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SCHNEIDER v. COUNTY OF WILL

March 14, 2002

B. MICHAEL SCHNEIDER AND JANINE L. BALLY, PLAINTIFFS,
V.
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.

Factual Background

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 agricultural.

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 unlawful:

[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 breakfast.

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 ...


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