Federal appeals court affirms Highland's refusal to OK drug treatment center

Chicago Tribune

3 days ago

The Town of Highland won't be getting a drug treatment center after the company that wanted to establish it lost its final appeal.
The United States Court of Appeals for the Seventh District in a decision filed August 1 ruled in favor of the town after Fishers-based Chosen Consulting LLC alleged Highland 'discriminated against patients with addiction-related ailments by refusing to provide a letter stating that Chosen's proposed use of its property complies with local zoning requirements.' The group claimed the action violated the Americans with Disabilities Act and Rehabilitation Act of 1973 and sought $9 million in damages, Town Attorney John Reed said.
Chosen bought the former Highland Nursing and Rehabilitation Center, 9630 5th Ave., in April 2019 and met with Building Commissioner Ken Mika that July to present plans for an in-patient drug rehabilitation facility, the Post-Tribune previously reported. The property on which the building resides is currently zoned R-1 residential, Mika said at the time, but the nursing home had been grandfathered in.
To run a drug rehab, Chosen needed a letter from the Town stating that Chosen's proposed use of the property satisfies local zoning requirements to present to the Indiana Family and Social Services Administration to get a new license, according to court documents. Mika and then Councilman Mark Herak, D-2, told the representative it would have to first get a use variance from the Board of Zoning Appeals, which had the authority to grant a 'favorable' or 'unfavorable' recommendation; the town would then have to approve the BZA's recommendation.
Chosen, according to the decision, never went before the BZA to get the variance, but in the fall of 2019 requested the Town send the letter 'affirming that its proposed use conformed with the property's alleged 'existing legal nonconforming use' under Ordinance No. 645.' The Town didn't issue the requested letter, and in March 2020, Mika and Herak met with Chosen representative Melissa Durkin and reiterated that Chosen would have to seek a use variance.
Chosen still didn't, according to the decision, so in May of 2020, Reed emailed a draft letter to Chosen explaining that it shouldn't count on ever receiving the FSSA letter because the council didn't give him approval to send it, the decision said. Reed's draft also said that 'in the Town's opinion, 'the proposed use as a residential addiction treatment facility is permitted as a legal non-conforming use,' but no formal letter was ever issued.'
The following month, Durkin emailed Herak to have all call to talk about 'where they were in the process,' to which Herak said 'there was nothing on the BZA's docket, and that '[t]he town attorney did say he didn't think it was a protected class and a drug rehab doesn't fall under nursing care,' nor was he aware 'of any letter, either … being drafted or agreed to,'' the decision reads. Additionally, then-Town Council President Mark Schocke, R-3 — whose wife taught at a school near the property, was 'opposed to the idea' and 'had 'brow beate[n] the town attorney and he's changed his opinion.''
Chosen in June 2020 filed action requesting a declaratory judgment regarding proper zoning, including declarations that '[t]he Property is properly zoned and may continue to operate as a legal nonconforming use' and that Chosen is 'entitled to obtain the requested documentation of its legal nonconforming use,' the decision reads. The district court granted judgment on the pleadings on this count, reasoning that it did not have jurisdiction because Chosen had not obtained a final decision from the local zoning authorities.
The complaint also alleged that 'the Town has discriminated against disabled individuals by failing to provide the requested letter in violation of Title II of the ADA and Section 504 of the Rehabilitation Act' and requested compensatory and equitable relief, including the entry of a permanent injunction ordering the Town 'to stop obstructing [Chosen's] access to the Property for purposes of serving patients as a certified sub-acute facility and compelling issuance of the requested letter and [a] declaration that the proposed use of the Property as a sub-acute facility meets all zoning requirements,' the decision said.
The Town later filed a motion for summary judgment on this count, which the district court granted because 'Chosen was required to exhaust its available remedies under local and state law before pursuing injunctive relief related to a local zoning process.'
'Until Chosen has properly pursued the Town's approval and the Town has decided whether it will permit Chosen's proposed use, this dispute is not ripe (for adjudication),' the decision said.
Reed said that the suit was a 'very long and expensive road of litigation' and was glad to see Highland prevail, though he disagrees with Chosen's version of the situation.
'While the Town is thrilled by the decision and grateful to the District and 7th Circuit Courts to be vindicated, we are equally disappointed at being accused of discriminatory behavior when nothing could've been further from the truth,' Reed said.