In the

United States Court of Appeals
               For the Seventh Circuit

No. 08-4167

W ORLD O UTREACH C ONFERENCE C ENTER and
P AMELA B LOSSOM,
                                  Plaintiffs-Appellants,
                        and


U NITED S TATES OF A MERICA,
                                              Intervening Appellant,
                                  v.

C ITY OF C HICAGO,
                                                 Defendant-Appellee.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
             No. 06 C 2891—Wayne R. Andersen, Judge.



No. 09-2142

T RINITY E VANGELICAL L UTHERAN C HURCH,

                                                  Plaintiff-Appellant,
                                  v.

C ITY OF P EORIA,
                                                 Defendant-Appellee.
2                                           Nos. 08-4167, 09-2142



             Appeal from the United States District Court
                  for the Central District of Illinois.
              No. 07 C 1029—Joe Billy McDade, Judge.



     A RGUED O CTOBER 30, 2009—D ECIDED D ECEMBER 30, 2009




    Before C UDAHY, P OSNER, and R OVNER, Circuit Judges.
  P OSNER, Circuit Judge. We have consolidated for
decision two cases presenting the recurring issue of the
rights of religious organizations to avoid having to
comply with local land-use regulations. Analysis requires
threading our way through a maze of statutory and
constitutional provisions and we begin there, which is
to say with the Religious Land Use and Institutionalized
Persons Act of 2000 (RLUIPA), 42 U.S.C. §§ 2000cc
et seq., Illinois’s Religious Freedom Restoration Act, 775
ILCS 35/1 et seq., and the Constitution’s free exercise,
establishment, and due process clauses.
  The federal Act provides that a government land-use
regulation “that imposes a substantial burden on the
religious exercise of a . . . religious assembly or institution”
is unlawful “unless the government demonstrates that
imposition of the burden . . . is in furtherance of a com-
pelling governmental interest; and is the least restrictive
means of furthering that compelling governmental inter-
est.” 42 U.S.C. § 2000cc(a)(1). The Act also provides that
“no government shall impose or implement a land use
Nos. 08-4167, 09-2142                                        3

regulation in a manner that treats a religious assembly
or institution on less than equal terms with a nonreligious
assembly or institution,” 

or that “dis-
criminates against any assembly or institution on
the basis of religion or religious denomination.” 

The Illinois law, 775 ILCS 35/15, is, so far
as relates to this case, materially identical to section (a)(1)
of the federal law, Diggs v. Snyder, 

, 44-45
(Ill. App. 2002); St. John’s United Church of Christ v. City
of Chicago, 

, 631 (7th Cir. 2007), and so it
need not be discussed separately.
  The City of Chicago, the defendant in World Outreach’s
suit, argues that the federal Act exceeds Congress’s
authority under section 5 of the Fourteenth Amendment
(the “enforcement clause”) citing City of Boerne v. Flores,

(1997). But the Act happens also to be based
on Congress’s power to regulate commerce. 42 U.S.C.
§ 2000cc(a)(2)(B); see Westchester Day School v. Village of
Mamaroneck, 

, 354 (2d Cir. 2007). So the
City shifts grounds, and argues that World Outreach’s
complaint contains “no hint that the application of the
zoning ordinance here affected interstate commerce.” In
fact the complaint alleges that the City prevented World
Outreach from renting rooms to refugees from Hurricane
Katrina, and if the allegation is correct (the City does not
contest it), the City interfered with a “shipment” of
persons across states lines, which is a form of interstate
commerce. E.g., Heart of Atlanta Motel, Inc. v. United States,

, 255-56 (1964); United States v. Soderna, 

, 1373-74 (7th Cir. 1996); United States v. Cargo
Service Stations, Inc., 

, 679-80 and n. 1 (5th Cir.
1981).
4                                       Nos. 08-4167, 09-2142

   But we do not mean to concede the City’s contention
that section 2000cc(a)(1) cannot also be grounded in the
authority granted Congress by the enforcement clause.
As we explained in Saints Constantine & Helen Greek
Orthodox Church v. City of New Berlin, 

, 897
(7th Cir. 2005), that section of the Act “codifies Sherbert v.
Verner, 

(1963),” which Boerne v. Flores “reaf-
firmed . . . insofar as [Sherbert] holds that a state that has a
system for granting individual exemptions from a general
rule must have a compelling reason to deny a religious
group an exemption that is sought on the basis of hardship
or, in the language of the present Act, of ‘a substantial
burden on . . . religious 

.
Sherbert was an interpretation of the Constitution, and so
the creation of a federal judicial remedy for conduct
contrary to its doctrine is an uncontroversial use of
section 5.” See also Lighthouse Institute for Evangelism, Inc.
v. City of Long Branch, 

, 266-67 and n. 11 (3d Cir.
2007); Guru Nanak Sikh Society of Yuba City v. County of
Sutter, 

, 992-95 (9th Cir. 2006); Midrash Sephardi,
Inc. v. Town of Surfside, 

, 1237-40 (11th Cir.
2004). (Another constitutional basis of the Religious Land
Use and Institutionalized Persons Act is the Constitution’s
spending clause. The Act creates a remedy for cases in
which “the substantial burden is imposed in a program or
activity that receives Federal financial assistance, even if
the burden results from a rule of general applicability.” 42
U.S.C. § 2000cc(a)(2)(A). But it does not appear to be
applicable to this case.)
  If we’re right that section 2000cc(a)(1) of RLUIPA codifies
Sherbert v. Verner, there isn’t much point to a plaintiff’s
Nos. 08-4167, 09-2142                                          5

adding a claim under 42 U.S.C. § 1983 alleging a Sherbert-
type violation of the free exercise clause (as made ap-
plicable to state or local governmental action by the
Supreme Court’s interpretation of the due process clause
of the Fourteenth Amendment). There are, it is true, other
types of violation of the clause. If a state or local gov-
ernment deliberately discriminated against a religious
organization (or against religion in general), it would be
violating the free exercise clause even if the burden that
the discrimination imposed on the plaintiff was not
“substantial” within the meaning of RLUIPA. Lighthouse
Institute for Evangelism, Inc. v. City of Long 

, 510
F.3d at 263; Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly,

, 170 (3d Cir. 2002); Brown v. Borough of
Mahaffey, 

, 849-50 (3d Cir. 1994). And if it were
discriminating in favor of a religious organization or
religion in general, it would also be violating the estab-
lishment clause. Kerr v. Farrey, 

, 479-80 (7th
Cir. 1996); Commack Self-Service Kosher Meats, Inc. v. Weiss,

, 426-27 (2d Cir. 2002). Discrimination by
an official body can always be attacked as a violation of
the equal protection clause—but that would usually add
nothing, when the discrimination was alleged to be
based on religion, to a claim under the religion clauses
of the First Amendment. Locke v. Davey, 

, 720
n. 3 (2004); St. John’s United Church of Christ v. City of

, 502 F.3d at 638; Eulitt ex rel. Eulitt v. Maine
Dept. of Education, 

, 353-54 (1st Cir. 2004). But
since discrimination against or in favor of a religious
organization on religious grounds is expressly prohibited
by section 2000cc(b) of RLUIPA, quoted earlier, we
6                                      Nos. 08-4167, 09-2142

cannot see any point in a plaintiff’s pitching a religious
discrimination claim on any provision of the Constitu-
tion, rather than just on the statute. Koger v. Bryan, 

, 801 (7th Cir. 2008); Borzych v. Frank, 

,
390 (7th Cir. 2006).
  Having cleared some underbrush, we turn to the first
of our two cases, the suit by World Outreach (and its
director, but her claim need not be discussed separately).
The district court dismissed the suit for failure to state
a claim, so we take the facts as true for purposes of de-
ciding the appeal.
  The World Outreach Conference Center is a Christian
sect that operates a community center in a poor area
on Chicago’s south side called Roseland. World
Outreach’s mission, according to its home page
(www.worldoutreachconferencecenter.org/about.html,
visited Oct. 31, 2009), is
    to fulfill the great commission. . . .”Go ye into all the
    world, and preach the gospel to every creature.” Our
    goal will be to prepare the neighborhood and sur-
    rounding community for the coming of Jesus Christ
    and to establish His Kingdom here on earth . . . . Love
    will be our badge of honor and we will be
    empowered with the Holy Spirit to live and care for
    the needy in our community on a personal, one on
    one basis. We will train, equip and empower the
    youth in our commuity [sic]. Our goal is to give gener-
    ous assistance and relief to the needy and suffering
    in our neighborhood and surrounding community
    and donate to other organizations that share the
    same objectives.
Nos. 08-4167, 09-2142                                           7

The community center consists of a single building, which
World Outreach bought from the YMCA in July 2005. The
building is not a church as such. The premises mainly
contain recreational and living facilities, but there is also
space for religious services, and there is no doubt that
even the recreational and other nonreligious services
provided at the community center are integral to the
World Outreach’s religious mission, just as the rehabilita-
tion centers operated by the Salvation Army are integral
to the Salvation Army’s religious mission. Salvation Army
v. Department of Community Affairs, 

, 187-88
(3d Cir. 1990); see Schleicher v. Salvation Army, 

,
476 (7th Cir. 2008); cf. Fifth Ave. Presbyterian Church v.
City of New York, 

, 574-75 (2d Cir. 2002).
Souls aren’t saved just in church buildings.
   World Outreach wanted to operate the center just the
way the YMCA had done for the previous 80 years
without any hindrance from the Chicago zoning authori-
ties. In particular, like the YMCA, it wanted to rent the
building’s 168 apartments as single-room-occupancy
units. The YMCA had done that without ever having
been told by the City to obtain a Special Use Permit. For
the YMCA’s use of the building had been what is called a
“legal nonconforming use.” If a particular land use is
begun at a time when the use conformed to the existing
zoning regulations, and the zoning regulations are later
changed to forbid such use, the user can continue his
(no longer) conforming use without a Special Use Permit.
See Chicago Zoning Ordinance §§ 17-15-0101, 0103; Bainter
v. Village of Algonquin, 

, 125 (Ill. App. 1996);
Illinois Life Ins. Co. v. City of Chicago, 

, 195-
8                                       Nos. 08-4167, 09-2142

97 (1927); cf. Shrewsbury Edgemere Associates LP v. Board of
Appeals, 

, 1216-17 (Mass. 1991). The
“nonconforming status runs with the land and is not
affected by changes of tenancy, ownership, or manage-
ment.” Chicago Zoning Ordinance § 17-15-0106.
  The land occupied by the building had been rezoned in
1999 as a Community Shopping District. A community
center is a special use in such a district, requiring therefore
a Special Use Permit. Chicago Zoning Ordinance § 17-3-
0207(I)(1); see also § 17-3-0203. But since the YMCA’s
center was a legal nonconforming use, the zoning
change had no effect on it and should likewise have had
no effect on World Outreach when it bought the building.
   To provide single-room occupancy, however, World
Outreach needed to apply for a single-room-occupancy
(SRO) license, for these licenses do not run with the land.
Chicago Municipal Code §§ 4-209-010; 4-4-190. It ap-
plied in August 2005, the month after its purchase of the
building, but was told that it couldn’t have the license
because it lacked a Special Use Permit to allow it to
operate a community center in a Community Shopping
District. Yet the City had voluminous files, including
files of SRO licenses obtained by the YMCA after the
rezoning, which showed that no Special Use Permit was
required because the use made of the building, including
single-room occupancy, was a legal nonconforming use.
But a Chicago alderman named Beale, irate that the
building had been sold to World Outreach rather than to a
developer who was one of his financial backers, had
proposed to the zoning committee of the Chicago City
Nos. 08-4167, 09-2142                                   9

Council that the property on which the building sits be
rezoned as a Limited Manufacturing Business Park
District. At a hearing before the zoning committee, World
Outreach reminded the committee of its legal noncon-
forming use, but the committee chairman asserted that
World Outreach needed to obtain a Special Use Permit if
it wanted to continue the YMCA’s practice of providing
single-room occupancy.
   The City Council approved the proposed amendment
to the zoning ordinance in October 2005. A community
center is not a special use in a limited manufacturing
district, which means that no Special Use Permit could
be granted to permit the World Outreach center to oper-
ate. But the operation could still be—and was—a
legal nonconforming use, which requires no Special Use
Permit. Nevertheless the City in December 2005 filed a
suit in state court against World Outreach, in which it
claimed that World Outreach had to obtain a Special Use
Permit. The suit was frivolous and was voluntarily dis-
missed by the City, naturally without explanation, in
April 2006. But still the City did not issue the SRO
license, without indicating that there might be grounds
for denying it.
   Hurricane Katrina had struck New Orleans in August
2005. The next month the Federal Emergency Manage-
ment Agency asked World Outreach to house victims of
the hurricane in 150 single-room-occupancy units for a
year, at a surprisingly high rental of $750 per room per
month that would be paid by FEMA. The agreement was
conditioned on World Outreach’s obtaining an SRO
license. The City refused to issue the license even though
10                                    Nos. 08-4167, 09-2142

officials from FEMA, from its Illinois counterpart, and
from the Illinois Department of Human Services all urged
the City to grant it and no ground for denying it existed.
  World Outreach brought the present suit in April 2006,
the dismissal of the state court suit having deprived it
of that procedural vehicle for challenging the City’s
insistence on the necessity for a Special Use Permit. In
August of the following year, with the suit pending, the
City without explanation issued an SRO license to
World Outreach even though the organization had not
sought or obtained a Special Use Permit.
  As a result of the City’s actions beginning with the
initial denial of the SRO license, World Outreach was
impeded in its religious mission of providing living
facilities to homeless and other needy people and
incurred substantial legal expenses as well. It seeks dam-
ages, having abandoned its claim for injunctive relief
when the City finally issued the SRO license that it had
applied for two years earlier.
  The district judge dismissed the complaint on the
ground that requiring World Outreach to appeal the
denial of a Special Use Permit to the board of zoning
appeals did not impose a “substantial burden” on its
religious activities. In effect he was ruling that World
Outreach had failed to exhaust its administrative reme-
dies. The principle is fine, Grace Community Church v. Lenox
Township, 

, 616 (6th Cir. 2008); Murphy v. New
Milford Zoning Commission, 

, 352 (2d Cir. 2005),
but its application to this case perverse. World Outreach
had no legal basis for seeking a Special Use Permit; a
Nos. 08-4167, 09-2142                                   11

community center cannot be a special use in the district in
which the center is located, because of its rezoning as a
manufacturing district.
  It is true that World Outreach was first told that it
needed a Special Use Permit three months before the
land was rezoned to bar special uses. Had World
Outreach obtained the permit before the rezoning, it
would have been entitled to continue the permitted use
as a lawful nonconforming use. But it was already entitled
to continue the use of the center for single-room
occupancy as a lawful nonconforming use, provided
only that it obtained an SRO license, which it had
applied for and the City had no grounds for denying. In
any event, four months later, by bringing suit against
World Outreach, the City chose the forum in which it
wanted the organization’s rights adjudicated; it can
hardly be heard to criticize the organization for
accepting that choice. The City then pulled the rug out
from under its adversary by voluntarily dismissing its
suit, by which time it was too late for World Outreach
to seek a Special Use Permit, as the land had been
rezoned to preclude a community center from being
considered a special use.
  World Outreach further alleges that the zoning board
of appeals has a fixed policy of not acting on an appeal
while an alderman’s request for a rezoning is pending.
Consistent with this allegation, the chairman of the
zoning committee told World Outreach’s lawyer at the
hearing that World Outreach had two choices: obtain
a Special Use Permit or sue the City. World Outreach
12                                      Nos. 08-4167, 09-2142

couldn’t obtain a Special Use permit for land that was
about to be rezoned to bar special uses, and so it brought
this suit. The existence of “aldermanic courtesy” is con-
firmed in Biblia Abierta v. Banks, 

, 901-02
(7th Cir. 1997). One of the aldermen in that case was the
chairman of the zoning committee in this one and it was
he who told World Outreach to apply for a Special Use
Permit.
  The picture painted by the complaint is of malicious
prosecution of a religious organization by City officials,
although the plaintiff doesn’t use the term. Malicious
prosecution is harassment by frivolous legal claims. Reed
v. Doctor’s Associates, Inc., 

, 1205 (Ill. App.
2005); Smart v. Board of Trustees, 

, 434 (7th Cir.
1994). That is an exact description of the conduct alleged
in the complaint. The burden imposed on a small
religious organization catering to the poor was sub-
stantial (for burden is relative to the weakness of the
burdened), Saints Constantine & Helen Greek Orthodox
Church, Inc. v. City of New 

, 396 F.3d at 899-901;
Westchester Day School v. Village of 

, 504
F.3d at 350-53; Bikur Cholim, Inc. v. Village of Suffern,

, at *22-23 (S.D.N.Y. June 25, 2009); Brian
W. Blaesser & Alan C. Weinstein, Federal Land Use Law &
Litigation § 7:18, p. 664 (2009), and there was no possible
justification for it. The dismissal of World Outreach’s
substantial-burden (section 2000cc(a)(1)) claim under the
Religious Land Use and Institutionalized Persons Act
was therefore error.
  World Outreach also makes a claim under section
2000cc(b) of the Act, which forbids discrimination
Nos. 08-4167, 09-2142                                     13

against an organization on religious grounds. See
Digrugilliers v. Consolidated City of Indianapolis, 

, 614 (7th Cir. 2007). The motive that World Outreach
alleges for the City’s campaign against it was Alderman
Beale’s desire that the YMCA have sold the property to
his supporter; there is no indication that any purchaser,
religious or nonreligious, other than the developer
would have been treated better than World Outreach
was. In other words, there was no discrimination
against World Outreach on religious grounds. The City
didn’t treat the YMCA better than World Outreach on
any grounds, religious or otherwise; the two organiza-
tions were not similarly situated; had the YMCA been
in World Outreach’s position of buying the center from
the previous occupant, it would have been treated just
as badly. The discrimination was in favor of a developer
on the basis of his financial relationship to a politician.
Religion didn’t enter the picture.
  What is true, however, is that a deliberate, irrational
discrimination, even if it is against one person (or other
entity) rather than a group, is actionable under the
equal protection clause. Village of Willowbrook v. Olech, 

, 564 (2000) (per curiam); Lauth v. McCollum, 

(7th Cir. 2005); Hilton v. City of Wheeling, 

, 1007-08 (7th Cir. 2000). That is one of the
claims that World Outreach alleges; the claim is sup-
ported by the allegations of the complaint; and so it
should not have been dismissed. It has nothing to do
with religion, but so what?
  The City is correct, however, that the claim of damages
for violation of the Chicago Zoning Ordinance is barred
14                                    Nos. 08-4167, 09-2142

by the state’s tort immunity act and therefore was
properly dismissed. 745 ILCS § 10/2-104; Village of
Bloomingdale v. CDG Enterprises, Inc., 

, 1099
(Ill. 2001). We also do not think that World Outreach
had any basis for seeking damages under Illinois Supreme
Court Rule 137, which is materially the same as Rule 11
of the federal civil rules, as a sanction for frivolous
motions in the state-court case that was dismissed, not
in the present case; and Rule 11 does not authorize a
judge to impose sanctions in a case in another court
unless the case merely originated there and was removed
to his court, as in Griffen v. City of Oklahoma City, 

, 340-42 (10th Cir. 1993), and Schmitz v. Campbell-Mithun,
Inc., 

, 192-93 (N.D. Ill. 1989). World Outreach
also seeks sanctions under Rule 11 for the motion to
dismiss that the City filed in the present case, but
although the motion was weak it was not frivolous or
otherwise sanctionable, or so at least the district judge
could (and did) conclude without abusing his discretion.
  So we move to our second case, which involves a chal-
lenge under the Religious Land Use and Institutionalized
Persons Act to the application of Peoria’s landmark law
to the building shown in the photograph at the end of
this opinion. The Trinity Evangelical Lutheran Church is
located on property at the edge of downtown Peoria. In
1989 it bought an adjacent parcel that contained the
building in the photo. Trinity applied to the city in 2000
for a permit to demolish the building. A neighborhood
group filed an application to have the building designated
a landmark under the City’s preservation ordinance.
Nos. 08-4167, 09-2142                                    15

Peoria Municipal Code §§ 16-61, 16-86. The City granted
the landmark application. Six years later Trinity again
sought the City’s permission to demolish the building
so that it could build on its site a “Family Life Center.”
The City refused, and the refusal, Trinity argues, has
imposed a substantial burden on its religious activities
in violation of section 2000cc(a)(1) because the building is
not suitable for the family-life center that Trinity envis-
ages. The district court, disagreeing, granted summary
judgment in favor of the City.
  Any land-use regulation that a church would like not to
have to comply with imposes a “burden” on it, and so the
adjective “substantial” must be taken seriously lest
RLUIPA be interpreted to grant churches a blanket im-
munity from land-use regulation. We shall assume that
determining whether a burden is substantial (and if so
whether it is nevertheless justifiable) is ordinarily an
issue of fact (oddly we cannot find a reported opinion
that addresses the question) and that substantiality is a
relative term—whether a given burden is substantial
depends on its magnitude in relation to the needs and
resources of the religious organization in question. Vision
Church v. Village of Long Grove, 

, 999-1000
(7th Cir. 2006); Westchester Day School v. Village of

, 504 F.3d at 349.
   The burden imposed on Trinity, a substantial religious
organization, by the landmark designation that disables
it from demolishing the apartment house is modest. The
building has not been rendered uninhabitable by the
designation. Trinity can sell it and use the proceeds to
16                                    Nos. 08-4167, 09-2142

finance the construction of its family-life center. It argues
that it “lost money renting the building prior to seeking
demolition” and that the building is “not economically
viable for residential use,” but there is no support in the
record for these contentions. The prohibition against
demolition could harm Trinity only if there were no
suitable alternative site for building a family-life center.
But there is—a 50-foot-by-80-foot empty lot on Trinity’s
campus. Trinity complains that it would need certain
zoning permits to build there which the City might deny
it—but the City has committed itself in its brief and at
oral argument to granting them. We imagine that the
real purpose of this litigation is to extract a commitment
from the City to allow Trinity to build the family-life
center on the empty lot, and so viewed the suit has suc-
ceeded.
  The judgment in World Outreach’s case is affirmed in
part and reversed in part, as explained earlier. The judg-
ment in Trinity Evangelical Lutheran Church is affirmed.
Nos. 08-4167, 09-2142                17



                   Peoria Landmark




                        12-30-09