In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-1329

PETRA PRESBYTERIAN CHURCH,

Plaintiff-Appellant,

v.

VILLAGE OF NORTHBROOK,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 03 C 1936—Blanche M. Manning, Judge.

____________

ARGUED OCTOBER 18, 2006—DECIDED JUNE 7, 2007

____________

Before POSNER, EVANS, and SYKES, Circuit Judges.

POSNER, Circuit Judge. This suit, filed in federal district

court by Petra, a Presbyterian church that caters to KoreanAmericans, charges the Village of Northbrook, a suburb

of Chicago, with violating the Religious Land Use and

Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc

et seq. So far as relates to this case, the Act (RLUIPA)

forbids a local government to “impose or implement a

land use regulation in a manner that” either “imposes a

substantial burden on the religious exercise of a person,

including a religious assembly or institution, unless the

government demonstrates that imposition of the burden”
2 No. 06-1329

is pursuant to “a compelling governmental interest,” or

“treats a religious assembly or institution on less than

equal terms with a nonreligious assembly or institution.”

Id., §§ 2000cc(a)(1), (b)(1). “[R]eligious exercise” is defined

to include the “use, building, or conversion of real property

for the purpose of religious exercise.” § 2000cc-5(7)(B). The

district court granted summary judgment in favor of the

Village. 409 F. Supp. 2d 1001 (N.D. Ill. 2006).

In the spring of 2000, Petra discovered a property in

Northbrook containing a warehouse that it wanted to

convert to a church and an office building that it wanted

to use for classrooms. But the property was located in a

part of Northbrook that under the Village’s then zoning

ordinance (adopted in 1988) was zoned industrial. Membership organizations, such as community centers, youth

centers, fraternal associations, and political clubs were

permitted in the zone, but not churches unless the Village’s board of trustees was persuaded first to rezone

the property to “institutional buildings” (the only zone

in which churches are permitted) and then to issue a

special permit allowing a church in the rezoned property.

Of the eleven applications for rezoning and permits under

the 1988 ordinance made by churches, Petra’s was the

only one not granted.

In September of 2000, when Petra had not yet bought

the property that it had its eye on, it submitted an

informal request for rezoning and for a permit to the

Village’s board of trustees. The board conducted a preliminary review on the basis of which it made comments

favorable to the proposal, but without ruling on it. Petra

then signed a contract to purchase the property (for $2.9

million) but made the purchase contingent on its being

permitted to use the warehouse as a church. Petra also filed
No. 06-1329 3

a formal application with the board for the necessary

rezoning and permit. At a hearing on the application

conducted by the Village’s planning commission, which

advises the board of trustees on land-use matters, landowners in the industrial zone expressed opposition, and

the commission recommended that Petra’s application

be denied. Without taking a formal vote, the board of

trustees directed its staff “to prepare documents that

would be consistent with denial of” Petra’s application.

Fearing the preclusive effect of a formal denial, Petra

withdrew its application. But then, remarkably, it went

ahead and bought the warehouse, albeit at a reduced

price of $2.6 million, and began using it as a church.

RLUIPA had been enacted in 2000, and it caused the

Village fathers to become concerned that the Village’s 1988

zoning ordinance, by treating religious organizations

less favorably than other membership organizations,

might violate the “less than equal terms” provision of the

new statute. The following year the board began a legislative process that resulted in the adoption of a revised

ordinance in 2003 that banned all membership organizations (not just churches) from the industrial zone. Existing

organizations were grandfathered, but of course not

Petra, which had never received permission to operate a

church in the zone.

Shortly after the enactment of the new ordinance, the

Village sought an injunction in state court against Petra.

But it based its claim not on Petra’s violating the zoning code but on Petra’s violating the Village’s building

code. Maybe the board of trustees was skittish about

relying on an ordinance that might be challenged successfully under RLUIPA—Petra had already filed the

present suit, which initially challenged just the 1988

ordinance.
4 No. 06-1329

The state court issued a preliminary injunction prohibiting Petra from “using the indoor premises [of the property]

for assembly purposes” or “occupying the indoor premises of the property in numbers exceeding 60 persons

total at one time limited to general business purposes for

meetings, classes, choir practice, office and business use,

and washroom use.” The district judge interpreted the

injunction as “prevent[ing] Petra from conducting worship services and limiting occupancy to 60 persons at all

other times.” The preliminary injunction was issued in

2003, and the following year the state court issued a

permanent injunction to the same effect.

Petra’s main argument is that it acquired a “vested right”

to operate its warehouse as a church. A doctrine of

Illinois law allows in some circumstances a land use to

continue after a zoning change that would ban it, e.g., 1350

Lake Shore Associates v. Healey, 861 N.E.2d 944, 950 (Ill.

2006), but only if the use was authorized by the zoning

ordinance as it stood before the change. E.g., id.; City of

Elgin v. All Nations Worship Center, 860 N.E.2d 853, 856-58

(Ill. App. 2006), National Advertising Co. v. Village of Downers

Grove, 561 N.E.2d 1300, 1304-05 (Ill. App. 1990). And that is

not the case here. Anyway, no claim under state law is

before us. The district court relinquished supplemental

jurisdiction over Petra’s Illinois “vested rights” claim. Petra

argues that that was error, that though a state law claim it

arises under federal law. The argument makes no sense.

The judge did Petra a favor by relinquishing jurisdiction over the state law claim, because if it were before us

we would reject it on the merits, as a misreading of

Illinois law.

Petra argues in the alternative for a federal “vested

rights” doctrine on the basis of various provisions of the
No. 06-1329 5

Constitution, and on RLUIPA. The argument, peppered

with mysterious references to a “federal zoning law,” is

difficult to follow. As near as we can understand it, Petra

is claiming that when it bought the property it was reasonably relying on the invalidity of the 1988 ordinance,

which arbitrarily treated religious membership organizations worse than other membership organizations, thus

violating not only RLUIPA but also the free-exercise clause

of the First Amendment. E.g., Church of the Lukumi Babalu

Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532-34 (1993). (The

“less than equal terms” provision of RLUIPA codifies

that constitutional prohibition. Midrash Sephardi, Inc. v.

Town of Surfside, 366 F.3d 1214, 1232 (11th Cir. 2004).) As

a result of that reliance, Petra contends that it obtained an

indefeasible right to use the warehouse for a church even

if the 2003 ordinance, which would forbid such use,

is valid.

We cannot find any basis, whether in cases or other

conventional sources of law, or in good sense, for the

proposition that the federal Constitution forbids a state

that has prevented a use of property by means of an invalid

(even an unconstitutional) enactment to continue to

prevent that use by means of a valid one. From the proposition that the Village should not have discriminated in the

industrial zone in favor of secular membership organizations it does not follow that when it eliminated the discrimination by banning all membership organizations from

the zone, this entitled the victim of the discrimination to

claim, by way of remedy, discrimination in its favor. So

strange a rule of estoppel could hardly be thought an

imperative of due process, especially since, although

property rights are protected (to a degree) by the due

process clauses of the Constitution, the scope of those
6 No. 06-1329

rights is determined by state law within broad limits that

include the conditions under which a governmental act

can render a property right indefeasible. Crown Media,

L.L.C. v. Gwinnett County, 380 F.3d 1317, 1325 and n. 18

(11th Cir. 2004); Coral Springs Street Systems, Inc. v. City of

Sunrise, 371 F.3d 1320, 1333 (11th Cir. 2004); Lakeview

Development Corp. v. City of South Lake Tahoe, 915 F.2d

1290, 1294-95 (9th Cir. 1990).

And if there were such a rule of constitutional law

(“vesting by estoppel”), it would be inapplicable to this

case. If the 1988 ordinance violated RLUIPA, as Northbrook

comes close to conceding, Petra didn’t have to comply with

it. But that doesn’t mean that it acquired an immunity from

all zoning regulation. It knew or should have known that

Northbrook could redo its ordinance to comply with the

“less than equal terms” provision of RLUIPA in one of two

ways: by permitting religious organizations in the industrial zone, or by forbidding all membership organizations

in the zone. Petra could not reasonably assume that the

Village would choose the first option. And since it therefore did not reasonably rely on the illegality of the 1988

ordinance in going ahead and buying the property, but

instead assumed the palpable risk that a new, valid ordinance would continue the ban on its desired use of the

property, it has no ground for blocking the Village from

enforcing the amended ordinance against it, on the theory

that the Village pulled the rug out from under it by changing the ordinance.

Petra also seeks damages for the period during which it

was enjoined from operating the warehouse as a church.

The injunction has become final, and the judgment of a

state court cannot be appealed to any federal court other

than the Supreme Court. E.g., Exxon Mobil Corp. v. Saudi
No. 06-1329 7

Basic Industries Corp., 544 U.S. 280, 283-86 (2005); Burke v.

Johnston, 452 F.3d 665, 667 (7th Cir. 2006). If Petra has a

claim for damages that is not dependent on invalidating

the injunction, it is time barred. Petra filed the present

suit in March of 2003. The applicable statute of limitations,

the parties agree, is two years, so that to be timely Petra’s

claim had to arise no earlier than March of 2001. The

district court thought it arose in December 2000 because

that was when Petra first “knew about the constitutional

infirmity” of the 1988 ordinance. 409 F. Supp. 2d at 1006.

Petra argues that its claim did not arise until May 2001,

when the board signaled unmistakably that it would

not grant Petra a special permit by directing its staff to

prepare documents consistent with the denial of Petra’s

application.

The date on which Petra first learned that the 1988

ordinance might violate RLUIPA was not the date on

which its claim arose. Mere knowledge of the existence

of an invalid law that might be applied to one is not an

injury, and a tort claim does not arise until there is an

injury, e.g., Palmer v. Board of Education, 46 F.3d 682, 685

(7th Cir. 1995); Diaz v. Shallbetter, 984 F.2d 850, 855 (7th Cir.

1993), Miller v. Philadelphia Geriatric Center, 463 F.3d 266,

271 (3d Cir. 2006), or until the injury (and who caused it) is

discovered or should have been discovered. E.g., id.;

Behavioral Institute of Indiana, LLC v. Hobart City of Common

Council, 406 F.3d 926, 929 (7th Cir. 2005); McIntyre v. United

States, 367 F.3d 38, 51-52 (1st Cir. 2004); Corcoran v. New

York Power Authority, 202 F.3d 530, 544 (2d Cir. 1999).

Indeed, before there is an injury, there is no standing to sue

for damages because no damages have accrued, Love

Church v. City of Evanston, 896 F.2d 1082, 1085-86 (7th Cir.

1990), and obviously a statute of limitations cannot begin

to run before the prospective plaintiff could sue.
8 No. 06-1329

But December 2000 is when Petra’s claim arose, because,

as the district judge noted elsewhere in her opinion, that

was when Petra entered into the first contract to buy

the warehouse. Although the purchase was contingent

on Petra’s being able to overcome the religious exclusion

in the 1988 zoning ordinance, the contingency was a

negative consequence of the ordinance because Petra

had to pay the seller $300,000 to compensate him for

the risk that the deal would fall through and he would

have to find another buyer. The $300,000 figure is the

difference between the $2.6 million sale price in the second contract, which was not contingent on Petra’s obtaining approval to use the property for religious purposes,

and the $2.9 million price in the first contract, which

was contingent on that approval. If the ordinance was

invalid and therefore religious organizations had the

same rights in the industrial zone as other membership

organizations that, so far as appears, differ from religious

ones only in being secular, then were it not for the ordinance Petra would have purchased the property without conditions and begun operating the warehouse as a

church without facing an injunction. So its claim did arise

more than two years before it sued, and is therefore timebarred.

That leaves Petra’s challenge to the current ordinance,

which it would like enjoined so that it can at last convert

the warehouse to a church. This might seem an exercise

in futility, since the injunction based on the building

code remains in effect, though Petra could always ask the

court that issued it to dissolve or modify it. But it appears

that if the zoning ordinance were invalidated, the Village

would issue a permit to Petra to retrofit the building

to bring it into compliance with the building code, and
No. 06-1329 9

that if Petra did that the state court would lift the injunction. So Petra’s challenge to the ordinance is not moot.

The new ordinance does not violate the “less than equal

terms” provision of RLUIPA. So the question is whether

it imposes a substantial burden on the exercise of religious

rights by Petra and its flock not offset by a compelling

governmental interest. The ban on churches in the industrial zone cannot in itself constitute a substantial burden

on religion, because then every zoning ordinance that

didn’t permit churches everywhere would be a prima

facie violation of RLUIPA. Civil Liberties for Urban Believers

v. City of Chicago, 342 F.3d 752, 760-62 (7th Cir. 2003);

Midrash Sephardi, Inc. v. Town of Surfside, supra, 366 F.3d

at 1226-28; San Jose Christian College v. City of Morgan Hill,

360 F.3d 1024, 1034-35 (9th Cir. 2004); see also Love Church

v. City of Evanston, supra, 896 F.2d at 1086-87. Religious

organizations would be better off if they could build

churches anywhere, but denying them so unusual a

privilege could not reasonably be thought to impose a

substantial burden on them. As we explained in Sts.

Constantine & Helen Greek Orthodox Church, Inc. v. City of

New Berlin, 396 F.3d 895, 900 (7th Cir. 2005), “the ‘substantial burden’ provision backstops the [Act’s] explicit prohibition of religious discrimination . . . . If a land-use

decision . . . imposes a substantial burden on religious

exercise . . . and the decision maker cannot justify it, the

inference arises that hostility to religion, or more likely

to a particular sect, influenced the decision.” Unless the

requirement of substantial burden is taken seriously,

the difficulty of proving a compelling governmental

interest will free religious organizations from zoning

restrictions of any kind.

When there is plenty of land on which religious organizations can build churches (or, as is common nowadays,
10 No. 06-1329

convert to churches buildings previously intended for

some other use) in a community, the fact that they are not

permitted to build everywhere does not create a substantial burden. What is true is that, as in Sts. Constantine &

Helen Greek Orthodox Church, Inc. v. City of New Berlin, supra,

once the organization has bought property reasonably

expecting to obtain a permit, the denial of the permit may

inflict a hardship on it. Id. at 898-900. In that case the

denial was so utterly groundless as to create an inference

of religious discrimination, so that the case could equally

have been decided under the “less than equal terms”

provision of RLUIPA, which does not require a showing

of substantial burden. But Petra had no reasonable expectation of obtaining a permit. Having decided to go

ahead and purchase the property outright after it knew

that the permit would be denied, Petra assumed the risk

of having to sell the property and find an alternative site

for its church should the denial be upheld (or, if illegal,

legally reimposed), just like any other religious organization that wanted to build in the industrial zone.

Any such organization would have to show that a

paucity of other land available for churches made the

exclusion from the industrial zone a substantial burden

to it. E.g., San Jose Christian College v. City of Morgan Hill,

supra, 360 F.3d at 1034-35. Petra did not attempt to show

this. Northbrook concedes that the two residential zones

(R-1 and R-2) that are the only zones in which churches are

permitted by the new ordinance without a permit are

“basically built up,” so that to build a church in one of

those zones a religious organization would have to buy

lots with existing homes and demolish them. But there is

no evidence concerning the availability of land in the

other zones where churches are allowed to operate with a
No. 06-1329 11

permit—other residential zones, commercial zones, office

zones, the institutional building zone, and a combined

residential/limited-commercial zone—or the difficulty

of obtaining a permit for a church in those zones.

The Village argues, unnecessarily and none too persuasively, that it has a compelling interest in keeping religious organizations, along with other membership organizations, out of the industrial zone, even if a substantial

burden on religious observance results. It has an interest,

certainly. The industrial zone contains factories and

warehouses that generate substantial truck traffic. It has

toxic wastes, too—and no sidewalks. The traffic and

its associated noise are a source of inconvenience, annoyance, and even danger (especially given the absence of

sidewalks) to patrons of membership organizations,

including any churchgoers. The industrial users of the

zone objected to the grant of a permit to Petra because

they are worried about possible tort liability, and also that

restrictions on their own activities might be imposed in

order to protect pedestrians. And since Illinois has rejected

the doctrine of “coming to the nuisance,” e.g., City of Pana

v. Central Washed Coal Co., 102 N.E. 992, 998 (Ill. 1913);

Oehler v. Levy, 85 N.E. 271, 273-74 (Ill. 1908); Wheat v.

Freeman Coal Mining Corp., 319 N.E.2d 290, 294 (Ill. App.

1974), owners who put their property to a sensitive use,

as by using it for church services, might sue the industrial

users for nuisance even though the latter had preceded

them in the zone. If, moreover, the use of the zone ever

became predominantly nonindustrial, the zone might be

rezoned to ban industrial uses. Chicago Title & Trust Co. v.

County of Cook, 457 N.E.2d 1326, 1331-33 (Ill. App. 1983); see

also Fifteen Fifty North State Building Corp. v. City of Chicago,

155 N.E.2d 97, 101-03 (Ill. 1958).
12 No. 06-1329

The problem with Northbrook’s effort to show that

these considerations create a compelling governmental

interest in barring churches from the industrial zone is

that until RLUIPA was enacted, and indeed for years

afterward, the Village was content to allow membership

organizations other than churches to buy land and build

freely in the zone, no permit required. But the absence of

a compelling governmental interest is not relevant to a

RLUIPA claim unless the challenged restriction on the

use of property imposes a substantial burden on the

religious organization, and this, as we said, Petra has

failed to show.

None of Petra’s other claims has merit enough to warrant

discussion. The judgment of the district court is

AFFIRMED.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—6-7-07