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Major Religious Land Use Win in Seventh Circuit Court of Appeals

Written by Noel Sterett on January 18, 2019 Category: Firm News, RLUIPA, RLUIPA Cases

Yesterday, the Seventh Circuit Court of Appeals ruled in favor of Dalton Tomich client, the Church of Our Lord and Savior Jesus Christ, in its suit against Markham, Illinois. Honorable Judges Easterbrook, Flaum, and Brennan all agreed that the district court was wrong to reject the Church’s claims under the Religious Land Use Institutionalized Persons Act as not being ripe and also moot. In its opinion, the Court also found that the Church’s claims to damages were not speculative. The Court cited Pastor McCracken’s sworn declaration which detailed how the City’s actions have “distracted the Church’s leadership from its religious objectives and placed stress on the congregation.”

The Court of Appeals faulted the district court for failing to address a central issue in the case, namely whether a church is a permitted use of the property under Markham’s cumulative zoning code. In language quoted by the Seventh Circuit in its opinion, the district court had said:  “I don’t care if they give you 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 difference makes every difference however to the Church which has suffered tremendously from the City’s efforts to prohibit its worship services. At the oral argument in October 2018, I argued that there is only two ways to interpret the City’s zoning code, and either way the City has violated provisions of the Religious Land Use & Institutionalized Persons Act. Either a church is permitted as of right at the property and the City was wrong to burden the church’s religious exercise by demanding it apply for a conditional use permit (which the City denied) or the City has no zone where a church may locate as of right–a violation of both RLUIPA’s “Unreasonable Limitations” and “Equal Terms” provisions. The Seventh Circuit held that “[d]espite the significance of deciding whether a church is a permitted or conditional use of the Property, the district court did not resolve that issue.”

The case has now been remanded to the district court with instructions to assign the case to a different judge for a decision on the merits of the Church’s claims.

“We thank God for this decision and are so thankful for our attorney Noel Sterett whose prayer and perseverance have meant so much to our small church. We remain amazed at the lengths the City has gone to oppose us. The tens of thousands of dollars that have been spent fighting my congregation would’ve been better spent addressing the many needs in the Markham community.”

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