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COHEN v. CITY OF DES PLAINES

June 29, 1990

HARRIET COHEN, Plaintiff,
v.
CITY OF DES PLAINES, et al., Defendants



The opinion of the court was delivered by: SHADUR

 MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE

 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 First *fn1" and Fourteenth Amendments to the United States Constitution. Cohen also advances a pendent claim under Art. I, § 2 of the Illinois Constitution. *fn2" 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, *fn3" while City's cross-motion is of course denied.

 Facts4

 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 Ordinance *fn5" also provides in part that property so designated may, without any special permission from City, be used for these uses among others:

 
3.1.2.2 Public schools, elementary and high or private schools having a curriculum the same as ordinarily given in a public elementary or high school . . .; colleges, junior colleges, or universities.
 
* * * *
 
3.1.2.6 Churches, temples, religious reading rooms, rectories and parish houses, including nursery schools operated in any of such buildings.
 
* * * *
 
3.1.2.15 Day Care homes, however no signs shall be constructed, erected or placed advertising its use, and operating hours shall be restricted to 7:00 a.m. to 7:00 p.m.

 In contrast, Ordinance para. 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 paras. 3.1.2.16.1 through.15. *fn6"

 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 para. 8.1.4 says:

 
No SPECIAL USES shall be granted by the City Council unless the Special Use:
 
8.1.4.1 Is deemed necessary for the public convenience at that location.
 
8.1.4.2 Is so designed, located and proposed to be operated that the public health, safety and welfare will be protected.
 
8.1.4.3 Will not cause substantial injury to the value of other property in the neighborhood in which it is located.
 
8.1.4.4 Meets that [sic] standards established in this ordinance for the particular Special Use requested.

 As to special use permits allowing day care centers, Ordinance para. 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 para. 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 centers *fn7" and would like to use the Property to open another.

 To that end, on April 13, 1987 *fn8" 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"). *fn9" 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.
 
1. Cohen proposed operations beginning at 6:30 a.m. (it will be remembered that the Ordinance provided for operations only after 7 a.m.).
 
2. McGrath said two other day care facilities were currently in operation within a one-mile radius of the Property, despite Ordinance para. 3.1.2.16.7's limit of two day care centers per square mile. ...

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