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Alecks Nikolich, et al v. the Village of Arlington Heights

June 20, 2012

ALECKS NIKOLICH, ET AL., PLAINTIFFS,
v.
THE VILLAGE OF ARLINGTON HEIGHTS, ILLINOIS, DEFENDANT.



The opinion of the court was delivered by: Milton I. ShadurSenior United States District Judge

MEMORANDUM OPINION AND ORDER

Plaintiffs C.S., Aleks Nikolich ("Aleks"), Dejan Nikolich ("Dejan"), North/Northwest Suburban Task Force on Supportive Housing for Individuals with Mental Illness ("Task Force"), Thresholds, Inc. ("Thresholds"), DDG Boeger, LP ("DDG") and Daveri Development Group, LLC ("Daveri") have sued the Village of Arlington Heights, Illinois ("Arlington Heights"), advancing three theories of recovery:

1. Count I asserts a violation of the Fair Housing Act ("FHA") on behalf of all the plaintiffs,

2. Count II charges a violation of the Americans with Disabilities Act ("ADA") as to C.S.

3. Count III claims a violation of Section 504 of the Rehabilitation Act of 1973 ("Rehabilitation Act") as to C.S.

All three counts stem from Arlington Heights' denial of Daveri's application to permit the construction of a 30-unit apartment facility ("Boeger Place") to house individuals suffering from mental illnesses.

Arlington Heights has filed a motion for summary judgment under Fed. R. Civ. P. ("Rule") 56, and the parties have proceeded in accordance with this District Court's LR 56.1.*fn1 For the reasons stated here, the motion is granted in its entirety.

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)).*fn2 For that purpose courts consider the entire evidentiary record and must view all of the evidence and draw all inferences from that evidence in the light most favorable to nonmovants (Egan Marine Corp. v. Great Am. Ins. Co. of N.Y., 665 F.3d 800, 811 (7th Cir. 2011)). But a non-movant must produce more than "a mere scintilla of evidence" to support the position that a genuine issue of material fact exists and "must come forward with specific facts demonstrating that there is a genuine issue for trial" (Carmichael v. Vill. of Palatine, 605 F.3d 451, 460 (7th Cir. 2010), quoting Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008)). As Payne v. Pauley, 337 F.3d 767, 772-73 (7th Cir. 2003) has explained:

[T]he Federal Rules of Civil procedure require the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). Conclusory allegations, unsupported by specific facts, will not suffice.*fn3

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 relevant facts, viewed of course in the light most favorable to non-movant plaintiffs.

Factual Background*fn4

C.S. is an adult who resides in Park Ridge, Illinois with her parents (A. St. ¶1). She suffers from acute anxiety and schizoaffective disorder and cannot live independently (id.). Aleks and Dejan are co-owners of a parcel of land at issue in this case, located at 120-22 Boeger Road in Arlington Heights (id. ¶2). Task Force is an Illinois not-for-profit corporation that selected Daveri, a for-profit company, to develop 12 to 30 permanent supportive housing apartments in the northwest suburbs (id. ¶¶3, 6). Thresholds is an Illinois not-for-profit corporation that provides services for individuals with mental disabilities and that planned to provide services at Boeger Place (id. ¶4). DDG is an Illinois limited partnership formed to be the parent of developer Daveri and an investor in Boeger Place (id. ¶5). Daveri and Thresholds are managing partners of DDG (P. Resp. ¶6).

In 1991 Arlington Heights amended its zoning code to permit group homes for up to eight mentally disabled residents (A. St. ¶10). According to the market study commissioned by Daveri, Arlington Heights had 13 housing units for mentally ill individuals as of January 2010 with another 13 units designed to house 19 people planned for the near future (P. Resp. Ex. 15 at 27). Arlington Heights maintains a Commission For Citizens With Disabilities and employs a full-time Disability Services Coordinator to assist the disabled (A. St. ¶11). Based on national statistics, Arlington Heights' 5 Year Consolidated Plan for 2010-2014 identifies an unmet estimated need for up to 180 housing units for individuals with mental disabilities (id. ¶12).

Boeger Place was to be permanent supportive housing, which is defined by Daveri as "the combination of permanent affordable housing with onsite social services for people with disabilities" (P. Resp. ¶13). Arlington Heights has no zoning restrictions specific to permanent supportive housing or limiting where individuals with mental disabilities may live (A. St. ¶14).

On December 21, 2009 Daveri submitted to Arlington Heights a conceptual proposal for Boeger Place, which was to be a three-story permanent supportive housing apartment building with 30 housing units and 15 parking spaces on a .93 acre plot of land (A. St. ¶15). On January 8, 2010*fn5 Arlington Heights advised Daveri that the proposed development would require approval by the Village Board of eight amendments or variances from Arlington Heights' zoning code (id. ¶16). Daveri initially planned to apply for a change in zoning from B-1/B-2 (business) to R-6 (multi-family residential), but Arlington Heights advised Daveri that because Boeger Place would include business operations to provide on-site counseling and related services, I (institutional) zoning was the most accurate classification (P. St. ¶2; A. Resp. ¶2). Daveri accepted that advice (id.).

On February 1 Daveri entered into a contract to purchase the proposed development site from Aleks and Dejan contingent upon (a) Daveri's due diligence, (b) Arlington Heights' approval of certain requested zoning variances and (c) Daveri's financing for Boeger Place (id. ΒΆ17). Daveri filed an application for Boeger Place with Arlington Heights on February 26 that ultimately sought nine ...


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