An Athletic Field Seen From Directly Overhead, The Curve of the Orange Cinder Track In The Lower Left Corner And The Green Of The Football Field In The Upper Right Corner, Four Sprinters, Tiny As Ants, Standing Near the Starting Line

April 1, 2024 – A Catholic high school failed to show that a city discriminated against it by denying a request to install lights at an athletic field, the U.S. Court of Appeals for the Seventh Circuit has held in Edgewood High School of the Sacred Heart v. City of Madison, No. 23-1175 (March 15, 2024).

In 2013, the City of Madison (City) enacted a zoning ordinance that designated major school and medical campuses as campus institutional districts (CID).

Under the ordinance, any institution with a campus zoned as a CID could propose a campus master plan detailing long-term land use and development for the campus.

If the City’s plan commission and common council approved the CID master plan, any building projects covered by the plan would be, for ten years, exempt from having to seek a conditional use permit (CUP) and would not require a public hearing.

Master Plan Proposal

In 2014, Edgewood High School (Edgewood), submitted a detailed master plan under the CID ordinance. Edgewood is a private Roman Catholic high school located between two residential neighborhoods on Madison’s near west side.

Jeff M. Brown
Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.

Edgewood’s proposed master plan specified that Edgewood would use its athletic field for “team practices [and] physical education classes.”

In 2017, Edgewood told the City that it planned to install lights at the athletic field. The field has never had lights, and Edgewood teams have always played their home night games at other fields in Madison.

Edgewood proposed amending the master plan to include the lights but pulled the proposal after concluding that the common council would likely vote down the amendment.

CUP Application

Edgewood then applied for a stand-alone light permit under the City’s general lighting ordinance. The city denied the application.

The city attorney reasoned that if Edgewood were allowed to install the lights, it would violate the city’s zoning ordinance because the lights would violate “other [applicable] codes and regulations” – namely, Edgewood’s master plan, which made no mention of lights at the athletic field.

The City later issued Edgewood notices of violations for holding games on its athletic field, because the master plan only mentioned practices and physical education classes being held on the field.

The violations included no fines, but Edgewood appealed them to the City’s zoning appeals board.

The board upheld the notices but told Edgewood that the City would take no additional action on the matter without notifying Edgewood, and Edgewood continued to play daytime games on the field.

Repeal Request

Edgewood then asked the City to repeal its master plan.

The move came at the City’s suggestion after officials told Edgewood that: 1) institutions with CID master plans were subject to default rights-of-use for outdoor athletic fields, which included the right to host games; and 2) repeal of the CID master plan would allow Edgewood to comply with the stand-alone lighting ordinance.

However, before the repeal of Edgewood’s CID master plan was approved, the City in October 2019 amended the CID ordinance to require any institution without a master plan to obtain a CUP for a change to a right-of-use that occurred outside an enclosed building.

In March 2020, Edgewood applied for CUP for lights at the athletic field. The plan commission denied the request, citing: 1) the negative impact on the use, value, and enjoyment of neighboring properties; and 2) the lack of mitigating measures in Edgewood’s application.

The common council affirmed the planning commission’s decision.

Federal Lawsuit

Edgewood sued the City in February 2021 in the U.S. District Court for the Western District of Wisconsin.

Edgewood claimed that the City had selectively applied the CID zoning ordinance in violation of the Religious Land Use and Institutionalized Person’s Act (RLUIPA), 42 U.S.C. section 2000cc et seq.

RLUIPA prohibits the government from imposing a land use regulation on a religious institution on less than equal terms with a non-religious institution.

The district court granted summary judgment for the City. Edgewood appealed.

No Violation for Day Games

On appeal, Edgewood argued that the City had violated RLUIPA by: 1) banning games on its athletic field; and 2) denying the CUP application for lights at the athletic field.

Judge Michael Scudder, writing for the three-judge panel, noted that Edgewood’s lawyer admitted during oral argument that Edgewood continues to host day games at athletic field.

Scudder reasoned that perhaps Edgewood was arguing that the notices of violations for day games risked losing day games, and that that risk constituted a violation of RLUIPA.

“We do not see it,” Judge Scudder wrote. “All indications are that the City’s past issuance of notices of violation amounted to nothing more than paper warnings.”

No Violation for Night Games

Scudder reasoned that Edgewood’s argument about the denial of the CUP was flawed because Edgewood did not stand in the same shoes as U.W.-Madison and Vel Phillps Memorial School – both Madison institutions with lighting at their athletic fields.

“The district court saw the record as clear (and not materially disputed) on the point that matters most – whether Edgewood was able to identify another master plan institution … that received permission to install lighting,” Judge Scudder wrote.

“Edgewood failed to make this showing, for Memorial and U.W.-Madison were not master plan institutions at the time they sought permission to install lighting at their fields.”

That meant, Scudder concluded, that the district court’s grant of summary judgment to the City was proper because without the comparison to Memorial and U.W.-Madison, Edgewood could not demonstrate to a jury that the City applied the same land use regulation differently to Edgewood than it did U.W.-Madison and Memorial.

No Substantial Burden

Edgewood also argued that the City’s regulations imposed a substantial burden on its religious exercise, in violation of RLUIPA.

But Scudder reasoned that argument failed because not being able to host night games did not substantially burden Edgewood’s Roman Catholic mission.

“Indeed, the high school has never hosted nighttime competitions on its athletic field but has carried out its religious mission all the same for over 100 years,” Judge Scudder wrote.