Naperville Sun: Naperville Islamic center refusal going to court

By Susan Frick Carlman

http://napervillesun.suntimes.com/news/4564809-418/naperville-islamic-center-refusal-going-to-court.html

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A lawsuit naming 18 DuPage County officials who declined to approve an Islamic worship center just east of Naperville will move ahead, but the 18 won’t be named.

In an opinion issued Monday, U.S. District Court Judge Rebecca Pallmeyer denied the DuPage County state’s attorney’s request to have the case dismissed entirely, but she excused the 11 County Board and seven Zoning Board of Appeals members who voted against the Irshad Learning Center’s request for a conditional use permit. With Pallmeyer’s decision that the appointed and elected officials enjoy “absolute quasi-judicial immunity,” the case will now pit Irshad directly against the county.

State’s attorney spokesman Paul Darrah, commenting on behalf of the county, welcomed the immunity ruling.

“This is a good decision for the zoning board and for the County Board members,” Darrah said. “It allows them to go about their business making these important decisions that they must make on zoning matters without fear of retaliation or retaliatory lawsuits brought by those that just don’t agree with their decisions.”

Filed last April by the Chicago chapter of the Council on American-Islamic Relations, the 11-count complaint alleged that the denial of Irshad’s zoning request in January 2010 violated the organization’s equal-protection rights and the provisions of the Religious Land Use and Institutionalized Persons Act of 2000.

CAIR, which advocates for religious freedom and civil liberties in the Muslim community, also maintains that Irshad officials tried to pursue remedies for the permit refusal through normal administrative channels before filing the federal suit.

Kevin Vodak, the attorney arguing the case for CAIR and Irshad, was pleased overall with the ruling.

“We think that Judge Pallmeyer provided a very well-reasoned opinion to allow Irshad to proceed in the case against the county,” he said. “We’re happy to see that the judge recognized that the plaintiffs made a valid argument.”

Vodak was not deeply concerned about the county officials’ exemption from liability.

“The effect of dismissing the individual defendants will be negligible,” he said.

The dismissal motion, filed in late May 2010 by county counsel Tom Downing, asserted in part that Irshad’s board is not entitled to claim a violation of its constitutional rights because the organization is free to use the property in the same way its previous owners did. The operators of the Balkwill Preschool were permitted to run a preschool with a capacity of up to 70 pupils and staff. Irshad’s request was for use of the property by up to 100 students and worshipers at a time.

Neighbors of the property, a 3-acre parcel and house on the north side of 75th Street just east of Naper Boulevard, vigorously opposed the worship center proposal. Some said they expected Irshad’s members would violate the time limits and capacities imposed by the permit, while others predicted added noise, traffic and night-time lights would hinder their quality of life.

Pallmeyer took issue with the County Board’s reliance on the opponents’ expected outcomes.

“Such speculation suggests arbitrariness on the part of the County Board and ZBA — after all, it is well within the power of the county to impose specific conditions upon which a conditional use permit is granted and to take enforcement actions if those conditions are not being met,” she wrote. “(Irshad’s) allegation that it might never be able to meet the shifting criteria the County Board and ZBA seek to impose is sufficient to state a claim that the county has placed a substantial burden on plaintiff’s free exercise of religion.”

In addition to the neighborhood opposition, Naperville resident Virginia Petru spoke out against the proposal and was named in the original CAIR complaint. In an email to the County Board several days before it voted down the request, Petru implored the members to reject the plan because Irshad secured a loan for the center from the Alavi Foundation, an Islamic philanthropy that had come under federal scrutiny for possibly supporting Iran’s nuclear program.

“You MUST NOT GRANT APPROVAL on this conditional use of residential property to Irshad, UNTIL YOU HAVE COMPLETE AND ABSOLUTE clearance from our local FBI and Homeland Security,” Petru, an active member of the Naperville Tea Patriots, wrote.

Aside from its $300,000 loan, no other connection between Irshad and Alavi has been demonstrated, and Pallmeyer suggested the county should have disregarded the comments from Petru and others that were unrelated to the zoning request.

“… Testimony at the Dec. 7 ZBA meeting, the Dec. 15 CDC meeting, and the Jan. 12 County Board meeting related to plaintiff’s religious character — rather than issues regarding zoning criteria — took center stage. Presuming the truth of these allegations, plaintiffs may be able to demonstrate that a similarly-situated landowner would have been permitted to address concerns that its proposed use did not conform to the relevant zoning criteria, and to negotiate conditions that would ensure it met those criteria.”

The case is scheduled for a status hearing at 9 a.m. April 11 in the Dirksen Federal Building in Chicago.

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