Joan Dachs, an Orthodox Jewish school in Chicago, applied for a zoning change so it could expand to Evanston. A federal judge ruled in favor of the City, whose zoning laws prohibit schools in this zoning district. The now-vacant building at 222 Hartrey Ave. is the former home of Shure Brothers. RoundTable photo

The City of Evanston successfully defended its I2 (“industrial”) zoning in a lawsuit filed by Joan Dachs Bais Yaakov Elementary School (“Joan Dachs”).

 Joan Dachs is a private religious elementary school dedicated to providing its students an education in the Orthodox Jewish tradition, coupled with a secular curriculum approved by the Chicago Board of Education. There are separate schools for male and female students, both located in Chicago.

Wishing to expand and relocate its boys’ school and its early childhood program, the school contracted to purchase the property at 222 Hartrey Ave. in December 2006. School officials had been told before the purchase that the property was zoned I2, principally for industrial and light manufacturing uses, and that schools were not a permitted or special use in industrial, I2, areas. 

The property is the eastern portion of the property vacated by Shure Brothers in 2002. Vineyard Christian Fellowship owns the western portion of the property, 2401 Brummel St., and operates its church under a special use zoning permit from the City. Churches, but not schools, are allowed as special uses in Evanston’s I2 zoning districts.

The school purchased the property for $2.8 million, $1.3 million less than the $4.15 million price discussed in a letter of intent in August 2005.

 Judge Mary Anne Mason, who found in favor of the City, wrote in her 46-page opinion that Joan Dachs purchased the property with its eyes open: “Prior to signing the contract to purchase the property, Joan Dachs was aware that it would be necessary to petition Evanston for some form of zoning relief, estimated that the process could take up to two years and recognized that a successful outcome was not guaranteed. Joan Dachs also anticipated that Evanston would be concerned about taking the property off the tax rolls, given Joan Dachs’ tax-exempt status. Notwithstanding these issues, Joan Dachs believed the reduced price justified the risk and made a business decision to move forward with the purchase.”

Having purchased the property, Joan Dachs considered two ways to petition the City for zoning relief before settling on a request for a “map amendment” – which would change the zoning of the entire I2 district. The City’s Plan Commission, which first heard the request, denied it and forwarded its recommendation for denial to City Council. The Council also denied the request for a zoning map amendment.

Joan Dachs sued the City, saying, among other things, that the denial was “arbitrary and capricious” and that it imposed a “substantial burden” on its exercise of religion.” The Court found, however, that “Evanston … presented sufficient rational public safety, health and general welfare concerns” and did not discriminate against Joan Dachs or burden its exercise of religion by denying a map amendment. 

Concern about removing the property from the tax rolls was not alleviated by the possibility that Joan Dachs might offer a payment in lieu of taxes (PILOT) to the City. The PILOT would cover the City’s portion of the property tax bill – about 20 percent of the entire bill, which, at that time was about $100,000 annually.  The Court found that, although the matter was discussed, the person who first brought it to Council’s attention later conceded that he did not have the authority to do so.

Bill McKenna of the law firm Foley Lardner, which handled the case for the City, said a change in the zoning law could result in the loss of property from the tax rolls. He said it is important for municipalities to have “carefully planned” zoning ordinances and land uses.

“The trial had to do with judicial review of a legislative decision [by City Council] to deny a rezone from ‘industrial’ to commercial.’ The plaintiff [Joan Dachs] needed clear and convincing evidence that the action of the municipality was arbitrary and capricious. … Seven of the eight factors [considered by the Court in that aspect of the lawsuit] weighed significantly in favor of Evanston.”

Mayor Elizabeth Tisdahl, Aldermen Ann Rainey and Delores Holmes and former aldermen Anjana Hansen and Lionel Jean-Baptiste, he said, “each testified that the decision [to deny the zoning amendment] had nothing to do with religion.”

Ald. Rainey said, “From Day 1, I asked [Joan Dachs] if they knew that was zoning without consideration for schools. They said, ‘Yes.’ I said, ‘You need to make a contingency plan,’ and they said, ‘No, you will change.’ They knew that a major consideration would have to be made in order for them to build there.”

Moshe Davis, who volunteers as presdient of the Joan Dachs school board, told the RoundTable, “We’re very disappointed that the court did not correct the City’s Council’s error. We believe that our case continues to have merit.”

Asked whether the school planned to appeal the case or to sell the property, Mr. Davis said, “We are exploring that option and any option that will provide a safe and adequate place to educate our children.”

Mr. Davis also said the school is “heavily invested in this property” and still believes that locating the school there would benefit the City as well as the school.