                             In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 04-2326
STS. CONSTANTINE AND HELEN
  GREEK ORTHODOX CHURCH, INC.,
  and JOHN W. DEMETROPOULOS,
                                             Plaintiffs-Appellants,
                                v.


CITY OF NEW BERLIN and TELESFORE WYSOCKI,
                                            Defendants-Appellees.
                         ____________
            Appeal from the United States District Court
               for the Eastern District of Wisconsin.
             No. 02-C-0630—J.P. Stadtmueller, Judge.
                         ____________
    ARGUED NOVEMBER 2, 2004—DECIDED FEBRUARY 1, 2005
                         ____________


  Before POSNER, MANION, and EVANS, Circuit Judges.
  POSNER, Circuit Judge. This is a suit by a Greek Orthodox
church (we’ll call it the “Church”) against a small town in
Wisconsin (officially a “City”) named New Berlin. There are
additional parties on both sides, but there is no need
to discuss them. The district court granted summary
judgment for the defendants.
   The suit is based on subsection (a)(1) of the cumbersomely
titled Religious Land Use and Institutionalized Persons Act
2                                                 No. 04-2326

of 2000 (RLUIPA), 42 U.S.C. § 2000cc. That subsection
forbids a government agency to “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 compel-
ling governmental interest; and (B) is the least restrictive
means of furthering that compelling governmental interest.”
42 U.S.C. § 2000cc(a)(1). The Act was passed in the wake of
the Supreme Court’s decision in City of Boerne v. Flores, 521
U.S. 507 (1997), which invalidated the Religious Freedom
Restoration Act of 1993 (RFRA), insofar as that Act regu-
lated state as well as federal action, on the ground that it
exceeded Congress’s power under the enforcement clause
(section 5) of the Fourteenth Amendment. See also Guam v.
Guerrero, 290 F.3d 1210, 1219 (9th Cir. 2002); compare
O’Bryan v. Bureau of Prisons, 349 F.3d 399, 401 (7th Cir. 2003).
The drafters of RLUIPA sought in 42 U.S.C. § 2000cc(a)(2) to
avoid RFRA’s fate by limiting the scope of the new Act to (1)
state regulations (statutory or administrative) that affect
commerce, (2) programs that receive federal financial
assistance, and (3) programs under which the agency makes
“individualized assessments of the proposed uses for the
property involved.” By these limitations, Congress avoided
having to rely solely on section 5 of the Fourteenth Amend-
ment: Applications (1) and (2) are supported by Congress’s
spending and commerce powers, Madison v. Riter, 355 F.3d
310, 315 (4th Cir. 2003), and (3) codifies Sherbert v. Verner,
374 U.S. 398 (1963). Boerne reaffirmed Sherbert insofar as that
case holds that a state that has a system for granting indi-
vidual exemptions from a general rule must have a compel-
ling reason to deny a religious group an exemption that is
sought on the basis of hardship or, in the language of the
No. 04-2326                                                 3

present Act, of “a substantial burden on . . . religious
exercise.” 521 U.S. at 512-14. Sherbert was an interpretation
of the Constitution, and so the creation of a federal judicial
remedy for conduct contrary to its doctrine is an uncontro-
versial use of section 5.
  We held in Charles v. Verhagen, 348 F.3d 601, 610-11 (7th
Cir. 2003), that RLUIPA is not unconstitutional on its face,
that is, in all possible applications. The Sixth Circuit dis-
agrees, and its case is now in the Supreme Court. Cutter v.
Wilkinson, 349 F.3d 257 (6th Cir. 2003), cert. granted, 125 S.
Ct. 308 (2004). No constitutional issue is raised in this
appeal.
  There is also no serious disagreement about the facts. By
purchases made in 1995 and 1997 the Church acquired a 40-
acre tract in a section of New Berlin zoned residential. It
wanted to build a church on this land that would replace its
existing church in the nearby city of Wauwatosa—a church
that it was outgrowing because its congregation was getting
larger. The tract it bought was bordered on one side by a
Protestant church and on the other side by a parcel of land,
belonging to another Protestant denomination, that the City
had agreed to rezone to allow a church to be built on it.
   In 2002 the Greek Orthodox Church applied to the City for
permission to rezone a 14-acre chunk of its 40-acre property
from residential to institutional so that it could build its
church, which it estimated would cost $12 million. The New
Berlin Planning Department, to which the application was
first referred, expressed concern that should the parcel be
rezoned for institutional use a school or other nonreligious
facility might be built on it, instead of a church, were the
Church unable to raise $12 million and as a result decided
to stay put in Wauwatosa. To allay this concern the Church
modified its application by coupling with the proposal for
4                                                No. 04-2326

rezoning the 14-acre parcel a proposal that New Berlin
promulgate a “planned unit development [PUD] overlay
ordinance” that would limit the parcel to church-related
uses. A specialized form of zoning ordinance, a PUD
“differs from the traditional zoning in that the type, density
and placement of land uses and buildings, instead of being
detailed and confined to specified districts by local legisla-
tion in advance, is determined by contract, or deal, as to
each development between the developer and the municipal
administrative authority, under broad guidelines laid down
by state enabling legislation and an implementing local
ordinance.” Old Tuckaway Associates Ltd. Partnership v. City
of Greenfield, 509 N.W.2d 323, 326 n. 1 (Wis. App. 1993).
  The City’s Director of Planning was satisfied with the
revised proposal and recommended that the Planning
Commission approve it, but the Commission disagreed and
on its recommendation the New Berlin City Council
voted the proposal down, precipitating this suit. Concern
was expressed in the Commission’s deliberations that if
the Church didn’t build a church on the property but
instead sold the land, the purchaser would not be bound
by the PUD. That was wrong. Nothing in the text of the
PUD proposed by the Church, in the provisions of the
New Berlin Municipal Code, or in the general property
law of Wisconsin or elsewhere, suggests that the ordinance
would lapse with the sale of the property. If the PUD said it
was just limiting what the Greek Orthodox Church could
do with the property, then a subsequent purchaser would
not be bound. But since the PUD would restrict the use
of the property, rather than just the conduct of its present
owner, the Church’s successors would be bound.
  It is true that zoning ordinances are not the same as
restrictive covenants that run with the land and so bind
No. 04-2326                                                     5

subsequent purchasers. Crowley v. Knapp, 288 N.W.2d 815,
824 (Wis. 1980); Exchange National Bank v. City of Des Plaines,
336 N.E.2d 8, 13-14 (Ill. App. 1975). A covenant is a contract
and an ordinance isn’t—though a PUD is very close to being
a covenant because, as the passage that we quoted from the
Tuckaway case explains, it is the product of a deal between
a developer and a municipality. No matter; a zoning
ordnance has the same effect as a covenant because, unless
worded to bind only the current owner, it limits the use of
the land by whoever owns it, not just whoever owned it
when the ordinance was enacted. Old Tuckaway Associates
Ltd. Partnership v. City of Greenfield, supra, 509 N.W.2d at 325-
26; Biblia Abierta v. Banks, 129 F.3d 899, 904 (7th Cir. 1997). In
Goldberg v. City of Milwaukee Board of Zoning Appeals, 340
N.W.2d 558, 561 (Wis. App. 1983), the court was explicit that
a zoning variance creates a restriction that runs with the
land, just like a covenant; and there is no relevant difference
between a variance and a PUD.
  New Berlin’s mayor suggested two possible courses
of action that the Church might take. One was to apply for
a conditional use permit, which would allow the building of
the church without altering the zoning of the land. The
problem was that the permit would lapse within a year
unless construction began, New Berlin Municipal Code
§ 275-27(E), and it was infeasible for the Church to move
that fast. If the Church waited to apply for the permit until it
was within a year of starting construction, it would find it
difficult to raise the necessary $12 million, since it could not
assure donors that the church would actually be built. The
statement in the City’s brief that “it would not impose a
substantial burden on the Church to wait to apply for a
[conditional use permit] until it had its funds and plans in
place” is unrealistic. Donors would be making contributions
without any confidence that the contributions could be used
6                                                 No. 04-2326

for their intended purpose.
  The City argues that the one-year deadline could be
extended. Not true: “No extension shall be made to a
conditional use permit.” Id. The repeated legal errors by
the City’s officials casts doubt on their good faith.
  The other alternative suggested by the mayor was that the
Church apply for a PUD that would overlie not an institu-
tional rezoning but instead the existing residential zoning,
so that if the Church sold the parcel rather than building a
church on it, and if the City were correct that such a sale
would void the PUD, the buyer could not make an institu-
tional use of the property because the property would revert
to being zoned residential. The Church declined to follow
this route too. It seemed obvious that the mayor, unless
deeply confused about the law, was playing a delaying
game. The PUD proposed by the Church would have had
the same effect as the one proposed by the mayor, namely
preventing a nonreligious institutional use of the property
by either the Church or its successors.
   To prevail in this suit, however, the Church has to show
first of all that the denial of its application for the rezoning
with the PUD overlay has imposed a “substantial burden”
on the Church. The district judge inferred from language
in our CLUB decision (Civil Liberties for Urban Believers v.
City of Chicago, 342 F.3d 752 (7th Cir. 2003)) that to satisfy
this requirement the Church would have to show that there
was no other parcel of land on which it could build its
church. But in CLUB the plaintiff churches were challenging
Chicago’s zoning ordinance, which—unlike New
Berlin’s—allows churches to build in areas zoned residen-
tial, though it requires them to obtain a permit to build
in areas zoned commercial. The requirement of seeking a
permit, given that churches don’t need one to build in a
No. 04-2326                                                 7

residential zone, seemed to the panel majority in CLUB not
to place a substantial burden on the churches. Id. at 761-62.
The Church in our case doesn’t argue that having to apply
for what amounts to a zoning variance to be allowed to
build in a residential area is a substantial burden. It com-
plains instead about having either to sell the land that it
bought in New Berlin and find a suitable alternative parcel
or be subjected to unreasonable delay by having to restart
the permit process to satisfy the Planning Commission
about a contingency for which the Church has already
provided complete satisfaction.
   No doubt secular applicants for zoning variances often
run into similar difficulties with zoning boards that, lacking
legal sophistication and unwilling to take legal advice, may
end up fearing legal chimeras. On that basis the City,
flaunting as it were its own incompetence, suggests that the
Church can’t complain about being treated badly so long as
it is treated no worse than other applicants for zoning
variances. But that is a misreading of RLUIPA. A separate
provision of the Act forbids government to “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); see also id., § 2000cc(b)(2). The “substantial
burden” provision under which this suit was brought must
thus mean something different from “greater burden than
imposed on secular institutions.”
  But if this provision is interpreted to place religious
institutions in too favorable a position in relation to other
land users, there is a danger that it will run afoul of the
clause of the First Amendment that forbids Congress (and,
by interpretation of the Fourteenth Amendment, state
and local governments as well) to establish a church.
8                                                   No. 04-2326

Westchester Day School v. Village of Mamaroneck, 386 F.3d 183,
189-90 (2d Cir. 2004). But that is not argued; and if it were
argued a counterargument would be the vulnerability of
religious institutions—especially those that are not affiliated
with the mainstream Protestant sects or the Roman Catholic
Church—to subtle forms of discrimination when, as in the
case of the grant or denial of zoning variances, a state
delegates essentially standardless discretion to
nonprofessionals operating without procedural safeguards.
Civil Liberties for Urban Believers v. City of Chicago, supra, 342
F.3d at 764; American Jewish Congress v. City of Beverly Hills,
90 F.3d 379, 383-86 (9th Cir. 1996) (en banc); see also Employ-
ment Division v. Smith, 494 U.S. 872, 884 (1990); Akers v.
McGinnis, 352 F.3d 1030, 1041-42 (6th Cir. 2003).
  On this construal, the “substantial burden” provision
backstops the explicit prohibition of religious discrimination
in the later section of the Act, much as the disparate-impact
theory of employment discrimination backstops the prohibi-
tion of intentional discrimination. Watson v. Fort Worth Bank
& Trust, 487 U.S. 977, 990-91 (1988); Finnegan v. Trans World
Airlines, Inc., 967 F.2d 1161, 1164 (7th Cir. 1992); In re
Employment Discrimination Litigation Against State of
Alabama, 198 F.3d 1305, 1321 (11th Cir. 1999). If a land-use
decision, in this case the denial of a zoning variance,
imposes a substantial burden on religious exercise (the
statute defines “religious exercise” to include the “use,
building, or conversion of real property for the purpose of
religious exercise,” 42 U.S.C. § 2000cc-5(7)(B)), and the
decision maker cannot justify it, the inference arises that
hostility to religion, or more likely to a particular sect,
influenced the decision.
  The burden here was substantial. The Church could
have searched around for other parcels of land (though a lot
No. 04-2326                                                   9

more effort would have been involved in such a search than,
as the City would have it, calling up some real estate
agents), or it could have continued filing applications with
the City, but in either case there would have been delay,
uncertainty, and expense. That the burden would not be
insuperable would not make it insubstantial. The plaintiff in
the Sherbert case, whose religion forbade her to work on
Saturdays, could have found a job that didn’t require her to
work then had she kept looking rather than giving up after
her third application for Saturday-less work was turned
down. But the Supreme Court held that the fact that a longer
search would probably have turned up something didn’t
make the denial of unemployment benefits to her an
insubstantial burden on the exercise of her religion. 374 U.S.
at 399 n. 2; see also Thomas v. Review Board of Indiana Employ-
ment Security Division, 450 U.S. 707, 718 (1981); Islamic Center
of Mississippi, Inc. v. City of Starkville, 840 F.2d 293, 298-
99 (5th Cir. 1988); compare Midrash Sephardi, Inc. v. Town of
Surfside, 366 F.3d 1214, 1228 (11th Cir. 2004).
  So the City was not entitled to summary judgment.
Ordinarily the sequel to our ruling would be a trial. But as
we said earlier, the facts are not in dispute. The only
possible uncertainty is legal; and we acknowledge the
possibility that some subtlety of the Wisconsin law of
property has eluded us and that there is some danger after
all that the 14-acre parcel may somehow end up with a
school or hospital on it rather than a church. But since
the Church is perfectly willing to bind itself by whatever
means are necessary not to sell the land for a nonreligious
institutional use, and the City has expressed no other
concern about the use of the land, the only question is
whether the Church’s proposal may contain some loop-
hole that might permit (though doubtless with low probabil-
ity) the eventual putting of the property to a nonreligious
10                                                 No. 04-2326

institutional use. The closing of the loophole, if there is a
loophole, does not require a trial in the district court or a
further administrative proceeding of uncertain duration
and, given the whiff of bad faith arising from the Planning
Commission’s rejection of a solution that would have
eliminated the City’s only legitimate concern, an uncertain
outcome as well. All that is required is that we reverse, and
instruct the district court to grant the relief requested by the
plaintiffs but to stay its order for 90 days to give the City a
chance to negotiate with the Church such arrangements as
may be necessary to eliminate any possibility that the land
might be put to a nonreligious institutional use without the
City’s consent. For example, if the City wants to substitute
the mayor’s second suggested alternative—the PUD ordi-
nance overlaid on residential rather than institutional
zoning—we assume that the Church would have no objec-
tion, at least no reasonable one, provided this is done
promptly. Another alternative might be to make the institu-
tional zoning with PUD overlay (the Church’s proposal)
conditional on the construction of a church on the property.
We are sure that with the district judge’s help the parties
can work out a deal that will lift a substantial burden from
the Church’s shoulders without impairing any legitimate
interest of the City.
                 REVERSED AND REMANDED, WITH DIRECTIONS.
A true Copy:
        Teste:

                            _____________________________
                             Clerk of the United States Court of
                               Appeals for the Seventh Circuit

                      USCA-02-C-0072—2-1-05
