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Society of American Bosnians and Herzegovinians v. City of Des Plaines

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

February 26, 2017



          MATTHEW F. KENNELLY United States District Judge

         The Society of American Bosnians and Herzegovinians-formerly known as the American Islamic Center and referred to here as "AIC"-contracted to purchase a piece of property in Des Plaines, Illinois to use for religious and educational activities, under the condition that the City would adopt a zoning amendment permitting AIC's proposed use. The City denied AIC's request for rezoning in the summer of 2013. AIC brought this suit in September 2013, alleging that the City imposed a substantial burden on its exercise of religion in violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA) (count 1), subjected it to unequal treatment and discrimination in violation of RLUIPA (count 2), impaired its free exercise of religion in violation of the First Amendment (count 3), denied it equal protection in violation of the Fourteenth Amendment (count 4), acted arbitrarily and capriciously in violation of 65 ILCS 5/11-13-25 (count 5), imposed a substantial burden on its exercise of religion in violation of the Illinois Religious Freedom Restoration Act (IL RFRA) (count 6), and impaired its free exercise of religion under the Illinois constitution (count 7).

         AIC's suit proceeded through discovery, which was completed in the summer of 2015. The Court established an October 12, 2015 deadline for dispositive motions, which both sides indicated they planned to file. Then on the eve of the dispositive motion deadline, the United States filed its own suit against the City under RLUIPA challenging the City's denial of the zoning amendment. The Court expressed concern about the government's apparent undue delay in bringing its suit but nonetheless consolidated the cases. In the government's suit, the Court allowed a brief period for non-duplicative fact discovery, followed by expert discovery. That discovery was completed around the end of May 2016.

         The City has moved for summary judgment on all of both plaintiffs' claims. The United States has moved for summary judgment on the RLUIPA claims. AIC has adopted the United States' motion and has filed its own motion for summary judgment on all of its claims.

         For simplicity's sake, the Court will refer to the plaintiffs collectively as "AIC." For the reasons stated below, the Court denies both sides' motions for summary judgment but makes certain findings in favor of plaintiffs pursuant to Federal Rule of Civil Procedure 56(g).


         I. AIC's property search

         AIC is a religious institution incorporated under the Illinois Not-For-Profit Corporation Act. It has approximately 160 members throughout the northwest suburbs of Chicago, most of whom are refugees from the war in Bosnia and Herzegovina that took place in the early 1990s. AIC had been providing religious worship and education for its Muslim community at various facilities in the Chicago area that it shared with other groups. Due to scheduling conflicts and other differences with these groups, AIC began searching for its own permanent facility in March 2011. AIC sought a facility in which to hold scheduled prayer services throughout the week, increased services during Ramadan and other holidays, weekly evening youth and women group meetings, monthly interfaith organization meetings, and weekend religious education. The estimated attendances for these events ranged between 10 and 145 attendees, with the exception of holiday events, for which attendance could reach 300 attendees.

         According to testimony by members of AIC, the search initially turned up two potential properties in Des Plaines. Around January 2012, AIC representatives, including Mase Jukic, met with Martin Moylan, the mayor of Des Plaines, to discuss the properties. According to Jukic, Moylan discouraged AIC from buying either property because the City had an interested buyer for one and had plans to develop the other for commercial purposes. Moylan then referred Jukic and the others to Scott Mangum, the City's senior planner and zoning administrator. Jukic says that Mangum told them to consult the City's comprehensive plan to determine appropriate properties. The City disputes Jukic's contention.

         Sometime after the meeting, another AIC member discovered a 1.8-acre property in Des Plaines, located at 1645 Birchwood Avenue. The property includes two buildings with a total area of 15, 477 square feet and a parking lot with 116 off-street parking spaces. There are an additional 43 on-street public parking spaces on Birchwood Avenue. The property is located in an area currently zoned for manufacturing uses, but the City's comprehensive plan recommends converting the area to mixed-density residential use. In February 2013, AIC contracted to buy this property, conditioned upon the City's approval of a zoning map amendment.

         II. Application for rezoning

         The City divides itself into four types of zoning districts: residential, commercial, manufacturing, and special. There are four types of residential districts. The City permits places of worship by right in R-3 and R-4 districts and permits them as conditional uses in R-1 and R-2 districts. The City permits membership organizations only as conditional uses in all residential districts. There are also two types of special zoning districts: institutional and mobile home park. The City permits places of worship, religious institutional headquarters, and schools in institutional districts.

         The City does not permit places of worship either by right or as a conditional use in manufacturing or commercial districts. The Birchwood property is located in a manufacturing district. Thus AIC required a zoning change by City to use the property as a place of worship. In March 2013, AIC applied to the City for a zoning map amendment to convert the property from M-2 (manufacturing) to I-1 (institutional). The application stated that AIC proposed to use the property as a house of worship and community center, and it proposed a worship space of 3, 661 square feet.

         Under Section 3.7-4 of the City's zoning ordinance, the Planning Commission is the first to consider an application for a zoning map amendment. The Planning Commission holds a public hearing and then makes a recommendation to the City Council for approval, approval with modification, or disapproval. Section 3.7-5 provides criteria that the City Council should consider in determining whether to adopt, modify, or deny the Planning Commission's recommendation. They are:

(1) whether the proposed amendment is consistent with the goals, objectives, and policies of the City's comprehensive plan;
(2) whether the proposed amendment is compatible with current conditions and overall character of the development in the immediate vicinity of the property;
(3) whether the proposed amendment is appropriate considering the adequacy of public facilities and services available to this subject property;
(4) whether the proposed amendment will have an adverse effect on the value of properties throughout the jurisdiction; and
(5) whether the proposed amendment reflects responsible standards for development and growth.

         During the relevant time period, the Des Plaines Planning Commission had five members: Cornell Bar, Mary Lane, Joseph Yi, Robert Niemotka, and Alejandro Perez. During the same time period, the City Council had eight members: Patricia Haugeberg, John Robinson, Denise Rodd, Dick Sayad, James Brookman, Mark Walsten, Joanna Sojka, and Michael Charewicz.

         AIC's application for a zoning map amendment went first to zoning administrator Mangum. Mangum gave the application to one of the City's engineers, Derek Peebles, for evaluation. Peebles decided that AIC needed to provide a parking and traffic study in support of its request, even though this is not an automatic requirement for rezoning requests. Peebles based this decision on experience with another Islamic center in Des Plaines, the Islamic Community Center (ICC). He indicated that the study was necessary based on the chronic traffic and parking issues at ICC and the past inability of the City's parking ratios to adequately estimate the parking need at mosques that do not use fixed seating. AIC hired KLOA-an engineering firm recommended by the City-to perform the traffic and parking study. KLOA issued a report in which it concluded that AIC's proposed use would generate a low volume of traffic that would not have a detrimental impact on area roadways. The report also concluded that AIC's parking needs would be adequately served by the existing 118 off-street parking spaces.

         Peebles also developed an estimate of the parking required for AIC's request. Under sections 9.5 and 9.7 of the City's zoning ordinance, there is a fixed requirement for the total number of off-street parking spaces based on the applicant's principal use of the zoning lot. Section 9.7 provides the parking requirements for various types of uses. Places of worship require one parking space for every four seats in the main area of assembly and any other rooms that are to be occupied simultaneously. In cases where there is no fixed seating, places of worship require one parking space for every 60 square feet of floor area. AIC did not plan to have fixed seating for its 3, 661-square-foot worship space. Thus the ordinance required 62 parking spaces for the property (3, 661 square feet / 60 square feet per parking space = 61.02).

         After reviewing the traffic study, Peebles told AIC that it was required to calculate parking demands using a different standard. Specifically, Peebles told AIC to assume a maximum occupancy rate of one person per 10 square feet and parking at a rate of 1.24 persons per vehicle, resulting in a parking requirement of 1 space per 12.4 square feet. In an e-mail to Mangum, Peebles indicated that he determined the ratio of one person per ten square feet through an Internet search regarding mosque capacity. He determined the rate of 1.24 persons per vehicle based on KLOA's observation of the average vehicle occupancy at ICC during Friday prayers. This resulted in a requirement of 296 parking spaces for the Birchwood property (3, 661 square feet / 12.4 square feet per parking space = 295.24). In response, AIC informed the City that it would reduce its worship space from 3, 661 square feet to 1, 810. Under the new parking ratio, this would require 145 parking spaces (1, 810 square feet / 12.4 square feet per parking space = 145.97). On June 3, 2013, KLOA conducted a revised traffic study using the new parking ratio and a worship space of 1, 810 square feet. The study concluded that the 116 off-street parking spaces and the nearby on-street parking together could accommodate 145 vehicles.

         In June 2013, Mangum wrote a memorandum evaluating AIC's rezoning request. The memorandum stated that the City's engineering division believed that together the off-street parking and additional on-street parking would be sufficient to accommodate peak demand. The engineering division also noted that this situation is similar to other houses of worship that sometimes use on-street parking during Sunday services. The engineering division concluded that, provided the worship area was kept to the proposed 1, 810 square feet, AIC's proposed use would have limited and acceptable impact on traffic. The memorandum also evaluated the application under the factors set out in Section 3.7-5 of the City's zoning ordinance for considering zoning map amendment requests, and concluded that AIC's proposal satisfied these standards. The Planning Commission voted 3-0 to recommend that the City Council approve AIC's request.

         The City Council considered AIC's request at a meeting in July 2013. Chairman Walsten expressed his concern about "changing zoning like this and possibly removing properties from tax revenue." Pls.' Joint Statement of Facts (JSOF), Ex. 11 at 5:4-7. Alderman Sayad also said that the City Council would want to see reports on tax revenue, citing a concern that the residents would be left to pick up the deficit. Id. at 6:23-7:22. Alderman Brookman was concerned about changing the zoning in a manufacturing district, noting that AIC's proposed use was incompatible with the surrounding area and that he had concerns about traffic and parking. Alderman Rodd pointed out that the City's comprehensive plan recommended that the City eventually rezone the area containing the property to mixed-density residential use. Mangum confirmed that AIC's proposed use would be appropriate for that type of neighborhood. Over the course of the meeting, Alderman Sayad asked four times why AIC had chosen Des Plaines and where its members would be commuting from. Id. at 19:6-8, 22:10- 11, 22:22-23:5, 30:18-31:24. The City Council voted to deny the application 5-3 and instructed the City attorney to prepare for the next meeting a resolution denying the application.

         The City Council provided an opportunity for public comment on the resolution at an August 2013 meeting. Members of AIC testified in support of its request for rezoning. Brian Burkross, owner of a manufacturing facility in Chicago, also spoke at the meeting. He told the City Council about a prior experience when a church moved in next door to his facility. Pls.' JSOF, Ex. 12 at 22:1-24:12. Burkross stated that the church often requested permits to close off the streets and that he once had to revert an order of steel-losing about $80, 000-because the truck carrying it was not allowed to drive down his street. Burkross also spoke about an incident in which children from the church were playing outside. Two girls ran behind a truck backing into his loading dock and were injured, although not seriously. The City Council also heard a statement from Scott Luedko, the manager of a manufacturing plant located next to the disputed property. Id. at 32:2-9. Luedko stated that he was concerned about being able to drive his trucks down the street if AIC had 145 cars parked in the area. Jim Anton, another owner of a nearby company, stated his concern from a safety standpoint about increased activity and children in proximity to large trucks with blind spots. Chairman Walsten concluded by telling AIC that he would love to have them in Des Plaines but did not believe that the Birchwood property was an appropriate place. The City Council again voted to deny the application 5-3.

         The City Council enacted a resolution denying the application. In the resolution, the City gave the following reasons for its denial:

• that representatives from two nearby businesses had voiced concerns about disruption to business, public safety, and traffic and parking congestion;
• that peak use of the property would require AIC to use on-street parking;
• that AIC's proposed use was dissimilar to the uses surrounding the property and will create a demand for parking that will exceed the available on-site parking;
• that AIC's application did not meeting the zoning amendment standards of Section 3.7-5; and
• that it was in the best interest of the City and the public to deny the application.

         III. The ...

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