Naperville Sun: Documents piling up in Irshad case

A Muslim organization’s continuing effort to establish a center in unincorporated DuPage County is slated to have its day in court early next month. Meanwhile, the documents are piling up.

The Irshad Learning Center filed suit in U.S. District Court in early April, naming 18 county officials who had a role in the denial of a conditional use permit that would allow the group to run a school and worship site from a former residence it owns on a three-acre parcel on 75th Street east of Naper Boulevard. The complaint asserts, among other points, that the Zoning Board of Appeals recommended withholding the permit on the basis of “speculative use” of the site that had been shown lacking in merit. According to the filing, reports from nearby residents that Irshad members took part in late-night worship at other locations were untrue and should not have been taken into consideration in the county’s decision.

The suit seeks a reversal of the decision, a prohibition on future interference by the county in Irshad’s development of the site as described in its original application, and unspecified damages.

Tom Downing, who represents the county officials, in late May filed a motion to dismiss the action. The filing claimed in part that the Irshad board can’t claim it has been denied its constitutional rights because it is free to use the property in the same fashion as the last owners. The operators of the Balkwill Preschool were authorized to run a preschool with a capacity of up to 70 pupils and staff. The Irshad petition sought clearance for up to 100 students and worshipers.

Attorney Kevin Vodak, who is representing Irshad on behalf of the Chicago office of the Council on American-Islamic Relations, maintained in a response to the dismissal filing this week that “a reasonable fact finder could plausibly find that the county treated ILC much less favorably than a secular comparator.”

Vodak also alluded in the initial complaint to a query posed by ZBA member John Hakim about the prospect of “animal sacrifices” as part of worship activities. In addition, Vodak noted that the zoning panel “oddly” relied on Irshad’s original petition, which early in the process was modified at the suggestion of county zoning officials.

In this week’s response, Vodak disputed the county officials’ claim that they are entitled to “quasi-judicial immunity from the damage claims brought against them.”

Downing’s motion asserts that County Board Chairman Bob Schillerstrom, one of the defendants, should be released from the suit because he “had no vote in any of the matters pertaining to plaintiff’s conditional use petition and could not have affected the outcome.”

According to Vodak, case law suggests that Schillerstrom had a duty “to ensure that the board voted on ILC’s actual application and that all of the procedures were followed in accordance with the zoning ordinance.”

Reached by phone Thursday, the chairman declined to discuss the case on the record.

“I don’t comment on pending litigations,” said Schillerstrom, an attorney and Naperville resident.

Paul Darrah, a spokesman for State’s Attorney Joe Birkett, whose office is representing the county officials, also said he wouldn’t comment on an ongoing case. County Board spokeswoman Carrie Roth said, “I don’t believe anyone with the county can speak to the case.”

Vodak was willing to comment, however. He disputes the county’s claim that Irshad should have first sought relief in the state appellate courts.

“We say according to the statutes involved that’s not the case,” he said, referring to a statutory amendment passed in the General Assembly last year that allows the ILC to take its case directly to the federal system.

And he takes exception to the county officials’ claim that the facts provided in the complaint aren’t sufficient to support the claims being made.

“We’re saying that they are,” Vodak said.

Birkett’s office has until July 21 to reply to the response from CAIR. Barring additional delays, Judge Rebecca Pallmyer will rule on the matter at a hearing set for 9 a.m. Aug. 5 in the Dirksen Federal Building in downtown Chicago.