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updated: 3/26/2013 7:11 PM

PhilHaven proposal gets good news from court

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  • Rendering of the proposed PhilHaven project.

      Rendering of the proposed PhilHaven project.

 
 

The developers behind PhilHaven, a proposed Wheeling apartment building for people with mental and physical disabilities, got some good news from the court last week, although their legal battle with the village is far from over.

In a ruling issued on Thursday, a federal judge rejected the developer's request for a preliminary injunction, which would allow them to proceed with the project immediately.

However, he also wrote that if and when the case goes to trial they have a "better than negligible" chance of winning.

The ruling, written by U.S. District Court Judge John Z. Lee also says it is clear there was "discriminatory effect" and "some evidence of discriminatory intent" on the part of the village when it rejected PhilHaven.

Daveri Development sued Wheeling in September 2012, claiming the village violated the federal Fair Housing and Americans with Disabilities acts by denying the PhilHaven project. The board twice voted down PhilHaven.

The project calls for a 50-unit building at 2418-2422 W. Hintz Road. The apartments would provide housing and some services to low-income residents who have mental illness but can live independently.

The village previously approved a plan for luxury apartments at that location, but that project fell through.

"The Wheeling board did not approve the PhilHaven project because, if it is built, it will afford housing to disabled persons," the original suit claims.

The $13 million proposal met strong opposition from neighboring homeowners, whose concerns range from increased traffic and flooding to the impact on their property values and the safety of other residents.

Daveri had asked the court for a preliminary injunction to speed along the case for fear of losing funding for the project. However, the court said that because Daveri will be able to apply for low-income tax credits to finance the project at a later time, the injunction is not needed.

However, the ruling also took on several merits of the case with positive assumptions toward PhilHaven's chances at trial.

The court said the fact that the tenants of Philhaven will be receiving special services from Kenneth Young Center or Alexian Brothers is no different from an apartment complex where all the tenants are given the privilege of membership at a nearby health club.

"The primary difference between these examples and PhilHaven is that the residents of PhilHaven are mentally disabled and their commonality relates directly to their disability. Such a distinction is not permissible," the ruling says.

"There is no indication that Philhaven would harm the stability or nature of the existing neighborhoods," the ruling adds.

Any indication that it would, "came from certain residents at the hearing who voiced their concerns about the project based upon general stereotypes, fears and prejudices."

The court also infers that such public opinion may have swayed certain village board members.

"It is not unreasonable to think that such vocal opposition may have had an influence, however slight, on the elected officials on the Board, a number of whom are up for re-election in April 2013," the ruling states.

Trustees Ken Brady and Bill Hein are up for re-election on April 9. Trustee Dean Argiris is one of two challengers running against Village President Judy Abruscato. Abruscato was the only elected official to vote for PhilHaven.

"Given the Board's rationale for denying Daveri's second application, no permanent supportive housing development for the mentally disabled would ever qualify as a multifamily swelling or be permitted in a residential district in the Village of Wheeling," the ruling reads. "Any permanent supportive housing development would, instead, be relegated to industrial, commercial or mixed use districts that exist primarily on the fringes and outskirts of the village."

Other plaintiffs in the case include the North/Northwest Suburban Task Force for Individuals with Mental Disabilities and a pair of would-be PhilHaven residents.

Because Philhaven has so far proved its case, "the burden of production shifts to Wheeling to articulate a legitimate, nondiscriminatory reason for its action."

In response to the ruling, Wheeling said they will continue to fight.

"At this time the village remains committed to defending its zoning decision regarding PhilHaven," said Village Manager Jon Sfondilis in a statement on Tuesday. "For Wheeling, this has always been about making sure all local laws are followed in the development of the facility."

"The Village has great respect for the disabled and welcomes residents from every background. Serious questions have been raised about whether PhilHaven is allowed to be built in the part of the Village where proposed," he continued. "The village board of trustees has a responsibility to the citizens of Wheeling to apply the zoning ordinance as-written to all applications before them."

This is the second federal lawsuit Daveri has filed against a Northwest suburb that rejected one of its proposals. In June 2012, a similar lawsuit against Arlington Heights over its denial of the Boeger Place proposal was dismissed by a federal judge who ruled the village was within its right to deny a project.

Daveri also is building Myers Place, a 39-unit apartment building for disabled residents, at the corner of Dempster Street and Busse Road in Mount Prospect.

A status hearing on the lawsuit will be held in April to set a date for the case to go to trial, according to court documents.

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