L-3 Motor Freight Terminal Districts).
Compare Zoning Code §§ 156.050–.056, with §§ 156.210–.224.
The scheme is “cumulative” because any use in a higher use
district is permitted in a lower use district (for example, all
4 No. 18-1432
uses permitted in the residential districts are permitted in the
commercial districts). Zoning Code § 156.146(A); see also 1
PATRICIA E. SALKIN, AMERICAN LAW OF ZONING § 9:14 (5th ed.
Supp. 2018).
The zoning code also distinguishes between “permitted”
uses (which do not require city approval) and “conditional”
uses (which do). Compare Zoning Code § 156.051 (“The
following uses are permitted …”), with § 156.052 (“The
following [uses] may also be permitted upon approval of their
location and development by the Plan Commission …”); see
also SALKIN, supra, at § 9:20. If a property owner’s intended use
is not permitted as of right, the owner must apply to the city
for a conditional (or “special”) use permit. Zoning Code
§ 156.317(A).1 The city’s planning commission evaluates the
application and may recommend approval only if “it finds
that the issuance of such special use permit is in the public
interest and not solely for the interest of the applicant.” Zon-
ing Code § 156.319(B). Final authority on conditional use
permits rests with the city council, which may grant one only
if “[t]he proposed use at the particular location requested is
either necessary or desirable in order to provide a service or a
facility which is in the interest of public need and convenience
and which will contribute to the general welfare of the com-
munity.” Zoning Code § 156.320(A).
The Property is located in an R-3 One-Family Residential
District, which permits single-family dwellings and “[a]ll
uses permitted in the R-2 district.” Zoning Code § 156.081.
1 The zoning code uses the terms “conditional use” and “special use”
interchangeably. E.g., Zoning Code §§ 156.315–.327. We employ the
phrase “conditional use.”
No. 18-1432 5
Keeping with the nesting doll framework of cumulative
zoning, “[a]ll uses permitted in the R-1 district” are permitted
in the R-2 districts, so all uses permitted in the R-1 districts
are also permitted in the R-3 districts. Zoning Code
§ 156.066(B).
The zoning code does not expressly provide for any con-
ditional uses in the R-2 or R-3 districts. But it does list five
conditional uses in the R-1 districts: (1) Schools, (2) “Churches
and buildings usually associated with similar activities,”
(3) Public parks, (4) Governmental and utility buildings, and
(5) Hospitals. Zoning Code § 156.052. That is the only provi-
sion in the zoning code that mentions “churches” as a condi-
tional use, and no provision expressly identifies them as a
permitted use. Other places of public assembly, meanwhile,
are permitted uses as of right in other districts: “theaters” are
permitted in C-1 Neighborhood Shopping Districts, Zoning
Code § 156.146(D)(2), and “auditoriums” are permitted in C-2
Community Shopping Districts. Zoning Code § 156.161(B)(2).
The zoning code’s use classifications are distinct from its
parking regulations. In “all districts,” whenever a building is
to be erected or enlarged, the owner must present a plan for
off-street parking to be approved by the city’s planning com-
mission, regardless of whether the property owner’s use is
permitted or conditional. Zoning Code §§ 156.246–.247. The
required number of off-street parking spaces, however, varies
depending on property use. Zoning Code § 156.252.
B. Renovation of the Property
Reginald McCracken, the church’s pastor, purchased the
Property as a personal residence in 1985. In 2003, the congre-
gation began meeting regularly at the Property, with ten to
6 No. 18-1432
twenty people attending Sunday morning services. Today,
average attendance for a worship service is about thirty peo-
ple. In 2012, due to growing attendance and an increase in
religious activities, the church began a project to renovate the
garage into a chapel. The project involved installing a new
roof, new windows, and pews, and cost approximately
$40,000.2 Just months after the project’s completion, the city
filed suit against the church in Illinois state court, seeking to
enjoin its operation on the Property without a conditional use
permit. The city did not issue any citations or formal notices
to the church beforehand.
C. 2013 Application for a Conditional Use Permit
When the state court denied the church’s motion to
dismiss the city’s lawsuit in March 2013, the church requested
a continuance to apply for a conditional use permit from the
city. The state court granted the continuance, simultaneously
entering an order restricting off-street parking around the
Property.3 The church filed its application, but it did not
request any variances from the city’s parking regulations.
After considering reports from a building inspector and an
engineering consultant, the city’s planning commission voted
to recommend that the city council deny the church’s condi-
tional use application. A week later, the city council
concurred and denied the application.
2 The parties’ briefs address numerous disputes about previous per-
mit applications and whether the church obtained the necessary approvals
before starting its construction project in 2012. Because the merits of this
appeal do not turn on such issues, we do not delve into them.
3The city’s lawsuit in state court has since been stayed indefinitely,
pending resolution of the church’s claims in this case.
No. 18-1432 7
D. This Lawsuit
Following the city’s denial of the conditional use permit,
the church filed this lawsuit in Illinois state court. When the
church amended its complaint to add an RLUIPA claim, the
city removed the case to federal court. The city unsuccessfully
moved to dismiss the church’s claims, in both state and
federal court, but at the pleading stage never challenged their
ripeness.
The church’s operative complaint contains four distinct
claims: (1) an RLUIPA “equal terms” claim under 42 U.S.C.
§ 2000cc(b)(1); (2) an RLUIPA “unreasonable limitations”
claim under 42 U.S.C. § 2000cc(b)(3)(B); (3) an RLUIPA
“substantial burden” claim under 42 U.S.C. § 2000cc(a)(1);
and (4) a claim under Illinois’s Religious Freedom Restoration
Act, 775 ILL. COMP. STAT. 35/25(d).4
As to how religious facilities should be classified under
the zoning code, the church sees only two possible interpreta-
tions, either of which renders the city liable. The church’s
preferred interpretation is that a church is a permitted use of
the Property, such that the city’s insistence on a conditional
use permit was incorrect and constituted a substantial burden
on the church’s religious exercise. According to the church,
the only other possible interpretation is that a church is a
conditional use in the R-3 districts, which would mean the
zoning code provides no districts in which religious facilities
4 Because the last two claims are “materially identical,” World Outreach
Conference Ctr. v. City of Chicago, 591 F.3d 531, 533 (7th Cir. 2009), we refer
to them together as the “substantial burden claims.”
8 No. 18-1432
are permitted as of right, thereby violating RLUIPA’s equal
terms and unreasonable limitations provisions.
The city reads the zoning code a third way: churches are a
conditional use in the R-3 districts, but are permitted as of
right in the city’s commercial and industrial districts
(although those districts do not expressly list “churches” as a
permitted use), so there cannot possibly be an equal terms or
unreasonable limitations problem.
After discovery closed, the church announced it intended
to move for summary judgment on the permitted versus
conditional use question. The district court asked how the city
hoped to resolve the parties’ dispute, and the city’s attorney
asserted the church’s claims were not ripe because the church
had never submitted a parking plan for the city to consider.
Subsequently, the district court struck the parties’ cross
motions for summary judgment and ordered the church to
apply for a parking variance. The district court specified,
however, that it was “not opining on whether Plaintiff needs,
or the City should approve, any particular variations or
conditional use permits Plaintiff may seek.”
The church complied with the district court’s order by
filing an “Application for Variances” with the city, in which it
expressly stated it was not seeking zoning approval, based on
its contention that a church is a permitted use not requiring
conditional use approval. The church did request, however,
“whatever variances the City believes are necessary to allow
the Church to continue with its existing off-street parking.”
The church also acknowledged it could not “afford to bring
its existing parking into compliance with the strict letter of the
City’s Ordinance,” such that “variances for parking are
No. 18-1432 9
required in order to accommodate and allow the congregation
to continue its religious assembly on the property.”
The city council responded by passing two ordinances,
which purported to grant the church parking variances and a
conditional use permit. But each required the church’s signa-
ture accepting all terms and conditions imposed. The church
never executed either ordinance.
When the parties returned to the district court following
this process, the district court granted the city summary
judgment on all counts. The court held that the church’s
claims were not ripe when filed because the church had not
applied for parking variances, and the church’s claims for
future damages became moot as a result of the conditional use
permit. The district court ruled that any claim for past dam-
ages was “speculative” and failed because the claims had not
ripened until the church submitted its variance application.
The church appealed.
II. Discussion
We review a grant of summary judgment de novo. Vision
Church v. Vill. of Long Grove, 468 F.3d 975, 988 (7th Cir. 2006).
De novo review also applies to a district court’s ripeness and
mootness determinations, although we accept its underlying
factual findings absent clear error. Freedom From Religion
Found., Inc. v. Concord Cmty. Sch., 885 F.3d 1038, 1045 (7th Cir.
2018) (mootness); Metropolitan Milwaukee Ass’n of Commerce v.
Milwaukee Cty., 325 F.3d 879, 881 (7th Cir. 2003) (ripeness).
The church’s operative complaint alleges the zoning code
treats religious uses of property on unequal terms with secu-
lar uses, unreasonably limits where religious organizations
10 No. 18-1432
may locate, and substantially burdens its religious exercise.5
Importantly, the church’s equal terms and unreasonable
limitations claims hinge on the city’s interpretation of its
zoning code rendering churches a conditional use in the R-3
districts, rather than a permitted use as of right. If, however,
the church’s interpretation that it is a permitted use is correct,
then its equal terms and unreasonable limitations claims fall
away, leaving only its substantial burden claims.
Despite the significance of deciding whether a church is a
permitted or conditional use of the Property, the district court
did not resolve that issue:
I don’t care if they give you a permitted use
recognition. If you submit a [parking] plan and
they approve it and they let you continue, the
case is over. You get to continue. They’re not
stopping your religious freedom. I mean, so
whether you get a permitted use finding from
them doesn’t really make any difference to me.
This approach—blurring the distinction between zoning
use and parking regulations—led to problems in the
summary judgment decision before us. The variances might
relieve the church from certain parking regulations, but they
say nothing about whether the church’s use of the Property is
permissible. And a conditional use permit does not moot the
church’s claim that it does not need one and is entitled to be
treated as a permitted use as of right. Accordingly, the district
court’s summary judgment decision must be reversed.
5 The church pleads its RLUIPA equal terms and unreasonable limita-
tions claims as facial attacks on the city’s zoning code. Its substantial
burden claims appear to be a mix of as applied and facial challenges.
No. 18-1432 11
A. Ripeness
The district court granted summary judgment to the city
based primarily on the court’s conclusion that the church’s
claims were not ripe. The ripeness doctrine arises out of the
Constitution’s case-or-controversy requirement, as claims
premised on uncertain or contingent events present justicia-
bility problems. Wisconsin Right of Life State Political Comm. v.
Barland, 664 F.3d 139, 148 (7th Cir. 2011); see also 13B CHARLES
ALAN WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE
§ 3532 (3d ed. Supp. 2018). The doctrine’s underlying
objective is to avoid premature adjudication and judicial
entanglement in abstract disagreements. Pacific Gas & Elec. Co.
v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190,
200–01 (1983). Because ripeness is “peculiarly a question of
timing,” a court determines ripeness as of the date of its
decision, not the date the lawsuit was filed. Buckley v. Valeo,
424 U.S. 1, 114–118 (1976) (quoting Regional Rail Reorganization
Act Cases, 419 U.S. 102, 140 (1974)).6
As noted above, the district court appears to have
concluded the church’s claims were not ripe because the
church failed to request a variance from the city’s off-street
parking regulations before filing suit. In the district court’s
view, “instead of formally seeking a variance from the City,
the Church sought to bypass the administrative process and,
in essence, asked for a court-ordered variance.” 309 F. Supp.
3d 545, 554 (N.D. Ill. 2018). But the district court’s focus on
6 To the extent the district court determined ripeness as of the date the
church filed its complaint, rather than the date of that court’s decision, that
was erroneous. Blanchette v. Connecticut Gen. Ins. Corp., 419 U.S. 102, 140
(1974); cf. 13B CHARLES ALAN WRIGHT, ET AL., FEDERAL PRACTICE AND
PROCEDURE § 3532.7 (3d ed. Supp. 2018).
12 No. 18-1432
parking variances misapprehends that the church’s legal
claims are directed at the zoning code’s use classifications, not
its parking requirements.
For example, the church’s equal terms claim is premised
on the city’s interpretation of the zoning code rendering a
church a conditional use in the R-3 districts. According to the
church, the city’s reading would mean there is no district in
which a church would be permitted as of right. The church
alleges this violates RLUIPA7 because analogous secular uses,
such as theaters, are permitted as of right in districts within
the city, but churches are always a conditional use subject to
city approval.8 Obtaining a parking variance would not
rectify this alleged inequity: a theater would still be permitted
as of right, while a church would remain a conditional use
that could be denied a permit or otherwise lose its permission
to operate. The variance might alleviate burdens imposed by
the city’s parking regulations, but it does not address zoning
use classifications, which are the subject of this lawsuit.
Nor would a parking variance solve the church’s unrea-
sonable limitations claim. The church contends that by
treating churches as a conditional use everywhere, and
providing no district where they can locate as of right, the city
has implemented a land use regulation that “unreasonably
7The relevant subsection provides: “No government shall impose or
implement a land use regulation in a manner that treats a religious assem-
bly or institution on less than equal terms with a nonreligious assembly or
institution.” 42 U.S.C. 2000cc(b)(1).
8 In comparing zoning treatment, a court looks to whether the
religious and secular organizations are treated the same with respect to
accepted, objective regulatory criteria. River of Life Kingdom Ministries v.
Vill. of Hazel Crest, 611 F.3d 367, 371 (7th Cir. 2010).
No. 18-1432 13
limits religious assemblies, institutions, or structures within a
jurisdiction.” 42 U.S.C. § 2000cc(b)(3)(B).9 Again, a parking
variance would not address the church’s central contention
about the legality of its use of the Property.
Alternatively, the district court’s opinion could be
construed to hold that a plaintiff must apply for a conditional
use permit (as opposed to a parking variance) before bringing
an RLUIPA claim. But that framework does not work either.
It would address the legality of the church’s use, but not the
church’s primary contention that operating a church is a
permitted use. Nevertheless, the city directs us to the
Supreme Court’s ripeness test for Takings Clause claims,
which requires a plaintiff to obtain a “final decision” from a
local government about how it may use its property before
ripening a claim. Williamson Cty. Reg’l Planning Comm’n v.
Hamilton Bank of Johnson City, 473 U.S. 172, 186 (1985). Some
circuit courts have extended Williamson County to RLUIPA
claims involving land use issues. See Guatay Christian Fellow-
ship v. Cty. of San Diego, 670 F.3d 957, 976 (9th Cir. 2011); Miles
Christi Religious Order v. Twp. of Northville, 629 F.3d 533, 537–
38 (6th Cir. 2010); Murphy v. New Milford Zoning Comm’n, 402
F.3d 342, 352 (2d Cir. 2005).
Although we have not addressed this specific question, we
have declined to apply Williamson County’s final decision test
to other non-Takings Clause challenges to local zoning codes.
Triple G Landfills v. Bd. of Comm’rs of Fountain Cty., 977 F.3d
9 Whether a limitation is reasonable or not must be determined “in
light of all the facts, including the actual availability of land and the eco-
nomics of religious organizations.” Vision Church, 468 F.3d at 990 (quoting
146 Cong. Rec. E1563 (Sept. 22, 2000) (statement of Rep. Canady)).
14 No. 18-1432
287, 289 (7th Cir. 1992) (final decision test does not apply to
facial attacks upon the validity of a zoning ordinance); see also
Forseth v. Vill. of Sussex, 199 F.3d 363, 370–71 (7th Cir. 2000)
(applying Williamson County to substantive Due Process
claim, but not Equal Protection claim). Because the Supreme
Court based its holding in Williamson County on “the very
nature of the inquiry required by the Just Compensation
Clause,” 473 U.S. at 190, extending it to different claims is
suspect. See Temple B’Nai Zion, Inc. v. City of Sunny Isles Beach,
727 F.3d 1349, 1357 (11th Cir. 2013) (declining to apply
Williamson County to RLUIPA discrimination claim); Roman
Catholic Bishop of Springfield v. City of Springfield, 724 F.3d 78,
92 (1st Cir. 2013) (same); cf. Opulent Life Church v. City of Holly
Springs, 697 F.3d 279, 287 n.7 (5th Cir. 2012) (noting the issue
but declining to take a position on whether Williamson County
applies to RLUIPA and First Amendment claims).10
But we need not resolve that question, because the
church’s claims satisfy Williamson County’s final decision test,
even if it does apply. The record demonstrates the city has
made a final decision regarding the church’s zoning use
classification. The city went so far as to file the state lawsuit
seeking an injunction to require the church to either cease
10The Supreme Court will consider “[w]hether the Court should
reconsider the portion of Williamson County Regional Planning Commission
v. Hamilton Bank, 473 U.S. 172, 194–96 (1985), requiring property owners
to exhaust state court remedies to ripen federal takings claims” in Knick v.
Twp. of Scott, 862 F.3d 310 (3d Cir. 2017), cert. granted, 138 S. Ct. 1262 (2018)
(No. 17-647) (argued Jan. 16, 2019).
No. 18-1432 15
operations or obtain a conditional use permit.11 Unlike in
Miles Christi, where the municipality remained undecided on
interpretation of relevant provisions of its zoning regulations,
629 F.3d at 538, there is no ambiguity about the city’s
interpretation on the permitted versus conditional use
question. Since 2012, the city has always taken the position
that churches are a conditional use in the R-3 districts, and
nothing in the record or the parties’ arguments suggests the
city might reconsider that interpretation.
Moreover, although the church did not formally request a
parking variance before filing this lawsuit, the church did
apply for a conditional use permit, which the city denied.
Contrast that to the plaintiffs in Murphy, who did not
challenge the municipality’s interpretation of its zoning
regulations or apply for any administrative relief whatsoever.
402 F.3d at 345 (noting the plaintiffs filed suit two days after
receiving a letter from local zoning authorities). The church
could have petitioned the city to reconsider its decision, but
pursuit of such relief is not required to make the city’s
decision “final.” Williamson Cty., 473 F.3d at 192–93
(“[T]he finality requirement is concerned with whether the
initial decisionmaker has arrived at a definitive position on
the issue that inflicts an actual, concrete injury … .”). Six years
into this zoning saga, the city’s actions establish that it has
11 It seems the city wishes to pursue its state court enforcement action
before demanding the church apply for parking variances, while simulta-
neously avoiding the church’s RLUIPA claims on the same basis. Cf. World
Outreach, 591 F.3d at 537 (“[B]y bringing suit against World Outreach, the
City chose the forum in which it wanted the organization’s rights adjudi-
cated; it can hardly be heard to criticize the organization for accepting that
choice.”).
16 No. 18-1432
finally rejected the church’s permitted use interpretation.
Additional proceedings before the local zoning authorities
will not alter this case’s facts.
In summary, parking variances do not address the central
controversy between the parties about whether the zoning
code treats religious uses on unequal terms with secular uses,
or places unreasonable limitations on religious exercise. And
the city made a final decision to reject the church’s contention
that it is a permitted use. The church’s claims are ripe, regard-
less of whether Williamson County applies.
B. Mootness
The district court also ruled that the parking variances and
conditional use permit mooted the church’s legal claims. A
case becomes moot “only when it is impossible for a court to
grant any effectual relief whatever to the prevailing party.”
Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016) (quoting
Knox v. Serv. Emp. Int’l Union, Local 1000, 567 U.S. 298, 307
(2012)). The party asserting mootness bears a “heavy burden
of proof” in demonstrating it is “absolutely clear that the
allegedly wrongful behavior could not reasonably be
expected to recur.” Freedom From Religion, 885 F.3d at 1051.
The district court’s mootness determination suffers from at
least two problems.
First, as described above, neither a parking variance nor a
conditional use permit resolves the parties’ dispute about
whether a church is a permitted or conditional use in the R-3
districts. The district court’s mootness decision is analogous
to the assertion that a defendant can moot a plaintiff’s claim
simply by offering to pay damages, which the Supreme Court
rejected in Campbell-Ewald. 136 S. Ct. at 670. The church’s
No. 18-1432 17
complaint sought a declaration that the city had violated the
law, an injunction against the city enforcing the zoning code
to prevent the church from using the Property, and an award
of money damages. None of that has happened yet, so the case
is not moot. See Chapman v. First Index, Inc., 796 F.3d 783, 786
(7th Cir. 2015).12
Second, no variance or conditional use permit ever went
into effect here. The city ordinance purporting to award the
church parking variances states, “This Ordinance shall be
signed by the Church to signify its agreement to the terms
hereof, and this Ordinance is conditional upon the Church
executing the Ordinance.” Markham, Ill., Ordinance No.
17-0-2168 (Mar. 1, 2017). Likewise, the ordinance purporting
to grant the church a conditional use permit also required the
church’s signature. Markham, Ill., Ordinance No. 17-0-2169
(Mar. 1, 2017). But the church never executed either
ordinance. By their own terms, the ordinances are ineffective.
Thus, even if a variance or conditional use permit could moot
the church’s claims, neither is present here.
C. Damages
The district court also characterized the church’s damages
claims as “speculative” and lacking evidentiary support. The
summary judgment record contradicts that finding. The
church presented a sworn declaration from its leader, Pastor
12 The availability of a conditional use permit remains relevant in this
case, however. For example, such relief from the city impacts the church’s
damages claim (which the church acknowledged in the district court), and
a conditional use permit may be the sort of reasonable accommodation to
which the church is entitled on its liability case. We leave those issues for
the district court’s consideration on remand.
18 No. 18-1432
McCracken, describing the injuries the city allegedly inflicted
upon the church. He detailed how the city’s lawsuit to enjoin
the church’s operation had distracted the church’s leadership
from its religious objectives and placed stress on the congre-
gation. Certainly, the damages for such injuries are not as
easily quantifiable as a business’s lost profits or a tort victim’s
medical bills. Yet, they are within the ambit of compensatory
damages, and the district court erred in dismissing them out
of hand. See Memphis Cmty. School Dist. v. Stachura, 477 U.S.
299, 307 (1986) (“[C]ompensatory damages may include not
only out-of-pocket loss and other monetary harms, but also
such injuries as impairment of reputation, personal humilia-
tion, and mental anguish and suffering.”) (internal quotation
and ellipsis omitted).
Even if the church lacked sufficient evidence to prove its
damages to a specific monetary sum, nominal damages
remain an appropriate means of vindicating rights whose
deprivation is difficult to quantify. Guzman v. City of Chicago,
689 F.3d 740, 748 (7th Cir. 2012); cf. Carey v. Piphus, 435 U.S.
247, 266 (1978) (recognizing availability of nominal damages
for deprivations of civil rights that do not inflict financial
injury). The church’s alleged injuries are more than
“speculative,” and its damages case should have survived
summary judgment.
D. Standing Arguments
Finally, the city attempts to defend the district court’s
decision on an independent ground—the church’s alleged
lack of standing to pursue its equal terms and unreasonable
No. 18-1432 19
limitations claims.13 The city contends the church cannot
complain that other places of public assembly are treated as
permitted uses in the C-1 and C-2 districts because the church
does not own property in those districts and has never
attempted to move to them.
The standing doctrine requires a plaintiff to demonstrate
it “(1) suffered an injury in fact, (2) that is fairly traceable to
the challenged conduct of the defendant, and (3) that is likely
to be redressed by a favorable judicial decision.” Spokeo, Inc.
v. Robins, 136 S. Ct. 1540, 1547 (2016). The church meets each
of those elements. The city’s state court lawsuit to enjoin the
church’s operation is sufficient to demonstrate an injury in
fact. See Primera Iglesia Bautista Hispana of Boca Raton, Inc. v.
Broward Cty., 450 F.3d 1295, 1304 (11th Cir. 2006) (municipal
zoning restriction on use of property constituted an “actual
injury”). That injury is directly traceable to the city’s interpre-
tation of its zoning code and could be redressed by a favorable
judicial determination.
The city points to Midrash Sephardi, Inc. v. Town of Surfside,
366 F.3d 1214 (11th Cir. 2004), to support its argument that an
RLUIPA plaintiff lacks “standing” to challenge unequal terms
in a zoning code unless it is presently located in, or has
concrete plans to move to, the zoning district where the
comparator secular organization is allegedly provided more
favorable treatment. Id. at 1224 n.9. Similar to this case, in
Midrash a municipality attempted to enjoin the operation of
13 Although the city did not challenge the church’s standing to raise
its unreasonable limitations claim in the district court, challenges to a
plaintiff’s Article III standing cannot be waived or forfeited. Freedom From
Religion Found., Inc. v. Nicholson, 536 F.3d 730, 737 (7th Cir. 2008).
20 No. 18-1432
two synagogues, which responded by alleging the
municipality’s zoning code violated RLUIPA. Id. at 1220–22.
The Eleventh Circuit determined that the synagogues had
standing to pursue their claims of a legal right to remain in
their current locations, although they lacked standing to
pursue other discrimination claims regarding the zoning
treatment of religious facilities in districts where they were
not located. Id. at 1224 & n.9.
Like the synagogues in Midrash, the church’s legal claims
are premised on its request to continue to worship at its
present site. The church is not an outsider with no stake in the
city’s zoning scheme. Although some of the church’s legal
theories allege the zoning code nowhere permits churches as
a matter of right, at bottom the church challenges the city’s
treatment of churches as conditional uses in the R-3 districts—
such as where the Property is located. In other words, the
church challenges its zoning use categorization at the
Property, even as the church argues the zoning code as a
whole discriminates against religious uses.
Such an argument is cognizable, as courts assess the
entirety of a zoning scheme when evaluating a property
owner’s RLUIPA claim. See Eagle Cove Camp & Conf. Ctr. v.
Town of Woodboro, 734 F.3d 673, 680 (7th Cir. 2013) (RLUIPA
not violated because plaintiff could locate Bible camp in other
zoning districts within the municipality); Vision Church, 468
F.3d at 989 (RLUIPA “exclusion” claim triggered only where
municipality applies “complete and total exclusion of activity
or expression protected by the First Amendment”).
In short, the church has sustained a concrete injury result-
ing from the city’s interpretation of which zoning uses are
permitted in the R-3 districts, and that injury is sufficient to
No. 18-1432 21
give the church standing for Article III purposes. The church
need not move to another zoning district to acquire standing
to pursue its claim that it is entitled to stay put.
III. Conclusion
For the foregoing reasons, we REVERSE the district court’s
grant of summary judgment in favor of the city and REMAND
for further proceedings. We encourage the district court to
begin by addressing whether operating a church on the
Property is a permitted or conditional use under the zoning
code.
Our decision expresses no opinion on the substantive
merits of any of the church’s legal claims or on the proper
interpretation of the city’s zoning code. The district court did
not reach those issues, and we do not decide them
for the first time on appeal. Circuit Rule 36 shall apply on
remand.