The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge
MEMORANDUM OPINION AND ORDER
Family Life Church ("Family Life") charges the City of Elgin ("Elgin") with an array of state and federal statutory and constitutional violations. Family Life sought to operate a homeless shelter in its church in Elgin's city center but ran into zoning ordinances that require a conditional use permit ("Permit")*fn1 to operate a homeless shelter in that area--a Permit that Family Life ultimately obtained. Family Life challenges both the Permit requirement as such and its own perceived delays in having obtained the Permit. Frank Cherrye ("Cherrye"), a homeless individual, brings additional related claims against Elgin.
Elgin moves for summary judgment under Fed. R. Civ. P. ("Rule") 56.*fn2 For the reasons stated in this memorandum opinion and order, Elgin's motion is well taken and the entire action is dismissed.
Summary Judgment Standard
Every Rule 56 movant bears the burden of establishing the absence of any genuine issue of material fact (Celotex Corp. v. Catrett, (477 U.S. 317, 322-23 (1986)). For that purpose courts consider the evidentiary record in the light most favorable to nonmovants and draw all reasonable inferences in their favor (Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002)). But to avoid summary judgment a non-movant "must produce more than a scintilla of evidence to support his position" that a genuine issue of material fact exists (Pugh v. City of Attica, 259 F.3d 619, 625 (7th Cir. 2001)) and "must set forth specific facts that demonstrate a genuine issue of triable fact" (id.). Ultimately summary judgment is warranted only if a reasonable jury could not return a verdict for the non-movant (Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). What follows is a summary of the facts viewed in the light most favorable to Family Life and Cherrye.*fn3
Family Life is a church that has been operating in the same building in Elgin since July 2005 (E. St. ¶4). In August 2005 Family Life invited H.E.L.P.S., A Ministry of Caring ("HELPS"), to operate a homeless ministry (including a shelter) in its church building, and the shelter began operation on October 1, 2005 (E. St. ¶5; FL Add. St. ¶2-3). HELPS provided volunteers knowledgeable in running a homeless shelter, as well as furnishing mattresses and other necessary materials (FL Add. St. ¶7). Neither Family Life nor HELPS initially sought any sort of additional permit to operate the homeless shelter beyond Family Life's existing permit to operate the church (E. St. ¶6; FL Resp. St. ¶6).
In response to a complaint that HELPS was operating a shelter without proper approval, City Code Enforcement Officer Clyde Larson ("Larson") inspected Family Life's building in October 2005 (E. St. ¶11; FL Resp. St. ¶11; FL Add. St. ¶10-11).
Larson cited Family Life with three violations, including (1) lack of a Permit to run a shelter and (2) lack of an occupancy permit for the building (E. St. ¶11; FL Resp. St. ¶11; FL Add. St. ¶10-13).
In May 2006 Elgin's Director of Community Development Jerry Deering ("Deering") saw a newspaper article that reported people were living in Family Life's building, and he directed Code Enforcement Officer Vincent Cuchetto ("Cuchetto") to visit the building (E. St. ¶12). Cuchetto did so on May 13 and reported back to Deering the presence of 30 to 40 mattresses and other signs that the building was being used for housing (E. St. ¶13).
Later in May Deering met with HELPS Director Angelo Valdez and advised him that the shelter was operating without proper zoning approval (E. St. ¶15; FL Resp. St. ¶15). In late July Cuchetto wrote Family Life a letter stating that all building and zoning code issues had to be resolved by September 14 to avoid the issuance of a citation and court action (E. St. ¶16).
On September 5 HELPS submitted an application for a Permit to operate the homeless shelter in Family Life's building (E. St. ¶18). That led to a further inspection of the building on September 22, this time by Cuchetto and Elgin Fire Marshal Richard Dunn (E. St. ¶¶21-22). After that inspection Cuchetto cited Family Life with 105 building, fire and life-safety code violations, including 27 imminent life-safety violations. Those violations were relevant to the use of the building both as a place of public assembly and as a shelter (E. St. ¶23; FL St. ¶23). Within a few days after the inspection Deering met with Family Life's Pastor Robert Whitt and gave him a copy of the inspection report (E. St. ¶24). Elgin insisted that the shelter be shut down until the proper permits were obtained, and shelter operations ceased on October 20 (E. St. ¶¶28-29; FL Add. St. ¶22).
On November 1, 2006 the Elgin Zoning and Subdivision Hearing Board ("Zoning Board") held a public hearing on HELPS' Permit application and recommended that the application be approved by the City Council subject to certain conditions (E. St. ¶30). Elgin's Corporation Counsel then took the application for review before it was to be placed on the City Council's agenda (E. St. 32).
On January 11, 2007, with the Permit application still not on the City Council's agenda, HELPS, Family Life and Cherrye filed the Complaint in this action. Judge Charles Norgle (then acting as this District Court's emergency judge) denied plaintiffs' request for a temporary restraining order against Elgin the next day (E. St. ¶33; FL Resp. St. ¶33).
In early February 2007 two local newspapers reported that HELPS was dropping out of the lawsuit and forgoing its efforts to reopen the homeless shelter (E. St. ¶34). Attorneys for Elgin inquired as to HELPS' intent to proceed with the Permit application, but it was not until almost a month later (on March 1) that HELPS' counsel informed Elgin that it was not withdrawing its Permit application (E. St. ¶35). No inquiry was made as to Family Life's intent to proceed. Over the next couple of months HELPS did take steps to withdraw from the lawsuit, and it formally withdrew on May 9, 2007 (E. St. ¶36). Family Life "took over" HELPS' Permit application when it became clear that HELPS no longer had an interest in pursuing it.*fn4
At the April 25, 2007 City Council meeting the Permit application was discussed and received tentative approval. On May 9 the City Council formally granted a Permit to Family Life with the condition that the building, fire and life-safety violations identified in the September 2006 inspection report be cured before reopening the shelter (E. St. ¶39). During a re-inspection the following day Cuchetto found that 40 of the 105 code violations noted earlier still remained unresolved, including 5 imminent fire and life-safety violations (E. St. ¶40; FL Resp. St. ¶40).*fn5 As of the date of this memorandum opinion and order, no shelter is operating in Family Life's building.
By coincidence, Public Action To Deliver Shelter ("PADS") also had a Permit application to operate a homeless shelter pending during the same time frame, and it also received a positive recommendation from the Zoning Board on November 1, 2006 (E. St. ¶44). PADS' Permit application received tentative approval from the City Council on November 29 and formal approval on December 20, 2006 (E. St. ¶45). PADS is a non-religious notfor-profit organization that has a service agreement with Elgin to provide homeless shelter services and has operated in numerous locations in Elgin for years (E. St. ¶¶42-43). PADS receives funding from Elgin in exchange for abiding by the terms of the service agreement (E. St. ¶49).
One provision of its service agreement permits PADS to take in any homeless person, but anyone who cannot demonstrate a connection to Elgin is permitted to stay at PADS for only three days (E. St. ¶50). Cherrye, a homeless man who had previously stayed at the Family Life shelter, went to PADS for shelter in October 2006 (E. St. ¶52). After three days he was required to leave because he did not sufficiently demonstrate a connection to Elgin (E. St. ¶53).
As an initial matter, Elgin disputes Family Life's standing to sue and the ripeness of its claim. Standing is challenged because the unremedied code violations at Family Life's premises have continued to bar it from reopening the homeless shelter even after its Permit application was granted. Elgin argues that any delay in processing Family Life's Permit application is therefore non-actionable because the shelter could not have opened anyway in the face of the remaining code violations. But that mischaracterizes Family Life's Complaint, which charges in part that it was wrong for Elgin to subject Family Life to the Permit process at all. In addition, Family Life arguably lacked full motivation to fix the code violations until the Permit was granted, so that it could be harmed by a delay in Elgin's processing of its Permit application.
Elgin's second justiciability challenge is that Family Life's claim is not ripe because this lawsuit was brought before the City Council issued a final decision to grant or deny a Permit to Family Life. Because the City Council granted the Permit after this action was filed, that ripeness challenge might well be viewed as moot. But even were that not so, it will be recalled that Family Life claims it was wronged both by being required to obtain a Permit and by the delay in the consideration of its Permit application. Those claims do not require a final decision on the application to have become ripe.*fn6
Applicability of the Permit Requirement Before this opinion moves to specific theories of recovery, Family Life's general contention that Elgin improperly forced it through the Permit process should be addressed.*fn7 Family Life's building is located in the CC2 center city district. Churches are permitted in that district only as conditional uses, as are homeless shelters (classified as "individual and family social services")(Elgin Code §19.35.730(B)(5)). Elgin's City Council has the authority to pass an ordinance granting a conditional use, but conditional uses are not otherwise permitted (Elgin Code §19.65.020). Specific standards for the approval of a conditional use, as well as the procedures for applying for a Permit and for holding a public hearing considering the application, are spelled out in the zoning code (Elgin Code §§19.65.030, 19.65.050, 19.65.060). No limit is set, however, for the time frame within which the City Council must vote on a Permit application.
After holding a public hearing, the Zoning Board must make a recommendation to the City Council regarding the application (Elgin Code §19.65.070(A)). In turn the City Council is free to impose conditions and restrictions on the grant of a Permit (Elgin Code §19.65.070(B)(1)).
Under the Elgin Zoning Code an "accessory use" is one that is subordinate in purpose to the principal use and that is "customary and traditionally incidental to the principal use served, which*fn8 is operated and maintained under the same single ownership or unified control as the principal use served, and which is located on the same 'zoning lot'" as the principal use (Elgin Code §19.90.015). For a use to be "accessory," it must be established later than or at the same time as the principal use and must occupy less than 10% of the zoning lot area and less than 10% of the building floor area (id.). Family Life contends that the homeless shelter was an accessory use*fn9 to its church, so that no additional Permit was required for the shelter to operate (FL Resp. 1-2).
Although Elgin has set out a more comprehensive (and more persuasive) argument detailing why its zoning ordinance should not be read as conferring "accessory use" status on the homeless shelter at Family Life, this Court can decide the issue on much simpler grounds. Accessory uses to conditional uses (and there is no dispute that the church is itself a conditional use) are themselves also conditional uses (Elgin Code §19.35.730(B)(10)) and therefore require a Permit (Elgin Code §§19.65.010 et seq.). That cuts off at the pass all of Family Life's arguments accusing Elgin of improperly forcing the Permit ...