Seventh Circuit: Markham church should be allowed to sue city over conditional zoning permit rules

By Scott Holland | Jan 22, 2019

A federal appeals panel says a federal judge took the wrong angle in a zoning dispute between a church and the city of Markham, finding the judge should have allowed the small church to press its claims the city’s zoning regulations for churches are illegal.

Although the Church of Our Lord and Savior Jesus Christ operated in a converted single-family residence on South Spaulding Avenue for nearly two decades, the city asked a state court to force the church to close or obtain a conditional use zoning permit. When the city denied the church’s permit application, the church challenged city zoning laws under the Religious Land Use and Institutionalized Persons Act and the Illinois Religious Freedom Restoration Act, saying the city imposes stricter limits on churches than secular uses.

Two years into that complaint, the city said the church’s legal claims were flawed because it never applied for parking regulation variances. Judge Ronald Guzmán ordered the church to apply for those variances. The city approved the variances as well as the conditional use permit, but then Guzmán granted the city summary judgment, saying the church was wrong to file its zoning lawsuit before resolving the parking issue, mooting the zoning claims.

In an opinion issued Jan. 17, a three-judge panel of the U.S. Seventh Circuit Court of Appeals reversed that ruling. Seventh Circuit Judge Michael B. Brennan wrote the opinion; Circuit judges Joel Flaum and Frank Easterbrook concurred.

Judge Michael B. Brennan  

According to the panel, Guzmán improperly focused on the timetable of the parking variance application, when he should have focused on the church’s fundamental question:

Whether it should be legally permitted to operate in a residential district or whether the church first must obtain a conditional use permit from the city.

“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,” Brennan wrote. “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.”

The church noted Markham allows theaters in the same zoning districts where it requires churches to obtain conditional use permits, and the justices noted parking variances wouldn’t address that inequity. Further, there is no zone in the city where a church can operate without a conditional use permit, and over several years of disputes, it is clear the city isn’t open to changing its policy on churches. The judges said this meant the church was not wrong to bring the issue to federal court.

The panel further said Guzmán’s finding the issue is moot is problematic because neither a parking variance nor a conditional permit address the fundamental question. Further, neither of those ever took effect because the church never signed off on the attendant ordinances.

Guzmán also said the church’s damages claims were speculative and lacked supporting evidence. While the panel acknowledged the alleged damages weren’t easily quantifiable — that “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 congregation,” Brennan wrote - they were still within the scope of court-ordered compensation.

“Nominal damages remain an appropriate means of vindicating rights whose deprivation is difficult to quantify,” Brennan wrote. “The church’s alleged injuries are more than ‘speculative,’ and its damages case should have survived summary judgment.”

The city also said the church couldn’t complain about comparable uses being permitted in commercial districts because it doesn't own any land in those areas. However, Brennan added: “The church need not move to another zoning district to acquire standing to pursue its claim that it is entitled to stay put.”

The panel remanded the case for further proceeding.

The church is represented in the matter by attorneys Lewis Powell III; Lewis Powell IV; Lewis C. Raymond II, ; Rodney C. Howard, of Wilson Howard P.C.; John W. Mauck and Noel W. Sterret, of the firm of Mauck & Baker; and Veronica Campos, of Legal Advocate Solutions, all of Chicago.

The city of Markham is represented by Stephen R. Miller and Marshall Neal Smith Jr., of the firm of Robbins Schwartz Nicholas Lifton & Taylor Ltd., of Chicago.   

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City of Markham U.S. Court of Appeals for the Seventh Circuit U.S. District Court for the Northern District of Illinois

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