Original Bible Church v. Markham by Mauck Baker

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS ORIGINAL BIBLE CHURCH OF ILLINOIS, an Illinois church and not-for-profit corporation, individually and in its capacity as representative of certain individual members, Plaintiff, v. CITY OF MARKHAM, an Illinois municipal corporation, Defendant.

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CASE NO. 16-cv-11315

COMPLAINT

Plaintiff, the Original Bible Church of Illinois, an Illinois not-for-profit corporation (“Church”), by and through its attorneys, complains against the Defendant, City of Markham, Illinois, a municipal corporation, (“City”) as follows: NATURE OF THE CASE 1. This case is about how the City of Markham has prohibited the Church, which has a small congregation of about thirty or so people from assembling for worship and bible study at the property located at 3509 West 159th Street, Markham, Illinois (the “Property”)—a location where Markham’s Zoning Code freely allows assembly uses to locate as “permitted uses.” Ex. A, Markham’s Zoning Ordinance, at § 156.146.

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2. As the City has admitted in a pending lawsuit which was filed by another church in the Northern District of Illinois (Church of Our Lord & Savior Jesus Christ v. City of Markham, No. 15-cv-04079), “Churches are treated as a permitted use in Markham’s R-2 and R-3 use districts.” Ex. B. 3. As such, churches are to be treated as a “permitted use” in Markham’s C-1 use districts (the type of district wherein the Property lies) pursuant to § 156.146 of Ex. A (Markham’s Zoning Ordinance). § 156.146 clearly provides that all residential uses permitted in R-2 and R-3 districts are to be treated as “permitted uses” in all C-1 districts. 4. Further, § 156.146 of Markham’s Zoning Ordinance provides that certain assembly uses, such as theaters, are to be treated as “permitted uses” in Markham’s C-1 districts. 5.

This action seeks a declaration of the Church’s right to assemble for worship at

the Property, equitable relief, and damages under inter alia provisions of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) 42 U.S.C. § 2000cc 1, et seq., and the Illinois Religious Freedom Restoration Act (“IRFRA”), 775 ILCS 35/15. JURISDICTION AND VENUE 6. This Court has jurisdiction over the subject matter of this action by virtue of U.S.C. § 1331 (federal question jurisdiction); 28 U.S.C. § 2201 (authorizing declaratory relief); and 28 U.S.C. § 2202 (authorizing injunctive relief).

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7. Venue is proper in this District pursuant to 28 U.S.C. §§ 1391(e) and 1402(a) and 5 U.S.C. § 703. THE PARTIES 8. In November 2014, Reverend Fred Fields founded the Original Bible Church of Illinois. Ex. C, Decl. of Rev. Fred Fields, at ¶ 2. 9. Plaintiff, the Original Bible Church, was initially an unincorporated association of followers of Jesus and was later incorporated as an Illinois non-profit corporation on January 7, 2016. Id. at ¶ 2. 10. Reverend Fields is an ordained minister and executive pastor of the Church with full authority to speak and act on behalf of the Church and its members. Id. at ¶ 1. He is also a general contractor who specializes in building churches. Id. at ¶ 4. 11. The Church has a congregation of about 30 members. Id. at ¶ 3. 12. Defendant, City, is a municipal corporation located in Cook County, Illinois. 13. Defendant, through its City Council, is responsible for the enactment and enforcement of the ordinances and actions challenged herein. HISTORY OF CHURCH’S SEARCH OF A PLACE OF ITS OWN 14. Initially, the small congregation met every Sunday in Reverend Fields’ home in Country Club Hills until it grew to 20-25 members, at which point the congregation began to look for a new location at which to meet. Id. at ¶ 5.

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15. Meeting in Rev. Fields’ home posed significant challenges and placed significant burdens on the congregation including, but not limited to, a lack of privacy, inadequate space for ministry, an inability to meet during the week, an inability to attract new congregants, and lack of flexibility and stability. Because of these challenges, the Church began looking for a permanent home in 2015. Id. at ¶ 6. 16. Reverend Fields initially looked for properties online and also drove around to inspect properties which were for sale in and around Markham, Illinois—but many of the seven to eight other properties which they inspected in and around Markham were too run down or too secluded for the Church’s use. Id. at ¶ 7. 17. The Church also worked with realtor Nick Pipala of Citywide Realty in our efforts to find a suitable location. Id. at ¶ 8. 18. Because renting space was not a long term, cost-effective solution and inhibits the Church’s religious exercise, the Church has looked for a property of its own throughout the area, including in and around Country Club Hills and Markham, hoping to find a location for a permanent church. Id. at ¶ 9. 19. In about July 2015, the Church identified the Property for sale in Markham and contacted the realtor Nick Pipala who assisted them in contacting the owner and purchasing the property. Id. at ¶ 10.

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20. The Property, which is pictured below is located on the same block and less than 500 feet from the Markham Lutheran Church at 3518 W 160th St, Markham, IL 60428, Id. at Âś 11:

21. After viewing the Property, the Church decided it was an ideal location for it to meet. Id. at Âś 12. 22. Since the Church did not have sufficient funds at the time to purchase the building, Reverend Fields and his wife, Bunnie Fields, decided to buy the property 5

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through a company they owned, F & B Investments, Inc., for $135,000.00 and lease it to the Church. Id. at ¶ 13. 23. They closed on the purchase of the Property on September 30, 2015. Id. at ¶ 14. 24. A formal commercial lease agreement with an option to purchase was entered into by and between F&B Investments, Inc. of 4110 Goodwick Drive, Memphis, TN and the Church on November 13, 2015. Id. at ¶ 15. THE CHURCH’S RELIGIOUS EXERCISE 25. The Church has desired to assemble at the Property for worship from 10:15-1:30 P.M. every Sunday and during the week on Wednesday nights for bible study and choir rehearsal. Id. at ¶ 16. 26. The Church has sought to conduct the following ministries and religious exercises at the Property, all of which are compelled by and integral to the sincerely held religious beliefs of the Church and its members, Id. at ¶ 17: a. weekly assembly of the congregation to worship (Hebrews 10:25); b. weekly preaching, including speech relating to personal morality, God, social, cultural and political issues (2 Timothy 4:2); c. pastoral counseling for the disturbed, lonely and bereaved; d. prayer meetings (Acts 1:13-14); e. singing and musical performances (Psalms 81:1-2); f. baptisms and communion (Matthew 28:19; Luke 22:19);

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g. Bible studies; and h. evangelism - sharing the Christian message and encouraging others to believe in Jesus the Messiah, particularly those who visit the church meetings CITY’S EFFORTS TO DENY CHURCH’S RELIGIOUS EXERCISE AT PROPERTY 27. After the Property was purchased in late September 2015, Reverend Fields was told to contact the alderman in whose district the Property lies. Id. at ¶ 18. 28. Reverend Fields called the alderman’s office on behalf of the church and inquired about a building permit. When he spoke with the alderman the alderman stated words to the effect that, “I doubt you’re going to get a church in here. It’s going to be very difficult. You need to talk with the mayor.” Id. at ¶ 19. 29. After speaking with the alderman, Reverend Fields went to the mayor’s office at City Hall the next day or two, but the Mayor would not meet with him. The Mayor’s receptionist told Rev. Fields to speak with Mr. John Thompson, Markham’s Director of Economic Development, who oversees Planning & Development, zoning, and land acquisition in Markham. Id. at ¶ 20. 30. That same day Reverend Fields spoke with Mr. Thompson at City Hall. Mr. Thompson said to Reverend Fields words to this effect, “You should have come to us before you purchased the property. We don’t need any more in churches in Markham. We have thirty some churches in Markham. Where do you live?” Id. at ¶ 21.

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31. When Reverend Fields told Mr. Thompson that he lived in Country Club Hills, Director Thompson responded by saying words to the effect that “Why don’t you go to Country Club Hills to purchase property for the Church. You might get your church [in Markham] but it is going to cost you some money.” Id. at ¶ 21. 32. Reverend Fields pled for Director Thompson’s help and asked what the Church needed to do. Mr. Thompson told him that he “could go downstairs and apply for a zoning permit.” Mr. Thompson further stated words to the effect that I “shouldn’t have come here” and that I “should try to sell the property. That’s prime property, we don’t want you there. Why don’t you find a residential property?” Id. at ¶ 22. 33. After Rev. Fields told Director Thompson that the Church was not willing to sell, he went downstairs and was told to fill out a “conditional use” permit application. Id. at ¶ 23. 34. In or about October, 2015, Reverend Fields and his wife filed a petition on behalf of F&B Investments and the church for a “conditional use” permit to operate a church at the Property and paid the application fee. The Petition was under the name “F & B Investments.” Id. at ¶ 24. 35. At the first hearing before the Regular Plan Commission & Zoning Board of Appeals (hereinafter the “Plan Commission”) on November 11, 2015, it was noted that that the Church had an attendance range of 25 to 31 people. The Plan Commission’s Attorney Michelle Broughton-Fountain stated that the Petition should be made under

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the church’s name and that the church should hire an attorney before proceeding further. The Commission then voted to withdraw the Petition. Id. at ¶ 25; minutes of November 11, 2015 hearing attached as Ex. D. 36. On November 13, 2015, the petition was re-filed under the name “Original Bible Church.” Id. at ¶ 26; Ex. G, Re-filed Petition. 37. At the Plan Commission hearing on December 9, 2015, Attorney BroughtonFountain then questioned whether the church was organized as a legal entity and the Church was instructed to provide a charter at the next meeting. Id. at ¶ 27; minutes of December 9, 2015 hearing attached as Ex. E. 38. At the Plan Commission hearing on January 13, 2016, the Church submitted proof that it had since organized as an Illinois not for profit corporation and its Attorney Bill Ralph appeared on behalf of the church. Rev. Fields stated that the Church had leased the property lot adjacent to the Property for a year with an option to purchase, in order to provide additional off-street parking spaces. The Plan Commission noted that the lot was residential and must be rezoned for use as a parking space. A ditch with a little stream was also noted by the Plan Commission who opined that an engineer would be required. Reverend Fields then agreed that the church would present additional documents: plans, blue prints, engineer reports, etc. at the next meeting in February.

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39. One member, Donald Brozek, was appalled that the Plan Commission would require surveys, architects, drawings, and blueprints because these are expensive and the church may still be denied zoning after spending so much money. Id. at ¶ 28; minutes of January 13, 2016 hearing attached as Ex. F. 40. On February 9, 2016, the church filed an Amended Petition, amending the name of the church to “Original Bible Church of Illinois” and including the separate parcel of property which was a vacant lot and which it leased hoping to use as a parking lot. A copy of the Lease Agreement, as amended, was also included. Id. at ¶ 29. 41. On February 10, 2016, the Plan Commission noted that the Church’s attorney Bill Ralph informed its secretary that not all the documents were ready and sought to attend next month’s hearing in March. Attorney Broughton-Fountain was to contact the church and inform them that some of the documents which were requested were no longer needed. Id. at ¶ 30; minutes of February 10, 2016 hearing attached as Ex. H. 42. At the March 9, 2016 Plan Commission hearing, Revere Properties Architects and Reverend Fields presented proposed site plans and provided the Plan Commission with a copy of the Amended Petition as well as the amended Lease Agreement. The proposed plan accommodated 165-175 attendees and had handicap accessible bathrooms. The commissioners stated that parking was a major concern and that the church must have the vacant lot rezoned. Commissioner McDonald recommended to the Council that the Petition be approved and that the vacant lot be rezoned to allow for

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parking. The Plan Commission voted unanimously to recommend the City Council’s approval of the Church’s conditional use application to approve of the Church’s use of the Property. Id. at ¶ 31; minutes of March 9, 2016 hearing attached as Ex. I; Ex. J, March 9, 2016 Recommendation of Plan Commission to approve zoning permit for Church. 43. However, on April 6, 2016, at the meeting of the Markham City Council, the City Council, without hearing evidence, disregarded the Plan Commission’s recommendation and voted 3-0 (with one alderman absent) to unconditionally deny the Church’s zoning application. Id. at ¶ 32; Ex. K, April 6, 2016 minutes of the Markham City Council meeting. 44. Attorney for the church Bill Ralph asked for additional information regarding the denial, and the City Council’s attorney Steven Miller said that there were “issues” about the parking, use of a residential property that would potentially change the lot requirements for residential property if a portion was used for commercial basis, and “several other factors.” Reverend Fields noted that they had spent $150,000 and just wanted a place to have a church. Id. at ¶ 32. 45. No written findings of fact were ever filed in support of the City Council’s denial as required by Markham’s Zoning Ordinance, § 156.319. Id. at ¶ 33; Ex. A, at § 156.319. 46. On June 14, 2016, the Church retained the zoning and land use attorneys with Sosin, Arnold & Schoenbeck, Ltd, to re-file for a “conditional use” permit on behalf of

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the Church, F&B Investment’s tenant, for the purpose of church and worship services at the Property. Id. at ¶ 34. 47. In order to ensure that the City would have no legitimate parking “issues” or “concerns,” the Church revised its building plans by reducing the planned sanctuary seating capacity by over 60%--providing seating for just 60 people. 48. On July 14, 2016, an application for conditional use permit was again submitted to the Plan Commission. Id. at ¶ 35. 49. On July 22, 2016, Secretary Timpton wrote to Mr. Nussbaum informing him that the petition would be heard on August 10, 2016. Id. at ¶ 36. 50. At the Plan Commission hearing August 10, 2016, Mr. Nussbaum represented the church before the Plan Commission. Attorney Broughton-Fountain had expressed “concerns” with the parking lot and with the dimensions of the Site Plan. Mr. Nussbaum indicated that the parking was modified and fully complied with City code as the plans for the church were changed to reduce the sanctuary space to 60 people— which meant that the Church had enough off-street parking on the Property and did not need use of the adjacent lot. Id. at ¶ 37. 51. Even though the Church’s plan complied with Markham’s off-street parking ordinance, Commissioner Brozek commented that he was uncomfortable about the church, had “concerns” with the parking, seating capacity, and traffic problems;

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Commissioner McDonald express concern over losing tax revenue; and Commissioner Ollie also said he was concerned with parking. Id. at ¶ 38. 52. On August 26, 2016, Secretary Timpton informed Mr. Nussbaum that the petition would be heard again on September 14, 2016. Id. at ¶ 39. 53. On September 14, 2016, land use and zoning attorney David Sosin, appeared on behalf of the church and submitted the revised Site Plan and Floor Plan. There were no public comments on the petition. A motion to approve the church’s petition was presented with two commissioners voting in favor and six against. Id. at ¶ 40. 54. The Plan Commission did not issue any written findings of fact concerning the Church’s application or in support of its recommendation to deny the Church’s application as required by Markham’s Zoning Ordinance. Id. at ¶ 41. 55. On October 19, 2016, the City Council met and again voted to unconditionally deny the Church’s application. Id. at ¶ 42. The transcript of this meeting is attached as Ex. O. IRREPARABLE HARM TO & BURDENS ON CHURCH’S RELIGIOUS EXERCISE 56. If immediate declaratory relief is not granted and the City’s denial of the Church’s use application is upheld, the Church will be required to completely forego conducting religious exercises and practices at the Property. Id. at ¶ 43.

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57. On average, the Church only brings in about $2,000.00 a month which it uses to cover its monthly operational/rental expenses of nearly $2,000 a month and continue its ministry. Reverend Fields does not receive a salary from the Church. Id. at Âś 44. 58. If the Church is not allowed to continue assembling at the Property, the Church will experience the following additional burdens to its religious ministries, Id. at Âś 45: a. The Church will be without a home and forced to meet in a residential house or otherwise unsuitable location; b. The Church will likely lose current members and tithes and offerings; c. The Church will have to forego certain ministries it desires to conduct in Markham, such as youth outreach efforts to help persuade young people to avoid gangs and drugs and follow Jesus; d. The Church will have to incur substantial expense to secure another location at which to meet or be forced to dissolve; e. The congregation and Reverend Fields will certainly suffer significant additional aggravation, inconvenience, and emotional pain and suffering beyond what they have already had to suffer. 59. While the Church looked for a new home, it rented space in the Hampton Inn in Matteson, Illinois for its Sunday meetings. The Church rented space at the Hampton Inn from May 26, 2015 to May 17, 2016 and has spent a total of $9,552.28 in rental expenses at the hotel. Id. at Âś 46.

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60. Since July 2016, the Church has been renting space from Calvary Assembly of God in nearby Flossmoor, IL. To date, the Church has spent over $8,100.00 in rental expenses meeting at Calvary. Id. at ¶ 47. 61. The Church suffers without a permanent place to worship. This has burdened, and continues to burden the Church in the following ways, Id. at ¶ 48a-g: a. The Church can only have a limited Sunday worship service, if at all, during time periods outside of its choosing. b. The Church cannot hold any evening worship services nor can it hold services during the week. c. The Church’s unpredictable meeting time and location has caused some members to leave and has inhibited the Church from attracting new members. d. The inability to attract and keep members in the Church has caused the Church to struggle financially by losing potential tithes and offerings. e. The Church ministries have been frustrated and curtailed, because of a lack of suitable facilities. f. Various temporary locations the Church meets in do not have the proper amount of privacy which inhibits the Church’s ability to counsel its members.

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g. Lack of a permanent location has prevented the Church from being dynamic, flexible, and stable, only further inhibiting its ability to grow. 62. The Church has had to incur significant expenses in its attempt to worship at its property including, Id. at ¶ 48h: a. Architectural fees - $6,200.00 b. Approximate cost of mobile sound equipment - $1035 c. Unpaid property taxes from previous owner - $17,429.19 d. Legal fees- $6,552.50 e. Insurance fees- $3,953.00 f. Accrued rent owed to F & B Investments, Inc. 63. This ordeal has taken an emotional and physical toll on Reverend Fields and his small congregation. Id. at ¶ 48i. ADDITIONAL FACTS 64. The Property contains more than enough space for the approximately thirty or so members congregation to assemble for worship, bible study, and prayer. 65. The Property has more than enough parking to accommodate at least 12 cars which according to § 156.252 of the Code is sufficient for a church with 60 seats, let alone for the Church herein, which only has about a thirty member congregation. THE CITY’S ZONING CODE AND COMPATABILITY OF THE CHURCH’S USE 66. Theaters are treated as permitted uses in the C-1, C-2, L-1, L-2, and L-3 districts.

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67. Section 156.066 of Markham’s Zoning Code entitled “PERMITTED USES” provides that all uses permitted in the R-1 district are permitted uses within R-2 districts. 68. Section 156.081 of Markham’s Zoning Code entitled “PERMITTED USES” provides that all uses permitted in the R-2 district are permitted uses within R-3 districts. 69. Section 156.146 of Markham’s Zoning Code entitled “PERMITTED USES” provides that all residential uses permitted in R-2 and R-3 districts are to be treated as “permitted uses” in all C-1 districts.. 70. The sections of Markham’s Zoning Code governing R-2 districts do not expressly provide for any conditional uses. 71. The sections of Markham’s Zoning Code governing R-3 districts do not expressly provide for any conditional uses. 72. The sections of Markham’s Zoning Code governing C-1 districts do not expressly provide for any conditional uses. 73. According to Markham’s Zoning Ordinance, a church is a desirable and appropriate use within a C-1 use district. 74. The Church’s use is one that is neither inconsistent with the public's health, safety, morals or general welfare, nor out of harmony with Markham’s general zoning plan for the district.

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75. A church use is presumed compatible with the surrounding property uses in a C1 use district. 76. A church use of the Property is compatible with the surrounding property uses which includes the Lutheran Church within 500 feet. 77. The City of Markham completely denied the Church’s conditional use permit application. 78. The City Council had the authority to approve the Church’s conditional use permit application with conditions. 79. The Church’s use at the Property is in harmony with the general and specific purposes for which the Zoning Code was enacted and for which the regulations of the C-1 use districts were established. COUNT I A “PERMITTED USE” UNDER MARKHAM’S ZONING ORDINANCE 80. The allegations contained in all preceding paragraphs are incorporated here by reference. 81. Since all use permitted in R-2 and R-3 use districts are to be treated as “permitted uses” in Markham’s C-1 districts, Ex. A at . § 156.146, and “Churches are treated as a permitted use in Markham’s R-2 and R-3 use districts,” Ex. B, then church is entitled to be treated as a “permitted use” at the Property and should not have been treated on unequal terms as a “conditional use.”

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WHEREFORE, the Church respectfully prays that the Court grant the relief set forth in the prayer for relief. COUNT II VIOLATION OF RLUIPA OF RLUIPA, 42 U.S.C. 2000cc(b)(1) EQUAL TERMS PROVISION 82. The allegations contained in all preceding paragraphs are incorporated here by reference. 83. Since all use permitted in R-2 and R-3 use districts are to be treated as “permitted uses” in Markham’s C-1 districts, Ex. A at . § 156.146, and “Churches are treated as a permitted use in Markham’s R-2 and R-3 use districts,” Ex. B, then church is entitled to be treated as a “permitted use” at the Property and should not have been treated on unequal terms as a “conditional use.” 84. Section 2(b)(1) of RLUIPA prohibits the City from treating a religious assembly use less favorably than a non-religious assembly use: (1) Equal Terms No 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. (italics added). 85. By treating church on less than equal terms with a non-religious assembly use, like theaters, the City’s Code violates RLUIPA’s equal terms provision. 86. Churches are no different from a theater from the standpoint of any accepted or relevant zoning criteria applicable to Markham’s C-1 use districts which allow for all

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residential uses to be treated as Permitted Uses therein. River of Life Kingdom Ministries v. Vill. of Hazel Crest, 611 F.3d 367, 373 (7th Cir. 2010) 87. The City’s Code, Exh. A at § 156.252, even lists theaters as a place of assembly. WHEREFORE, the Church respectfully prays that the Court grant the relief set forth in the prayer for relief. COUNT III VIOLATION OF RLUIPA, 42 U.S.C. 2000CC(b)(3) UNREASONABLE LIMITATIONS PROVISION 88. The allegations contained in all preceding paragraphs are incorporated here by reference. 89. Section 2000cc (b)(3) of RLUIPA provides (emphasis supplied): (3) Exclusions and limits. No government shall impose or implement a land use regulation that(A) totally excludes religious assemblies from a jurisdiction; or (B) unreasonably limits religious assemblies, institutions, or structures within a jurisdiction. 90. Reasonableness is determined in light of all the facts, the economics of the religious organization, and the actual availability of land where the religious organization is permitted to locate. See Bethel World Outreach Ministries v. Montgomery County Council, 706 F.3d 548, 560 (4th Cir. 2013) (“RLUIPA's unreasonable limitation provision prevents government from adopting policies that make it difficult for religious institutions to locate anywhere within the jurisdiction").

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91. In light of all the facts and the economics of the Church, it would be inherently unreasonable for the City to provide no use district or land within Markham wherein a small church like the Original Bible Church could locate as a “permitted use.” 92. If the City’s Code is read to require a church to obtain a “conditional use” permit to locate anywhere within Markham, then the City’s Code, facially and as applied, is an unreasonably limits religious assemblies, like the Church, within its jurisdiction. 93. It is also an inherently unreasonable limitation on churches to treat them on unequal terms with other nonreligious assembly uses as set forth under Count II. 94. To the extent that the Court may determine that the Seventh Circuit’s decision in Vision Church v. Village of Long Grove, 468 F.3d 975, 978 (2006) controls with respect to the question of whether it is inherently unreasonable to have no zone wherein a Church may locate as of right, Plaintiff contends that the Vision Church case was wrongly decided on that point and not in accord with the broad protections afforded religious assemblies under RLUIPA, 42 U.S.C. § 2000cc-3(g) and is nevertheless distinguishable from the facts of this case. WHEREFORE, the Church respectfully prays that the Court grant the relief set forth in the prayer for relief.

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COUNT IV VIOLATION OF RLUIPA, 42 U.S.C. 2000cc(a)(1) SUBSTANTIAL BURDEN PROVISION 95. The allegations contained in all preceding paragraphs are incorporated here by reference. 96. Section 2000cc (a)(1) of RLUIPA provides (italics added): (1) General rule. No government shall impose or 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 demonstrates that imposition of the burden on that person, assembly, or institution(A) is in furtherance of a compelling governmental interest; and; (B) is the least restrictive means of furthering that compelling governmental interest. 97. The City has imposed its land use regulations in a manner that imposed and continues to impose a substantial burden on the religious exercise of the Church, which is a religious assembly and institution. See Schlemm v. Wall, 2015 U.S. App. LEXIS 6592, 4 (7th Cir. Apr. 21, 2015) (describing the “much easier [substantial] burden” standard to be applied under RLUIPA in light of the Supreme Court’s decisions in Holt v. Hobbs, 135 S. Ct. 853 (2015) and Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014)). 98. The factors and facts relevant to the substantial burden analysis are the following: a. The Church has great needs and very limited resources. See World Outreach Conference Center v. City of Chicago, 591 F.3d 531, 537-538 (“whether a given 22

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burden is substantial depends on its magnitude in relation to the needs and resources of the religious organization in question.”). b. The City’s imposed its land use regulations in a manner which created undue delay, uncertainty, and expense upon the Church. See World Outreach, 949 F. Supp. 2d 826, *849; see also World Outreach, 591 F.3d 531, at 534, 537 citing Sts. Constantine & Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d 895, 901 (7th Cir. 2005). c. The City imposed the burdens on the Church in an arbitrary and capricious manner. See World Outreach, 797 F.3d 839, 842 (7th Cir. 2015); see also Roman Catholic Bishop v. City of Springfield, 724 F.3d 78, 96-97 (1st Cir. 2013). 99. Upon information (including Director Thompson statements to Reverend Fields) and belief, the restrictions and processes imposed on the Church were designed to reach a predetermined outcome contrary to the Church’s requests. See, id. 100. The cumulative effect of the various burdens which the City imposed on the Church are clearly substantial. See, Roman Catholic Bishop, 724 F.3d at 95 (“We recognize different types of burdens and that such burdens may cumulate to become substantial.”). 101. In addition, if the City is allowed to treat the Church on unequal terms with non-religious assemblies, i.e. theaters, than the City’s unreasonable limitations on

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religious assembly within its jurisdiction and unequal treatment, coupled with its decisions to deny the Church’s conditional use permit applications, impose a substantial burden on the Church and its members. 102. The Church can prove a substantial burden on its religious exercise without “proving that there is an unconstitutional motivation behind a law…” 146 Cong. Rec. S6688 (daily ed. July 27, 2000) (statement of Sen. Orrin G. Hatch). 103. The City’s denial of the Church’s conditional use application involved an individualized assessment of the Church’s application and religious land use. WHEREFORE, the Church respectfully prays that the Court grant the relief set forth in the prayer for relief. COUNT V VIOLATION OF ILLINOIS RELIGIOUS FREEDOM RESTORATION ACT (775 ILCS 35/15) 104.

The allegations contained in all preceding paragraphs are incorporated here

by reference. 105.

Section 15 of the Illinois Religious Freedom Restoration Act of 1998, 775 ILCS

35/15 provides that: Free exercise of religion protected. Governments may not substantially burden a person’s free exercise of religion, even if the burden results from a rule of general applicability, unless it demonstrates that application of the burden to the person (i) is in furtherance of a compelling governmental interest and (ii) is the least restrictive means of furthering that compelling governmental interest.

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106.

As set forth above, the City has substantially burdened the Church’s free

exercise of religion and will be unable to bear the burden of proving that the substantial burden is justified by a compelling governmental interest and the least restrictive means of furthering that compelling governmental interest. WHEREFORE, the Church respectfully prays that the Court grant the relief set forth in the prayer for relief. COUNT VI ARBITRARY AND CAPRICIOUS 107.

The allegations contained in all preceding paragraphs are incorporated here

by reference. 108.

The City’s Code and zoning decisions concerning the Church’s ability to

continue using the Property as a church were arbitrary and capricious and unrelated to the public health, safety and morals in violation of the Illinois Constitution. WHEREFORE, the Church respectfully prays that the Court grant the relief set forth in the prayer for relief. COUNT VII A VIOLATION OF THE CHURCH’S RIGHTS UNDER FREE EXERCISE CLAUSE OF THE FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION 109. The allegations contained in all preceding paragraphs are incorporated here by reference. 110. When government forbids where people may worship it must have a strong and overriding reason for doing so. See Church of Lukumi Babalu Aye v. Town of 25

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Hialeah, 508 U.S. 520, 531-532 (1993). And “when a zoning law infringes upon a protected liberty, it must be narrowly drawn and must further a sufficiently substantial government interest.” Schad v. Borough of Mount Ephraim, 452 U.S. 61, 68 (1981). 111. The City’s Code regulation of assembly uses is not neutral with respect to religion but singles out religious assemblies, specifically Christian religious assemblies, for disparate treatment and is subject to strict scrutiny. 112. Markham has infringed on the Church’s hybrid rights of free exercise, freedom of assembly, freedom of association, and freedom of speech. See Church of the Lukumi Babalu Aye, Inc. v. Town of Hialeah, 508 U.S. 520 (1993). 113. Markham’s Code through its conditional use permit process allows its officials to make “individualized assessments,” within the meaning of Employment Div. v. Smith, 494 U.S. 872, 884 (1990) and Church of Lukumi Babalu Aye v. Town of Hialeah, 508 U.S. 520, 537 (1993), of the proposed uses of property within the City, including the Church’s property. 114. Markham’s Zoning Code makes content based regulations of expressive assembly that are subject to strict scrutiny under Reed v. Gilbert. 115. Markham’s denial of the Church’s religious exercise, speech, and assembly therefore violates the Church’s rights under the Free Exercise and Free Speech Clauses of the First Amendment to the United States Constitution as incorporated and applied to the states through the Fourteenth Amendment.

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WHEREFORE, the Church respectfully prays that the Court grant the relief set forth in the prayer for relief. PRAYER FOR RELIEF WHEREFORE, the Original Bible Church, respectfully requests relief as follows: A. Declare that the Church may use the Property as a for religious assembly; B. Declare that the City has violated the following provisions of the Religious Land Use & Institutionalized Persons Act, 42 U.S.C. 2000cc(a)(1), (b)(1) and (b)(3); C. Declare that the City violated the Church’s rights under the Illinois Religious Freedom Restoration Act, 775 ILCS 35/15; D. Declare that the City’s denial of the Church’s conditional use application was arbitrary and capricious; E. Declare that the City has violated the Church’s rights under the First Amendment to the United States Constitution; F. Enjoin the City, its officers, agents, employees, attorneys and all other persons acting in active concert with it, from enforcing its Code, both facially and as applied to the Church, and from preventing or attempting to prevent the Church from using the Property as a church; G. Award damages for violation of the Church’s constitutional and statutory rights and for the injuries and unlawful burdens it has incurred;

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H. Award the Church its costs and expenses of this action, including reasonable attorneyâ&#x20AC;&#x2122;s fees, pursuant to 42 U.S.C. 1988, and other applicable law; I. Grant such other relief as this Court deems appropriate. Respectfully submitted this 13th day of December, 2016. ORIGINAL BIBLE CHURCH OF ILLINOIS By: _/s/ Noel W. Sterett__ One of their Attorneys John W. Mauck, Esq. Noel W. Sterett, Esq. Mauck & Baker, LLC One N. LaSalle St., Suite 600 Chicago, Illinois 60602 Telephone: 312-726-1243 Facsimile: 866-619-8661 jmauck@mauckbaker.com nsterett@mauckbaker.com Counsel for Plaintiff