### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 16

‐ 3677

A FFORDABLE R ECOVERY H OUSING

, Plaintiff

‐ Appellant

,

v.

C ITY OF B LUE I SLAND

, and J IM K LINKER

, in his official

capacity as Blue Island Fire Chief,

Defendants

‐ Appellees

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 12 C 4241

— Robert M. Dow, Jr.

, Judge

.

____________________

A RGUED A PRIL 19, 2017

— D ECIDED J UNE 21, 2017

____________________

Before B AUER

, P OSNER

, and H AMILTON

, Circuit Judges

.

P OSNER

, Circuit Judge

. Blue Island is a town of some

24,000 residents, slightly south of Chicago. A Catholic order

of nuns called the Mantellate Sisters of Mary has since the

1950s owned a group of five buildings in the town, one a

convent for the nuns, one a church, and the other three orig

‐ inally constituting the Mother of Sorrows High School, a

boarding school that closed many years ago, whereupon the2 No. 16

‐ 3677

buildings were leased to a local school district, which used

the site as a public high school until 2009. The following year

the founders of Affordable Recovery Housing—an enter

‐ prise that wanted to use the convent and high school build

‐ ings as a faith

‐ based recovery home that would provide

support services, overnight lodging, meals and recreation,

job training, medical and dental referrals, religious outreach,

and other services to adult men fighting drug and/or alcohol

addiction—persuaded the Mantellate Sisters to allow the en

‐ terprise to do those things because the few remaining nuns

would continue to occupy part of the convent building and

the Sisters would obtain rental income. And because most of

the property would no longer be vacant, vandalism would

no longer be a problem, as it had been.

In February 2011, the mayor approving, Affordable

moved 14 of its staff members into the buildings. But the fol

‐ lowing year Blue Island’s fire chief decided that before using

the buildings as residential facilities Affordable had to install

a sprinkler system in the rooms in which the men in the re

‐

covery program would be sleeping. The City Council ap

‐ proved the fire chief’s decision.

Compliance would have been an expensive proposi

‐

tion—indeed Affordable could not have afforded to install a

sprinkler system before it had any recovery patients, as they

were an essential source of revenue (indirectly from public

agencies—the patients or most of them would have been in

‐ digent). It had already moved in 73 of these men even

though it had not obtained from Blue Island the special

‐ use

permit it needed to operate its facility in an area zoned Sin

‐ gle Family Residential. So instead of installing a sprinkler

system or expelling the residents Affordable filed this suitNo. 16

‐ 3677 3

against Blue Island and the town’s fire chief, seeking to en

‐ join the eviction order based on Affordable’s failure to install

a sprinkler system and to obtain a judgment that the safety

code did not require such a system. Its thinking was that if

not required to install sprinklers it wouldn’t have to expel

the residents, for if sprinklers were not required this would

imply that their absence was unlikely to endanger the resi

‐

dents.

But the district judge refused to issue a preliminary in

‐ junction, and so the residents had to leave. Indeed many of

them had already left under the threat of eviction. Afforda

‐

ble tells us without contradiction that the gap in services

caused it to lose touch with its former residents, four of

whom suffered fatal overdoses after leaving Affordable’s

premises. But later Affordable obtained a license from the

Illinois Department of Human Services that designated the

buildings a recovery house, leading Affordable to move the

district court for partial summary judgment on the ground

that the enterprise was now governed by the state’s safety

regulations for recovery houses—regulations that didn’t re

‐ quire sprinkler systems in buildings fewer than four stories

high, as Affordable’s are.

The district judge granted partial summary judgment in

favor of Affordable on the ground that the omission of a

sprinkler requirement in the state regulations governing re

‐

covery homes preempted the inconsistent municipal rule.

But though Affordable now can operate a residential recov

‐

ery house without installing a sprinkler system, it appeals

the district judge’s determination that it failed to prevail on

claims that it made based on the Illinois Religious Freedom

Restoration Act and related statutes. Had it prevailed on4 No. 16

‐ 3677

those claims it would have been entitled to damages and at

‐ torneys’ fees rather than just the right to dispense with

sprinkler systems.

The Religious Freedom Restoration Act provides that

“government may not substantially burden a person’s exer

‐

cise of religion

... unless it demonstrates that application of

the burden to the person (i) is in furtherance of a compelling

governmental interest and (ii) is the least restrictive means of

furthering that compelling government interest.” 775 ILCS

35/15. Affordable considers helping men recover from drug

and/or alcohol abuse to be an exemplar of Christian charity,

and argues that being forced to expel 73 residents infringed

its exercise of religion. Yet there is no evidence that the ex

‐ pulsion, which turned out to be temporary when the appli

‐

cable state law was discovered, was attributable to anything

other than an honest concern with possible fire hazards to

the residents.

Moreover, the expulsion was a consequence of Afforda

‐

ble’s disregard of the sprinkler requirement. Affordable

could have avoided the expulsion by researching the state

and local regulations applicable to group recovery housing

before beginning its project. Nothing compelled it to rush

headlong into business; it chose to take that risk. The Act

permits exceptions from otherwise generally applicable laws

for persons whose religious exercise is substantially bur

‐

dened by those laws. But Affordable doesn’t argue that the

sprinkler requirement would have substantially burdened

its religious exercise even if it had complied with the re

‐ quirement from the beginning. Consider: had the beds that

Affordable’s residents slept on been stolen rather than do

‐

nated, Blue Island would not have substantially burdenedNo. 16

‐ 3677 5

Affordable’s religious exercise by seizing and removing the

stolen property.

The Religious Land Use and Institutionalized Persons

Act (a federal statute) establishes the same legal standard as

the Illinois Act but applies only to a zoning or landmarking

law. 42 U.S.C. § 2000cc

‐ 5(5). Even if Blue Island’s fire

‐ safety

code could be considered a zoning law because of its poten

‐

tial to exclude a building or other land use from a particular

area, we know that Affordable is not being excluded from

Blue Island or even required to install a sprinkler system.

The Fair Housing Amendments Act forbids “mak[ing]

unavailable or deny[ing] a dwelling to any buyer or renter

because of a handicap of

... a person residing in or intending

to reside in that dwelling.” 42 U.S.C. § 3604(f)(1). But Af

‐

fordable of course was not trying to exclude handicapped

persons from its facilities, and Blue Island’s exclusion when

it forced the 73 residents to leaves was quickly undone when

Affordable discovered the supervening state law regarding

sprinkler systems.

Affordable not having prevailed on any claims that allow

for fee

‐ shifting from the loser to the winner of a lawsuit, the

“American Rule,” requiring each party to bear the expense

of its lawyers, governs, barring Affordable’s money claims.

The judgment of the district court is

A FFIRMED

.