Village of West Dundee v. First United Methodist Church

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Appellate Court Date: 2017.05.09
13:39:07 -05'00'

Village of West Dundee v. First United Methodist Church of West Dundee,
2017 IL App (2d) 150278

Appellate Court THE VILLAGE OF WEST DUNDEE, Plaintiff and
Caption Counterdefendant-Appellee, v. FIRST UNITED METHODIST
CHURCH OF WEST DUNDEE, Defendant and Counterplaintiff-
Appellant.

District & No. Second District
Docket No. 2-15-0278

Filed March 7, 2017

Decision Under Appeal from the Circuit Court of Kane County, No. 12-MR-573; the
Review Hon. James R. Murphy, Judge, presiding.

Judgment Judgment vacated; order reversed; cause remanded.

Counsel on Thomas E. Sullivan, of St. Charles, for appellant.
Appeal
John E. Regan and Jennifer Sellers Wong, of Early, Tousey, Regan,
Wlodek & Wong, of Elgin, for appellee.

Panel JUSTICE HUTCHINSON delivered the judgment of the court, with
opinion.
Justices Burke and Birkett concurred in the judgment and opinion.
 OPINION

¶1 In this case, the trial court dismissed the amended countercomplaint filed by defendant, the
First United Methodist Church of West Dundee (Church), and held a trial on the initial
complaint filed by plaintiff, the Village of West Dundee (Village). Ultimately, the trial court
found for the Village. Because the amended countercomplaint should not have been dismissed,
the judgment must be vacated.
¶2 This case concerns the fate of a building located at 310 West Main Street (310 building) in
the Village. Constructed in 1849, the 310 building is one of the Village’s oldest historic
structures. The Church, which owns some of the adjacent structures on Main Street, acquired
the 310 building in the 1950s and began using it as a parsonage—a residence for the pastor and
his or her family. The record shows that the 310 building is one of the 65 buildings in the
surrounding area comprising the Dundee Township Historic District (Historic District), most
of which were added to the National Register of Historic Places in 1975. (A National Register
listing places no obligations on private property owners nor does it “restrict[ ] *** the use,
treatment, transfer, or disposition of private property.” See National Register of Historic
Places Program: Fundamentals, Nat’l Park Serv., https://www.nps.gov/nr/national_register_
fundamentals.htm (last visited Mar. 6, 2017).)
¶3 The Church made some efforts to repair and maintain the building over the years, but by
2004 the building’s age and deteriorating condition made it uninhabitable, and the pastor and
his family had to be relocated. Since 2004, the 310 building has sat unused and unrepaired,
accelerating its decline. In 2007, the Church applied to the Village’s appearance review
commission for a permit to demolish the building. In its application, the Church stated that its
congregation includes approximately 100 families and that it had insufficient parking spaces
and handicapped spaces for its congregation. Accordingly, the Church averred that its needs
would be better served if the 310 building were demolished and turned into additional parking.
See generally Our Saviour’s Evangelical Lutheran Church of Naperville v. City of Naperville,
186 Ill. App. 3d 988, 994 (1989) (noting that “the parking needs of a church should [not] be
considered on different legal principles than those applied to the church building itself”). In
June 2008, however, the appearance review commission formally denied the Church’s request,
citing a desire to see the building repurposed and restored, or at the very least
“mothballed”—that is, repaired to good condition for its continued preservation. The Church
did not appeal the commission’s decision to the Village’s board of trustees, which it was
entitled to do. See West Dundee Municipal Code § 2-2-6 (added Feb. 18, 2008).
¶4 In July 2012, following an inspection of the building by a Village code enforcement
officer, the Village issued the Church an order of correction citing 14 property maintenance
violations. Some of the violations listed in the correction order were significant, and per the
order, the Church was given 45 days to repair or replace the building’s roof, soffits, fascia,
support posts, windows, siding, flooring, gutters, and downspouts, as well as the building’s
porch and interior and exterior brickwork. When the Church failed to comply with the
correction order, the Village filed a complaint in the circuit court under section 11-31-1(a) of
the Illinois Municipal Code (Municipal Code) (65 ILCS 5/11-31-1(a) (West 2012)).
¶5 Section 11-31-1(a) of the Municipal Code provides that, when a building falls into
disrepair and becomes dangerous or unsafe, municipal authorities may seek a court order to
require the building’s owner or owners to “demolish, repair, or enclose the building.” Id. Any

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 cost incurred by the municipality in pursuit of the building’s demolition or repair is
recoverable as a lien on the property. Id. In this case, the Village’s complaint exclusively
sought the building’s repair, not its demolition. To that end, the Village asked the court to place
the 310 building in receivership and to place a lien on the Church for the costs of the building’s
repair.
¶6 The Church filed a countercomplaint asserting that it would cost $300,000 in exterior work
alone to mothball the outside of the 310 building and over $700,000 to repair it. These sums,
the Church stated, “would be financially devastating and likely cause the [Church’s] financial
demise.” Moreover, they would be substantially more than the building was estimated to be
worth. (Elsewhere, the record indicates that the building’s value “as is” was less than
$100,000.) In its countercomplaint, the Church also noted its need for parking as integral to its
congregation’s freedom to worship. See generally Our Saviour, 186 Ill. App. 3d at 994.
¶7 Accordingly, the Church claimed that the Village’s refusal to authorize demolition of the
310 building imposed a substantial burden on the Church in violation of section 2000cc(a)(1)
of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) (42 U.S.C.
§ 2000cc(a)(1) (2012)). That section forbids a government agency to “impose or implement 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.” Id. Since, according to the Church, RLUIPA forbade the
financially ruinous repair of the 310 building, the Church sought a court order authorizing the
building’s demolition as an alternative remedy for its condition under section 11-31-1(a) of the
Municipal Code.
¶8 The Village filed a combined motion to dismiss the Church’s countercomplaint. According
to the Village, because the Church had not alleged “that the Village ha[d] denied a request to
expand their parking on existing vacant Church[-]owned land,” the Church’s countercomplaint
failed to state a claim (see 735 ILCS 5/2-615 (West 2012)). In addition, the Village asserted
that, as an affirmative matter (see 735 ILCS 5/2-619(a)(9) (West 2012)), the Church was
estopped from seeking demolition of the 310 building because the Church had not exhausted
its administrative remedies by appealing the 2008 denial of its request for a demolition permit.
The Church countered that, under cases such as Village of Lake Villa v. Stokovich, 211 Ill. 2d
106 (2004), the Church, as the building’s owner, was entitled to choose either the building’s
demolition or its repair in response to official action per section 11-31-1(a) of the Municipal
Code. See id. at 127 (noting that “section 11-31-1[(a)] provides for repair or demolition in the
alternative and, thus, ‘contemplates repair where feasible and demolition where the state of
deterioration is such that repairs would amount to a substantial reconstruction’ ” (emphasis
added) (quoting City of Aurora v. Meyer, 38 Ill. 2d 131, 136 (1967))). The Village responded
by distinguishing Stokovich on the ground that there, as in virtually every similar case, local
officials had sought demolition without providing the owner with an opportunity to repair the
structure, but here, the Village argued, it was seeking the remedy of repair exclusively so the
concerns of Stokovich and cases like it did not apply. After a hearing, the trial court granted the
Village’s section 2-615 motion to dismiss and denied the Village’s section 2-619(a)(9) motion.
¶9 Thereafter, the Church filed a three-count amended countercomplaint. In this version of the
countercomplaint, the Church revised its estimates for work on the 310 building, stating that it

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 would cost $250,000 to mothball the exterior and $600,000 to repair the entire building. The
first count in the amended countercomplaint restated the Church’s RLUIPA claim, but this
time added an allegation—that the Village had approved the demolition of three other specific
structures in the Historic District for commercial uses. The remaining two counts sounded in
inverse condemnation, alleging that the Village’s refusal to issue a demolition permit
constituted a “taking” of the building, for which the Church sought either just compensation or
to compel the Village to institute eminent domain proceedings under a writ of mandamus. The
Village filed a combined motion to dismiss the amended countercomplaint on substantially the
same grounds as its earlier motion per sections 2-615 and 2-619(a)(9). After commenting at
length on the Church’s “failure” to exhaust administrative remedies, the trial court issued the
conclusory pronouncement that the amended countercomplaint failed to state any claim and
granted the Village’s motion to dismiss the countercomplaint with prejudice.
¶ 10 As the trial date neared on the Village’s complaint, the Village filed a motion in limine to
bar the Church from presenting any evidence regarding the value of the 310 building and its
projected “repair” costs. The Church objected, but the trial court granted the Village’s motion.
The Church next sought leave to tender affirmative defenses related to the cost of the repairs
and the alternative remedy of demolition, but the trial court denied the Church leave to do so.
¶ 11 The evidence at trial revealed that the 310 building was a wreck. Age, mold, and rot had
clearly overtaken the almost-170-year-old building. A Village code officer testified
concerning the property code violations. An architect with experience in the preservation of
historic structures testified that the building’s foundation, exterior and interior walls, and
columns would all require various types of shoring and replacement. At numerous times
throughout the hearing, the Church attempted to make offers of proof concerning the value of
the 310 building, the cost of repairs, and the viability of the alternative of demolition, but for
the most part the trial court would not accept the Church’s offers of proof.
¶ 12 After the trial, the court determined that the 310 building was dangerous and unsafe. The
court ordered that, if the Church did not repair the building within 14 days, the Village was
authorized to undertake the repairs and to place a lien on the Church for the repair costs. The
Church’s posttrial motion was denied and the Church appealed.
¶ 13 Before this court, the Church contends that its amended countercomplaint should not have
been dismissed. According to the Church, its amended countercomplaint did state a cause of
action (three, in fact) and should not have been dismissed on section 2-615 grounds.
Furthermore, the Church contends that it was not estopped from seeking a court order for the
310 building’s demolition in response to the Village’s complaint seeking a court order for its
repair, and so the Church’s amended countercomplaint should not have been dismissed on
section 2-619(a)(9) grounds. We review both issues de novo (Patrick Engineering, Inc. v. City
of Naperville, 2012 IL 113148, ¶ 31), and having done so, we agree with the Church.
¶ 14 We note that much of the parties’ arguments centers on the applicability of Stokovich and
City of Aurora. For the time being, we need say only that we find unpersuasive the Village’s
attempt to cabin those cases solely to the local authorities’ demolition petitions. We determine
that Stokovich and City of Aurora stand for the general proposition that, when municipal
authorities seek one form of relief under section 11-31-1(a) of the Municipal Code, the
building’s owner is entitled to file a counterclaim seeking an alternative form of relief. See
Stokovich, 211 Ill. 2d at 127; City of Aurora, 38 Ill. 2d at 136. With this understanding in mind,
we turn to the dismissal of the Church’s amended countercomplaint.

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¶ 15 We can quickly dispense with the ground on which the trial court dismissed the amended
countercomplaint pursuant to section 2-619(a)(9)—that the Church failed to exhaust its
administrative remedies after the Village denied the Church’s request for a demolition permit
in 2008. In general, a party’s failure to exhaust administrative remedies is a straightforward
basis for disposing of that party’s complaint by way of a section 2-619(a)(9) motion to dismiss.
See, e.g., City of Chicago v. Piotrowski, 215 Ill. App. 3d 829, 834 (1991). Thus, the exhaustion
requirement would ordinarily prevent the Church from bringing the Village into court while
the Church sought an order forcing the Village to authorize the building’s demolition. But
here, it was the Village that brought the Church into court over the fate of the building. It is
well settled that the exhaustion requirement does not apply when, as here, the court
proceedings are instituted by the local authorities. See Moore v. City of East Cleveland, 431
U.S. 494, 512 (1977); Casualty Insurance Co. v. Hill Mechanical Group, 323 Ill. App. 3d
1028, 1037 (2001); County of Cook v. World Wide News Agency, 98 Ill. App. 3d 1094, 1097
(1981); City of Des Plaines v. La Salle National Bank of Chicago, 44 Ill. App. 3d 815, 819
(1976); see also County of Lake v. MacNeal, 24 Ill. 2d 253, 260 (1962) (“[t]o compel a
property owner to first seek local relief *** would be a patently useless step” when “local
authorities institute an action”). Thus, the Church is correct that, due to the parties’ procedural
relationship, the exhaustion requirement did not apply in this case. Accordingly, the trial court
erred to the extent that it dismissed the Church’s countercomplaint pursuant to section
2-619(a)(9).
¶ 16 We turn then to the dismissal of the Church’s amended countercomplaint for failure to state
a claim under section 2-615. All that is required to survive a motion to dismiss for failure to
state a claim is that the plaintiff allege facts that, taken as true, are sufficient to bring a claim
within a recognized cause of action. Kanerva v. Weems, 2014 IL 115811, ¶ 33. In other words,
a complaint should not be dismissed on section 2-615 grounds unless no set of facts would
warrant relief. Borcia v. Hatyina, 2015 IL App (2d) 140559, ¶ 20. Such is not the case with any
of the claims in the Church’s amended countercomplaint.
¶ 17 In count I of the amended countercomplaint, the Church alleged that, notwithstanding the
Village’s efforts to force the Church to repair the building, the Village’s continued denial of a
demolition permit constituted a “substantial burden” on the Church’s free exercise of its
religion in violation of section 2000cc(a)(1) of RLUIPA (42 U.S.C. § 2000cc(a)(1) (2012)).
Specifically, the Church alleged that the significant cost to repair the building would
potentially ruin the Church. By any reasonable measure, the burden imposed on the Church,
taking the Church’s statement of it as true at this point, would certainly qualify as
“substantial.” See Roman Catholic Bishop of Springfield v. City of Springfield, 724 F.3d 78, 96
(1st Cir. 2013) (holding that “[a] burden does not need to be disabling to be substantial” under
RLUIPA); see also World Outreach Conference Center v. City of Chicago, 591 F.3d 531, 538
(7th Cir. 2009) (reversing dismissal of religious sect’s substantial-burden claim). Therefore,
we determine that the Church stated a prima facie substantial-burden claim under section
2000cc(a)(1) of RLUIPA and that the claim should not have been dismissed.
¶ 18 In so holding, we must comment on some of the assertions in the Village’s appellate brief.
First, the Village asserts that its property maintenance code—which is merely an adoption of
the 2012 International Property Maintenance Code with minor amendments (see West Dundee
Municipal Code § 9-1F-1 et seq. (added Aug. 8, 2014))—“is not [a] ‘land use regulation’
falling within the purview of RLUIPA.” On a related note, the Village argues that RLUIPA

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 simply does not apply to the 310 building because the building is presently “vacant,”
“uninhabitable,” and “not used for the purpose of religious exercise.” Thus, the Village
appears to assert that RLUIPA has nothing to say about intended uses for real property, but
protects only present uses. The Village is wrong on both points.
¶ 19 RLUIPA protects “[t]he use, building, or conversion of real property for the purpose of
religious exercise” (emphasis added) (42 U.S.C. § 2000cc-5(7)(B) (2012)), which includes
“any exercise of religion, whether or not compelled by, or central to, a system of religious
belief” (42 U.S.C. § 2000cc-5(7)(A) (2012)) from government enforcement of a land use
regulation. RLUIPA defines a land use regulation as any “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 land).” (Emphasis added.) 42 U.S.C. § 2000cc-5(5) (2012).
The foregoing language undoubtedly covers the Church, the 310 building, and the Village’s
complained-of actions. Here, the Church, a religious claimant, is asserting that its property
interest in the 310 building has been “limit[ed] or restrict[ed]” by the Village’s refusal to
permit the 310 building’s demolition. That claim is sufficient to trigger RLUIPA. It is true, as
the Village notes, that a religious organization’s purely commercial endeavors—such as the
sale of its property to a private developer for an entirely secular use like the construction of
market-rate condominiums—are likely to fall outside of RLUIPA’s protections (see, e.g.,
California-Nevada Annual Conference of the Methodist Church v. City & County of San
Francisco, 74 F. Supp. 3d 1144, 1154 (N.D. Cal. 2014)), but that is not the case here. The
Church has repeatedly stated that it intends to use the land under the 310 building as a parking
lot for its congregation. Given the ubiquity of cars and other motor vehicles, sufficient parking
is, as this court held years ago in Our Saviour, every bit as fundamental as a sanctuary is to its
church or an ark is to its synagogue. See generally Our Saviour, 186 Ill. App. 3d at 994. In
short, the Church owns the 310 building; it wants to use the building and the land for a
particular purpose, but the Village is (allegedly) standing in the Church’s way. Congress
mandated that RLUIPA be construed “in favor of a broad protection of religious exercise” (42
U.S.C. § 2000cc-3(g) (2012)), and in our view, this case (which again is only at the pleading
stage) presents the precise sort of situation that RLUIPA was designed to cover.
¶ 20 We note, too, that there was some confusion as to the allocation of the parties’
responsibilities on a substantial-burden claim under RLUIPA. In the trial court, it was
suggested by the Village and the court that the Church had some obligation to successfully
plead its way around the Village’s potential least-restrictive-means and compelling-interest
arguments. That suggestion holds the Church to a higher burden than RLUIPA requires. Under
RLUIPA, the initial burden is on the plaintiff to show that he has a sincere religious belief and
that his religious exercise was substantially burdened. 42 U.S.C. § 2000cc(a)(1) (2012). If the
court determines that the plaintiff has made that required showing, then the burden of
persuasion shifts to “the government”—in this case, the Village—to demonstrate that its
actions further “a compelling governmental interest” by “the least restrictive means.” Id.; see,
e.g., Opulent Life Church v. City of Holly Springs, 697 F.3d 279, 290 (5th Cir. 2012); Centro
Familiar Cristiano Buenas Nuevas v. City of Yuma, 651 F.3d 1163, 1171 (9th Cir. 2011);
Westchester Day School v. Village of Mamaroneck, 504 F.3d 338, 353 (2d Cir. 2007); see also
Cutter v. Wilkinson, 544 U.S. 709, 712 (2005) (applying the same pleading requirements under
RLUIPA’s parallel substantial-burden provision that applies to prisoners and other
institutionalized persons). We have already determined that the Church made the necessary

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 allegations at the pleading stage to substantiate its substantial-burden claim and to survive a
section 2-615 motion to dismiss. See Borcia, 2015 IL App (2d) 140559, ¶ 20. At this point in
the litigation, the Church was not required to do anything more under section 2000cc(a)(1) of
RLUIPA.
¶ 21 In addition to the substantial-burden claim, we note that count I of the Church’s amended
countercomplaint stated a second claim under RLUIPA. Although that claim was not
separately labeled (the Church unhelpfully set out its allegations regarding the facts,
jurisdiction, and the parties under a single label, “COUNT I,” and cited the entirety of
RLUIPA), courts must rely on a pleading’s substance, not its labels. See In re Marriage of
Kuyk, 2015 IL App (2d) 140733, ¶ 9. Again, count I of the amended countercomplaint also
alleged that the Village had approved demolition permits for at least three other structures in
the Historic District for commercial uses. For example, the Church alleged that one demolition
permit went to a dentist who was given leave to demolish a historic building to create parking
space for his dental practice in a neighboring historic building. That allegation set forth a
distinct cause of action under section 2000cc(b)(1) of RLUIPA (42 U.S.C. § 2000cc(b)(1)
(2012)), which provides that “[n]o government shall impose or implement a land use
regulation in a manner that treats a religious assembly or institution on less than equal terms
with a nonreligious assembly or institution.” An unequal-treatment claim under section
2000cc(b)(1) may be litigated solely on the basis of an allegation of unequal treatment. No
other allegation, such as whether the challenged conduct also constitutes a substantial burden,
is required. On its face, the Church’s amended countercomplaint painted a picture of arbitrary
enforcement: the Village granted three commercial land users leave to demolish historic
buildings while the Church, a religious institution, was denied the same privilege. That
allegation was sufficient to state a claim of unequal treatment under section 2000cc(b)(1) (see
Opulent Life Church, 697 F.3d at 291; Centro Familiar, 651 F.3d at 1173; Midrash Sephardi,
Inc. v. Town of Surfside, 366 F.3d 1214, 1229-35 (11th Cir. 2004); Civil Liberties for Urban
Believers v. City of Chicago, 342 F.3d 752, 762 (7th Cir. 2003)) and, likewise, should not have
been dismissed.
¶ 22 The same holds true for the inverse condemnation claims in counts II and III of the
Church’s amended countercomplaint. Both counts alleged that the Village’s actions—either by
instituting the repair proceedings or by denying the Church a demolition permit, or both—had
accomplished a “taking” by denying the Church the use of the 310 building, even if only
temporarily so. That is all that is required to state an inverse condemnation claim against a
public entity—an allegation that the owner was temporarily deprived of the use of the subject
property without the formal exercise of eminent domain proceedings (Westwood Forum, Inc.
v. City of Springfield, 261 Ill. App. 3d 911, 923 (1994); Tim Thompson, Inc. v. Village of
Hinsdale, 247 Ill. App. 3d 863, 886 (1993); Chef’s No. 4, Inc. v. City of Chicago, 117 Ill. App.
3d 410, 413 (1983))—since a taking can be accomplished as much by the government’s
physical act as by regulatory force. See First English Evangelical Lutheran Church v. County
of Los Angeles, 482 U.S. 304, 312-13 (1987); Hampton v. Metropolitan Water Reclamation
District, 2016 IL 119861, ¶ 22; see also Ali v. City of Los Angeles, 91 Cal. Rptr. 2d 458, 464
(Ct. App. 1999) (holding that the denial of a demolition permit for a historic structure could
constitute a taking). Accordingly, the trial court erred when it dismissed counts II and III of the
amended countercomplaint.

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¶ 23 The Church further asserts that the trial court erred when it denied the Church leave to file
its counterclaims as affirmative defenses and when it barred the Church from presenting
evidence concerning the 310 building’s value and the cost of repairing it versus demolishing it.
However, because we have determined that the trial court should not have dismissed the
Church’s amended countercomplaint, it is unnecessary to address those issues.
¶ 24 Before concluding, we will put a finer point on what we said earlier (see supra ¶ 14)
regarding section 11-31-1(a) of the Municipal Code, Stokovich, and City of Aurora. Again, as
our supreme court said in Stokovich: in “provid[ing] for repair or demolition in the alternative[,
section 11-31-1(a) of the Municipal Code] ‘contemplates repair where feasible and demolition
where the state of deterioration is such that repairs would amount to a substantial
reconstruction [of the building].’ ” (Emphases added.) Stokovich, 211 Ill. 2d at 127 (quoting
City of Aurora, 38 Ill. 2d at 136). The statute operates on a continuum that is as wide and as
varied as a building’s condition, defects, value, and impact on the surrounding community.
After all:
“There are many kinds of deficiencies which would render a building dangerous and
unsafe, but which can readily be obviated by appropriate repairs. Inadequate wiring, or
a weakened supporting beam ***, even if serious enough to sustain a finding that the
structure is dangerous and unsafe, would not in many cases warrant complete
destruction. The cost of repairs may well be a small fraction of the building’s value.
The court should find from the evidence what the specific defects are which render the
building dangerous and unsafe. If they are such as may readily be remedied by repair,
demolition should not be ordered without giving the owners a reasonable opportunity
to make the repairs.” City of Aurora, 38 Ill. 2d at 137.
Conversely, if the building cannot be readily repaired, or if repair makes “so little economic
sense that it is unlikely that an owner would make use of any further opportunity to repair”
(Stokovich, 211 Ill. 2d at 131), then demolition may be the appropriate course. As those cases
and the statute’s plain language indicate, the purpose of section 11-31-1(a) of the Municipal
Code is to put unsafe buildings into safe condition with as minimal disruption to the owners’
property rights as is reasonably possible. Sometimes demolition and not repair will result in the
least disruption; sometimes not. Whether this case is the former or the latter is a matter for the
trial court to determine on remand.
¶ 25 The Church’s amended countercomplaint sufficiently stated several claims and was not
barred on failure-to-exhaust grounds; therefore, the amended countercomplaint should not
have been dismissed. Accordingly, the judgment of the circuit court of Kane County is
vacated; the order that dismissed the Church’s amended countercomplaint is reversed; and the
cause is remanded to the trial court for further proceedings consistent with this opinion.

¶ 26 Judgment vacated; order reversed; cause remanded.

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