UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

PETRA PRESBYTERIAN CHURCH, )

)

Plaintiff, )

) Hon. Blanche M. Manning

v. )

) No. 03 CV 1936

VILLAGE OF NORTHBROOK, )

)

Defendant. ) 

MEMORANDUM AND ORDER

Plaintiff Petra Presbyterian Church bought land in Northbrook, Illinois, to open a church. 

The problem for Petra is that its land is in the middle of an industrial park where churches aren’t

allowed. Nevertheless, Petra still wants to locate in the industrial park, and has sued Northbrook

claiming that the village’s zoning code violates federal and state laws, as well as the

Constitution. The parties filed cross-motions for summary judgment. For the reasons that

follow, the court denies Petra’s seven motions for partial summary judgment, grants

Northbrook’s motion for summary judgment on Petra’s federal claims, and declines to exercise

jurisdiction over the remaining state law claims.

BACKGROUND

The following is culled from the parties’ statements of fact and exhibits. Petra is a

Presbyterian church with a predominantly Korean congregation. It conducts its worship services

and other church-related functions like weddings and baptisms in space rented from a Lutheran

church in Glenview, Illinois.
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For the past ten years, Petra has been searching for a building of its own. Unable to find

an existing church for sale in the right place and at the right price, in 2000 Petra settled on

property in Northbrook’s Sky Harbor Industrial Park. Petra planned to convert an existing office

building and warehouse into a church.

Sky Harbor lies in an area of Northbrook zoned I-1. Under the 1988 zoning code that

was in effect at the time, I-1 zoning was reserved mainly for industrial uses, but also permitted

membership organizations such as union halls, chambers of commerce and other organizations

that would compliment area businesses. The I-1 zone specifically excluded use by religious

organizations. Though use of the Sky Harbor property as a church was specifically excluded,

and though the property was surrounded by manufacturing facilities such as a grinding and

polishing business, a tool and die business, and a heating and air conditioning company, Petra

decided that the property suited its needs.

In October 2000, Petra agreed to buy the Sky Harbor property for $2.9 million. The sales

contract included a contingency clause that allowed Petra to back out if it was unable to obtain

the rezoning it would need to operate a church. At the same time Petra applied for rezoning of

the property to IB (institutional buildings), the only zone in which religious organizations were

permitted.

Several months later the Northbrook Plan Commission held public hearings on Petra’s

application for rezoning. To alleviate concerns expressed by commissioners during the hearing,

Petra supplemented its application with a list of 13 suggested conditions that it volunteered to

follow in order to obtain rezoning. Despite the newly-suggested conditions, in April 2001 the

Plan Commission recommended against rezoning.
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The application was then presented to the Village Board. In May 2001 the Board asked

its staff to prepare documents denying Petra’s application for rezoning, deferring until its next

meeting an actual vote on the application. But before the Board’s next meeting, Petra withdrew

its application and the Board never voted on it.

Having failed to obtain a rezoning, Petra exercised the zoning contingency clause and

terminated its contract to buy the Sky Harbor property. However, within months it struck a new

deal to buy the property, this time without a zoning contingency and for the discounted price of

$2.6 million, $300,000 less than the original price. Petra completed its purchase in October

2001.

Petra filed this suit in March 2003 and sought a temporary restraining order preventing

the village from enforcing its zoning code, claiming that the code violated the Equal Protection

Clause, the Free Exercise Clause, the right to free speech, and the federal Religious Land Use

and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc. It later amended its complaint to

add claims that the code violated the Establishment Clause, as well as state law claims of vested

rights, legal nonconforming use, unreasonable classification and restraint, arbitrary or capricious

restriction, and a claim under the Illinois Religious Freedom Restoration Act, 775 Ill. Comp.

Stat. 35/15.

Although Petra’s request for a temporary restraining order was immediately denied, two

months later on May 4, 2003, it began conducting worship services at the Sky Harbor property. 

When the village discovered what Petra was doing, it notified Petra that it was violating

Northbrook’s building code by having too many people on its premises. On June 18, 2003, the

village obtained a preliminary injunction from the Circuit Court of Cook County preventing
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Petra from conducting worship services and limiting occupancy to 60 persons at all other times. 

By then, Petra had returned to its rented space in Glenview.

In the meantime Northbrook amended its zoning code in 2003 so that all membership

organizations were excluded from I-1 zones, including the business-related organizations that

under the 1988 version of the code were allowed. The village also opened up additional zones to

religious organizations where they previously were not allowed. Religious organizations had

been allowed only in the IB zone, but now were permitted as of right in two residential districts

(R-1 and R-2), and in an additional 16 districts after obtaining a special permit.

Petra returned to federal court and attempted to get a preliminary injunction to prevent

Northbrook from enforcing its zoning code, but that too was denied. The parties then filed

motions for summary judgment. Northbrook filed a single motion seeking summary judgment

on all of Petra’s claims. Petra, on the other hand, filed a total of seven motions for partial

summary judgment in a transparent effort to evade the page limitation. But because Petra’s

arguments are unpersuasive at any length, all of its motions are denied. Northbrook’s motion, on

the other hand, is granted as to all of Petra’s federal claims. No federal claims remain after

summary judgment, and therefore the court declines to exercise supplemental jurisdiction over

the state law claims. See 28 U.S.C. § 1367(c)(3).

DISCUSSION

1. Summary Judgment Standard

Summary judgment is proper when the “pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue of any material fact.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
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317, 322 (1986). “The evidence of the non-movant is to be believed, and all justifiable

inferences are to be drawn in his favor.” Valenti v. Qualex, Inc., 970 F.2d 363, 365 (7th Cir.

1992), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Moreover, a court may

grant a motion for summary judgment only when the record shows that a reasonable jury could

not find for the nonmoving party. Valenti, 970 F.2d at 365; Anderson, 477 U.S. at 248.

Accordingly, the nonmoving party may withstand summary judgment only by showing 

that a dispute over a “genuine” material fact exists; that is, the evidence is such that a reasonable

jury could render a verdict for the nonmoving party. Anderson, 477 U.S. at 248. The

nonmoving party may not merely rest upon the allegations or details in his pleading, but instead,

must set forth specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at

322; Anderson, 477 U.S. at 248.

2. Constitutional Claims

a. Establishment Clause

The court turns first to Petra’s Establishment Clause claim (Count XIII). In it, Petra

alleges that under Northbrook’s zoning code, Petra was required to meet several conditions in

order to use its property as a church. The conditions allegedly included that (1) no more than ten

people could occupy the property during weekdays, 60 people on weeknights, and 200 people on

Sundays; (2) events such as weddings and baptisms were limited to six per year; and (3) Petra

could not operate a school on the property. Petra contends that Northbrook subjected no other

church to such conditions, and therefore it preferred other churches over Petra in violation of the

Establishment Clause. See Kaufman v. McCaughtry, 419 F.3d 678, 683 (7th Cir. 2005) (the
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Establishment Clause prohibits the government from favoring one religion over another without

a legitimate secular reason).

None of the conditions described above were ever imposed by the village. Instead, they

were conditions that Petra suggested which were ultimately rejected by the Plan Commission

before Petra withdrew its request for rezoning. None of the conditions are set forth in the

village’s zoning code, and therefore cannot be the basis for Petra’s claim that the zoning code

violates the Establishment Clause.

As for the 60-person occupancy limitation imposed by the Circuit Court of Cook County,

which is similar to the occupancy condition that Petra suggested but that the Plan Commission

rejected, an attack upon the state-court judgment may not be waged in federal district court. See

Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 125 S. Ct. 1517, 1526 (2005) (“losing party in

state court” may not turn to federal district court “seeking review and rejection of that [statecourt] judgment.”).

b. Other Constitutional Claims

Each of Petra’s remaining constitutional claims—Equal Protection (Count I), Free

Exercise (Counts III & IX), and Free Speech (Count V)—are based upon “the Northbrook

zoning code before May 3, 2003,” in other words the pre-amended, 1988 iteration of the code. 

Petra seeks both injunctive relief and money damages.

Petra’s claims for injunctive relief are moot. The portion of the 1988 code about which

Petra complains, specifically the provision that permitted non-religious groups to operate in the

I-1 zone but excluded religious groups, has since been amended to treat religious groups and

non-religious groups similarly. Because Petra claims only that the pre-amended code (not the
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current code) violated the constitution, its claims are moot. See Civil Liberties for Urban

Believers v. City of Chicago, 342 F.3d 752, 762 n.6 (7th Cir. 2003) (where amendments to

zoning code placed similar restrictions on religious and nonreligious assembly uses, plaintiff’s

challenges to pre-amended version of code were moot).

Even though a plaintiff’s attempt to enjoin the enforcement of a an out-of-date zoning

code is moot, the plaintiff may nevertheless be entitled to recover damages suffered during the

time the code was enforced in violation of the constitution. See 42 U.S.C. § 1983. However,

claims for damages must be timely, as determined by the applicable statute of limitations of the

state in which the violation took place. Hoagland v. Town of Clear Lake, Ind., 415 F.3d 693,

699-700 (7th Cir. 2005) (“For §§ 1983 and 1985 claims, the statute of limitations is determined

by the law of the state in which the violation took place.”). The applicable Illinois limitation is

two years for personal injuries. See 725 Ill. Comp. Stat. 5/13-202 (personal injury statute of

limitations); Williams v. Lampe, 399 F.3d 867, 870 (7th Cir. 2005) (§ 1983 claims in Illinois are

governed by a two-year limitations period). Therefore, a § 1983 claim is timely only if filed

within two years of when the “plaintiff [knew] or should [have known] that his or her

constitutional rights have been violated.” Behavioral Institute of Ind., LLC v. Hobart City of

Common Council, 406 F.3d 926, 929 (7th Cir. 2005).

The parties disagree when Petra knew or should have known about its injury, and thus

when the limitations period began to run. The village contends that it began to run on December

20, 2000, the day that Petra filed its application for rezoning. According to the village, Petra

knew at least by then that the code distinguished between religious and nonreligious assemblies

in the I-1 zone. Petra contends that it began to run much later, specifically when the village
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Board directed staff members on May 8, 2001, to prepare documents denying Petra’s application

for rezoning.

The Seventh Circuit recently examined when the statute of limitations begins to run for

claims arising from allegedly illegal zoning codes. In Hoagland v. Town of Clear Lake, Ind., the

plaintiff wanted to operate a helicopter and landing pad on his property. Hoagland, 415 F.3d at

695-96. His town’s zoning code was initially silent on the issue of landing pads, but the town

eventually amended its code to allow landing pads only if the owner first obtained a special use

permit. Id. at 696.

Significantly, the Seventh Circuit did not conclude that the limitation period began to run

only after the plaintiff tried and failed to obtain a special use permit—in fact, the court never

discusses in its review of relevant facts whether the owner ever even attempted to obtain a

permit. Instead, the court held that the limitations period began to run when the plaintiff should

have first known that the code was illegal, i.e., when the town attempted to regulate landing pads

by amending its zoning code. Id. at 700. Because the plaintiff filed its claims more than two

years after the town amended its code, the claims were untimely. Id.

Petra attempts to distinguish Hoagland by arguing that it was first injured when the

Board failed to grant its request for rezoning in May 2001—it insists that the 1988 code itself

caused it no injury. Therefore, Petra concludes, its claims are timely because they were filed

within two years of May 2001. However, the request that the Board failed to act upon in May

2001 was Petra’s request that its property be rezoned to IB, not that it be allowed to conduct

religious assemblies within the I-1 zone. Petra has offered no evidence or argument that it was

entitled under the constitution to a rezoning to IB in May 2001, and therefore the statute of
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limitations could not have started running on that date. Petra’s only potentially viable

constitutional claim is one based upon the 1988 code’s allegedly unconstitutional treatment of

religious assemblies within the I-1 zone. Accordingly, the limitations period began running

when Petra knew about the constitutional infirmity in December 2000, more than two years

before it filed suit.

3. RLUIPA

The Protection of Religious Exercise in Land Use and by Institutionalized Persons Act

prohibits governments from, among other things, imposing land use regulations that (1)

substantially burden religious exercise, see 42 U.S.C. § 2000cc(a); (2) treat religious assemblies

less favorably than nonreligious assemblies, see id. § 2000cc(b)(1); or (3) unreasonably limit or

totally exclude religious assemblies, see id. § 2000cc(b)(3). Petra contends that the 1988 version

of Northbrook’s zoning code treated religious assemblies less favorably and therefore violated

§ 2000cc(b)(1); that the village’s refusal to let Petra operate a church in the I-1 zone

substantially burdens it in violation of § 2000cc(a); and because no other suitable land is

available anywhere in Northbrook, that the village has totally excluded Petra in violation of

§ 2000cc(b)(3).

a. Substantial Burden / Total Exclusion

According to Northbrook’s director of development, land within the two zones where

churches are allowed without a permit, the R-1 and R-2 zones, is “basically built up.” Therefore,

obtaining enough land to build a new church has traditionally required buying several adjacent

lots with existing homes. Petra contends that the fact that Northbrook’s residential zones are

basically built-up, combined with the fact that churches cannot operate within the city’s
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industrial zones, means that Petra is not only substantially burdened, but is also totally excluded

from locating in Northbrook.

Petra’s argument fails to account for other areas of Northbrook where churches are

allowed. For instance, Petra points to no evidence about the availability of land in the 16 nonresidential districts, including commercial districts where churches are allowed with a permit. 

On the other hand, according to the parties’ agreed facts, under the 1988 code ten of the eleven

churches that attempted to locate in Northbrook succeeded (only Petra failed, after withdrawing

its rezoning request). With the 2003 amendments Northbrook opened up even more land to

churches so that now “70% of land in Northbrook is located in zoning districts where Religious

Organizations may locate either as of right or by way of a Special Permit.”

Nothing in the RLUIPA entitles Petra to establish a church anywhere it wants. The fact

that Northbrook’s zoning code requires it to locate somewhere other than an industrial park is

not a substantial burden, let alone a total exclusion. See Civil Liberties, 342 F.3d at 761-62

(scarcity of land in urban areas does not require municipality to “favor [churches] in the form of

an outright exemption of land-use regulations”).

Petra’s reliance on Sts. Constantine & Helen Greek Orthodox Church, Inc. v. City of New

Berlin, 396 F.3d 895 (7th Cir. 2005), is unpersuasive. In New Berlin, the Seventh Circuit held

that the defendant had created a substantial burden by requiring a church to “search[] around for

other parcels of land,” rather than rezoning property the church already owned. Id. at 901. But

in New Berlin, the city had only one legitimate reason for not granting the rezoning—the city

was worried that if the property were rezoned a subsequent owner might build a school or other

non-religious facility—and the church had agreed to a restrictive covenant prohibiting that. Id.
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at 900-01. In contrast, Petra has offered no evidence that it has satisfied Northbrook’s legitimate

concerns about allowing a church in an industrial park. In fact, Petra agrees that Northbrook’s

decision to prohibit all assembly uses in its industrial zones “is rationally related to several

important planning principles, including reduction in actual and potential land use conflicts, and

preservation of industrial land.”

b. Less Favorable Treatment

Although the RLUIPA prohibits governments from treating religious assemblies less

favorably, a government “may avoid the preemptive force of any provision of this chapter by

changing the policy or practice that results in a substantial burden on religious exercise.” 42

U.S.C. § 2000cc-3(e). Although the statute refers to policies that result in substantial burdens,

the Seventh Circuit has held that governments may also avoid liability for violations of the

nondiscrimination provision of the RLUIPA by eliminating the discriminatory policy. Civil

Liberties, 342 F.3d at 762. The parties agree that the 2003 amendments to Northbrook’s zoning

ordinance put nonreligious assemblies on equal footing with religious assemblies. Accordingly, 

Northbrook has avoided liability by eliminating its discriminatory zoning provision.

4. State Law Claims

Petra alleges several state law claims, including that because Northbrook’s 1988 zoning

code was unconstitutional and therefore void, it was entitled to operate a church when it bought

the property in 2001, and under state law theories of vested rights and legal nonconforming use,

remains able to operate a church on the property even after the 2003 amendments to the zoning

code.
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When all federal claims have been dismissed from a plaintiff’s case, a district court may

decline to exercise supplemental jurisdiction over the remaining state law claims. 28 U.S.C.

§ 1367(c)(3). Accordingly, in its discretion the court believes that Petra’s state law claims would

be better evaluated in state court, and therefore declines to exercise supplemental jurisdiction

over those claims. Id.

CONCLUSION

For the preceding reasons, the court GRANTS Northbrook’s motion for summary

judgment [113-1] on each of Petra’s federal claims (Counts I, II, III, IV, V, IX, XII and XIII). 

Because no federal claim remains, the court declines to exercise supplemental jurisdiction over

the remaining state law claims (Counts VI, VII, VIII, X and XI). Further, the court DENIES

each of Petra’s motions for partial summary judgment [120-1], [121-1], [122-1], [123-1], [124-

1], [125-1], and [126-1].

ENTER:

DATE: January 11, 2006 __________________________________________

Blanche M. Manning

United States District Judge