United States of America v. City of Des Plaines, Illinois

Filing 37

MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 2/26/2017: For the reasons stated in the accompanying Memorandum Opinion and Order, the Court grants in part and denies in part each party's motion for summary judgment [dkt. nos. 132, 143, & 155]. Specifically, the Court has (subject to the question raised in footnote 2) denied all parties' requests for summary judgment on the claims by AIC and the United States but has found certain points in plaintiffs 9; favor under Federal Rule of Civil Procedure 56(g). In addition, the Court has granted defendant's motion to strike plaintiff AIC's request for punitive damages. The case is set for a status hearing on Wednesday, March 1, 2017 at 9:30 a.m. for the purpose of setting a prompt trial date. (mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

SOCIETY OF AMERICAN BOSNIANS
AND HERZEGOVINIANS (formerly known
as AMERICAN ISLAMIC CENTER),

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Plaintiff,
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vs.
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CITY OF DES PLAINES,
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Defendant.
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-------------------------------------------------------------- )
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UNITED STATES OF AMERICA,
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Plaintiff,
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vs.
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CITY OF DES PLAINES,
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Defendant.
)

Case No. 13 C 6594

Case No. 15 C 8628

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
The Society of American Bosnians and Herzegovinians—formerly known as the
American Islamic Center and referred to here as "AIC"—contracted to purchase a piece
of property in Des Plaines, Illinois to use for religious and educational activities, under
the condition that the City would adopt a zoning amendment permitting AIC's proposed
use. The City denied AIC's request for rezoning in the summer of 2013. AIC brought
this suit in September 2013, alleging that the City imposed a substantial burden on its
exercise of religion in violation of the Religious Land Use and Institutionalized Persons

Act (RLUIPA) (count 1), subjected it to unequal treatment and discrimination in violation
of RLUIPA (count 2), impaired its free exercise of religion in violation of the First
Amendment (count 3), denied it equal protection in violation of the Fourteenth
Amendment (count 4), acted arbitrarily and capriciously in violation of 65 ILCS 5/11-1325 (count 5), imposed a substantial burden on its exercise of religion in violation of the
Illinois Religious Freedom Restoration Act (IL RFRA) (count 6), and impaired its free
exercise of religion under the Illinois constitution (count 7).
AIC's suit proceeded through discovery, which was completed in the summer of
2015. The Court established an October 12, 2015 deadline for dispositive motions,
which both sides indicated they planned to file. Then on the eve of the dispositive
motion deadline, the United States filed its own suit against the City under RLUIPA
challenging the City's denial of the zoning amendment. The Court expressed concern
about the government's apparent undue delay in bringing its suit but nonetheless
consolidated the cases. In the government's suit, the Court allowed a brief period for
non-duplicative fact discovery, followed by expert discovery. That discovery was
completed around the end of May 2016.
The City has moved for summary judgment on all of both plaintiffs' claims. The
United States has moved for summary judgment on the RLUIPA claims. AIC has
adopted the United States' motion and has filed its own motion for summary judgment
on all of its claims. For simplicity's sake, the Court will refer to the plaintiffs collectively
as "AIC."
For the reasons stated below, the Court denies both sides' motions for summary
judgment but makes certain findings in favor of plaintiffs pursuant to Federal Rule of

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Civil Procedure 56(g).
Background
I.

AIC's property search
AIC is a religious institution incorporated under the Illinois Not-For-Profit

Corporation Act. It has approximately 160 members throughout the northwest suburbs
of Chicago, most of whom are refugees from the war in Bosnia and Herzegovina that
took place in the early 1990s. AIC had been providing religious worship and education
for its Muslim community at various facilities in the Chicago area that it shared with
other groups. Due to scheduling conflicts and other differences with these groups, AIC
began searching for its own permanent facility in March 2011. AIC sought a facility in
which to hold scheduled prayer services throughout the week, increased services during
Ramadan and other holidays, weekly evening youth and women group meetings,
monthly interfaith organization meetings, and weekend religious education. The
estimated attendances for these events ranged between 10 and 145 attendees, with the
exception of holiday events, for which attendance could reach 300 attendees.
According to testimony by members of AIC, the search initially turned up two
potential properties in Des Plaines. Around January 2012, AIC representatives,
including Mase Jukic, met with Martin Moylan, the mayor of Des Plaines, to discuss the
properties. According to Jukic, Moylan discouraged AIC from buying either property
because the City had an interested buyer for one and had plans to develop the other for
commercial purposes. Moylan then referred Jukic and the others to Scott Mangum, the
City's senior planner and zoning administrator. Jukic says that Mangum told them to
consult the City's comprehensive plan to determine appropriate properties. The City

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disputes Jukic's contention.
Sometime after the meeting, another AIC member discovered a 1.8-acre property
in Des Plaines, located at 1645 Birchwood Avenue. The property includes two buildings
with a total area of 15,477 square feet and a parking lot with 116 off-street parking
spaces. There are an additional 43 on-street public parking spaces on Birchwood
Avenue. The property is located in an area currently zoned for manufacturing uses, but
the City's comprehensive plan recommends converting the area to mixed-density
residential use. In February 2013, AIC contracted to buy this property, conditioned
upon the City's approval of a zoning map amendment.
II.

Application for rezoning
The City divides itself into four types of zoning districts: residential, commercial,

manufacturing, and special. There are four types of residential districts. The City
permits places of worship by right in R-3 and R-4 districts and permits them as
conditional uses in R-1 and R-2 districts. The City permits membership organizations
only as conditional uses in all residential districts. There are also two types of special
zoning districts: institutional and mobile home park. The City permits places of
worship, religious institutional headquarters, and schools in institutional districts.
The City does not permit places of worship either by right or as a conditional use
in manufacturing or commercial districts. The Birchwood property is located in a
manufacturing district. Thus AIC required a zoning change by City to use the property
as a place of worship. In March 2013, AIC applied to the City for a zoning map
amendment to convert the property from M-2 (manufacturing) to I-1 (institutional). The
application stated that AIC proposed to use the property as a house of worship and

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community center, and it proposed a worship space of 3,661 square feet.
Under Section 3.7-4 of the City's zoning ordinance, the Planning Commission is
the first to consider an application for a zoning map amendment. The Planning
Commission holds a public hearing and then makes a recommendation to the City
Council for approval, approval with modification, or disapproval. Section 3.7-5 provides
criteria that the City Council should consider in determining whether to adopt, modify, or
deny the Planning Commission's recommendation. They are:
(1) whether the proposed amendment is consistent with the goals, objectives,
and policies of the City's comprehensive plan;
(2) whether the proposed amendment is compatible with current conditions and
overall character of the development in the immediate vicinity of the property;
(3) whether the proposed amendment is appropriate considering the adequacy of
public facilities and services available to this subject property;
(4) whether the proposed amendment will have an adverse effect on the value of
properties throughout the jurisdiction; and
(5) whether the proposed amendment reflects responsible standards for
development and growth.
During the relevant time period, the Des Plaines Planning Commission had five
members: Cornell Bar, Mary Lane, Joseph Yi, Robert Niemotka, and Alejandro Perez.
During the same time period, the City Council had eight members: Patricia Haugeberg,
John Robinson, Denise Rodd, Dick Sayad, James Brookman, Mark Walsten, Joanna
Sojka, and Michael Charewicz.
AIC's application for a zoning map amendment went first to zoning administrator
Mangum. Mangum gave the application to one of the City's engineers, Derek Peebles,
for evaluation. Peebles decided that AIC needed to provide a parking and traffic study
in support of its request, even though this is not an automatic requirement for rezoning

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requests. Peebles based this decision on experience with another Islamic center in Des
Plaines, the Islamic Community Center (ICC). He indicated that the study was
necessary based on the chronic traffic and parking issues at ICC and the past inability
of the City's parking ratios to adequately estimate the parking need at mosques that do
not use fixed seating. AIC hired KLOA—an engineering firm recommended by the
City—to perform the traffic and parking study. KLOA issued a report in which it
concluded that AIC's proposed use would generate a low volume of traffic that would
not have a detrimental impact on area roadways. The report also concluded that AIC's
parking needs would be adequately served by the existing 118 off-street parking
spaces.
Peebles also developed an estimate of the parking required for AIC's request.
Under sections 9.5 and 9.7 of the City's zoning ordinance, there is a fixed requirement
for the total number of off-street parking spaces based on the applicant's principal use
of the zoning lot. Section 9.7 provides the parking requirements for various types of
uses. Places of worship require one parking space for every four seats in the main area
of assembly and any other rooms that are to be occupied simultaneously. In cases
where there is no fixed seating, places of worship require one parking space for every
60 square feet of floor area. AIC did not plan to have fixed seating for its 3,661-squarefoot worship space. Thus the ordinance required 62 parking spaces for the property
(3,661 square feet / 60 square feet per parking space = 61.02).
After reviewing the traffic study, Peebles told AIC that it was required to calculate
parking demands using a different standard. Specifically, Peebles told AIC to assume a
maximum occupancy rate of one person per 10 square feet and parking at a rate of 1.24

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persons per vehicle, resulting in a parking requirement of 1 space per 12.4 square feet.
In an e-mail to Mangum, Peebles indicated that he determined the ratio of one person
per ten square feet through an Internet search regarding mosque capacity. He
determined the rate of 1.24 persons per vehicle based on KLOA's observation of the
average vehicle occupancy at ICC during Friday prayers. This resulted in a requirement
of 296 parking spaces for the Birchwood property (3,661 square feet / 12.4 square feet
per parking space = 295.24). In response, AIC informed the City that it would reduce its
worship space from 3,661 square feet to 1,810. Under the new parking ratio, this would
require 145 parking spaces (1,810 square feet / 12.4 square feet per parking space =
145.97). On June 3, 2013, KLOA conducted a revised traffic study using the new
parking ratio and a worship space of 1,810 square feet. The study concluded that the
116 off-street parking spaces and the nearby on-street parking together could
accommodate 145 vehicles.
In June 2013, Mangum wrote a memorandum evaluating AIC's rezoning request.
The memorandum stated that the City's engineering division believed that together the
off-street parking and additional on-street parking would be sufficient to accommodate
peak demand. The engineering division also noted that this situation is similar to other
houses of worship that sometimes use on-street parking during Sunday services. The
engineering division concluded that, provided the worship area was kept to the
proposed 1,810 square feet, AIC's proposed use would have limited and acceptable
impact on traffic. The memorandum also evaluated the application under the factors set
out in Section 3.7-5 of the City's zoning ordinance for considering zoning map
amendment requests, and concluded that AIC's proposal satisfied these standards.

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The Planning Commission voted 3-0 to recommend that the City Council approve AIC's
request.
The City Council considered AIC's request at a meeting in July 2013. Chairman
Walsten expressed his concern about "changing zoning like this and possibly removing
properties from tax revenue." Pls.' Joint Statement of Facts (JSOF), Ex. 11 at 5:4–7.
Alderman Sayad also said that the City Council would want to see reports on tax
revenue, citing a concern that the residents would be left to pick up the deficit. Id. at
6:23–7:22. Alderman Brookman was concerned about changing the zoning in a
manufacturing district, noting that AIC's proposed use was incompatible with the
surrounding area and that he had concerns about traffic and parking. Alderman Rodd
pointed out that the City's comprehensive plan recommended that the City eventually
rezone the area containing the property to mixed-density residential use. Mangum
confirmed that AIC's proposed use would be appropriate for that type of neighborhood.
Over the course of the meeting, Alderman Sayad asked four times why AIC had chosen
Des Plaines and where its members would be commuting from. Id. at 19:6–8, 22:10–
11, 22:22–23:5, 30:18–31:24. The City Council voted to deny the application 5-3 and
instructed the City attorney to prepare for the next meeting a resolution denying the
application.
The City Council provided an opportunity for public comment on the resolution at
an August 2013 meeting. Members of AIC testified in support of its request for
rezoning. Brian Burkross, owner of a manufacturing facility in Chicago, also spoke at
the meeting. He told the City Council about a prior experience when a church moved in
next door to his facility. Pls.' JSOF, Ex. 12 at 22:1–24:12. Burkross stated that the

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church often requested permits to close off the streets and that he once had to revert an
order of steel—losing about $80,000—because the truck carrying it was not allowed to
drive down his street. Burkross also spoke about an incident in which children from the
church were playing outside. Two girls ran behind a truck backing into his loading dock
and were injured, although not seriously. The City Council also heard a statement from
Scott Luedko, the manager of a manufacturing plant located next to the disputed
property. Id. at 32:2–9. Luedko stated that he was concerned about being able to drive
his trucks down the street if AIC had 145 cars parked in the area. Jim Anton, another
owner of a nearby company, stated his concern from a safety standpoint about
increased activity and children in proximity to large trucks with blind spots. Chairman
Walsten concluded by telling AIC that he would love to have them in Des Plaines but did
not believe that the Birchwood property was an appropriate place. The City Council
again voted to deny the application 5-3.
The City Council enacted a resolution denying the application. In the resolution,
the City gave the following reasons for its denial:
•

that representatives from two nearby businesses had voiced concerns about
disruption to business, public safety, and traffic and parking congestion;

•

that peak use of the property would require AIC to use on-street parking;

•

that AIC's proposed use was dissimilar to the uses surrounding the property
and will create a demand for parking that will exceed the available on-site
parking;

•

that AIC's application did not meeting the zoning amendment standards of
Section 3.7-5; and

•

that it was in the best interest of the City and the public to deny the
application.

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III.

The City's past practices
In the past, the City has evaluated at least eight zoning requests by other places

of worship. In each of these cases, the City's senior planners evaluated the request
using the parking standard established in Section 9.7 of the zoning ordinance. And in
all eight of these cases, the City approved the group's request for rezoning. Many of
these requests were for something other than a zoning map amendment, such as a
conditional use permit or a planned unit development.
In at least two instances, the City approved a request to rezone property in a
manufacturing district for institutional use. In 2006, the City granted a request by the
Science & Arts Academy to rezone a piece of land from M-2 to I-1 to permit construction
of a school. KLOA again performed a traffic study and determined that the proposal
would not adversely impact surrounding uses. AIC contends that the school is
surrounded by manufacturing and industrial uses. The City contends, however, that the
school is next to a residential area, an office building, self-storage facilities, and singlefamily residences. There is a fence between the school playground and parking lot and
a nearby business, but there is no fence between the school's soccer field and the
neighboring area.
In 2009, the City granted a request by the Society of Danube Swabians (SDS) to
rezone property from M-2 to I-1 in order to use a building on the property as a non-profit
cultural society. SDS had been operating on the property since 1992, but it wanted to
begin using the facility for youth and senior activities, weekend school, and youth group
activities. The property is bordered by a right-of-way owned by Union Pacific Railroad,
offices for Sysco Systems, and single-family homes. It is located in an area that the

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City's comprehensive plan called for rezoning to mixed-density residential use. The
City's planning staff report noted that SDS's requested facility was similar to places of
worship and therefore would be consistent with mixed-density residential development.
The parties dispute whether the City Council required SDS to build a fence as a
condition of granting the zoning map amendment.
IV.

The present suit
AIC filed suit against the City in September 2013. AIC alleges that the City's

review and denial of its application for a zoning map amendment imposed a substantial
burden on its exercise of religion in violation of 42 U.S.C. § 2000cc(2)(a) (count 1),
treated AIC on unequal terms as non-Muslim institutions and discriminated based on
AIC's religious affiliation in violation of 42 U.S.C. § 2000cc(2)(b)(1) (count 2), violated
AIC's right to free exercise of religion in violation of the First Amendment (count 3),
denied AIC equal protection in violation of the Fourteenth Amendment (count 4), was
arbitrary and capricious in violation of 65 ILCS 5/11-13-25 (count 5), imposed a
substantial burden on AIC's exercise of religion in violation of IL RFRA (count 6), and
violated AIC's right to free exercise of religion in violation of the Illinois constitution
(count 7). In late September 2015, the United States filed its own complaint against the
City, alleging the same RLUIPA claims as those in counts 1 and 2 of AIC's complaint.
In October 2015, the Court consolidated the cases.
V.

Expert testimony
Both parties provide reports and testimony from experts on urban planning. AIC

offers a report by Professor Alan Weinstein. Professor Weinstein analyzed AIC's
request for rezoning and the City's past practices. He concluded that the City's

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requirement of 145 parking spaces was arbitrary and capricious because it did not
adhere to the zoning ordinance. Weinstein also concluded that the City subjected AIC
to less than equal terms due to this parking requirement and thereby caused AIC to
reduce the size of its worship space. Weinstein also opined in his report that the City
Council's concerns about traffic and safety were based largely on the comments by
Anton and Luedko, who based their concerns on the inaccurate parking estimates.
Weinstein's report also stated that even if there were credible safety concerns with
AIC's request, the City Council could have addressed these concerns by imposing
reasonable conditions on the approval of the amendment. Finally, Weinstein opined
that, at the time that the City denied AIC's request, there was no alternative site
available in Des Plaines that would not have required a rezoning amendment.
AIC offers another report by Dr. Joseph Schwieterman, a professor at DePaul
University who specializes in urban planning and development. Dr. Schwieterman
concluded that AIC's request was compatible with the area and with the City's
comprehensive plan. He also concluded that the proposed rezoning does not pose a
safety risk, would not negatively affect property values, and would introduce a cultural
and community resource to the area. During his deposition, Dr. Schwieterman testified
that the City acted inconsistently with its past practices in denying AIC's request. Pls.'
JSOF, Ex. 61 (Schwieterman Dep.) at 12:21–13:8.
AIC also offers a report by Gary DeClark of CBRE Valuation & Advisory
Services. DeClark concludes that the Birchwood property is well-suited for use as a
religious facility, AIC's proposed use is in line with the City's long-range plans for
development, and the City had no reason to deny the zoning amendment.

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The City offers a report by John Houseal, co-founder of Houseal Lavigne
Associates, a consulting firm for community planning and urban design. Houseal also
analyzed AIC's request for rezoning and concluded that the City was right to deny the
request. Houseal concluded that granting the request would constitute spot zoning and
would inappropriately place institutional zoning in the heart of a manufacturing district.
Houseal also concluded that this would have a negative impact on the value and
desirability of surrounding properties. Houseal further stated that the City has not
updated the comprehensive plan and therefore it does not reflect the City's present
intent to maintain the area containing the Birchwood property as a manufacturing
district.
Discussion
AIC and the United States have each moved for summary judgment on the
claims asserted in their complaints. The City has also moved for summary judgment on
all claims by both plaintiffs. When considering a motion for summary judgment, the
Court construes all facts and reasonable inferences in the light most favorable to the
non-movant. Vision Church v. Vill. of Long Grove, 468 F.3d 975, 988 (7th Cir. 2006).
Summary judgment is appropriate where the evidence shows that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law. Id.
I.

Substantial burden claim
AIC alleges that the City's denial of its rezoning request placed a substantial

burden on its exercise of religion in violation of RLUIPA (count 1) and IL RFRA (count
6). These two provisions are "materially identical," so the Court considers them

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together. World Outreach Conference Ctr. v. City of Chicago, 591 F.3d 531, 533 (7th
Cir. 2009) (citing Diggs v. Snyder, 333 Ill. App. 3d 189, 775 N.E.2d 40, 44–45 (2002)).
Section 2 of RLUIPA provides that no government may implement a land use
regulation "in a manner that imposes a substantial burden on the religious exercise of a
person, including a religious assembly or institution," unless the government can show
that this furthers a compelling governmental interest and is the least restrictive means of
furthering that interest. 42 U.S.C. § 2000cc(a). "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 . . . influenced the decision." Petra Presbyterian
Church v. Vill. of Northbrook, 489 F.3d 846, 861 (7th Cir. 2007).
A.

Substantial burden

AIC contends that it suffered a substantial burden in three ways: (1) there was
no other land in Des Plaines suitable for its purposes; (2) it had a reasonable
expectation that the City would grant its request; and (3) it had to endure further delay
and expense searching for a different location. Mem. in Supp. of United States' Mot. for
Summ. J. and in Opp'n to Def.'s Mot. for Summ. J. (U.S.' Mot. for Summ. J.) at 15. 1 The
City argues that AIC has failed to show that any of these conditions rise to the level of a
substantial burden.
AIC first argues that, at the time it contracted to buy the property on Birchwood
Avenue, there was no other property in Des Plaines available for use as a religious

1

When the Court set the summary judgment briefing schedule, it directed AIC and the
United States to ensure that there was no duplication in their arguments. As a result,
the United States presented arguments on the RLUIPA claims, and AIC adopted all of
these arguments in its own motion.
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institution. A plaintiff alleging this type of burden must "show that a paucity of other land
available for [religious institutions] made the exclusion from the industrial zone a
substantial burden to it." Petra, 489 F.3d at 851. During discovery, the City provided
AIC with a list of properties that were vacant at the time of the AIC's search. AIC's
expert, Weinstein, analyzed this list in his report and concluded that there was only one
property where the City would have permitted a place of worship without requiring a
zoning map amendment. Pls.' JSOF, Ex. 15 (Weinstein Report) at 20. This property
was over 20 acres and therefore not a viable option for AIC. Id. Of the remaining sites,
all but two were located in manufacturing areas that the comprehensive plan
recommended to maintain as manufacturing areas. Id. The other two were in the same
area as the Birchwood property, but both were warehouse structures, and one lacked
adequate parking. Id.
The City's primary argument to the contrary is that Weinstein's report is
inadmissible hearsay. The objection is ridiculous. The report, which is signed and
sworn by Weinstein, id. at 21, is a representation of how he would testify at trial and
thus is no different from other affidavits, which are appropriately considered on
summary judgment. The City also argues that the report is unreliable because
Weinstein has never worked in Illinois and testified that he is unfamiliar with Illinois
zoning law. But this argument goes only to the weight to be given to Weinstein's
testimony, not its admissibility. A reasonable factfinder could accept Weinstein's
testimony and conclude that AIC lacked any alternative properties in Des Plaines and
thus experienced a substantial burden.
AIC next argues that it had a reasonable expectation that it would obtain the

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City's authorization to convert the property for its proposed use. The Seventh Circuit
has held that once an organization "has bought property reasonably expecting to obtain
a permit, the denial of a permit may inflict a hardship on it." Petra, 489 F.3d at 851.
The City contends that AIC had no reason to believe that it would be able to use the
property for its desired purpose. The City points to the fact that, when AIC entered into
the land-sale contract, it knew that the property was located in a manufacturing district.
Further, the City points to testimony by Mangum in which he stated that he did not make
any guarantees to AIC nor did he speculate on whether the City would approve the
request. See Def.'s Statement of Facts (SOF), Ex. S (Mangum Dep. 12/16/2015) at
84:6-18. According to AIC, however, representatives from the group met with Mayor
Moylan and Mangum before AIC entered into the contract. U.S.' Mot. for Summ. J. at 3.
Mase Jukic, a member of AIC, stated in an affidavit that AIC met with Moylan and
Mangum around January 2012 to discuss two different properties that the group had
identified as possible options. Pls.' JSOF, Ex. 3 (Jukic Decl.) at ¶ 15. Jukic stated that
Moylan discouraged AIC from buying those two properties and then directed the group
to Mangum. Id. According to Jukic, Mangum then showed the group copies of the
zoning map and told them to consult the comprehensive plan to determine appropriate
properties in Des Plaines. Id. The City disputes the allegation that Mangum referred
AIC to the comprehensive plan. The Court concludes that there is a genuine factual
dispute here. Taking the facts in the light most favorable to AIC, a reasonable factfinder
could conclude that it relied on these discussions in purchasing a property whose future
zoning district (as identified in the City's comprehensive plan) would support the
proposed use.

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Finally, AIC argues that the City's denial caused it to endure delay, uncertainty,
and expense in finding a permanent home. U.S.' Mot. for Summ. J. at 15. The Seventh
Circuit has indicated that, under some circumstances, delay and expense can constitute
a substantial burden. See Sts. Constantine & Helen Greek Orthodox Church, Inc. v.
City of New Berlin, 396 F.3d 895, 901 (7th Cir. 2005). AIC has presented evidence from
which a reasonable factfinder could conclude that the City's denial substantially delayed
AIC's search for a permanent home. After the City denied its request for a zoning map
amendment, AIC searched for an alternative property for over two years before
acquiring a facility in Franklin Park. This type of effort can constitute a substantial
burden. Id. A reasonable factfinder could conclude that AIC suffered from undue delay
and expense due to the City's denial of its request.
In sum, the Court concludes that a reasonable factfinder could infer that the City
imposed a substantial burden on AIC's free exercise of religion.
B.

Compelling interest

The City argues that even if it did impose a substantial burden on AIC's exercise
of religion, it had a compelling interest in doing so and therefore is still entitled to
summary judgment. The City first argues that it denied AIC's application due to concern
that its proposed use would disrupt business, inhibit manufacturing uses in the area,
and was otherwise dissimilar to the other surrounding uses. Def.'s Mem. in Supp. of
Mot. for Summ. J. at 4. AIC has presented evidence, however, that the City has
granted all other requests to rezone land in manufacturing districts since 2004, except
for AIC's. Def.'s Resp. to Pls.' JSOF ¶ 68. Though some of these involved requests by
businesses, others were for residences, a school, and a cultural center. Further, the

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City granted a conditional use permit to a recreational baseball facility requesting to use
land in a manufacturing district. Finally, the City's comprehensive plan recommends
that the City transition the zone containing the Birchwood property from a manufacturing
district to a mixed-density residential district, a district in which places of worship would
be appropriate. Based on this evidence, a reasonable factfinder could infer that the City
does not have a compelling interest in preserving this particular area for business and
manufacturing.
The City also argues that it denied AIC's application out of concern that the
proposed use would jeopardize public safety by causing traffic and parking congestion,
mainly by putting children in close proximity to large trucks. Def.'s Mem. in Supp. of
Mot. for Summ. J. at 4. Though public safety can be a compelling interest, the City is
required to show a compelling interest "in the particular case at hand, not a compelling
interest in general." Westchester Day School v. Vill. of Mamaroneck, 504 F.3d 338, 353
(2d Cir. 2007). At least two aldermen testified during their depositions that concern
about safety was one of the main reasons for denying AIC's request. Def.'s SOF, Ex. F
(Brookman Dep. 2/11/15) at 92:6–21; Ex. N (Haugeberg Dep. 1/20/16) at 35:1–9. But in
doing so, the aldermen referred to an unrelated accident involving a truck that
happened in an entirely different area of the city. The aldermen did not identify anything
specific about AIC's proposed use that posed a unique safety concern, particularly in
light of the fact that the City has granted similar zoning requests by other organizations
that resulted in large numbers of children in manufacturing areas. See generally Pls.'
JSOF, Ex. 41 (Academy Request) (approving a rezoning request to permit the
construction of a school in a manufacturing district); Pls.' JSOF, Ex. 67 (Play Ball

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Request) & Ex. 50 (approving a conditional use request to permit construction of an
indoor baseball training facility in a manufacturing district). On the other hand, the City
provided evidence that at least two individuals who own businesses near the property
spoke at the City Council meeting to express concerns about operating their large
trucks in the vicinity of children. See Pls.' JSOF, Ex. 12 at 22:1–24:17, 32:2–34:24,
38:6–13. Thus there is a genuine dispute over whether the City had a compelling public
safety interest in denying AIC's application.
The City's final argument is that AIC's proposed use would increase demand for
on-street parking along Birchwood Avenue. It is true that the City's review of AIC's
proposal concluded that AIC would be required to use approximately 30 on-street
parking spaces during peak times. But the City's engineers and Planning Commission
determined that the on-street parking would be "sufficient to absorb the relatively short
peak demand." Def.'s SOF, Ex. gg (AIC Request) at 3. More importantly, to arrive at
this conclusion, the City applied a parking requirement that exceeded what it has
previously applied to other religious institutions. The City's zoning ordinance provides
that required parking for places of worship without fixed seating, such as the center that
AIC proposed, is based on a measurement of 1 parking space per 60 square feet of
worship space. Instead of applying this ratio, the City's engineer devised a new ratio—
using Internet searches of mosque capacity and observations of traffic at another
nearby Islamic center—of one parking space per 12.4 square feet of worship space.
See Def.'s SOF, Ex. mm at 1; AIC Request at 3. The City used this ratio to determine
that AIC's 3,661 square feet of proposed worship space required 295 parking spaces to
meet the zoning requirements, instead of the 62 otherwise required by the zoning

19

ordinance itself. AIC then agreed to reduce its worship space to 1,810 square feet,
resulting in a parking requirement under the new ratio of 146 parking spaces. See id. at
3. This is the number that the City relied upon in determining that AIC's usage would
result in problematic congestion of street parking. But AIC has provided numerous
examples of other religious groups that applied for some type of zoning variance but
were not subjected to a standard beyond what the zoning ordinance required. And the
City has not offered any reason specific to AIC to justify this heightened standard, other
than the fact that both AIC's proposal and a nearby institution with traffic problems
contained a space for Islamic worship. The Court concludes that no reasonable
factfinder could find that the City's parking concerns constitute a compelling interest.
C.

Least restrictive means

Finally, the City argues that its denial of AIC's application was the least restrictive
means of accomplishing its compelling interests. The City's only argument on this point
is that, once it concluded that AIC's request would create the problems discussed
above, its only option was to deny the request, because Illinois law does not permit
municipalities to impose conditions on rezoning requests. Def.'s Mem. in Supp. of Mot.
for Summ. J. at 7–8. But the Illinois Supreme Court has expressly held that "conditional
rezoning is not invalid [p]er se." Goffinet v. Christian Cty., 65 Ill.2d 40, 51, 357 N.E.2d
442, 448 (1976). Instead, courts should consider what are referred to as the LaSalle
factors to determine whether the conditional rezoning is permissible. Thornber v. Vill. of
N. Barrington, 321 Ill. App. 3d 318, 328, 747 N.E.2d 513, 522 (2001). Therefore even
assuming the City's concerns regarding AIC's application qualified as compelling
interests, the City's sole argument for the proposition that it used the least restrictive

20

means available to protect these interests is legally deficient. The Court finds under
Federal Rule of Civil Procedure 56(g) that this point is not genuinely in dispute.
II.

Equal terms claim
AIC alleges in count 2 that the City violated RLUIPA's equal terms provision in

two ways: by subjecting it to a heightened parking requirement and by denying its
request for rezoning. Section 2 of RLUIPA provides that "[n]o 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). The Seventh Circuit has implicitly recognized that a plaintiff
bringing an equal terms claim must demonstrate that a similar secular organization has
been treated differently under the relevant zoning law. See River of Life Kingdom
Ministries v. Vill. of Hazel Crest, 611 F.3d 367, 371 (7th Cir. 2010) ("If a church and a
community center, though different in many respects, do not differ with respect to any
accepted zoning criterion, then an ordinance that allows one and forbids the other
denies equality and violates the equal-terms provision."). The City argues mainly that
AIC has not offered any suitable comparators, as none of the groups allegedly treated
on different terms are identical to AIC on the relevant zoning criteria.
A.

Parking requirement

AIC first alleges that the City subjected it to less than equal terms when the City
imposed a heightened parking requirement that deviated from the one set out in the
zoning ordinance. As previously discussed, the City required AIC to meet a parking
minimum of one parking space per 12.4 square feet of worship space, instead of the
zoning ordinance standard of one parking space per 60 square feet of worship space.

21

AIC has also presented evidence that, since 2004, the City has not imposed a parking
requirement different from that in the zoning ordinance to any other place of worship
making a zoning request. AIC provided memoranda written by the city planners who
evaluated the zoning requests by these places of worship. In each case, the city
planner applied the ordinance's parking ratios in determining whether the proposals had
sufficient parking. Therefore AIC has presented sufficient evidence from which a
reasonable factfinder could conclude that the City subjected AIC to unequal terms in its
rezoning request.
Further, the City has failed to present evidence to dispute this fact. First, the City
does not make any argument regarding the parking requirement in the section of its
brief that addresses the alleged equal terms violation. The City discusses this issue
only in the context of the discrimination claim. Second, the evidence in that section is
insufficient to give rise to a genuine dispute regarding AIC's contentions. The City
agrees that Peebles applied a parking requirement different from the one set out in the
zoning ordinance. The City argues only that it has the discretion to rely on other
sources—such as traffic studies and similar land uses in the area—when determining
parking demands. In support, the City cites the testimony of Mangum, who stated that
the traffic engineering department occasionally looks at other sources, such as other
examples of similar land uses, for determining potential parking requirements. Def.'s
SOF, Ex. T (Mangum Dep. 2/22/16) at 51:25–52:8. But though Mangum testified that
the City used a ratio other than that in the ordinance approximately five to eight times,
id. at 62:4–63:6, he was unable to point to a single instance in which this alternative
parking ratio was included in the recommendation memorandum drafted by the city

22

planner. In each of the eight recommendation memoranda offered by AIC, the city
planner applied the ratio in the zoning ordinance and concluded that the applicant had
met the parking requirements. What's more, the zoning ordinance expressly states that
parking requirements for zoning requests are determined by the ratios set out in the
ordinance. Pls.' JSOF, Ex. 16 (Zoning Ordinance) at 9.5-1. The City has not provided
any authority suggesting that it has discretion to deviate from this standard.
The City's final argument is that the eight applicants offered by AIC are not
appropriate comparators, because each of those applicants applied for a zoning map
amendment as well as some other request, such as a conditional use permit. But
again, the City has not pointed to any portion of the zoning ordinance or to any
testimony suggesting that the City applies different parking standards depending on the
type of zoning request. The City has failed to show that a genuine dispute exists as to
whether AIC differs from these applicants on any relevant criteria.
The Court concludes that no reasonable factfinder could find that the City treated
AIC on equal terms when it subjected AIC to a parking requirement more severe than
the one set out in the zoning ordinance. AIC is entitled to a finding in its favor on this
aspect of its equal terms claim. 2 See Fed. R. Civ. P. 56(g).
B.

Denial of rezoning request

AIC next claims that the City's denial of its application also constituted a violation
of the equal terms provision, as the City granted the rezoning requests of other similarly

2

It is unclear to the Court whether the parking requirement allegations give rise to a
stand-alone RLUIPA equal terms claim (that is, separate from AIC's claim regarding the
zoning denial) and, if so, whether the findings the Court has made would, without more,
entitle AIC to some form of relief. This will have to be addressed prior to trial.
23

situated secular organizations. AIC compares its request to requests by the Academy
and SDS to rezone property from manufacturing to institutional, both of which the City
granted. The City argues that neither of these groups is a suitable comparator to
support an equal terms claim.
1.

The Academy

AIC offers evidence that would support a reasonable inference that the Academy
is a suitable comparator. In 2006, the Academy applied for a zoning map amendment
to reclassify a property from M-2 to I-1, the same request submitted by AIC. The
property was surrounded by areas zoned for manufacturing, single-family residential,
and commercial uses. Pls.' JSOF, Ex. 41 (Academy Request) at 2. The Academy
requested the rezoning in order to construct a school on the property and did so without
erecting fences between the entirety of the school grounds and the neighboring
commercial properties. Thus, as AIC argues, the Academy's request presented the
same risks associated with traffic, public safety, and incompatibility with surrounding
uses as did AIC's request. Despite this, the Plan Commission unanimously
recommended approval of the Academy's request, id., and the City approved it.
The City first argues that the Academy is not a suitable comparator because it
applied for both a zoning map amendment and a planned unit development. Def.'s
Mem. in Supp. of Mot. for Summ. J. at 6. The criteria set out in the zoning ordinance for
approving a conditional use permit are different from those used to consider a zoning
map amendment. See Zoning Ordinance at 3.5-2 & 3.7-5. AIC applied only for a
zoning map amendment and therefore is subject only to the requirements of Section
3.7-5. But the City published two ordinances after approving the Academy's request:

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one "allowing a conditional use for a preliminary planned unit development" and one
"granting a map amendment." Academy Request at 26, 22. And the ordinance granting
the map amendment expressly stated that the Academy's request satisfied the
requirements of Section 3.7-5. Id. at 22–23. Thus the City evaluated both groups under
the criteria laid out in Section 3.7-5. The City also points to testimony by its expert,
John Houseal, indicating that rezoning changes the use of the property indefinitely,
whereas a conditional use permit is tied to the applicant. But again, nothing in the
ordinance published by the City indicates that the zoning map amendment was specific
to the Academy or would not apply to future owners of the property.
The City argues that the Academy's request for a conditional use permit is
significant because the City can impose conditions on this type of request but not on a
request for rezoning. As discussed in the previous section, however, Illinois law does
permit conditional rezoning under appropriate circumstances. The Court concludes that
no reasonable factfinder could find that the Academy's request and AIC's request were
subject to different conditions or provided the City with different options. See Fed. R.
Civ. P. 56(g).
The City points to additional differences, however, from which a reasonable
factfinder could conclude that the Academy is not a suitable comparator. The Academy
is bordered on at least one side by residential properties, Academy Request at 2,
whereas the property sought by AIC is surrounded on all sides by manufacturing uses,
AIC Request at 2. Further, the City argues that the use proposed by the Academy (a
school, athletic field, and playground) differs from AIC's proposed use (place of worship,
classrooms, offices, and eating areas) in a way that makes the two organizations

25

dissimilar on relevant zoning criteria. A genuine dispute exists regarding whether these
differences render the Academy a non-suitable comparator.
2.

SDS

AIC also offers evidence sufficient to support an inference that SDS is a suitable
comparator. SDS requested a zoning map amendment to convert property from M-2 to
I-1. Pls.' JSOF, Ex. 39 (SDS Request) at 1. The property was surrounded by
commercial, multi-family residential, manufacturing, and industrial uses. Id. at 2. SDS
requested the rezoning in order to use the property as its institutional headquarters,
provide weekend school, conduct youth and senior group activities, and host charitable
programming. Id. at 1–2. The property was located in an area that the comprehensive
plan recommended the City convert over time to mixed-density residential use. The
senior planner's report determined that SDS's request was similar to places of worship
and therefore would be consistent with a mixed-density residential zone. Id. at 2–3.
The Planning Commission unanimously recommended approval of the request, id. at 4,
and the City approved it. The City is not entitled to a finding on summary judgment that
SDS is not a suitable comparator.
The City has also provided evidence, however, from which a reasonable
factfinder could conclude that the two applications were significantly different. First,
SDS was bordered by residential properties on at least one side, making it possible that
SDS's proposed rezoning was more compatible with surrounding uses than AIC's
request. Second, at the time that SDS requested rezoning, it already owned the
property and had been using it as a cultural center since 1992. Id. at 3. Thus, the City
argues, the City knew that approving the request would have a minimal impact on the

26

surrounding area. For these reasons, AIC is not entitled to a finding on summary
judgment that SDS is a suitable comparator.
III.

Discrimination claim
AIC also alleges in count 2 that the City discriminated against it on the basis of its

religious affiliation in violation of RLUIPA. Section 2 of RLUIPA provides that "[n]o
government shall impose or implement a land use regulation that discriminates against
any assembly or institution on the basis of religion or religious denomination." 42
U.S.C. § 2000cc(b)(2). Courts analyzing a claim under this provision look to
constitutional equal protection precedent for guidance. Chabad Lubavitch of Litchfield
Cty., Inc. v. Litchfield Historic Dist. Comm'n, 768 F.3d 183, 198 (2d Cir. 2014). A
plaintiff must show that it received less favorable treatment because of its religious
affiliation than a similarly situated organization. See World Outreach, 591 F.3d at 538.
Where, as here, the plaintiff alleges that a facially neutral law was selectively enforced,
the plaintiff must provide direct or circumstantial evidence of discriminatory intent.
Chabad Lubavitch, 768 F.3d at 199. Courts look to multiple factors, including (1) the
events leading up to the land use decision; (2) the context in which the decision was
made; (3) whether the decision or decision-making process departed from established
norms; (4) statements made by the decision-making body and community members; (5)
reports issued by the decision-making body; (6) whether a discriminatory impact was
foreseeable; and (7) whether less discriminatory avenues were available. Id.
The evidence presented by both sides is sufficient to create a genuine dispute on
the issue of intent. AIC has presented evidence from which a reasonable factfinder
could infer that the City's decision and decision-making process departed from

27

established norms. First, the City admits that it applied a parking ratio to AIC's
application beyond what the zoning ordinance required. AIC also provided numerous
examples of rezoning requests by other organizations, which the City evaluated using
only the standard in the ordinance. And the City has offered no evidence that it
subjected any organization other than AIC to a parking requirement higher than the one
in the zoning ordinance. Second, AIC has shown that there is a genuine dispute
regarding whether the City's decision departed from established norms. It has offered
evidence that two other organizations—the Academy and SDS—made similar
applications to the City for rezoning and were approved. Though the City argues that
these two organizations are not valid comparators, the Court concluded above that this
fact remains in dispute. Thus a reasonable factfinder could infer that the City
discriminated against AIC.
The City has, however, presented evidence that would permit a reasonable
factfinder to find in its favor on this issue. As discussed earlier, a reasonable factfinder
could conclude that the City had a compelling interest in denying the application, a
conclusion which would undermine an inference of intent. Statements made by certain
City Council and community members also arguably tend to undermine this inference.
With one possible exception, aldermen reviewing the application focused on tax
revenues, neighboring property uses, and traffic and safety concerns. The community
members who spoke at the meeting in opposition to the request focused on public
safety and disruption to their businesses. And certain aldermen and community
members emphasized that they would like to see AIC's center built in Des Plaines but
preferred to find an appropriate location. A reasonable factfinder could conclude, based

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on this evidence, that the City denied the request for rezoning based on legitimate
concerns and not based on discriminatory intent.
Because there is a genuine dispute regarding whether the City acted with
discriminatory intent, the Court denies summary judgment to all parties on the claim of
discrimination.
IV.

Free exercise claim
AIC claims that the City's denial of its zoning map amendment request

constitutes a denial of its right to the free exercise of religion in violation of both the First
Amendment (count 3) and the Illinois Constitution (count 7). The free exercise provision
of the Illinois Constitution is coextensive with the First Amendment. Mefford v. White,
331 Ill. App. 3d 167, 179, 770 N.E.2d 1251, 1260 (2002). Further, courts evaluate free
exercise claims under the First Amendment using the same standard applied to
substantial burden claims under RLUIPA. Vision Church, 468 F.3d at 996–97.
Because the Court denied summary judgment to both sides on the substantial burden
claim, the Court also denies summary judgment to both sides on the free exercise
claims.
V.

Equal protection claim
AIC alleges in count 4 that the City's consideration and denial of its request for

rezoning violated its right to equal protection under the Fourteenth Amendment.
Specifically, AIC alleges that the City treated it less favorably than similarly situated
non-Muslim organizations and created pretextual reasons for denying AIC's application.
The City argues that it is entitled to summary judgment on this claim because (1) AIC
has failed to show that it was treated differently from a similarly situated organization;

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and (2) the City had a rational basis for denying AIC'S request and this reason was not
based on animus.
The Equal Protection Clause directs that no state shall "deny to any person
within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV. If the
government action does not facially discriminate on the basis of a suspect class, such
as religion, courts "employ a rational basis test to determine whether the [ ] act is
constitutional." Vision Church, 468 F.3d at 1000–01. Plaintiffs in these cases must
demonstrate that "the legislature selected or reaffirmed a particular course of action at
least in part because of, not merely in spite of, its adverse effects on a particular group."
St. John's United Church of Christ v. City of Chicago, 502 F.3d 616, 639 (7th Cir. 2007)
(internal quotation marks omitted). An equal protection claim requires the same
evidence of discriminatory intent as required by a claim under RLUIPA's
nondiscrimination provision. Chabad Lubavitch, 768 F.3d at 198–99.
The Court concluded in its discussion of AIC's RLUIPA discrimination claim that
AIC has presented sufficient evidence to give rise to a genuine dispute regarding
whether the City acted with discriminatory intent. The City subjected AIC to a parking
standard above that established in the zoning ordinance and has not presented any
evidence that it has ever done so to another non-Muslim organization. Further, the City
based this decision solely on its observations of another Islamic community center and
its presumption that AIC's activity level would be similar. Finally, AIC has shown that a
genuine dispute exists as to whether the City granted rezoning requests by similar nonMuslim organizations (the Academy and SDS) while denying AIC's request. Taken
together, this evidence would permit a reasonable factfinder to conclude that the City

30

denied AIC's application due to its religious affiliation and thereby denied it equal
protection. The Court therefore denies summary judgment to all parties on this claim.
VI.

State law claim
AIC alleges in count 5 that the City's decision to deny its request was arbitrary

and capricious in violation of Illinois law. Illinois law provides that "[a]ny decision by the
corporate authorities of any municipality . . . in regard to any petition or application for a
special use, variance, rezoning, or other amendment to a zoning ordinance shall be
subject to de novo judicial review." 65 ILCS 5/11-13-25. The burden is on the plaintiff
to show that the municipality's decision is "arbitrary, capricious or unrelated to the public
health, safety and morals." Dunlap v. Vill. of Schaumburg, 394 Ill. App. 3d 629, 649,
915 N.E.2d 890, 906–07 (2009). Courts apply the LaSalle factors in determining
whether plaintiffs have met this burden. Id. These factors are:
(1) the existing uses and zoning of nearby property, (2) the extent to which
property values are diminished by the particular zoning restrictions, (3) the
extent to which the destruction of property values of plaintiff promotes the
health, safety, morals or general welfare of the public, (4) the relative gain
to the public as compared to the hardship imposed upon the individual
property owner, (5) the suitability of the subject property for the zoned
purposes, and (6) the length of time the property has been vacant as
zoned considered in the context of land development in the area.
Id. at 649–50, 915 N.E.2d 890, 907. Though the decisions of a municipality typically
enjoy a strong presumption of validity, this presumption is "significantly diminished
when . . . the impact of the zoning decision in some way limits the free exercise of
religion." Family Christian Fellowship v. Winnebago Cty., 151 Ill. App. 3d 616, 619, 503
N.E.2d 367, 370 (1986).
AIC has provided evidence from which a reasonable factfinder could infer that
the City's decision was arbitrary and capricious under this standard. As discussed
31

earlier, AIC has offered evidence that the City has rezoned other properties in
manufacturing districts for similar institutional uses, such as a school and a cultural
center. The City admits that there are numerous instances in Des Plaines where places
of worship, schools, daycares, and parks are adjacent to properties zoned for
manufacturing or commercial uses. Further, AIC has offered evidence that the City's
decision did not promote the health and safety of the public. AIC has cast doubt on the
legitimacy of the City's safety and parking concerns in this case, given that the City has
granted requests by other organizations that presented similar circumstances. AIC has
also presented evidence demonstrating that the hardship created by the City's denial is
greater than the gain to the public. AIC searched for two years for suitable property in
Des Plaines and selected the Birchwood property in part based on conversations with
city officials. After AIC's request was denied, it was unable to relocate to Des Plaines
and searched for another two years before finding a permanent home in another town.
And again, AIC has cast doubt on the legitimacy of the public interests the City asserts
to defend its denial of the rezoning request. Therefore a reasonable factfinder could
conclude that the City's denial was arbitrary and capricious.
The City, however, has also presented evidence sufficient to give rise to a
genuine dispute on this issue. The City has offered evidence that the rezoning requests
it approved in the past were for properties on the outskirts of a manufacturing or
commercial zone, in contrast with the Birchwood property, which is in the middle of a
manufacturing zone. City also offers expert testimony by Houseal that rezoning of the
Birchwood property would weaken other development in the manufacturing district.
Further, as previously discussed, the City has presented evidence from which a

32

reasonable factfinder could conclude that it had a legitimate interest in denying the
application, due to concerns by neighbors of the property that granting the request
would result in disruption to their business and safety issues. The Court therefore
denies summary judgment to both parties on count 5.
VII.

Requested relief
The City raises three challenges to the relief requested by AIC. It contends that

AIC is no longer entitled to injunctive relief, that AIC's request for damages is barred by
Illinois law, and that the City cannot be liable for punitive damages.
A.

Injunctive relief

In its complaint, AIC requests multiple forms of injunctive relief, including an
order directing the City to approve AIC's rezoning request; a declaration that the City's
actions violated RLUIPA and that AIC has the right to use the Birchwood property for its
proposed use; an injunction preventing the City from enforcing its zoning ordinances so
as to prevent AIC's development of the property; and an order requiring the City to
prevent the recurrence of such conduct in the future through employee training,
establishing new procedures, and submitting reports on RLUIPA compliance. The City
argues that the request for injunctive relief is moot, as AIC no longer has an interest in
the property and someone else has purchased it. Def.'s Mem. in Supp. of Mot. for
Summ. J. at 27. AIC agrees that it can no longer pursue injunctive relief related to the
Birchwood property due to the fact that it no longer has an interest in the property. U.S.'
Mot. for Summ. J. at 27–28. But AIC argues that it can still pursue other forms of relief,
such as an injunction against RLUIPA violations, training and education, and
procedures and reporting. Id. at 28.

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"A court's power to grant injunctive relief only survives if such relief is actually
needed." Nelson v. Miller, 570 F.3d 868, 882 (7th Cir. 2009). The plaintiff must show
that there exists "some cognizable danger of recurrent violation, something more than
the mere possibility." Id; see also Centro Familiar Cristiano Buenas Nuevas v. City of
Yuma, 651 F.3d 1163, 1167–68 (9th Cir. 2011) (finding that a request for injunction was
moot because there was no reason to suppose that result on future similar zoning
requests would be the same). This point is genuinely disputed in this case. The Court
therefore declines to strike AIC's request for injunctive relief.
B.

Compensatory damages

The City also argues that AIC's request for damages on its state law claims are
barred by the Illinois Tort Immunity Act. Under the Act, a local public entity is not liable
for an injury caused by the failure or refusal to issue any permit, license, or approval
where the entity is authorized to determine whether to issue such authorization. 745
ILCS 10/2-104. There is no exception to this grant of immunity even if the public entity's
conduct was willful or wanton. See Vill. of Bloomingdale v. CDG Enters., Inc., 196 Ill. 2d
484, 493–95, 752 N.E.2d 1090, 1097–98 (2001). AIC's request for damages under its
state-law claim for violation of Illinois zoning law is therefore barred. See World
Outreach, 591 F.3d at 538.
What is less clear is whether AIC can pursue damages on its claims under the
Illinois RFRA or the Illinois Constitution. The Illinois Supreme Court has declined to
adopt the view that the Tort Immunity Act "categorically excludes actions that do not
sound in tort," Raintree Homes, Inc. v. Village of Long Grove, 209 Ill.2d 248, 261, 807
N.E.2d 439, 447 (2004), without expressly holding that it includes them. At least one

34

appellate court has interpreted this to mean that constitutional claims and civil rights
actions are also subject to the Act and thus that a plaintiff cannot pursue damages for
such claims. See Rozsavolgyi v. City of Aurora, 2016 IL App (2d) 150493, ¶ 112, 58
N.E.3d 65, 98 (holding that the Tort Immunity Act applies to actions under the Human
Rights Act). Because AIC's ability to recover damages on its federal claims is
unaffected by the state Tort Immunity Act—meaning that damages will have to be tried
in any event—the Court sees no good reason to adjudicate this dispute now. The Court
therefore declines to strike AIC's request for compensatory damages on its remaining
state-law claims.
C.

Punitive damages

The City argues that, because the Court has dismissed all of the individual
defendants originally named in this case, the City cannot be held liable for punitive
damages. AIC does not argue otherwise. Therefore the Court grants the City's motion
to strike AIC's request for punitive damages.
Conclusion
For the foregoing reasons, the Court grants in part and denies in part each
party's motion for summary judgment [dkt. nos. 132, 143, & 155]. Specifically, the Court
has (subject to the question raised in footnote 2) denied all parties' requests for
summary judgment on the claims by AIC and the United States but has found certain
points in plaintiffs' favor under Federal Rule of Civil Procedure 56(g). In addition, the
Court has granted defendant's motion to strike plaintiff AIC's request for punitive
damages. The case is set for a status hearing on Wednesday, March 1, 2017 at 9:30

35

a.m. for the purpose of setting a prompt trial date.

________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: February 26, 2017

36