Divided appeals court says Lake County wrong to deny permit for homeless shelter in public building

By Elizabeth Alt | Nov 2, 2017

ELGIN —  A charity seeking to operate a new residence facility in Lake County for the chronically homeless have secured a win in their tussle with county officials over the project, after a divided state appellate panel sided with a trial court's decision to reverse a county board's decision to deny the Lake County PADS group's application to open a new site for its Safe Haven program in a vacant government building.

Illinois Second Appellate District Justice Joseph E. Birkett issued the decision,with Justice Mary Seminara-Schostok concurring. Justice Donald C. Hudson dissented.

The majority affirmed that the Housing Authority of Lake County could lease Midlothian Manor, a former senior assisted living residence, to PADS for its Safe Haven program.

“In our view, the act expressly permits the authority to contractually partner with other entities to provide the types of services that further the authority’s goals and statutory purposes…" Birkett said in the decision. "The authority’s core purpose is to provide safe, decent, sanitary, and affordable housing to underserved and disadvantaged residents of the county.”

PADS of Lake County Illinois is a not-for-profit organization which seeks to aid homeless people in various ways. When PADS needed to relocate their Safe Haven program in North Chicago, it found a former senior assisted living center called Midlothian Manor near Lake Zurich. Safe Haven is a program that is designed to give chronically homeless people permanent supportive housing. 

PADS discussed which permit to apply for with staff members at the county Housing Authority, which is empowered by the Housing Act to build and operate low-rent housing projects and housing accommodations.  PADS applied for a change-in-use permit. Director Eric Waggoner issued PADS a change-in-use permit to lease the government-owned building.

Upon realizing that Waggoner issued the permit, some neighbors voiced concerns about the use of Midlothian Manor as a homeless shelter, fearing it could bring crime or lower property values. 

The residents appealed to the Lake County Zoning Board of Appeals to deny Safe Haven’s permit. The board, noting the sensitive and complex subject, said its job was not to judge whether the homeless should reside in that space, but merely to decide whether there was an error in Waggoner’s determination. 

After a three-day public hearing, the board reversed Waggoner’s decision. The board as a whole believed the director incorrectly classified the proposed project as a government use, but members had different reasons as to why they believed the decision was erroneous. Some thought the classification of Midlothian Manor had been done incorrectly and should have been classified as group living, and another said the definition of government use clashed with the authority’s decision to lease Midlothian to private, not-for-profit entities.

Waggoner said that leasing Midlothian Manor to PADS would satisfy the statutory responsibility of the authority that requires an intended use for a government-owned building to be a government use, because the Safe Haven program would further the purpose of helping the homeless.

The housing authority appealed the board’s decision, and a Lake County judge reversed, saying the board was improperly concerned with the director’s procedure for arriving at his determination, instead of the substance of the determination. The board appealed the circuit court decision, saying because the director had incorrectly applied the Lake County's development code when determining Midlothian Manor would have a government use, the board’s decision was correct. It also argued that Waggoner himself had admitted the shelter would be similar to “group living,” which is prohibited in the R-1 zoning district.

Because the board only reversed the determination that classified the project as “government use (no assembly space),” without attempting to offer any appropriate reclassification, the appellate justices noted that was the determination they had to review.

The majority affirmed that Waggoner’s decision was in line with the county code and explained county ordinances define government use as “[a] building or structure owned or leased by a unit of government and used by the unit of government in exercising its statutory authority.”  

“The authority unites with the goals of the U.S. Department of Housing and Urban Development (HUD), which has directed public housing authorities to work to end homelessness, specifically for the 'chronically homeless,'” Birkett said in the decision. “The best indication of legislative intent is the language used given its plain and ordinary meaning.”

Justice Hudson, however, dissented, stating he would have affirmed the board’s decision and agreed that the program amounted to “group living.”  

“I find it nearly impossible to dismiss this conclusion as clearly erroneous," Hudson wrote in the decision. "In my view, it is not clear that the building would be 'used by' the authority. The fact that the authority approves of the use to which PADS would put it- and even the fact that the authority could put it to that use itself - do nothing to establish that the authority would actually ('indirectly') be using it.”

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Illinois Second District Appellate Court Lake County Lake County Housing Authority Lake County Zoning Board of Appeals Nineteenth Judicial Circuit Court of Lake County

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