Cohen v. City of Des Plaines
| Decision Date | 29 June 1990 |
| Docket Number | No. 87 C 9314.,87 C 9314. |
| Citation | 742 F. Supp. 458 |
| Parties | Harriet COHEN, Plaintiff, v. CITY OF DES PLAINES, et al., Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
John M. Duffy and Forest J. Miles, McCarthy, Duffy, Neidhart & Snakaro, Chicago, Ill., for plaintiff.
Richard T. Wimmer and Patrick A. Lucansky, Klein, Thorpe and Jenkins, Ltd., Chicago, Ill., for defendants.
Harriet Cohen ("Cohen") has sued the City of Des Plaines and numerous City officials (collectively "City") under 42 U.S.C. § 1983 ("Section 1983"), claiming that City's rejection of her application for a special use permit to operate a day care center in a neighborhood otherwise zoned for single-family residential use violated her rights under the First1 and Fourteenth Amendments to the United States Constitution. Cohen also advances a pendent claim under Art. I, § 2 of the Illinois Constitution.2 For the reasons stated in this memorandum opinion and order, Cohen's Fed.R. Civ.P. ("Rule") 56 motion for summary judgment as to liability is granted,3 while City's cross-motion is of course denied.
Cohen owns property at 1495 Prospect Avenue, Des Plaines (the "Property"), on which an old church stands. Under City's Zoning Ordinance of 1960 as amended (the "Ordinance"), the Property is located within a district designated "R-2" (single-family residential). Although that designation is primarily used for single-family dwellings, the Ordinance5 also provides in part that property so designated may, without any special permission from City, be used for these uses among others:
In contrast, Ordinance ¶ 3.1.2.16 allows the operation of "Day Care centers" in areas zoned R-2 only if the operator first obtains a special use permit from City and complies with the numerous size, density, signage and safety requirements of Ordinance ¶¶ 3.1.2.16.1 through .15.6
In addition to requiring compliance with the listed operating standards, the Ordinance permits City to consider community and economic needs when deciding whether to grant an application for a special use permit. Ordinance ¶ 8.1.4 says:
As to special use permits allowing day care centers, Ordinance ¶ 3.1.2.16.7 specifically says:
The Zoning Board of Appeals shall consider the density of existing day care facilities in the area. Such density shall be limited to two (2) day care centers per square mile, excluding those facilities existing in a church or temple.
Furthermore, Ordinance ¶ 3.1.2.16.15 says:
The Plan Commission, Zoning Board and City Council may also take into consideration as a factor in reviewing the application the question of whether there is an economic need in the community for a day care center at the site proposed.
Until Cohen purchased it, the Property had been owned by the Church of God and used for religious services — in zoning parlance a "conforming use." Architecturally, the parties agree the building on the Property, although in some disrepair, still looks unmistakably like a church. Pastor Robinson of the Church of God testified before the Board of Zoning Appeals (Complaint Ex. D at 5) that child care services had not been provided in his church in the 10-12 years it had occupied the Property.
Cohen has no desire to operate a church on the Property. Instead she is in the business of owning and operating day care centers7 and would like to use the Property to open another.
To that end, on April 13, 19878 Cohen filed with City an application for a special use permit to operate a day care center on the Property. That application was first considered by the Des Plaines Plan Commission (the "Commission").9 After voting two in favor and two against, on June 8 the Commission recommended to the Mayor, City Council and Zoning Board of Appeals that Cohen's application be denied. In its letter of recommendation (or, in this case, of nonrecommendation), the Commission noted community opposition to the Cohen proposal:
Five objectors spoke mainly objecting to traffic and over-abundance of day-care centers in the area. A petition in objection signed by 91 people was submitted also citing traffic and noise and too many facilities of this type nearby.
From there Cohen's application went to the Zoning Board of Appeals10, which held a public hearing on the matter on June 9. Cohen's architect Dan McGrath ("McGrath") testified that Cohen, in order to come into compliance with the Ordinance's playlot area per child restriction, had reduced the number of children proposed to be accommodated to 38 from the 86 that had initially been proposed to the Plan Commission. Still, McGrath expressed his belief that Cohen's proposal would require a relaxation of the Ordinance provisions in at least two respects:
At the June 9 hearing about 16 people raised their hands to indicate they objected to Cohen's plan, and five local residents spoke of their specific objections. In addition, a petition was presented to the Board bearing the signatures of 154 people opposed to Cohen's proposal. Of those who spoke, some expressed fears that the proposed day care center would cause traffic problems and strain the neighborhood's supply of on-street parking. Others said there were already too many day care centers nearby and there was no need for more. Still others worried that Cohen would be unable to turn a profit with only 38 children — particularly in light of the great expense that would be required to renovate the dilapidated church and comply with stringent state health and safety regulations — and that she might be tempted in the future to exceed the Ordinance's limit to make ends meet (knowing that City has historically done little investigation or enforcement of its regulations). Finally, several said they believed such a commercial use was generally unsuited for a residential neighborhood and might adversely affect property values. After that public comment, the Board voted 6 to 0 to recommend that the Mayor and City Council deny Cohen's request for a special use permit.
On August 24 the City Council's Municipal Development Committee also considered Cohen's special use application and recommended that it be denied by the full Council. In its Report the Committee said:
The members did not feel that this was a good location because all around the property in question is residential use.
Cohen's application first reached the Mayor and City Council in full session on September 8, but the matter was again referred to committee. Finally, on September 21 the Mayor and City Council voted on Cohen's application and denied it unanimously.12
Thus far the facts are uncontested. But the parties are at odds as to how the Ordinance and City's prior record on approval of applications for special use permits has affected the distribution of child care facilities in Des Plaines. Cohen lists seven day care facilities that she claims operate in religiously-affiliated buildings in areas zoned for residential use.13 Four of them are located in R-2 single-family districts, one is in an R-4 multiple-family district and two are in R-5 multiple-family districts. According to Cohen, each of those facilities charges a fee for the services it provides, advertises in the local yellow pages14 and operates with a license from the state as a "day care center." Cohen further says that at least one, Kiddie Junction Day Care I, is commercially operated by a "for profit corporation" and that none of the seven was required to obtain a special use permit.15
City's dispute on that score is basically semantic. While City does not challenge Cohen's assertion that all those facilities operate in the zoning districts Cohen describes, it insists that none is a "day care center" under Ordinance ¶ 1.2.17:
A specifically designed, reconstructed or remodeled structure other than a single-family residence simultaneously occupied by a single family, and licensed by the State of Illinois, providing day care services for compensation for more than eight (8) children during the day.16
City instead calls those facilities operating on church property without special use permits "nursery schools" — a designation that would make each of those facilities a conforming use under the Ordinance ¶ 3.1.2.6 provision allowing "Churches, temples, religious reading rooms, rectories and parish houses, including nursery schools operated in any of such buildings." In that way City is able to acknowledge the existence of child care providers in church buildings while still insisting (D. 12(m) ¶ 17):
No day care centers are presently operated by any...
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