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Irshad Learning Center v. County of Dupage

March 28, 2011

IRSHAD LEARNING CENTER, PLAINTIFF,
v.
COUNTY OF DUPAGE, AND ROBERT J.
SCHILLERSTROM, ROBERT J. KARTHOLL, JR., JOHN HAKIM, BARRY KETTER, TOM LAZ, MICHAEL LOFTUS, JIM MCNAMARA, JACK L. MURPHY, JOHN CURRAN, DIRK ENGER, PAUL FICHTNER, RITA GONZALEZ, J.R. MCBRIDE, MICHAEL MCMAHON, DEBRA OLSON, PATRICK O'SHEA, DONALD PUCHALSKI, JIM ZAY, IN THEIR INDIVIDUAL CAPACITIES, DEFENDANTS.



The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer

10c2168

MEMORANDUM OPINION AND ORDER

Irshad Learning Center, a Muslim religious and educational group, seeks a conditional use permit in order to use property in unincorporated DuPage County for religious services and educational purposes. DuPage officials have denied the request. In this lawsuit, Irshad alleges that the denial violates Irshad's rights under the United States Constitution, the Illinois Constitution, and the Religious Land Use and Institutionalized Persons Act ("RLUIPA"). Defendants--the County of DuPage; County Board Chairman Robert Schillerstrom; Zoning Board of Appeals members Robert

J. Kartholl, Jr., John Hakim, Barry A. Ketter, Tom Laz, Michael Loftus, Jim McNamara, and Jack L. Murphy; and County Board members John Curran, Dirk Enger, Paul Fichtner, Rita Gonzalez, J.R. McBride, Michael McMahon, Debra Olson, Patrick O'Shea, Donald Puchalski, and Jim Zay--move to dismiss Plaintiff's complaint, to strike certain allegations and claims, and to dismiss Defendants in their individual capacities. The court grants Defendants' motion to dismiss the individual capacity claims, dismisses Counts IV and XI for failure to state a claim, and strikes Count VI. Defendants' motion is otherwise denied.

BACKGROUND

Irshad Learning Center ("Irshad" or "Plaintiff") is a 75-member religious organization. Irshad currently conducts a Thursday evening prayer service at College of DuPage facilities and a Saturday afternoon youth education session at the Islamic Foundation School in Villa Park, Illinois. (Compl. ¶¶ 36-37.) In March 2008, Irshad purchased property at 25W030 75th Street, in unincorporated DuPage County, for use as a place of religious worship and education. (Id. ¶¶ 5, 36-38.)

Plaintiff's property consists of 2.9 acres, including a single-family residence that was converted by its previous owner into a private school. (Id. ¶ 42.) The previous owner operated a private school on the premises from 1994 to 2008, known as the Balkwill School. (Id.) In 2005, the County Board granted a conditional use permit for the property allowing the operation of a private school with up to 65 students, aged three to the sixth grade, and five staff members. (Id. ¶ 43; Zoning Ordinance 5146-05, Ex. D. to Mot. to Dismiss [hereinafter "Balkwill Zoning Ordinance"] at 2, 6.) It is unclear whether the Balkwill School had received a conditional use permit prior to 2005, although the 2005 ordinance references a 2001 public hearing on a previous zoning ordinance. (Balkwill Zoning Ordinance ¶ 1.) The Balkwill School's hours of operation were limited by the conditional use ordinance from 7:30 a.m. to 12:30 p.m. Monday to Friday. (Id. at 6.) The Balkwill School site included seven "required" parking spaces, (id. ¶7), "in the front of the home," (Compl. ¶ 44)--apparently in the driveway area near the home's front door, although it is not precisely clear from the record where these were located. Neither party disputes that Irshad may use the property under the exact same conditions that the DuPage County Board approved for the Balkwill School. (See Balkwill Zoning Ordinance [listing conditions upon which the conditional use was approved and including a site plan of the property to which the Balkwill School was required to adhere].)

Zoning procedures in DuPage County involve four different entities: the Department of Economic Development and Planning ("Planning Department"); the Zoning Board of Appeals*fn1 ("ZBA"); the County Development Committee ("CDC") of the County Board; and the County Board. Those seeking zoning relief must first file their application with the Zoning Board of Appeals.*fn2

Zoning staff may assist an applicant in completing his/her application, and will advise applicants of the "requirements and standards for zoning relief." Zoning Procedures at 1. The ZBA then schedules a public hearing on the proposed application at which the petitioner or an agent must present testimony concerning the proposed zoning relief. Id. at 4. The public hearing must begin no later than sixty days after the application is submitted, and must be concluded no later than 120 days after the application is submitted, with some enumerated exceptions. DuPage County Code 37-1415(A). Questions may be directed at petitioner from zoning staff, ZBA members, and members of the public. Zoning Procedures at 4. The ZBA then makes a recommendation on the application to the County Development Committee, and the County Development Committee makes a recommendation to the County Board, which renders a final decision. Id. The CDC may also opt to remand a petition to the ZBA "for reconsideration of its vote where significant new information has been made available." Id. at 13.

Plaintiff first filed a conditional use application for use of the property as a "learning center" on August 19, 2008, requesting a variance to allow for parking in the front yard and side yard of the property. (Compl. ¶ 67.) The County Zoning Administrator, a member of the Planning Department, met with Plaintiff and suggested Plaintiff withdraw its application as a "learning center" and re-file as a "religious institution," and that it remove the variance request. (Id. ¶¶ 68, 69.) Plaintiff did so, and re-filed on December 11, 2008. (Id. ¶ 69.) The application requested a permit that would allow use of the property for religious services by 100 individuals, 27 parking spaces, and 12 additional parking spaces that could be constructed if deemed necessary. (Id. ¶ 70.) It is not entirely clear from the record, but it appears the additional parking spaces would be in the area near the front of the home (rather than the front yard), in the same area where the Balkwill School maintained its parking spaces and driveway, which would apparently negate the need for a variance. (Id. ¶¶ 44,107(a).) Plaintiff planned to continue using the existing structure, which had already been found compliant with all relevant codes. (Id. ¶¶ 70,71.) Plaintiff held "open door" meetings with neighbors at the property on November 18, 2008 and January 13, 2009; it is unclear what transpired at those meetings or whether any record of them exists. (Id. ¶ 73.)

The DuPage County Zoning Board of Appeals held its first public hearing on the conditional use application on February 26, 2009. (Id. ¶ 74.) Dan Wallace, a representative of neighbors objecting to the application, stated his concern that Plaintiff would grow in size, and that Plaintiff would need to expand the property's structure in the future. (Id. ¶¶ 76-77.) ZBA member John Hakim asked whether "any animal sacrifices" would take place at the property. (Id. ¶75.) The ZBA continued its meeting until March 12, 2009, to allow Plaintiff to respond to the concerns raised at the initial meeting. (Id. ¶ 79.) Plaintiff did respond to the objections, submitting, prior to the March 12 meeting, letters from the owners of facilities Plaintiff had used in the past, which commended the organization, noted that there had been no complaints, and offered to answer any additional questions. (Id. ¶¶ 80, 82.) Plaintiff also agreed to a 10:30 p.m. end time for any worship services. (Id. ¶ 84.) The ZBA continued the hearing until May 14, 2009, at which time the ZBA held its final public hearing on Plaintiff's application. (Id. ¶¶ 87-89.) Plaintiff does not offer details of this meeting, instead alleging only that "objectors continued to emphasize Speculative Use." (Id. ¶ 88.) On June 4, 2009, the ZBA unanimously recommended denial of the application to the County Board. (Id. ¶ 90.) ZBA Chairman Kartholl observed (contrary to the Zoning Administrator's earlier recommendation to Plaintiff) that the application should have been made as a "learning center" rather than as a "religious institution." (Id. ¶ 93.)

The County Development Committee met on July 7, 2009, and voted unanimously to remand the application to the ZBA to "issue findings in accordance with the petition that has been filed by the petitioner and include adopted rationale and explanation for findings as they have been submitted." (Id. ¶ 95.) At the remand hearing on August 6, 2009, ZBA Chairman Kartholl explained that the CDC "remanded the case to us so that the board could clarify its findings of fact in the matter." (Id. ¶¶ 96, 97.) The ZBA continued that hearing until September 10, 2009, at which time the ZBA again unanimously voted to recommend denial of the application. (Id. ¶¶ 97, 98.) At that meeting, Kartholl said that Plaintiff did not present "any sort of live testimony" during the prior hearings, which Plaintiff contends is "contrary to the clear record before the ZBA." (Id. ¶ 100.) The ZBA included in its findings of fact that 250 people would attend religious services, and that 100 parking spaces would be needed, estimates that Plaintiff alleges do not appear anywhere in the application. (Id. ¶ 103.)

The County Development Committee met again on October 20, 2009, and voted unanimously to approve an amended application that included twelve additional conditions, including restricting parking to 27 spaces, and requiring that worship services end at 10:30 p.m. (Id. ¶ 104.) The DuPage County Board tabled consideration of the application at its October 27, 2009 meeting. (Id. ¶ 106.) In an informal meeting on November 5, 2009 hosted by CDC chairman Anthony Michelassi-which was not a CDC or ZBA meeting-Plaintiff discussed the application with several neighbors, with Michelassi, and with Jim Healy, County Board representative from Naperville, who recommended additional conditions. (Id. ¶ 107.) These recommendations included limiting hours of operation to between 6 a.m. and 10:30 p.m. and requiring all exterior lighting to be turned off by 10:45 p.m. (Id.) On November 10, 2009, the County Board voted 15-2 to remand the amended application to the ZBA. (Id. ¶ 112.) Such a remand, Plaintiff alleges, "was unprecedented by the County Board for conditional use permits," and was done after the County Board declined to vote, either for approval or denial, on either the original application or the application as amended with the conditions recommended at the November 5 meeting. (Id. ¶ 113.)

On November 12, 2009, the U.S. Attorney's Office for the Southern District of New York sought asset forfeiture against the Alavi Foundation, a New York-based not-for-profit "devoted to the promotion and support of Islamic culture and Persian language," because of its alleged association with the Iranian government. (Id. ¶ 114, 117.)*fn3 The Alavi Foundation had provided partial financing to Plaintiff to assist its purchase of the property. (Id.¶116.) Plaintiff notes that the Foundation has also provided funding to organizations including Doctors Without Borders, Mercy Corps, Harvard Law School, and Columbia University. (Id. ¶ 115.)

On December 7, 2009, the ZBA held a "special public hearing" on remand from the County Board. (Id. ¶ 121.) One woman testified that the application should be denied because of Plaintiff's link to the Alavi Foundation.*fn4 (Id. ¶ 123.) The ZBA did not discuss the recommendations from the November 5 meeting with the CDC chair, which was the stated purpose of the County Board remand. (Id. ¶¶ 109, 112, 122.) Chairman Kartholl said that the "ZBA record on this matter is in the can" and that deliberations had already been concluded prior to the ZBA's September 10 vote. (Id. ¶ 122.) Once again, the ZBA voted unanimously to recommend denial of the application. (Id. ¶125.)

On December 15, 2009, the CDC held a meeting to consider the application. (Id. ¶ 126.) One individual testified regarding the link between Plaintiff and the Alavi Foundation. (Id. ¶ 127.) The CDC voted 3-1 to recommend that the County Board approve the application. (Id. ¶ 128.) Two members abstained from the vote ostensibly "because this was the same as the recommendation . . . for which they had already voted in favor." (Id.) One member who had previously voted to recommend approval of the application now voted against it. (Id.)

The DuPage County Board scheduled a final vote on the application for January 12, 2010. Prior to that meeting, a Naperville resident e-mailed all Board members regarding Plaintiff's link to the Alavi Foundation, and warning: "You MUST NOT GRANT APPROVAL on this conditional use of residential property to [Plaintiff], UNTIL YOU HAVE COMPLETE AND ABSOLUTE clearance from our local FBI and Homeland Security. Again . . . as President Obama said last week . . . PLEASE connect the dots." (Id. ¶132.) The "Naperville Tea Patriots"*fn5 posted information on their website regarding Plaintiff's link to the Alavi Foundation. In addition, the Naperville Tea Patriots posted a letter dated January 4, 2010, addressed to Naperville City Council members, suggesting that the conditional use application was a form of "Stealth Jihad" and that Plaintiff intended to spread "Radical-Jihadist Islamic Ideology." (Id. ¶¶ 133, 134.) The Tea Patriots asserted that Plaintiff was "synonymous with Alavi Foundation" and "synonymous with or connected to a variety of national and international Islamic and terrorist organizations." (Id. ¶ 134.)

Individuals from the Naperville Tea Patriots and Act! for America protested outside of the January 12 County Board meeting. (Id. ¶ 139.) A representative from Act! for America*fn6 testified at the meeting that Plaintiff was a terrorist "front group." (Id. ¶ 140.) Ultimately, the County Board voted 10-7 against the application. (Id. ¶141.) Two County Board and CDC members who had previously voted for the application in CDC meetings now voted against it. (Id.)

Plaintiff brings eleven counts against the County of DuPage and individual members of the ZBA and County Board. Count I alleges that the County has violated the equal-terms and nondiscrimination provisions of the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), 42 U.S.C. §§ 2000cc(2)(b)(1)-(2). (Id. ¶¶ 147-152.) Count II alleges that the County violated the substantial burden provision of RLUIPA, 42 U.S.C. § 2000cc(2)(a). (Id. ¶¶ 153-59.) Count III, brought pursuant to 42 U.S.C. § 1983, alleges that the County and the individual Defendants violated the Plaintiff's right to the free exercise of religion in violation of the First and Fourteenth Amendments to the United States Constitution. (Id. ¶¶ 160-63.) Count IV alleges that the County and individual Defendants violated Plaintiff's rights to free speech and assembly in violation of the First and Fourteenth Amendments. (Id. ¶¶ 164-170.) Count V alleges the County and individual Defendants violated the Equal Protection Clause of the Fourteenth Amendment. (Id. ¶¶ 171-76.) Count VI seeks a declaratory judgment under Illinois law that Plaintiff is in compliance with the relevant zoning standards. (Id. ¶¶ 177-187.) Count VII seeks de novo legislative review of the County Board's decision. (Id. ¶¶ 188-190.) Count VIII seeks injunctive relief against the County to mandate compliance with its zoning standards and approval of the application. (Id. ¶¶ 191-94.) Count IX alleges that the County violated the substantial burden provision of the Illinois Religious Freedom Restoration Act, 775 ILCS 35/15. (Id. ¶¶ 195-202.) Count X alleges that the County violated the Free Exercise Clause of the Illinois Constitution, Article I, Section 3. (Id. ¶¶ 203-05.) Count XI alleges that the County violated the Free Speech and Assembly Clauses of the Illinois Constitution, Article I, Sections 4 and 5. (Id. ¶¶ 206-09.)

DISCUSSION

Defendants have moved to dismiss Plaintiff's complaint in its entirety on res judicata grounds for failure to exhaust administrative remedies, or alternatively, to dismiss the individual counts for failure to state a claim upon which relief can be granted. Defendants also seek dismissal of the individual Defendants based on absolute, quasi-judicial immunity. Finally, Defendants ask the court to strike certain allegations from the complaint, to dismiss supplemental state-law claims, and to strike redundant claims.

I. Motion to Dismiss for Failure to Exhaust Administrative Remedies

Defendants first argue pursuant to Rule 12(b)(1) that the entire complaint should be dismissed for lack of subject-matter jurisdiction because Plaintiff failed to exhaust its administrative remedies as required by Illinois law. (Def.'s Br. at 3.) Defendants contend that the County Board's decision was an administrative decision subject to the Illinois Administrative Review Law, 735 ILCS 5/3-101, et seq; 55 ILCS 5/1-6007, and therefore became final 35 days after Plaintiff received formal service of that decision on January 15, 2010. (Def.'s Br at 4.) Plaintiff did not file for administrative review by February 19, 2010; accordingly, Defendants argue, its claims are barred. (Id. at 5.)

Res judicata would bar claims in this court if it would do so in an Illinois state court. See Moore v. City of Asheville, 396 F.3d 385, 391 (4th Cir. 2005) ("It is now established by federal common law that federal courts will apply res judicata to unreviewed determinations of state administrative agencies if the State itself would do so."). Plaintiff objects to the court's consideration of this matter; failure to exhaust administrative remedies is an affirmative defense and is ordinarily an inappropriate basis for a 12(b)(1) motion. Mosely v. Board of Educ. of City of Chicago, 434 F.3d 527, 533 (7th Cir. 2006). In some circumstances, however, "when an affirmative defense is disclosed in the complaint, it provides a proper basis for a Rule 12(b)(6) motion. . . . No purpose would be served by compelling the defendant to file an answer rather than proceed by motion when the plaintiff has pleaded the answer himself." Muhammad v. Oliver, 547 F.3d 874, 878 (7th Cir. 2008). As both parties are in agreement as to the sequence of events, the court can reach the purely legal question at issue: whether Plaintiff has appealed the County Board's determination within the time frame mandated by Illinois law.

Resolution of this issue turns on which of two different statutory deadlines is relevant here. Defendants contend the 35-day deadline of the Illinois Administrative Review Law governs, and requires dismissal of this case. Plaintiff contends that a more recent enactment provides a 90-day period in which to challenge the County Board's zoning decision. Plaintiff notes that as of January 1, 2009, the Illinois Counties Code, applicable to DuPage County, contains a provision explaining that

Any decision by the county board of any county, home rule or non-home rule, in regard to any petition or application for a special use, variance, rezoning, or other amendment to a zoning ordinance shall be subject to de novo judicial review as a legislative decision, regardless of whether the process in relation thereto is considered administrative for other purposes. Any action seeking the judicial review of such a decision shall be commenced not later than 90 days after the date of the decision.

55 ILCS 5/5-12012.1(a). As Defendants here emphasize, however, another portion of the Illinois Counties Code also makes reference to judicial review of county board decisions, and provides that "[t]he decisions of the county board are subject to judicial review under the Administrative Review Law." 55 ILCS 5/1-6007. The Administrative Review Law itself contains the stricter 35-day deadline: "Every action to review a final administrative decision shall be commenced . . . within 35 days." 735 ILCS 5/3-103.

The quoted provisions are in apparent tension: Section 5/5-12012.1 sets a 90-day filing deadline, while the Administrative Review Law requires that actions challenging County Board decisions be filed within 35 days. Defendants urge that these two provisions can and should be read in harmony, and that § 5/5-12012.1 "merely describes a standard to be applied by the court when reviewing a zoning decision made by a county board," while the Administrative Review Law "provides the necessary substantive and procedural due process safeguards that protect the interests of all parties involved." (Reply at 4-5.) Defendants argue that the Administrative Review Law applies to decisions "based upon the record created by an administrative hearing," and that § 5/5-12012.1(b) should be read in pari materia with that law. (Reply at 4.) Such an interpretation, Defendants contend, "is necessary to protect the procedural rights of all of the parties to the administrative proceeding." (Id. at 5.) The law does provide procedures, for example, for notifying adjoining property owners and intervenors of the pendency of an appeal from the county's zoning action. (Id. at 5; See, e.g., 735 ILCS 5/3-107(c) ("The plaintiff shall send a notice of filing of the action by certified mail to each other person who appeared before and submitted oral testimony or written statements to the . . . zoning board of appeals with respect to the decision appealed from.")). Defendants are correct that there is no reason why the procedures set out by the Administrative Review Law are incompatible with the method of review prescribed in § 5/5-12012.1. The competing deadlines, however, do appear to be in direct conflict. Defendants do not address the purpose of § 5/5-12012.1(a)'s 90-day limitations period under their theory, except to assert that it does not apply to review of an administrative hearing. (Def.'s Br. at 4; Reply at 4-5.)

Two principles of statutory interpretation govern the court's resolution of this matter. First, "[w]here a general statutory provision and a more specific statutory provision relate to the same subject, we will presume that the legislature intended the more specific provision to govern." Moore v. Green, 219 Ill.2d 470, 479, 848 N.E.2d 1015, 1021 (2006). The provision that Defendants cite states more generally that county board decisions "are subject to judicial review under the Administrative Review Law," which itself includes the 35-day time limit Defendants urge. The provision containing the 90-day deadline, in contrast, refers specifically to "[a]ny decision by the county board of any county, home rule or non-home rule, in regard to any petition or application for a special use, variance, rezoning, or other amendment to a zoning ordinance." 55 ILCS 5/5-12012.1. Under the rules of statutory interpretation, this provision's specificity as to the type of decision to which it applies (i.e., zoning decisions) trumps the general applicability of the previous provision applicable to "the decisions of the county board."

Second, when conflicting provisions are passed at different times, "we will presume that the legislature intended the more recent statutory provision to control." Moore, 219 Ill.2d at 480, 848 N.E.2d at 1021. Here, the general provision applying to "the decisions of the county board" went into effect January 1, 1990. 55 ILCS 5/1-6007. The more specific provision applicable to zoning decisions became effective nineteen years later, on January 1, 2009. 55 ILCS 5/5-12012.1. Because the 90-day limit is supported by both of these canons of ...


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