The Church of Our Lord and Savior Jesus Christ v. City of Markham, Illinois

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 rehearsals,

Bible studies, and the like. As the church grew, it remodeled

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 Freedom

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 conditional

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, designating

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 restrictive

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.” Zoning

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 community.”

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 conditional

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 provision

in the zoning code that mentions “churches” as a conditional

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 commission,

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 congregation

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 people.

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 conditional

use application. A week later, the city council

concurred and denied the application.

2 The parties’ briefs address numerous disputes about previous permit

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.

3 The 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 interpretations,

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 signature

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 damages

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 secular

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 limitations

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 justiciability

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 unreasonable

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

7 The relevant subsection provides: “No government shall impose or

implement a land use regulation in a manner that treats a religious assembly

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 Fellowship

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 economics

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

10 The 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 simultaneously

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 adjudicated;

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, regardless

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 congregation.

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 humiliation,

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 interpretation

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 resulting

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.

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.