Immanuel Baptist Church v. City of Chicago

Filing 60

MEMORANDUM Opinion and Order Signed by the Honorable John J. Tharp, Jr on 9/26/2018: For the reasons set forth in the Memorandum Opinion, the defendant's motion to dismiss 45 is denied. A status hearing is set for 10/17/18 at 9:00 a.m. Mailed notice(air, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
IMMANUEL BAPTIST CHURCH,
Plaintiff,
v.
CITY OF CHICAGO.
Defendant.

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No. 17 C 00932
Judge John J. Tharp, Jr.

MEMORANDUM OPINION AND ORDER
The Court’s prior opinion in this case addressed the question “when is a church like a
library?” Now the Court must address a more narrow question: “When is this church like that
library?” The answer might be: “when it comes to parking.” Immanuel Baptist Church’s original
Complaint against the City of Chicago failed because it did not adequately allege that the City’s
parking requirements for religious and secular assemblies are facially unequal in violation of the
Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc (2000).
In its Amended Complaint, the Church argues that even if the requirements are equal on their
face, they are applied unequally. The City moved to dismiss the Amended Complaint under
Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Because the Church
adequately identified a secular comparator with similar parking needs and alleged that the City
treats the comparator more favorably, the Court denies the City’s motion.
BACKGROUND
I.

Procedural History
The Church filed its first Complaint in February 2017, alleging that the City’s parking

regulations facially violate RLUIPA’s equal-terms provision and deny the Church equal
protection under the Fourteenth Amendment. See Immanuel Baptist Church v. City of Chicago,

283 F. Supp. 3d 670, 670 (N.D. Ill. 2017). The parties filed cross-motions for summary
judgment. The Court granted the City’s motion for summary judgment on the RLUIPA claim
because the Church failed to present evidence to support its facial challenge. Id. at 681. The
Court also granted the City’s motion for summary judgment on the equal protection claim, but
granted the Church leave to file an amended complaint asserting an as-applied RLUIPA claim. 1
Id. The Church filed its Amended Complaint in October 2017 asserting an as-applied RLUIPA
claim and again asserting an equal protection claim. 2 The City moved to dismiss the Amended
Complaint under Rule 12(b)(6). Def.’s Mot. to Dismiss, ECF No. 45. For the reasons discussed
below, the Court denies the motion.
II.

Facts
Immanuel Baptist Church meets at 1443 W. Roosevelt Road (the “Property”) in Chicago,

Illinois. The Property, which the Church has rented since 2011, is approximately 3,900 square
feet and consists of a worship center and classrooms. Am. Compl. ¶¶ 20, 21. The Property does
not offer off-street parking, but street parking is widely available in the surrounding area and
many of the Church’s members choose to walk or take public transit. Id. at ¶ 25. The Church
facilitates a variety of ministries and religious exercises for its 60-person congregation at the
Property, including weekly worship assemblies, preaching, pastoral counseling, prayer meetings,
singing and musical performances, baptisms, weddings, communion, bible studies, service
projects, evangelism, and financial giving. Id. at ¶ 48.

1

The Amended Complaint continues to assert a facial challenge to the statute as well.
Am. Compl. ¶ 89. As the Court has already granted summary judgment to the City on that claim,
it is not further addressed here.
2

The Court granted summary judgment to the City on the Church’s Fourteenth
Amendment equal protection claim. As such, the Court will not consider the reassertion of that
claim in the Amended Complaint.

2

In 2016, the Church reached an agreement to purchase the Property from its owner, but
the Church’s lender required a determination regarding legal parking requirements before the
deal could close. Id. at ¶ 31. The City subsequently informed the Church that, while religious
assemblies are a permitted use at the Property, the Church could not be established without
meeting parking requirements listed in the Chicago Zoning Ordinance, section 17-10-0207. Id. at
¶¶ 61, 62. That ordinance requires religious assemblies to have one off-street parking space for
every eight seats in the main auditorium. Id. at Ex. K.
The Church has pursued several avenues in attempting to meet the parking requirements.
One possibility was to lease a nearby unused parking lot owned by the Chicago Housing
Authority (“CHA”). The CHA indicated that due to regulations, any lease could be for a
maximum of 364 days at a time. Id. at ¶ 35. Patrick Murphey, the City’s Assistant
Commissioner, told the Church that a 364-day lease would be insufficient and added that the
City must “determine if a religious assembly use is something it wants to promote on a
commercial corridor such as Roosevelt Road.” Id. at ¶ 36. Because the Church has been unable
to work out parking arrangements, its lender has not provided the financing needed to purchase
the Property. Id. at ¶¶ 43, 45.
The Church alleges that the City applies its parking requirements unequally and points to
two comparators in support of its claim. The first, the Rudy Lozano Branch of the Chicago
Public Library, is located a few blocks from the Church at 1805 S Loomis Street. The 18,000
square foot library has two meeting rooms available to the public, one with a capacity for 60
people and another with a capacity for 20 people. Id. at ¶¶ 67, 74. The rooms have held
assemblies such as public forums, community meetings, and political meetings. Id. at ¶ 74. The
library also holds a number of regular assemblages throughout the week, including “Teen

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Tuesday,” “Super-Duper Playtime,” “Superhero Story Time,” and “Super Experiments.” Id.
at ¶ 75. In addition, the library offers general seating for approximately 150 patrons. Id. at ¶ 73.
According to the City’s zoning code, a library of this size should provide 14 off-street parking
spots. 3 The Lozano Library currently provides none. Id. at ¶¶ 68, 69.
The Church also identifies as a second comparator the Taylor Street Library, a recently
approved construction project located in the same zoning district as the Church. The project will
consist of the 14,000 square foot library as well as 73 residential units. The City’s zoning
ordinances require that a project of this size include at least 83 parking spaces, but the project is
slated to have only 26 in total. Id. at ¶ 78-81. 4 The City has allegedly denied the Church’s
request for similar exceptions to be made to its own parking requirements. Id. at ¶ 83.
DISCUSSION
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim has “facial
plausibility” where the complaint's factual content “allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. When considering a motion
to dismiss, the Court construes all inferences in favor of the plaintiff. Zemeckis v. Global Credit
& Collection Corp., 679 F.3d 632, 634 (7th Cir. 2012). The Court finds that the Church has
adequately identified a comparator and pleaded facts illustrating that the comparator was treated
3

With reference to “Cultural Exhibits and Libraries,” the parking ordinance requires no
off-street parking for buildings of 4,000 square feet or less and one off-street space for each
additional increment of 1,000 square feet. Am. Compl. Ex. K.
4

The City contests these numbers and claims that the project will actually provide 34
parking spaces, nine of which will be for library patron use. Def.’s Memo. in Supp. of Mot. to
Dismiss 9 n. 2, ECF No. 46. Even accepting these numbers, the City admits that the project still
falls short of the 11 required spots for a library of that size.

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more favorably, as required by RLUIPA. Accordingly, the Court denies the City’s motion to
dismiss.
The Church argues that the City has violated the “equal-terms” provision of RLUIPA by
providing libraries with ample exceptions to the City’s parking requirements, while refusing to
provide such exceptions for the Church. Am. Compl. ¶ 86. RLUIPA’s equal-terms provision bars
a government from imposing or implementing “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 statute is violated “whenever religious land uses are
treated worse than comparable nonreligious ones, whether or not the discrimination imposes a
substantial burden on the religious uses.” Digrugilliers v. Consol. City of Indianapolis, 506 F.3d
612, 616 (7th Cir. 2007) (citing Vision Church, United Methodist v. Vill. of Long Grove, 468
F.3d 975, 1002-03 (7th Cir. 2006)); Primera Iglesia Bautista Hispana of Boca Raton, Inc. v.
Broward Cty., 450 F.3d 1295, 1308 (11th Cir. 2006); Midrash Sephardi, Inc. v. Town of Surfside,
366 F.3d 1214, 1229-31 (11th Cir. 2004).
In River of Life Kingdom Ministries v. Village of Hazel Crest, Illinois, the Seventh Circuit
held that an equal-terms violation exists if a religious land use is treated less favorably than a
secular land use that is similarly situated as to the relevant zoning criterion. 611 F.3d 367, 370372 (7th Cir. 2010) (en banc); see also Affordable Recovery Hous. v. City of Blue Island, No. 12cv-4241, 2016 WL 5171765, at *14 (N.D. Ill. Sept. 21, 2016) (“According to the Seventh
Circuit, a regulation will violate the ‘equal terms’ provision of RLUIPA only if it treats religious
assemblies or institutions less well than secular assemblies or institutions that are similarly
situated as to the accepted zoning criteria.”) (citing River of Life, 611 F.3d 367). A plaintiff need
not demonstrate unequal treatment in all respects between two institutions, but only that they are

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“similarly situated in all relevant respects.” Vision Church, 468 F.3d at 1003. For example, “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.” River of Life, 611 F.3d at 371.
As explained in the Court’s prior opinion, an equal-terms violation may occur in one of
three ways. Immanuel Baptist Church, 283 F. Supp. 3d at 676. First, a statute can facially
differentiate between religious and nonreligious assemblies or institutions. Second, a facially
neutral statute can be “gerrymandered” to place a burden solely on religious, as opposed to
nonreligious, assemblies or institutions. Third, a truly neutral statute can be selectively enforced
against religious, as opposed to nonreligious, assemblies or institutions. Irshad Learning Ctr. v.
Cty. of DuPage, 937 F. Supp. 2d 910, 932 (N.D. Ill. 2013) (citing Vision Church, 468 F.3d at
1003). Although the Church previously failed to establish a facial violation of RLUIPA, its
Amended Complaint adequately alleges the third type of violation, i.e. that the City applies its
parking regulations unequally by granting exemptions to libraries but not to religious assemblies.
To establish a prima facie equal-terms violation, the plaintiff must come forward with
evidence of a similarly situated secular comparator that is more favorably treated. 5 Immanuel
Baptist Church, 283 F. Supp. 3d at 677-78. Therefore, to survive a motion to dismiss, the Church
must allege facts that plausibly show the existence of a similarly situated secular comparator that
is treated better than the Church. Because the Church’s RLUIPA claim centers on the City’s offstreet parking regulations, the comparator must be similar to the Church with regard to that
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RLUIPA contains a burden-shifting provision that shifts the burden of persuasion to the
defendant but only after the plaintiff produces evidence sufficient to establish a prima facie
violation. According to the statute, “if a plaintiff produces prima facie evidence to support a
claim alleging a violation of the Free Exercise Clause or a violation of section 2000cc of this
title, the government shall bear the burden of persuasion on any element of the claim.” 42 U.S.C.
§ 2000cc-2(b).

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zoning criterion—the need for off-street parking. At the pleading stage, however, a plaintiff is
“not required to provide a detailed comparison that establishes unequal treatment in comparison
to a nonreligious user.” Irshad Learning Ctr. v. Cty. Of DuPage, 804 F. Supp. 2d 697, 713 (N.D.
Ill. 2011). Here, the Church alleges that two secular comparators receive more favorable
treatment from the City—the Lozano Library and the Taylor Street Library. The City argues that
neither is sufficiently similar to the Church with respect to parking needs, and that regardless, the
City has not treated either more favorably than the Church. The Church has pleaded facts
suggesting that the Lozano Library is a suitable comparator and that the City treats it more
favorably in terms of parking requirements. Because these allegations have facial plausibility, the
Court denies the City’s motion to dismiss. The Church has failed, however, to show that the
Taylor Street Library has sufficiently similar parking needs. The Court therefore need not
address whether the City treats that library more favorably.
I.

Lozano Library
The Church has adequately pleaded that it is similarly situated to the Lozano Library with

respect to its need for off-street parking. Drawing all inferences in favor of the plaintiff as the
Court must at this stage, it is plausible that both the Church and the Lozano Library generate
“groups of people coming and going at the same time” such that their respective parking needs
are the same. River of Life, 611 F.3d at 373. Specifically, the Church points to the Lozano
Library’s public meeting rooms which allow groups of up to 60 people—the number of members
in the Church’s congregation—to assemble, as well as several weekly events hosted by the
Library. Am. Compl. ¶¶ 74, 75. The City argues that the Church failed to allege that meetings of
large groups happen with any regularity or that weekly events attract large crowds. Def.’s Memo.
in Supp. of Mot. to Dismiss 8, ECF No. 46. As other courts have noted, however, an identical

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comparator is not required. See Bensalem Masjid, Inc. v. Bensalem Township, No. 14-6955, 2015
WL 5611546, at *5 (E.D. Pa. Sept. 22, 2015) (denying defendant’s motion to dismiss and
rejecting defendant’s argument that “Plaintiff must identify an identical comparator”). Further, it
is unreasonable at this stage in the litigation to expect the Church to accurately identify either the
exact number of individuals attending weekly events or the precise frequency of large group
meetings. A complaint need only contain “‘enough fact to raise a reasonable expectation that
discovery will reveal evidence’ to support liability for the wrongdoing alleged.” Adams v. City of
Indianapolis, 742 F.3d 720, 729 (7th Cir. 2014) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,
556 (2007)). The Church has satisfied this burden.
The City contends that the Lozano Library is nevertheless an improper comparator
because it is not located in the Church’s zoning district. Def.’s Memo. in Supp. of Mot. to
Dismiss 5, ECF No. 46. The Library’s location in a different district, however, does not
necessarily diminish the likelihood that its particular parking needs are similar to those of the
Church; notably, the parking ordinance draws no distinction between parking requirements
applicable to the two locations. The City cites no authority for the proposition that comparators
must be located within the same zoning district and places too much weight on this Court’s prior
statement that “whether the parking required of a particular library or theater within the same
zoning area as the Church was less onerous would present an as-applied, not a facial challenge.”
Immanuel Baptist Church, 283 F. Supp. 3d at 678. The Court made this statement in the context
of distinguishing a facial challenge from an as-applied challenge. It was merely one example of
what an as-applied challenge might look like, not a final declaration limiting comparators to
those within the same district. Differential treatment with respect to the relevant zoning criterion
within the same district might be more difficult to justify than differential treatment between

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districts, but that does not mean that comparators in a different district cannot be deemed
“comparable” for purposes of applying RLUIPA’s equal-terms requirement. To so hold would
effectively allow the City to immunize itself from equal-terms challenges by balkanizing its
zoning districts into thousands of “micro-zones” that are so small that as a practical matter they
could contain no similarly situated comparators. Moreover, contrary to the City’s assertion, the
Court’s prior decision did not reject theaters as a comparator “because they would not be
permitted to operate at the Plaintiff’s location.” Def.’s Reply 3, ECF No. 49. In fact, the Court
essentially assumed that theaters were a valid comparator, but rejected the facial challenge
because theaters were not given favorable treatment. See Immanuel Baptist Church, 283 F.
Supp. 3d at 679 (“Regardless of whether the parking needs of churches and theaters are
comparable, the Court finds that the Church cannot show less equal treatment than theaters . . .
Churches are treated more, not less, favorably with respect to parking in Subarea B than are live
theaters; no matter how much parking a live theater offers, it is not permitted to operate at that
location.”).
The Court is also unpersuaded by the City’s argument that the Library is not a suitable
comparator given its location on a street “well served by public transit” where “foot traffic is
encouraged.” Def.’s Memo. in Supp. of Mot. to Dismiss 6, ECF No. 46. Even if the Court were
to follow the City’s suggestion and take judicial notice of these facts (which appear outside the
Church’s Amended Complaint) 6, it does not necessarily follow that the Library would no longer
be sufficiently comparable to the Church. In fact, the Church persuasively counters that its own

6

As the City points out, courts may take judicial notice of geographic facts. See In re
Boyer, 109 U.S. 629, 631 (1884) (taking judicial notice of canal’s size and length); Lowrance v.
Pflueger, 878 F.2d 1014, 1018 (7th Cir.1989) (taking judicial notice of distances between two
locations). The effect of nearby public transportation stops on the need for parking is not,
however, merely a geographic fact.

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location in an area surrounded by street parking and equally close to public transportation would
similarly reduce its need for off-street parking. Pl.’s Resp. 7, ECF No. 47; Am. Compl. at ¶ 22.
Regardless, this analysis is more suitable for a later stage in the litigation. For purposes of a
motion to dismiss, it suffices that the Church has adequately pleaded facts regarding large-scale
assembly uses at both institutions, allowing the Court to reasonably infer that their parking needs
are sufficiently similar. See Iqbal, 556 U.S. at 678 (2009).
The analysis does not, however, end there. A plaintiff asserting a RLUIPA equal-terms
violation must also establish that it is treated on “less than equal terms” with the identified
comparator. 42 U.S.C. § 2000cc(b)(1). Accepting the facts in the Amended Complaint as true, it
is more than plausible that the City has treated the Church less favorably than the Lozano
Library. According to the Church, the City has “made ample exceptions to its parking ordinance
for libraries but has refused to do so for the Church.” Am. Compl. ¶ 9. The Church also alleges
that the Lozano Library should have 14 parking spaces to legally operate but offers none, and
that the City denied that it could legally disregard its zoning ordinance when the Church asked
for similar exceptions. Id. at ¶¶ 68, 83. These factual allegations are enough to plausibly state a
claim.
The City attempts to counter this showing by pointing out that the Amended Complaint
states that the Lozano Library opened in 1989. Id. at ¶ 67. It appears to argue that there can be no
unequal treatment challenge given that “land-use regulations change over time and onceconforming buildings may become nonconforming.” Def.’s Memo. in Supp. of Mot. to Dismiss
7, ECF No. 46. In other words, the City argues that its requirement that the Church, but not the
Library, provide parking is not the result of unequal treatment, but instead the result of equal
application of parking regulations which have changed over time. If that turns out to be true, the

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City may prevail in its argument that the library is not a valid comparator for the Church. But at
this juncture the City offers no more than the possibility that different zoning regimes may
account for differences in treatment; facts about the history of the City’s parking requirements lie
outside the Amended Complaint and mere possibility does not defeat a motion to dismiss.
Arguments about temporally distant land-use decisions are therefore premature at this stage in
the litigation. 7 Indeed, none of the cases cited by the City in support of this argument involve
motions to dismiss, and all turn on the application of more demanding standards. In Vision
Church, the Seventh Circuit concluded that there was no unequal treatment where comparators
“were subject to different standards because of the year in which their special use applications
were considered.” 468 F.3d 975 at 1003. That case, however, involved a motion for summary
judgment which the district court granted only after discovery had taken place. Vision Church,
United Methodist v. Vill. of Long Grove, 397 F. Supp. 2d 917, 924 (N.D. Ill. 2005). More to the
point, the district court denied the defendant’s motion to dismiss earlier in the litigation. See
Minute Order, Vision Church, 397 F. Supp. 2d 917 (No. 1:03-cv-05761), ECF No. 44 (pointing
out that the plaintiff’s allegation “certainly” stated a claim under RLUIPA and that the parties’

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For the same reason, the Court rejects the City’s argument that it treats the Library and
the Church equally because it has not taken enforcement actions against either. Def.’s Reply 5,
ECF No. 49. Apart from the fact that the Amended Complaint alleges that, by refusing to grant a
comparable exception to the Church, the City is effectively enforcing the parking ordinance
selectively, the City’s argument about the enforcement history of its parking ordinance rests on
facts that do not appear in the Amended Complaint; taking them into consideration would be
“improper” when ruling on a motion to dismiss. Bilal v. Rotec Indus., Inc., 326 F. App'x 949,
954 (7th Cir. 2009). Further, the Court rejects out of hand the City’s argument in the alternative
that RLIUPA claims regarding enforcement practices are not available under the text of the
statute, which addresses how local governments “impose or implement a land use regulation.”
Def.’s Reply 5, ECF No. 49. As previously stated, the Seventh Circuit has explicitly
acknowledged that an equal terms violation occurs when a neutral statute is “selectively
enforced against religious, as opposed to nonreligious assemblies or institutions.” Vision Church,
468 F.3d at 1003 (citing Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward
County, 450 F.3d 1295, 1308 (11th Cir.2006)) (emphasis added).

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arguments were “more appropriately directed to summary judgment” which requires “a more
developed factual record”). The same is true of Chabad Lubavitch of Litchfield County, Inc. v.
Litchfield Historic District Commission, 768 F.3d 183, 197 (2d Cir. 2014) (grant of motion for
summary judgment affirmed where evidence showed that a land use decision regarding the
secular comparator was made in 1965 by “a different land use authority pursuant to a different
land use regime”).
The City also relies on Third Church of Christ, Scientist v. City of New York for its
statement that “organizations subject to different land-use regimes may well not be sufficiently
similar to support a discriminatory-enforcement challenge.” 626 F.3d 667, 671 (2d Cir. 2010).
True enough, but that differences in land-use regimes may be relevant to a determination of
whether the comparators are sufficiently similar does not establish that, in this instance, there
were such differences or that they would render the Lozano Library and the Church dissimilar as
a matter of law. Notably, after discovery, the district court in that case granted a permanent
injunction against the City of New York’s efforts to selectively enforce the relevant zoning
criterion on the plaintiff church. Id. at 669. The Second Circuit then affirmed the district court’s
grant of the injunction against the City, concluding—contrary to the City of Chicago’s argument
here—that where the City enforced its code against the church but not the similarly situated
comparator hotels, there was a violation of RLUIPA’s equal-terms provision. Id. at 672 (finding
that the City had “responded differently to the allegations of non-conforming use” by the church
and the comparators). Third Church of Christ, Scientist supports, rather than undermines, the
Church’s claim in this case. 8

8

The City’s reliance on Petra Presbyterian Church v. Village of Northbrook is equally
inapt because that case involved a facial challenge (as opposed to an as-applied challenge, at
issue here) and did not discuss temporally distant land-use decisions. No. 03 C 1936, 2003 WL
12

II.

Taylor Street Library
On the other hand, the Church has not alleged that the Taylor Street Library has similar

off-street parking needs. Its Amended Complaint is devoid of any facts pertaining to how the
future library will be used. The Church notes that “the library is still under construction and there
is no public information about the meeting rooms and assemblies” but that the new project will
“no doubt create traffic and parking concerns.” Pl.’s Response 12, 13-14, ECF No. 47. This
could be true whether the project included a library or not, however, and it says nothing about
whether those “concerns” are comparable to those generated by the operations of the Church.
The Church must plead facts showing that “it is plausible, rather than merely speculative” that
the Taylor Street Library will have similar parking needs. Tamayo v. Blagojevich, 526 F.3d
1074, 1083 (7th Cir. 2008) (citing Lang v. TCF Nat. Bank, 249 F. App'x 464, 466 (7th Cir.
2007)). By invoking the prospects that the unfinished Taylor Street project will create such
“concerns,” the Church edges back toward a facial challenge, so it bears repeating that not all
libraries and churches are comparable with regard to their parking needs. The bare fact that the
City is building a new library does not by itself adequately show that there will be “groups of
people coming and going at the same time” at the location as there is at the Church. River of Life,
611 F.3d at 373. Because the Church has therefore failed to demonstrate that the Taylor Street
Library will have similar off-street parking needs, it is not a suitable comparator under RLUIPA
and the Court need not evaluate whether it is treated more favorably. Regardless, comparison of
the Church to the Lozano Library is sufficient to defeat the City’s motion to dismiss.

22048089, at **8, 12 (N.D. Ill. Aug. 29, 2003), report and recommendation adopted, No. 03 C
1936, 2004 WL 442630 (N.D. Ill. Mar. 8, 2004).

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*

*

*

For the reasons stated above, the Court denies the City’s motion to dismiss. The Church’s
RLUIPA claim may proceed on an as-applied basis.

John J. Tharp, Jr.
United States District Judge

Date: September 26, 2018

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