The opinion of the court was delivered by: Gettleman, District Judge.
MEMORANDUM OPINION AND ORDER
This four count complaint was filed pro se, by B. Michael Schneider
("Schneider") and Janine L. Bally ("Bally") against Will County, Illinois
and twenty-three members of the Will County Board in their official
capacities. The complaint alleges that, in denying plaintiffs a special
use permit and failing to rule on their remodeling permit for the
creation of a bed and breakfast near a veteran's cemetery, the defendants
have violated the Fair Housing Act of 1989, 42 U.S.C. § 3604, et
seq. (FHA) and the Americans with Disabilities Act, 42 U.S.C. § 12131,
et seq. (ADA), and have denied plaintiffs of their constitutional due
process and equal protection rights. U.S. Const. Amends. 5, 14.
Defendants have filed a motion to dismiss pursuant to Fed.R.Civ.P. 12
(b)(6). For the purposes of the motion, the court accepts the factual
allegations of the complaint as true and draws all reasonable inferences
in favor of the plaintiff See Travel All Over the World, Inc. v. Kingdom
of Saudi Arabia, 73 F.3d 1423, 1428 (7th Cir. 1996). The facts alleged by
plaintiffs are set forth below.
On March 17, 1999, Bally purchased the property at 1200 Old New Lenox
Road, in Joliet, Illinois out of foreclosure from the Veterans
Administration, in anticipation of building and operating a bed and
breakfast there. When the property was purchased, on it stood a three
bedroom farmhouse zoned R-4 residential, and a detached barn, zoned A-2
Plaintiff Schneider is the intended lessee of the land. He planned to
operate the bed and breakfast, paying Bally $1,200 a month in rent, plus
half of the operating profits. Additionally, Schneider and Bally agreed
that Schneider would remodel both structures, which they apparently
needed, because in July 1999, the Will County Building Department deemed
the farmhouse unfit for occupancy. The bed and breakfast was to have two
of its five planned rooms be handicapped-accessible.
Plaintiffs allege that they bought the land relying on an
interpretation of a Will County ordinance, specifically allowing the
operator of a bed and breakfast to live on contiguous property rather than
in the bed and breakfast itself, and allowing for a maximum of five
bedrooms in the bed and breakfast. This interpretation was later
"reversed" by apparently another official interpretation of the same
ordinance, requiring that an operator live on the bed and breakfast
premises. In any event, in July 1999, plaintiffs filed for a
rehabilitation permit and a special use permit, which are the subject of
this litigation. The Will County Building Department refused to complete
the processing of plaintiffs' remodeling permit application in August
1999, and as far as this court is aware, it has yet to be processed.
Plaintiffs have sought an injunction in Illinois Circuit
Court to compel issuance of the remodeling permit.
On August 3, 1999, Schneider appeared before the Will County Planning
and Zoning Commission at a public factfinding hearing on plaintiffs'
application for a special use permit. Schneider provided the Commission
with an endorsement petition signed by the neighbors adjacent to the
east, as well as those directly across the street. Two neighbors also
appeared that day to offer testimony supporting plaintiffs' application.
However, the Committee chairman allegedly allowed only those in
opposition to speak. Indeed, one County Commissioner attempted to propose
a formal motion in favor of the proposed bed and breakfast with
amendments, but was not allowed to speak, either. Plaintiffs allege that
they were not allowed to cross-examine those who opposed granting the
permit. Plaintiffs also complain that no evidence was presented that
showed or implied a possible detrimental effect on neighboring property
owners. Those in opposition argued that granting the permit for the
proposed bed and breakfast would effect an increase in crime, a decrease
in property values, an increase in taxes and an overall danger to the
community. The members of the Will County Planning and Zoning Commission
voted unanimously to deny the special use permit.
The Will County Land Use Committee conducted a hearing to review the
factual findings from the August 3, 1999, hearing. The committee found no
error. The Committee's determination was based on the opinions of an
attorney apparently hired by neighbors who opposed plaintiffs' bed and
breakfast. Plaintiffs complain that the attorney's findings were not
based on fact, but on the concerns of "panicked neighborhood residents."
Plaintiffs appealed the committee's findings by filing an allegedly
timely notice of appeal with the Will County Clerk on October 21, 1999.
The Will County Board considered the appeal one hour later and
unanimously voted to deny the permit. Plaintiffs allege that because the
appeal was considered so quickly they did not have time to put together
their case. Their argument to the Will County Board would have included
outlining the benefits that two handicapped-accessible rooms would have
conferred to persons with disabilities. In their last attempt to appeal
the denial of the special use permit, plaintiffs sent a certified letter
to the Chair-woman of the Land Use Committee requesting that she schedule
a hearing of the appeal before the Land Use Committee or the Will County
Board, but have never received a response.
Count I — Fair Housing Act
Plaintiffs first claim that they are entitled to relief under the Fair
Housing Act ("FHA"), 42 U.S.C. § 3604, et seq., alleging that the
denial of their application for a special use permit was "invidious on
the rights of the handicapped and disabled to obtain alternative
temporary lodging in a bed and breakfast establishment." The FHA makes it
[t]o discriminate against any person in the terms,
conditions, or privileges of sale or rental of a
dwelling, or in the provision of services or
facilities in connection with such dwelling, because
of a handicap of — (A) that person; or (B) a
person intending to reside in that dwelling after it
is sold, rented or made available; or (C) any person
associated with that person.
42 U.S.C. § 3604(f)(2)(A) through (C). Defendants correctly point
out that, to receive protection from this section of the FHA, plaintiffs
proposed bed and breakfast must fall within the statutory definition of
"dwelling." 42 U.S.C. § 3602 (b) provides that:
"Dwelling" means any building, structure, or portion
thereof which is occupied as, or designed or intended
for occupancy as a residence by one or more families,
and any vacant land which is offered for sale or lease
for the construction or location thereon of any such
building, structure, or portion thereof.
In the instant case, plaintiffs planned to have a two-building bed and
breakfast. Their farmhouse was to be used as a residence for Schneider,
and the barn was to be used as the customer portion of the bed and
Defendants correctly contend that because the configuration of
plaintiffs' proposed bed and breakfast does not qualify as a "dwelling,"
even if there was a discriminatory purpose in denying the permit the
structure does not fall within the FHA. Whether a building is a
"dwelling" depends on the length a person stays at a residence, and
whether that person intends to return to the home. Lauer Farms, Inc. v.
Waushara Cty. Bd. of Adjustment, 986 F. Supp. 544, 559 (E.D.Wis. 1997).
Lauer found housing for migrant workers within the definition of
"dwelling" because the workers lived in the housing for four to five
months at a time, and because this housing was the type that they would
"return to" every night.
The often-cited Patel v. Holley House Motels, 483 F. Supp. 374
(S.D.Ala. 1979), considered whether a hotel fell within the definition of
dwelling. It defined "dwelling" as a "temporary or permanent dwelling
place, abode or habitation to which one intends to return, as
distinguished from a place of temporary sojourn or transient visit." Id.
at 381. Patel found that a hotel was not within the ...