Daveri Dev. Grp., LLC v. Vill. of Wheeling

• Decision Date: 21 March 2013
• Docket Number: No. 12 C 7419.,12 C 7419.
• Citation: 934 F.Supp.2d 987
• Parties: DAVERI DEVELOPMENT GROUP, LLC, an Illinois limited liability corporation; North/Northwest Suburban Task Force for Individuals With Mental Illness, an Illinois not-for-profit corporation; Lynn Cripe; and David Ellerman, Plaintiffs, v. VILLAGE OF WHEELING, Defendant.
• Court: U.S. District Court — Northern District of Illinois

934 F.Supp.2d 987

DAVERI DEVELOPMENT GROUP, LLC, an Illinois limited liability corporation; North/Northwest Suburban Task Force for Individuals With Mental Illness, an Illinois not-for-profit corporation; Lynn Cripe; and David Ellerman, Plaintiffs,

v.VILLAGE OF WHEELING, Defendant.

No. 12 C 7419.

United States District Court,

N.D. Illinois,

Eastern Division.

March 21, 2013.

Jeffrey Bensley Gilbert, Phillip Hallett Snelling, Johnson, Jones, Snelling & Gilbert, Chicago, IL, for Plaintiffs.

James Vincent Ferolo, Gregory T. Smith, Klein, Thorpe & Jenkins, Ltd., Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

JOHN Z. LEE, District Judge.

Plaintiff Daveri Development Group, LLC (“Daveri”) submitted an application to the Defendant Village of Wheeling (“Wheeling”) to obtain zoning approval for an apartment building for individuals with mental disabilities who are capable of living independently. Wheeling denied the application citing zoning concerns. As a result of the denial, Daveri, along with Plaintiffs North/Northwest Suburban Task Force for Individuals with Mental Illness (“Task Force”), Lynn Cripe, and David Ellerman, have sued Wheeling for disability discrimination pursuant to the Fair Housing Amendments Act of 1988 (“FHAA”), 42 U.S.C. § 3604(f)(1)(B), (f)(2)(B), (f)(3)(B) (Count I), the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12132, 28 C.F.R. § 35.130(b)(7) (Count II), the Rehabilitation Act of 1973 (“Rehab Act”), 29 U.S.C. § 794(a) (Count III), and under Illinois law for mandamus (Count IV). Plaintiffs now seek a preliminary injunction ordering Wheeling's Board of Trustees to provide zoning approval for the project and directing Wheeling's zoning administrator to issue a letter confirming the approval for use in Daveri's efforts to obtain financing for the project.

The parties have provided numerous briefs and countless exhibits in support of and in opposition to the motion. In addition, the Court conducted a two-day hearing during which the parties submitted yet more exhibits and testimony from a number of witnesses; after the hearing, they submitted additional briefs and exhibits. After considering all of the submissions, the Court finds that Plaintiffs have demonstrated a sufficient likelihood of success on the merits to satisfy their threshold burden as to this element of the, preliminary injunction test. Under the facts of this case, however, the Court finds that Plaintiffs have failed to establish that they would suffer irreparable harm or that they would lack an adequate remedy at law if an injunction were not to issue at this time. Accordingly, for the reasons set forth herein, Plaintiffs' motion for preliminary injunction is denied.

Facts

This case pits Daveri, which embraces, albeit for profit, the laudable goal of providing permanent supportive housing for the mentally disabled against the Village of Wheeling, which is duty-bound to enforce its Zoning Code in accordance with the law. Daveri, a Chicago-based housing developer, is no stranger to denials by municipalities of its proposals to build housing for disabled individuals as demonstrated by the vociferous opposition it has encountered in other municipalities.

In 2011, Daveri and Task Force, a not-for-profit corporation that seeks housing and services for persons with chronic mental disabilities, began working with the Wheeling Planning Commission to develop permanent supportive housing for mentally disabled adults on Hintz Road in Wheeling (“PhilHaven”). Permanent supportive housing is a residential housing model that links affordable, independent, long-term housing with access to social services.

PhilHaven's proposed site on Hintz Road currently sits vacant because a residential housing development approved by Wheeling in 2006 (“the Hintz Pointe project”) was never constructed. The Hintz Pointe project was equivalent in size to PhilHaven, but was a higher density, multi-family development that was not planned for mentally disabled individuals.

Daveri hired Goodman Williams Group to perform a study (“GWG Study”) that assessed the need for permanent supportive housing such as PhilHaven in Wheeling. Both Plaintiffs and Wheeling offered this study in evidence during the hearing. The GWG Study estimates that there are approximately 992 adults with severe mental disabilities in need of permanent supportive housing within a five-mile radius of the PhilHaven site, and approximately 1,996 adults with severe mental disabilities in need of permanent supportive housing within a five to ten-mile radius of the site. Wheeling has no other permanent supportive housing for the mentally disabled.

In 2012, Daveri entered into a partnership to construct PhilHaven with two not-for-profit mental health service providers, The Kenneth Young Center (“KYC”) and the Alexian Brothers Health System (“Alexian”), neither of which is a party to this lawsuit. KYC and/or Alexian will provide each PhilHaven tenant with a treatment plan and a case worker to assist the tenant in accessing available social services. Plaintiffs Lynn Cripe ¹ and David Ellerman ² are mentally disabled individuals, who wish to apply for an apartment at PhilHaven if and when it is built.

PhilHaven is designed to be an apartment complex, and each of PhilHaven's tenants will have a right of tenancy. On-site supervision and on-site medical care are not necessary because only disabled persons capable of living independently are eligible to live at PhilHaven. Persons with a felony or violent history will be ineligible to live at PhilHaven. If built, PhilHaven will contain fifty dwelling units, including thirty-one one bedroom, thirteen two-bedroom, and six three-bedroom units. PhilHaven would not be tax-exempt and thus would contribute more to the Village's tax rolls than the vacant property that now exists at the proposed PhilHaven location.

The Village of Wheeling receives federal financial assistance and is an Illinois home rule municipal corporation governed by a Board of Trustees that consists of seven elected members including the President. A housing developer seeking to build in Wheeling must first file an application for approval with Wheeling's Planning Commission, which reviews the site plan and all of the plans and uses related to the proposed development. After such review, the Planning Commission approves or denies the petition. If a petition is approved, the Plan Commission recommends action to the Board of Trustees. After it receives the Plan Commission's recommendation, the Board of Trustees then reviews the application and provides a public hearing. The proposal is then put to vote, and a majority of the Board may approve, conditionally approve, or deny the application.

On February 16, 2012, Daveri submitted its first application for approval for the PhilHaven project seeking: (1) site plan approval; (2) a variance to permit Daveri to reduce the number of parking spaces from the required 138 to 56 and to waive the requirement of one covered parking stall for each unit; and (3) a text amendment to establish that a multiple-family dwelling in an R–4 district—the zoning district in which the site is located—may include limited office space for provision of support services. Daveri sought the text amendment not because Daveri believed it was necessary, but because the plan included office space and the Planning Commission required it.

On March 8, April 12, and April 26, 2012, the Planning Commission held public hearings with respect to the first application, after which it recommended that the Board of Trustees approve it. On May 21, 2012, the Board denied the application on the basis that the requested parking variance was too drastic and that PhilHaven's provision of on-site services was not permitted in an R–4 residential district.³

By way of background, Wheeling's Zoning Code designates five residential districts, identified as R–1, R–2, R–3, and R–4. R–1, R–2, and R–3 districts are designated for single-family dwellings. R–4 is the only residential district in which multiple-family dwellings are allowed,⁴ and PhilHaven's proposed site is located in an R–4 district. The R–4 residential district was established to stabilize and conserve existing neighborhoods that predominantly consist of multiple-family dwellings built at moderate to high density. (Joint Ex. A, Zoning Code, Ch. 19.04.060.) The term “multiple-family dwelling,” in turn, is defined in the Zoning Code as “[a] building containing three (3) or more dwelling units whose residents live independently of one another.” ( Id. Ch. 19–01.) “Dwelling unit” is defined as “a structure or portion thereof designed and built as a complete, self-sufficient living facility for one family, including permanent provisions for sleeping,eating, cooking and sanitation” and do not include “[u]nits in a hotel or motel.” ( Id.)

On May 31, 2012, Daveri submitted its second application for approval of an amended site plan for PhilHaven to address the concerns raised by the Board in the prior hearing. Daveri's second application did not request the zoning variance for parking and its amended site plan complied with the existing parking and covered stall requirements. The second application also eliminated the need for a text amendment because the amended site plan did not include any office space within the facility. The Planning Commission unanimously recommended approval of the project as amended. Nonetheless, on July 16, 2012, the Board once again voted against the PhilHaven project.

The Board denied Daveri's second application because the Board believed that PhilHaven would be a facility that would provide social services and, thus, constituted a “social service facility,” which is not permitted in an R–4 district. A “social service facility” is defined by Wheeling's Zoning Code as a

facility operated by an organization which provides services such as training, counseling, health or the distribution of...