Opinion
00 C 4596
April 5, 2002
Before me is defendants' motion for summary judgment on those counts surviving their Fed.R. Civ, Pro. 12(b)(6) motion to dismiss. Specifically, those counts are plaintiffs claims under the free exercise of religion clauses of the First Amendment, 42 U.S.C. § 1983, and Illinois Religious Freedom Restoration Act, 775 ILCS 35/15 ("IRFRA"). In my ruling on defendants' 12(b)(6) motion, I found "that preventing a group from purchasing land to be used as a mosque is a burden on the exercise of religion." I denied defendants' motion to dismiss those claims because a factual record fully explaining plaintiff's requests and defendants' response was needed to determine whether defendants' actions constitute a violation of the First Amendment and IRFRA.
Plaintiff had negotiated to purchase the Reformed Church's property in Palos Heights so that it could use the property as a mosque and school. Because it believed that the Reformed Church had received a special use permit from the City of Palos Heights ("the City") to use the property as a church and school and that there would be zoning issues when it occupied the building, plaintiff negotiated a rider to the contract stating that the deal would be contingent on plaintiff obtaining written verification from the City that plaintiff could use the property as a mosque and school. Plaintiff requested this written verification, and the City responded with some correspondence, but no such written verification was given to plaintiff. During this time, the City Council offered plaintiff $200,000 to buy the rights to purchase the Reformed Church property, which plaintiff reluctantly accepted. However, the mayor of the City vetoed the Council's offer (of which I have taken judicial notice), and there was no attempt to override the veto. At that point, plaintiff attempted to extend the contract so that it could obtain written verification or a special use permit, but the request was denied. Consequently, plaintiff exercised its option to nullify the contract based on lack of zoning. Plaintiff alleges that defendants refused to provide written verification to intentionally inhibit plaintiff from purchasing the property because they did not want the property to be used as a mosque.
Defendants contend that "no prospective purchaser of real estate in the City of Pubs Heights had ever before requested or received such `written verification'" and that there exists no procedure for a prospective land owner to request any sort of zoning pre-clearance. They argue that plaintiff has not been treated differently from any other prospective landowner in the City. Defendants offer correspondence from Harry DeBruyn, counsel for the Reformed Church, to Rouhy Shalabi, plaintiff's real estate attorney, informing Mr. Shalabi that Mr. DeBruyn had received a letter from the mayor (which, incidentally, was never sent directly to Mr. Shalabi) indicating that the property was in a zone allowing churches and that this letter "would appear to satisfy the purchaser's requirements for zoning certification." However, the mayor also indicated to Mr. Shalabi that the zoning map might be in error. To address this problem, defendants offer a memorandum from the City Attorney indicating that even if the zoning map is in error, the property's present use as a church and school is a legal non-conforming use that runs with the land and a special use permit is not needed. Defendants argue that because plaintiff did not need any written verification to ensure that it could use the Reformed Church's property as a mosque and school, plaintiffs inability to complete the transaction was self-inflicted and not from any fault on defendants' part.
After reviewing the record before me, I find that there is enough evidence for plaintiffs claims to survive summary judgment. Although defendants strongly assert that plaintiff was not treated differently from any other prospective landowner, it appears that defendants' dealings with plaintiff did not follow routine procedure. The City's procedure when a prospective purchaser of property is unsure of the zoning or requirements for a special use permit is for the buyer or seller to come to City Hall and speak to the zoning secretary. If a zoning change or special use permit is required, the zoning secretary provides an application (which is supposed to be available to anyone requesting one). If further clarification is needed, the requesting party comes to the Planning and Zoning Committee on an informal basis and gets advice from the four Aldermen sitting on the committee. In plaintiffs case, the mayor directed the zoning secretary not to give Mr. Shalabi an application and instead asked Mr. Shatabi to write a letter to the mayor and City Council detailing what verification was needed and the intended use of the property. According to Alderman Corsi, this was an unprecedented deviation from the normal procedure. Subsequently, the mayor asked Mr. Shalabi to attend a Planning and Zoning meeting at which various aldermen and numerous residents were present. At this meeting, many intividuals expressed their objection to plaintiffs plans for the property, and Mr. Shalabi was given conflicting advice on how to proceed. For example, one member of the Zoning Committee expressed his belief that the Reformed Church's special use of the property as a church and school did not run with the land, which was contrary to what the City Attorney had concluded. Also at this meeting, the Zoning Committee indicated to Mr. Shalabi that it was their opinion that a mosque was not the same as a church and therefore, even if the special use ran with the land, it was possible that using the property as a mosque was not permitted. Although, as defendants contend. these statements do not constitute official custom, policy, or practice, these are comments attributable to city officials with the power to determine that plaintiffs use of the property as a mosque is a zoning violation. Thus, these comments are relevant to the issue of whether defendants assurances of proper zoning were sufficient to meet plaintiffs requirement for zoning certification. After this meeting, Mr. Shalabi again asked the mayor for written verification or, in the alternative, an application for a special use permit, but the mayor again refused, telling Mr. Shalabi that neither would be necessary because zoning was not a problem.
Defendants' only explanation for what occurred is that such a request for written verification had never before been made. This may explain why plaintiff should be denied its request, but it does not adequately explain why defendants had to deviate from routine procedures. Further, there is an ordinance in Palos Heights law providing for zoning certificates and occupancy permits to be issued by the Director of Public Services. Defendants argue that because no one currently occupies this position, it was impossible for such certificates and permits to be issued. Defendants, however, offer no futher explanation as to why no other city official could have assumed those responsibilities in the absence of a Director of Public Services, and it does not make sense for such procedures to exist only if a certain position is filled.
In light of the evidence before me, it is not surprising that Mr. Shalabi felt uncomfortable proceeding with the purchase of the Reformed Church's property, and I find that there is sufficient evidence supporting plaintiffs position that defendants intentionally prevented plaintiff from purchasing the property for use as a mosque to create a genuine issue of material fact, Hence, defendants' motion for summary judgment is denied.