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Affordable Recovery Housing, v. City of Blue Island

United States District Court, N.D. Illinois, Eastern Division

September 21, 2016

AFFORDABLE RECOVERY HOUSING, an Illinois not-for-profit corporation, Plaintiff,
v.
THE CITY OF BLUE ISLAND, a municipal corporation, and TERRY VRSHEK in his official capacity as Blue Island Fire Chief, Defendants.

          MEMORANDUM OPINION AND ORDER ON CONSIDERATION OF PLAINTIFF'S MOTION TO ALTER OR AMEND JUDGMENT

          Robert M. Dow, Jr. United States District Judge.

         Plaintiff Affordable Recovery Housing operates a recovery home in Blue Island, Illinois, using faith-based methods to assist those struggling with drug and alcohol abuse. In May of 2012, Blue Island Fire Chief Terry Vrshek issued Affordable Recovery Housing an eviction notice based on its failure to comply with the City's safety regulation requiring fire sprinklers in buildings that house overnight guests. Affordable Recovery Housing appealed (unsuccessfully), and then sued. On November 17, 2014, the Court effectively mooted the issue, concluding that because Affordable Recovery Housing is a state-licensed Recovery Home, it is governed by the Illinois DHS safety regulations (which preempt Blue Island's regulations), under which it is not required to install a sprinkler system. As a result of the Court's order, Affordable Recovery Housing has resumed operations. Nonetheless, it now seeks damages for Defendants' alleged discriminatory actions in enforcing Blue Island's safety and zoning regulations.

         Before the Court are the parties' cross-motions for summary judgment [99, 100]. For the reasons stated below, Plaintiff's motion [99] is denied and Defendants' motion [100] is granted. As an administrative matter, Plaintiff's motion for leave to file a reply brief [111] is granted.

         I. Background[1]

         Since the mid-1950s, the Mantellate Sisters of Mary have owned a group of five buildings in the city of Blue Island, Illinois, located about 15 miles south of Chicago. One of the buildings on the property has continually functioned as a convent for the Mantellate Sisters. Until the mid-1980s, the remaining buildings served as the Mother of Sorrows High School (the property is still referred to as the “Mother of Sorrows” property), and a few years after the school closed, the Mantellate Sisters leased the property to a local school district where it again functioned as a high school for another 20 years or so, up until 2009.

         In late 2010, John and Mary Jo Dunleavy began discussions with Blue Island Mayor Don Peloquin about converting the Mother of Sorrows property into a faith-based recovery home (called Affordable Recovery Housing) for adult men recovering from drug and/or alcohol addiction. The Dunleavys pitched Affordable Recovery Housing as a 24-hour, full-service rehabilitation program that would combine recovery support services, overnight lodging, meals and recreation, job training, medical and dental referrals, religious outreach, and myriad other services. The Mayor liked the idea, and things progressed rapidly. By early 2011, the Dunleavys had struck up deals with the Mantellate Sisters to rent the Mother of Sorrows property and with the Illinois Department of Human Services (“DHS”) to obtain state funding [99-4, at 2-3], and in February 2011, with the Mayor's imprimatur, Plaintiff moved 14 staff members onto the property. However, the Mayor “told the Plaintiff to obtain the necessary state and city licenses and to come up with a plan for the development of the business and the building[s]” and “that it must install an automatic sprinkler system in the building before any additional residents could move in.” [99-3, at 112.] On February 28, 2011, Mayor Peloquin wrote Affordable Recovery Housing a letter, insisting that it “submit an application to the Blue Island Zoning Board for a hearing regarding [its] goals and the parameters by which [it] will accomplish them.” [99-4, at 5.] At this time, Plaintiff had yet to file for or obtain any zoning permits for its intended use of the property.

         Sometime in March 2011, Affordable Recovery Housing submitted to the City a five-year, four-phase plan for its development of the Mother of Sorrows property. Relevant here, Affordable Recovery Housing represented that in Phase A (which spanned the first 18 months of its plan), it would provide drawings, apply for all necessary permits and licenses, and install code upgrades (including sprinklers) in the school and banquet room. And in Phase B (which spanned the second 18 months of the plan) Affordable Recovery Housing would provide drawings, apply for all necessary permits and licenses, and installing all code upgrades (including sprinklers) for the old convent building. [99-4, at 9-17.]

         Not long after Plaintiff submitted its five-year plan to Blue Island, John Dunleavy allegedly had a conversation with Blue Island Building Commissioner Dave Mindeman in which, according to Plaintiff, Mr. Mindeman “effectively changed” the five-year plan by instructing Plaintiff to prioritize the installation of a state-of-the-art fire alarm system, and to leave the installation of the fire sprinklers for another day. Plaintiff concedes that this “change” in its five-year plan was not documented or otherwise memorialized. Following this conversation, the Mantellate Sisters advanced Plaintiff $130, 000 for the installation of the fire alarm system, which was completed sometime in June 2011. Plaintiff claims that shortly thereafter, Commissioner Mindeman gave Plaintiff permission to move 40 men into the recovery house, although there is no documented evidence of this approval, and Commissioner Mindeman avers that he did not give any such approval, written or verbal. [27, at 21.] Likewise, Mayor Peloquin says that “Plaintiff never sought [his] approval to increase the number of people residing at Affordable [Recovery Housing] from fourteen (14) people.” [99-3, at 111.]

         The next major development occurred in early 2012, when, at the City's request, the Mantellate Sisters of Mary (on behalf of Affordable Recovery Housing) submitted a special use permit to the City of Blue Island, seeking permission to use the Mother of Sorrows site as a “planned use development.” [99-5, at 17-33.] The Mother of Sorrows property is zoned R-1 (Single Family Residential), and according to Blue Island's zoning ordinance, R-1 properties can either be used for certain “permitted uses” or for certain “special uses.” A “planned use development” is one type of special use, defined as “a group of two (2) or more principal buildings designed to be maintained and operated as a unit in single or multiple ownership or control and which has certain facilities in common, such as yards and open spaces, recreation areas, garages and parking areas.” [99-10, at 31.] Affordable Recovery Housing first presented its proposal for a special use permit to the City's Plan Commission on May 9, 2012, where it was resolved that Plaintiff would submit a revised application at a second meeting with the Plan Commission on July 11, 2012.

         While that process was ongoing, Blue Island Fire Chief (and Defendant in this action) Terry Vrshek conducted a safety inspection of the Mother of Sorrows property. Defendant Vrshek documented his findings in a letter dated May 24, 2012, stating that Affordable Recovery Housing was not following the terms of its five-year plan, and noting that “[t]he primary concern [was] the sprinkler system.”[2] [99-5, at 35-36.] Defendant Vrshek ordered Plaintiff to “cease operating the ‘recovery housing' * * * until the facility meets the current codes and provide[s] the proper licenses, ” giving Plaintiff until June 1, 2012 to comply. [99-5, at 35-36.] The letter concluded by informing Plaintiff that it had the right to appeal the eviction notice to the Mayor or to the City Council. [99-5, at 35-36.] At that time, there were 73 men living at the recovery home. According to Plaintiff, after hearing of the eviction notice, these 73 men left the property of their own accord, and Affordable Recovery Housing has since lost contact with most of them.

         There is no evidence that Fire Chief Vrshek was aware of Plaintiff's then-pending special use application with the Plan Commission when he conducted his inspection of the property. And by all accounts, Plaintiff did not raise the sprinkler issue in its special use application or its discussions with the Plan Commission at the May 9, 2012 meeting. For example, there is no mention of sprinklers in either Plaintiff's special use application [99-5, at 17-33] or in the minutes from the May 9, 2012 meeting [99-9, at 36-38]. And in a May 10, 2012 email from Blue Island Special Projects Manager Jason Berry to the Mother of Sorrows Property Manager providing detailed advice on how best to revise the special use application in light of what was discussed at the May 9 meeting, Mr. Berry does not mention the sprinkler system either. [99-5, at 9-10.]

         Regardless, on May 28, 2012, Affordable Recovery Housing appealed Fire Chief Vrshek's eviction notice to the Blue Island City Council, requesting a three-year accommodation to install the sprinkler system and permission for the residents to continuing living at the property during that time. [See 99-6, at 118-19; 99-7, at 2-5.] (Three days later, Plaintiff filed this lawsuit.) On June 12, 2012, the City Council held a hearing on Plaintiff's appeal. [99-7, at 7- 14.] Mayor Peloquin spoke out against Affordable Recovery Housing at the hearing, emphasizing that the only issue for debate was whether eviction was appropriate in light of Plaintiff's failure to comply with the City's fire sprinkler regulations, and that Plaintiff's ongoing discussions with the Plan Commission and the Zoning Board were not relevant to the discussion. [99-7, at 8-9.] After those involved debated the issue, the City Council approved the Fire Chief's decision by a vote of nine to two, with one absent and two abstentions. [99-7, at 14.]

         Shifting back to the special use permit, Affordable Recovery Housing made its second presentation to the Plan Commission on July 11, 2012 as planned, presenting its “revised/updated” planned unit development proposal. [99-9, at 40-41.] The minutes from this meeting reflect the Plan Commission's awareness of Plaintiff's then-pending federal lawsuit and the related sprinkler issue, and one commissioner commented on how “messy” the situation had become. [99-9, at 41.] The Plan Commission tabled the decision until the next regularly scheduled meeting, acknowledging that Plaintiff's motion for preliminary injunction was awaiting resolution in this Court. The Court denied Plaintiff's motion two days later. [37.]

         Affordable Recovery Housing then made a third presentation to the Plan Commission on September 5, 2012. [99-9, at 43; 108-3, at 23-26.] The Plan Commission unanimously approved Plaintiff's application, which purportedly included a three-year accommodation to install the sprinkler system and allowed Affordable Recovery Housing to offer overnight accommodations to its residents during that three-year period (assuming other extensive fire-safety protocols were in place).[3] [See 99-10, at 2-4.] Later that same evening, however, Affordable Recovery Housing presented this same proposal to the Blue Island Zoning Board of Appeals. The Board voted in favor of Affordable Recovery Housing's proposed use of the Mother of Sorrows property, but it rejected the requested accommodations regarding the sprinkler system. [See 99-10, at 3.]

         Approximately one year later, on September 11, 2013, the Illinois DHS licensed Affordable Recovery Housing as a “recovery house.” The following month, Affordable Recovery Housing filed a motion for partial summary judgment in this Court, arguing that as a state-licensed recovery house, it was governed by the Illinois DHS safety regulations for recovery homes (which do not require sprinkler systems), not Blue Island's (which do). In an opinion dated November 17, 2014, the Court granted Plaintiff's motion, concluding that the Illinois DHS safety regulations preempt Blue Island's conflicting fire sprinkler regulations. With the sprinkler dispute resolved, Affordable Recovery Housing began moving men back into the facility the very next month. [106, ¶ 11.] Regarding zoning, it is unclear where the parties stand with respect to Affordable Recovery Housing's special use permit, and what (if any) phase plan is now governing Affordable Recovery Housing's development of the property.

         II. Legal Standard

         Summary judgment is proper where “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Sallenger v. City of Springfield, Ill., 630 F.3d 499, 503 (7th Cir. 2010) (citing Fed.R.Civ.P. 56(c)(2) and noting that summary judgment should be granted “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law”). In determining whether summary judgment is appropriate, the court should construe all facts and reasonable inferences in the light most favorable to the non-moving party. See Carter v. City of Milwaukee, 743 F.3d 540, 543 (7th Cir. 2014). Rule 56(a) “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against any party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party would bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). Put another way, the moving party may meet its burden by pointing out to the court that “there is an absence of evidence to support the nonmoving party's case.” Id. at 325.

         To avoid summary judgment, the opposing party then must go beyond the pleadings and “set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (internal quotation marks and citation omitted). For this reason, the Seventh Circuit has called summary judgment the “put up or shut up” moment in a lawsuit-“when a party must show what evidence it has that would convince a trier of fact to accept its version of events.” See Koszola v. Bd. of Educ. of City of Chicago, 385 F.3d 1104, 1111 (7th Cir. 2004). In other words, the “mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant].” Anderson, 477 U.S. at 252.

         III. Analysis

         Plaintiff has moved for summary judgment on three of the eight counts in its second amendment complaint (Counts IV, V, and VIII), and Defendants have moved for summary judgment on all counts. Because the Court already granted a partial motion for summary judgment in Plaintiff's favor [89], it is important at the outset to determine which claims are still in dispute and which claims have been resolved, mooted, and/or abandoned.

         In its November 27, 2014 order [89], the Court effectively mooted the central component of the parties' dispute by concluding that that the Illinois DHS regulations governing recovery homes preempt Blue Island's conflicting sprinkler system requirements. That is, because Affordable Recovery Housing is (as of September 9, 2013) a state-licensed recovery house, it is now subject to the Illinois DHS safety regulations governing recovery homes, under which Plaintiff is not required to install sprinkler systems in its buildings. But while the Court's determination may have resolved the major injunctive component of Plaintiff's lawsuit (i.e., Plaintiff does not have to install sprinklers), this does not absolve Defendants of liability for any harm that may have occurred previously. The focus of the litigation at this point, then, is (a) whether Defendants' insistence that Plaintiff install a sprinkler system violated any laws, and (b) whether Plaintiff is entitled to any damages for those violations.

         Plaintiffs motion for summary judgment (which, unlike its last motion for summary judgment [72], is not advertised as a “partial” motion, despite seeking only partial relief) reflects this change in focus, as Plaintiff has narrowed its focus to three of its original eight claims: its substantial burden claim under both the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) and the Illinois Religious Freedom Restoration Act (“IRFRA”), and its failure-to-accommodate claim under the Fair Housing Amendments Act (“FHAA”). Plaintiff has also revised its damages claim, and now seeks only the following forms of relief:

• A declaration that Defendants' eviction of 73 men from Affordable Recovery Housing in May 2012 constituted a substantial burden on Affordable Recovery Housing's religious exercise under RLUIPA and IRFRA and unlawful discrimination in violation of the FHAA;
• A declaration that Defendants' failure to grant Affordable Recovery Housing a reasonable accommodation by allowing it three years to complete the installation of a Code-approved sprinkler system constituted a substantial burden on Affordable Recovery Housing's religious exercise under RLUIPA and IRFRA and unlawful discrimination in violation of the FHAA; and
• Monetary damages for these violations, to be determined by a jury.

[99, at 1-2.] Plaintiff did not move for summary judgment on any of its constitutional claims (Counts I, II, and III) or on its alternative theories of liability under RLUIPA (Counts VI, VII).

         By contrast, Defendants have moved for summary judgment on all eight of Plaintiffs claims as enumerated in its second amended complaint [63]. However, in opposing Defendants' motion, Plaintiff did not respond to Defendants' motion as to any of the constitutional claims (Counts I, II, and III) or the “equal terms” claim under RLUIPA (Count VI), and only briefly responded to Defendants' motion as to the “unlawful exclusion” claim under RLUIPA (Count VII). [See 106.] Although a failure to respond to a motion for summary judgment does not automatically entitle the movant to summary judgment in its favor, it does result in the nonmovant waiving its right to raise any argument on appeal that it did not raise in the district court. D.S. v. East Porter Cnty. Sch. Corp., 799 F.3d 793, 800 (7th Cir. 2015); Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010) (same); see also Domka v. Portage Cty., Wisc., 523 F.3d 776, 783 (7th Cir. 2008) (“It is a well-settled rule that a party opposing a summary judgment motion must inform the trial judge of the reasons, legal or factual, why summary judgment should not be entered. If it does not do so, and loses the motion, it cannot raise such reasons on appeal.” (internal quotations and citations excluded)).

         A. RLUIPA and IRFRA

         Plaintiff claims that Blue Island's actions in imposing and/or enforcing its safety and zoning regulations constituted substantial burdens on its religious exercise in violation of RLUIPA and IRFRA.

         Section 2(a)(1) of RLUIPA, which embodies the protections afforded in the First Amendment's Free Exercise Clause, prohibits the government from:

impos[ing] or implement[ing] a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution-
(A) is in furtherance of a compelling governmental interest; and
(B) is the least restrictive means of furthering that compelling governmental interest.

42 U.S.C. § 2000cc(a)(1) (emphasis added). The statute defines “land use regulation” as “a zoning or landmarking law, or the application of such a law, that limits or restricts a claimant's use or development of land (including a structure affixed to the land), if the claimant has an ownership, leasehold, easement, servitude, or other property interest in the regulated land or a contract or option to acquire such an interest.” 42 U.S.C. § 2000cc(5). In other words, “a government agency implements a ‘land use regulation' only when it acts pursuant to a ‘zoning or landmarking law' that limits the manner in which a claimant may develop or use property in which the claimant has an interest.” Vision Church v. Vill. of Long Grove, 468 F.3d 975, 998 (7th Cir. 2006) (citation omitted).

         The plaintiff bears the initial burden of proving that the restriction implicates the religious exercise of a person, and that the regulation in question substantially burdens that exercise of religion. Holt v. Hobbs, 135 S.Ct. 853, 862 (2015). The burden then shifts to the defendant, who must demonstrate that the burden is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest (i.e., the burden is subject to strict ...


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