United States District Court, Northern District of Illinois, Eastern Division
March 14, 2002
B. MICHAEL SCHNEIDER AND JANINE L. BALLY, PLAINTIFFS,
COUNTY OF WILL, STATE OF ILLINOIS, WILL COUNTY BOARD MEMBERS RICHARD BRANDOLINO, RICHARD BUDDE, WILLIAM BRUIN, W. LEE DEUTSCHE, MARY ANN GEARHART, JAMES MOUSTIS, GLENN WARNING, ANN DRALLE, SUSAN RILEY, MARIANNE KOZLIK, TERN WINTERMUTE, JAMES BLACKBURN, KAREN CALLANAN, JOHN GERL, JAMES GALE, KERRY WEST PAGE 1083 SHERIDAN, STEPHEN WILHELMI, KATHLEEN KONICKI, LAWRENCE TROUTMAN, SUZI WIBERG, HENRY TRAVIS AND JOSEPH MIKAN, IN THEIR OFFICIAL CAPACITIES AS MEMBERS OF THE WILL COUNTY BOARD, DEFENDANTS.
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 FHA definition of
"dwelling" because there were no plaintiffs who intended to reside in the
The proposed bed and breakfast does not fit within the FHA definition
of "dwelling." First, it is highly unlikely that any customers of the bed
and breakfast would "intend to return," as the migrant workers did in the
Laner Farms case because of the transient nature of a bed and breakfast.
Occupants do not generally stay at bed and breakfasts for months at a
time. Second, bed and breakfasts are akin to hotels in that they are
places of "temporary sojourn or transient visit." Indeed, plaintiffs
allege in their complaint that the denial of the special use permit would
deprive handicapped visitors of "temporary lodging." Because the building
in question does not fall within the FHA definition of "dwelling,"
plaintiffs' FHA claim fails and defendants' motion to dismiss is granted
with respect to Count I.
Count II — Americans with Disabilities Act Claim
Plaintiffs have also invoked the ADA, claiming that the Will County
Board denied their special use permit because their bed and breakfast
plans included two handicapped-accessible rooms. Only one handicapped
accessible room is required by law for this size establishment. See
28 C.F.R. Part 36, App. A, § 9.1.2. Congress overall purpose in enacting
the ADA was to establish a clear and comprehensive national mandate for
the elimination of discrimination against individuals with disabilities."
42 U.S.C. § 12101(b)(1). Title I of the ADA aims to stop employment
discrimination, Title II prohibits discrimination by public entities, and
Title III was enacted to stop discrimination by private entities that
provide public accommodations and services. 42 U.S.C. § 12111, 12132,
12181, et seq. Since plaintiffs allege that the Will County Board, a
public entity, unlawfully discriminated against them, they bring their
claim under Title II.
Title II of the ADA states that, "no qualified individual with a
disability shall, by reason of such disability, be excluded from
participation in or be denied the
benefits of the services, programs, "or activities of a public entity, or
be subjected to discrimination by any such entity." 42 U.S.C. § 12132.
Defendants argue that plaintiffs are too remote from those customers with
whom they claim to be associated because they are potential customers,
rather than specific, qualified individuals with disabilities. Thus,
defendants challenge plaintiffs standing to bring this claim, arguing
that they are attempting to assert the legal rights of others.
Standing refers to the limitations on whether federal courts may and
should hear cases. Article III constitutional standing precludes courts
from adjudicating cases where there is no actual case or controversy.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119
L.Ed.2d 351 (1992). Defendants do not contest plaintiffs' Article III
standing. Even if the court may hear a case, judicially imposed
prudential limitations exist to help courts decide whether they should
exercise jurisdiction. Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct.
3315, 82 L.Ed.2d 556 (1984). These constraints include "the general
prohibition on a litigant's raising another person's legal rights, the
rule barring adjudication of generalized grievances more appropriately
addressed in the representative branches, and the requirement that a
plaintiffs complaint fall within the zone of interests protected by the
law invoked." Id. "Persons to whom Congress has granted a right of
action, either expressly or by clear implication, may have standing to
seek relief on the basis of the legal rights and interests of others."
Warth v. Seldin, 422 U.S. 490, 522, 95 S.Ct. 2197, 45 L.Ed.2d 343
(1975). Therefore, if plaintiffs' ADA claim falls within the zone of
interest that Title II was intended to protect, they have standing to
bring the claim.
Title I of the ADA makes it unlawful for an individual or entity to
"exclude or otherwise deny equal jobs or benefits to a qualified
individual because of the known disability of an individual with whom the
qualified individual is known to have a relationship or association."
12112(b)(4). Similarly, Title III states that "[i]t shall be
discriminatory to exclude or otherwise deny equal goods, services,
facilities, privileges, advantages, accommodations, or other
opportunities to an individual or entity because of the known disability
of an individual with whom the individual or entity is known to have a
relationship or association." 42 U.S.C. § 12182(b)(2). These
sections have come to be known as "association provisions."
Congress did not include an association provision in Title II,
however. Congress instead deferred the task of writing regulations
implementing Title II to the Department of Justice, with instructions
that "[T]itle II should be read to incorporate provisions of Titles I and
III which are not inconsistent with the regulations implementing Section
504 of the Rehabilitation Act of 1973, such as Section 102(b)(4) of the
ADA [codified as 42 U.S.C. § 12112(b)(4), (quoted supra)]." H.R.
Report No. 101-485 (III), 101st Cong., 2nd Sess. 51 (1990), reprinted in
1990 U.S.C.C.A.N. 445, 474. Congressional reference to the exact
regulation in question is proof enough of its intent to include such a
provision. Innovative Health Systems, Inc. v. City of White Plains,
117 F.3d 37, 47-48 (2d Cir. 1997). Indeed, the regulations implementing
Title II's association provision take the language of 42 U.S.C. § 12112
A public entity shall not exclude or otherwise deny
equal services, programs, or activities to an
individual or entity because of the known disability
of an individual with whom the individual or entity is
known to have a relationship or association.
[28 C.F.R. § 35.130(g) (emphasis added).]
Defendants' argument appears to question whether plaintiffs fall within
the meaning of the word "known" as it appears in the regulation. The
first use of "known" in the regulation means that the defendant must know
that there is someone with whom the plaintiff is associated who has a
disability. The second use refers to the extent to which a defendant must
be aware of the association between the plaintiff and the qualified
individual with a disability. With respect to the first use of "known,"
defendants argue that a plaintiff must identify a specific person with a
specific disability in order to satisfy the requirement imposed by the
first use of "known."
In support of this contention, defendants cite Oak Ridge Care Ctr.
Inc. v. Racine County, 896 F. Supp. 867, 872 (E.D.Wis. 1995), where a
drug and alcohol rehabilitation center whose sale of land was allegedly
and unlawfully torpedoed because of its clientele with disabilities was
held to have standing. Defendants attempt to distinguish Oak Ridge from
the instant case because the rehabilitation center had an existing
clientele. Certainly this is a reasonable distinction, but it is not
dispositive of this case. Indeed, trial courts within this Circuit have
held that the regulation also protects the known association between a
proposed business and its targeted customers. Discovery House. Inc. v.
Consolidated City of Indianapolis, 43 F. Supp.2d 997 (N.D.Ind. 1999).
Discovery House held that a proposed drug rehabilitation center may state
a claim of discrimination under Title II's association provision even
though a significant portion of the potential customers would not be
qualified individuals with disabilities under the ADA. Id. at 1002.
Thus, a plaintiff may state a claim under the ADA's association
provisions based on his association with prospective customers with
disabilities in cases where there is a logical relationship between the
proposed business and customers with disabilities.
Defendants fail to cite any authority limiting association provisions
from covering this type of discrimination. The most analogous cases this
court has found barred individuals who alleged that they were
discriminated against because of their advocacy on behalf of individuals
with disabilities. Freilich v. Board of Directors of Upper Chesapeake
Health, Inc., 142 F. Supp.2d 679 (D.Md. 2001); Oliveras-Sifre v. Puerto
Rico Dept. of Health, 214 F.3d 23 (1st Cir. 2000). However, Freilich and
Oliveras-Sifre are distinguished from the instant case because the
plaintiffs in those cases were seeking protection under the ADA based on
an alleged "association" with a class of people with disabilities for
whom they were advocating. There was no actual or even proposed
relationship between the plaintiffs-advocates and the intended
beneficiaries of their advocacy. In the instant case, as in Discovery
House, although there was no current relationship or association between
the plaintiffs and the individuals with disabilities that they intended
to serve, there was an intended, prospective, actual commercial
relationship between the plaintiffs and the individuals who they intended
to serve as customers or clients that constituted the alleged motivation
for the discrimination. Put another way, it was the plaintiffs' known,
intended association with individuals with disabilities that formed the
basis of the alleged discriminatory actions by the defendants.
Moreover, the Justice Department's regulations contemplate allowing
association claims in cases such as this. The regulations implementing
Title II of the ADA indicate that the agency intended to extend
protection to a broad range of plaintiffs and associations. The Appendix
to 28 C.F.R. § 35.130 states:
Paragraph (g), which prohibits discrimination on the
basis of an individual's or entity's known
relationship or association with an individual with a
disability, is based on sections 102(b)(4) [codified
at 42 U.S.C. § 12112(b)(4)] and 302(b)(1)(E)
[codified at 42 U.S.C. § 12182] of the ADA. This
paragraph was not contained in the proposed rule. The
individuals covered under this paragraph are any
individuals who are discriminated against because of
their known association with an "individual with a
disability. For example. it would be a violation of
this paragraph for a local government to refuse to
allow a theater company to use a school auditorium on
the grounds that the company had recently performed
for an audience of individuals with HIV disease.
28 C.F.R. § 35.130 app. A at 526 (2001) (emphasis added). The
emphasized portion of the appendix indicates that the regulation was
intended to cover any individual who is discriminated against because he
is associated with individuals with disabilities. The Appendix
This protection is not limited to those who have a
familial relationship with the individual who has a
disability. Congress considered, and rejected,
amendments that would have limited the scope of this
provision to specific associations and relationships.
Therefore, if a public entity refuses admission to a
person with cerebral palsy and his or her companions,
the companions have an independent right of action
under the ADA and this section.
Id. (emphasis added). This paragraph illustrates the intended broad scope
of the regulation, confirming the agency's intent to include nonspecific
associations and relationships such as the association between a planned
business and its potential customers. The final paragraph of the Appendix
that deals with Title II's association provision reiterates that
commercial "entities" are to be covered:
During the legislative process, the term "entity" was
added to section 302(b)(1)(E) [codified at
42 U.S.C. § 12182] to clarify that the scope of
the provision is intended to encompass not only
persons who have a known association with a person
with a disability, but also entities that provide
services to or are otherwise associated with such
individuals. This provision was intended to ensure
that entities such as health care providers, employees
of social service agencies, and others who provide
professional services to persons with disabilities are
not subjected to discrimination because of their
professional association with persons with
Id. at 526-27 (emphasis added). The Technical Manual entry for Title II's
association provision also indicates the Justice Department's intended
broad coverage of the regulation:
A State or local government may not discriminate
against individuals or entities because of their known
relationship or association with persons who have
disabilities. This prohibition applies to cases where
the public entity has knowledge of both the
individual's disability and his or her relationship to
another individual or entity. In addition to familial
relationships, the prohibition covers any type of
association between the individual or entity that is
discriminated against and the individual or
individuals with disabilities, if the discrimination
is actually based on the disability.
ILLUSTRATION 1: A county recreation center may not
refuse admission to a summer camp program to a child
whose brother has HIV disease.
ILLUSTRATION 2: A local government could not refuse to
allow a theater company to use a school auditorium on
the grounds that the company has recently performed at
an HIV hospice.
ILLUSTRATION 3: If a county-owned sports arena refuses
to admit G, an individual with cerebral palsy, as well
as H (his sister) because G has cerebral palsy, the
arena would be illegally discriminating against H on
the basis of her association with G.
TA Manual § II-3.9000 at 7 (1993) (emphasis added). Certainly, the
expected association between a startup business and its potential
customers falls within the broad meaning of the phrase "any type of
Moreover, discrimination because of association in the real world is
not limited to instances where there is a long-lasting relationship
between an individual with a disability and an entity against whom the
government entity discriminates. It is just as unlawful for a local
government to disallow use of a public auditorium to a theater company
because it has booked a performance for individuals with HIV disease as
it would be if the discrimination happened after the performance, as in
Illustration 2 above. TA Manual § II-3.9000 at 7, Illus. 2 (1993).
Indeed, discrimination of the sort alleged here might conceivably be more
damaging to individuals with disabilities than direct discrimination. An
entrepreneurial wheelchair retail outlet that is denied a zoning permit
because of its association with potential customers that are certain to
have disabilities should not be denied a remedy simply because it has yet
to sell any wheelchairs. Its association with individuals with
disabilities is known in the sense that one of its intended and
significant purposes is to accommodate the specific needs of persons with
To rule otherwise would allow public entities with discriminatory
intent to effectively block startup companies that service people with
disabilities from entering the market at all. The chilling effect on
commerce that is associated with persons with disabilities is one of the
very evils that the association provisions of the ADA seek to protect.
Therefore, a proposed entity designed to accommodate the specific needs
of qualified individuals with disabilities shall be given the same
protection under Title II's association provision as an entity that has an
association with specifically identifiable individuals with
Reading the pro se complaint liberally, plaintiffs allege that their
business will be marketed toward customers who have disabilities. They
picked the plot of land for the bed and breakfast because of its proximity
to a veteran's cemetery, which they believe will attract a more than
average number of customers with disabilities. In any event, the proposed
bed and breakfast, for which the special use permit was requested, had
two handicapped-accessible rooms rather than the required one. Since
plaintiffs' proposed entity was designed to accommodate the specific needs
of qualified individuals with disabilities, plaintiffs' association with
their customers is sufficient to confer standing in this case. The court
notes that plaintiffs bear a heavy burden to prove that defendants'
actions were based on unlawful discrimination against individuals with
disabilities, and holds only that the complaint, liberally construed, is
sufficient to withstand a motion to dismiss under Fed.R.Civ.P. 12(b)(6)
on the issue of standing.
Even when a plaintiff has standing to bring a claim, he must allege the
unlawful conduct properly and completely. Plaintiffs wishing to invoke
Title II's association provision must allege that: (1) a logical and
significant association with an individual with disabilities; (2) that a
public entity knew of that association; (3) that the public entity
them because of that association; and (4) they suffered a direct injury
as a result of the discrimination. 28 C.F.R. § 35.130. This court
will follow its sister court in the Eastern District of Wisconsin with
respect to the first requirement, holding that zoning decisions by local
governments are "activities" performed by public entities. See Oak
Ridge, 896 F. Supp. at 873. Thus, the first requirement has been met.
Second, the instant plaintiffs sufficiently allege that the Will County
Board knew of their plans to provide special accommodations for customers
with disabilities, thus satisfying the requirement that the public entity
knew of the association, and that they were discriminated against because
of that association. Finally, plaintiffs have alleged that their business
plans have been disrupted as a direct result of the Will County Board's
discrimination., satisfying the requirement that plaintiffs themselves
suffer injury as a result of the public entity's discrimination.
Therefore, because plaintiffs have satisfied each of the necessary
elements of a prima facie case under the association provision of Title
II of the ADA, defendants' motion to dismiss with respect to plaintiffs'
ADA claim is denied.
Due Process Claims
Plaintiffs allege that the Will County Board violated the due process
clause of the Fourteenth Amendment in denying them a special use permit,
denying them full use of their land and failing to rule on their
remodeling permit. These claims fail because they are not yet ripe for
In addition to standing, several other jurisdictional requirements
exist in order to weed out improper claims. One such requirement,
designed to filter out cases that are not yet ready for adjudication, is
called "ripeness." See Williamson County v. Hamilton Bank, 473 U.S. 172,
188-89, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). Williamson set forth
special ripeness requirements with which courts are to consider
substantive due process allegations. Forseth v. Village of Sussex,
199 F.3d 363, 372 (7th Cir. 2000). In order to for a substantive due
process claim relating to a municipality's zoning decision to be ripe, the
plaintiff must satisfy two requirements: (1) the "Final Decision
Requirement" mandates that the plaintiff demonstrate that he or she
received a final decision from the relevant government entity; and (2)
the "Exhaustion Requirement" requires that the plaintiff must have sought
redress through state procedures before resorting to a due process claim
under the United States Constitution. Id.
Fulfilling the exhaustion requirement is more procedure-intensive than
the final decision requirement. The Illinois Counties Code provides that
the decisions of the county board are subject to judicial review under
Illinois' Administrative Review Law. 55 ILCS 5/1-6007. The Illinois
Administrative Review Law confers jurisdiction for review of
administrative decisions in the circuit courts of Illinois. 735 ILCS
5/3-104. However, for a decision to be considered by the circuit courts,
the complaining party must have explored all possible administrative
rehearing and review possibilities. Id.; see County of Knox v.
Highlands, L.L.C., 188 Ill.2d 546, 551, 243 Ill. Dec. 224, 723 N.E.2d 256,
260 (1999). Plaintiffs must have exhausted these appellate procedures
before bringing their due process case in federal court. Forseth, 199
F.3d at 372.
Plaintiffs here allege that their rights have been violated with
respect to both the remodeling permit and the special use permit.
Plaintiffs have not received word from the county on their remodeling
permit, and have correctly filed for a declaratory judgment in the Circuit
Court of Will County asking that the remodeling permit be issued. Thus,
with respect to the
remodeling permit, plaintiffs have not fulfilled either of the necessary
requirements for this court to consider the constitutionality defendant's
denial of that permit. Accordingly, this court does not have jurisdiction
to consider plaintiffs due process claim with respect to the remodeling
permit until plaintiffs exhaust their state court remedies.
In order for this court to hear plaintiffs' allegations with respect to
the denial of their special use permit application, they must also have
satisfied both the final decision and exhaustion of remedies
requirements. The Will County Board was the correct government agency to
consider whether to issue the special use permit, and the denial of the
permit was final, thus fulfilling the final decision requirement.
However, plaintiffs have not filed suit in Illinois state court, and
therefore have not satisfied the exhaustion requirement.
Plaintiffs also allege that their rights under the equal protection
clause of the Constitution were violated. Generally, to state a claim for
violation of the equal protection clause of the 14th Amendment, the
plaintiff must allege membership in a protected class that has been
singled out for unequal treatment by the government. City of Cleburne a
Cleburne Living Center, Inc., 473 U.S. 432, 440-41, 105 S.Ct. 3249, 87
L.Ed.2d 313 (1985). The Supreme Court has also recognized a "class of
one" claim, where a claim may be sufficient if the plaintiff alleges that
he has been intentionally treated differently from others similarly
situated and that there is no rational basis for the different
treatment. Village of Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct.
1073, 145 L.Ed.2d 1060 (2000). Additionally, the Seventh Circuit
recognizes that an individual also may state a claim under the equal
protection clause if he can show that state government took an action that
was a spiteful effort to "get" him for reasons wholly unrelated to any
legitimate state objective. Albiero v. City of Kankakee, 246 F.3d 927,
932 (7th Cir. 2001). "To prevail, the plaintiff must demonstrate that the
government is treating unequally those individuals who are prima facie
identical in all relevant respects, and that the cause of the
differential treatment is a totally illegitimate animus toward the
plaintiff by the defendant" Id. (Internal citations omitted.) If the
defendant would have taken the complained-of action anyway, even if it
had not had illegitimate animus, the animus would not condemn the
action. Id. Ill will must be the sole cause of the complained-of action.
A showing of "uneven law enforcement," standing alone, will not suffice.
In the instant case, plaintiffs have not alleged that they were treated
any differently from anyone similarly situated, and therefore 14th
Amendment claim is insufficient.
Finally, plaintiffs complain that the Will County ordinances are more
restrictive than the state laws passed with regard to bed and
breakfasts, and are therefore improper. State law provides that bed and
breakfasts shall have no more than five rooms, whereas Will County
ordinance states that the county maximum number of rooms is four. 50 ILCS
820/2; Will County Ordinance 8.21(c). Plaintiffs point out further the
discrepancy that Illinois law requires that the operator of a bed and
breakfast live "on contiguous property" from the bed and breakfast
establishment, whereas the Will County ordinance mandates that the
operator/owner "shall live on the premises where the bed and breakfast is
active." 50 ILCS 820/2; Will County Ordinance 8.21(f). There are,
however, no improper discrepancies here. The Illinois bed and breakfast
act explicitly allows
the county to regulate bed and breakfasts in unincorporated areas: "The
corporate authorities of any county or municipality shall . . . [p]rovide
for the regulation, safe operation, licensing and inspection of bed and
breakfast establishments." 50 ILCS 820/3(1). In enacting both
ordinances, Will County has done exactly what it was asked to do by the
Illinois legislature according to 50 ILCS 820/3(1). Therefore, this
claim has no merit.
For the reasons set forth above, defendants' motion to dismiss with
respect to plaintiffs' claim under the association provision of the ADA
is denied. Defendants' motion to dismiss all other claims is granted.
Defendants are directed to file an answer to the remaining claim on or
before April 11, 2002. This matter is set for a report on status April
18, 2002, at 9:00 a.m.
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