# Fraternite Notre Dame, Inc. v. County Of McHenry

> District Court, N.D. Illinois · April 15, 2019

URL: https://www.frixlaw.com/law-library/cases/10140564

## Case

- **Court:** District Court, N.D. Illinois
- **Decided:** April 15, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION

FRATERNITÉ NOTRE DAME, INC., )
Plaintiff, )
) No. 15 CV 50312
v. ) Judge Iain D. Johnston
)
COUNTY OF McHENRY, )
Defendant. )

MEMORANDUM OPINION AND ORDER

The Fraternité is a religious order that operates a mission. It sued defendant County of
McHenry after the County denied various Fraternité’s conditional uses and variances needed to
expand its mission work. After years of effort and multiple settlement conferences with the
Court, the parties reported they had reached an agreement to settle this dispute. However, news
of a settlement prompted Coral Township and Jeff Purtell, who lives next to the proposed site for
the expanded operations, to intervene so they can have a say in any settlement agreement. For
the following reasons, the Court denies the petition to intervene.

BACKGROUND

According to the complaint, Fraternité Notre Dame was founded in 1977. In 2000, it
opened a facility that included a soup kitchen and food pantry in Chicago, Illinois, and in 2005
opened a mission on 65 acres of property that it owns in Marengo, Illinois. Marengo is located
in McHenry County, Illinois. That same year, Fraternité obtained a conditional use permit from
the McHenry County Zoning Board of Appeals (ZBA) to allow construction of a monastery, a
church, a seminary, a convent, a retreat center, a bakery, a printing press, and a cemetery, though
with limits on seating and sleeping capacities and on the retail sale of baked goods and printed
materials.

In September 2014, Fraternité petitioned the ZBA to amend the conditional use permit it
obtained in 2005 to add 30 acres of property it had acquired, and to allow it to build a barn for a
commercial kitchen for beer and wine making, a boarding school, a nursing home, and a gift
shop to sell religious items plus pastries, beer and wine made on its property, as well as a beer
and wine tasting area. Coral Township, one of the proposed intervenors in this case, filed an
appearance in the ZBA proceeding and moved to dismiss Fraternité’s petition. Dkt. 90 at Ex. 1.
Coral Township resident Jeff Purtell, another of the proposed intervenors in this case, attended
public hearings on Fraternité’s petition before the ZBA, and he and Coral Township state that
they “voiced their objections throughout the proceedings.” Dkt 97 at 5; see also Dkt. 87 at 1
(Proposed Intervenors’ Status Report on Judge Johnston’s Inquiries). On September 15, 2015,
the McHenry County Board denied Fraternité’s petition.
Fraternité then filed this lawsuit on December 16, 2015, alleging that the denial of its
petition violated its rights under the U.S. and Illinois constitutions, the Religious Land Use and
Institutionalized Persons Act, and the Illinois Religious Freedom Restoration Act. The filing of
the lawsuit was reported in several area newspapers. Neither Coral Township or Jeff Purtell
sought to intervene at the time, though they state that they “likely had knowledge of the lawsuit
from its inception.” Dkt. 93 at 9. The media also reported the parties’ efforts to settle, which
continued over the course of five different settlement conferences beginning in 2016. Coral
Township and Robert Naylor (later replaced by Jeff Purtell) first moved to intervene on June 15,
2018. They are proceeding under Federal Rules of Civil Procedure 24(a), which governs
intervention of right, 24(b), which governs permissive intervention, and 19, which governs
joinder of a required party.

ANALYSIS

1. Intervention of Right

To intervene as of right under Fed. R. Civ. P. 24(a), the proposed intervenor must satisfy
each of the following: “(1) timely application; (2) an interest relating to the subject matter of the
action; (3) potential impairment, as a practical matter, of that interest by the disposition of the
action; and (4) lack of adequate representation of the interest by the existing parties to the
action.” State of Illinois v. City of Chicago, 912 F.3d 979, 984 (7th Cir. 2019) (internal
quotations marks and citations omitted). The non-conclusory allegations of the motion must be
accepted as true, and the motion should not be dismissed “unless it appears to a certainty that the
intervenor is not entitled to relief under any set of facts which could be proved under the
complaint.” Id. (internal quotation marks and citation omitted). However, the burden to
establish each element falls on the movant. United States v. BDO Seidman, 337 F.3d 802, 808
(7th Cir. 2003).

The Court begins with the timeliness factor. To determine timeliness, a court looks to
four factors: (1) the length of time the intervenor knew or should have known of his interest in
the case; (2) the prejudice caused to the original parties by the delay; (3) the prejudice to the
intervenor if the motion is denied; and (4) any other unusual circumstances.” Id. (internal
quotation marks and citation omitted). “The timeliness requirement forces interested non-parties
to seek to intervene promptly so as not to upset the progress made toward resolving a dispute.”
Grochocinski v. Mayer Brown Row & Maw, LLP, 719 F.3d 785, 797 (7th Cir. 2013). A
proposed intervenor that “‘dragged its heels’ after learning of a lawsuit” cannot establish
timeliness. Nissei Sangyo Am., Ltd. v. United States, 31 F.3d 435, 438 (7th Cir. 1994). The
balancing of the timeliness factors is left to the sound discretion of the district court.
Gronchocinski, 719 F.3d at 798.

The proposed intervenors argue that their motion is timely because they filed it “once the
Township and Purtell formed the belief that [their] interests may no longer be adequately
represented and [their] right to intervention became ripe.” Dkt. 97 at 6. The proposed
intervenors contend they formed that belief “between April of 2018 and July of 2018” based on
former proposed intervenor Roger Naylor’s “numerous communications with the State’s
Attorney, the Chairman of the County Board, and several County Board members,” from which
he learned “that the State’s Attorney was seeking to settle the case in a way that undermined the
County’s Uniform Development Ordinance.” Id. at 7. They further contend that until those
communications, they had anticipated that the defendant’s interest would have been “to see the
integrity of the County’s Uniform Development Ordinance preserved, which was the reason that
the County Board voted against the Plaintiff’s requested zoning relief.” Id.

The proposed intervenors’ decision to sit on the sidelines while this case worked its way
through the eve of a settlement was unreasonable. The Seventh Circuit recently addressed the
similar decision to sit on the sidelines made by the proposed intervenor in State of Illinois v. City
of Chicago, 912 F.3d 979 (7th Cir. 2019). In that case, in August 2017 the State of Illinois sued
the City of Chicago over its police officers’ allegedly repeated use of excessive force. Id. at 983.
Days later the district judge granted the parties’ motion to stay the proceedings while they
negotiated a consent decree. Id. At the time, the Fraternal Order of Police, Chicago Lodge No.
7, publicly expressed its opposition to any consent decree, but did not yet seek to intervene. Id.
During the coming months the police union met with the state to express its concern that any
consent decree might conflict with provisions of the parties’ collective bargaining agreement. Id.
The state repeatedly assured the union that the parties were working to avoid any impact on
rights under the collective bargaining agreement to avoid the need for the union to seek to
intervene. Id. The district court met with the parties four times between March and May of 2018
to discuss the consent decree negotiations. Id. at 984. In June 2018, the union moved to
intervene, which the district judge denied as untimely. Id. The union appealed.

The Seventh Circuit affirmed the district judge’s determination that the union’s motion to
intervene was untimely. First, it agreed with the district judge’s determination that the union
should have known of its interest in the case from the time the state filed suit because the union
had immediately expressed its opposition to a consent decree. Id. at 984-85. The court held that
to be timely, a motion to intervene must be filed as soon as the intervenor knows “‘that its
interests might be adversely affected by the outcome of the litigation.’” Id. at 985 (quoting
Heartwood, Inc. v. U.S. Forest Serv., Inc., 316 F.3d 694, 701 (7th Cir. 2003) (emphasis in
original)). It rejected the argument that the union had reasonably relied on the state’s assurances
that it was protecting the union’s interests in the litigation. Id. It also rejected the argument that
the timeliness inquiry should focus not on when an intervenor learns its interests might be
affected by litigation, but rather on when intervenor first realizes that a party it thought was
protecting its interests was not doing so. Id. at 985-86. See also In re Emerald Casino, 746 Fed.
Appx. 586, 589 (7th Cir. 2019) (“We determine timeliness from the time the potential
intervenors learn that their interest might be impaired.”) (internal citation and quotation marks
omitted, emphasis added by In re Emerald Casino).

As for the other timeliness factors, the Seventh Circuit in State of Illinois held they too
supported the district judge’s determination that the motion to intervene was untimely. The court
held that the existing parties to the lawsuit would be prejudiced by intervention because “‘[o]nce
parties have invested time and effort into settling a case it would be prejudicial to allow
intervention.’” Id. at 986-87 (quoting Ragsdale v. Turnock, 941 F.2d 501, 504 (7th Cir. 1991)).
It also affirmed the district judge’s conclusion that the potential prejudice to the union was
insufficient to mandate intervention. In particular, the Seventh Circuit noted that because the
district judge would need to approve any consent decree, the union could be heard at a fairness
hearing, and so any assertion of prejudice was “largely speculative.” Id. at 988. Finally, the
court rejected the argument that the state’s assurances that it would protect the union’s interests
constituted an unusual circumstance the district judge should have considered. The Seventh
Circuit held that although the union “never squarely presented that legal theory to the district
court,” the district court had nevertheless adequately considered all of the facts underlying the
argument” and found them unpersuasive. Id. at 989.

Like the union in State of Illinois, the proposed intervenors here knew of their interests in
the outcome of this litigation at its inception, as demonstrated by the fact that Coral Township
sought to intervene in the proceeding even earlier while still before the ZBA. After its effort
failed, Coral Township and Jeff Purtell spoke out against Fraternité’s petition at public hearings.
The proposed intervenors’ conduct shows that from the beginning they thought their interests
might be adversely affected by Fraternité’s efforts to obtain from the County an amendment to its
conditional use permit.

The proposed intervenors argue that they were nevertheless entitled to rely on their belief
that the County would protect their interests in this lawsuit because the County is a governmental
body. In support, they rely on Ligas v. Maram, 478 F.3d 771, 774 (7th Cir. 2007), in which the
Seventh Circuit held that “when the representative party is a governmental body charged by law
with protecting the interests of the proposed intervenors, the representative is presumed to
adequately represent their interests.” However, in Ligas, the parties all agreed that the
intervenors’ petition was timely; the question at hand was whether the governmental body
already adequately protected the intervenors’ interests so that intervention was unnecessary,
which is a separate factor apart from timeliness that an intervenor must establish under Rule
24(a). The court in Ligas had no occasion to address the timeliness of a proposed intervenor’s
realization that a governmental body was not protecting its interests. Here, the proposed
intervenors demonstrated as early as Coral Township’s attempt to intervene in the ZBA
proceedings in 2014-15 that they believed that their interests might be not be adequately
represented by, and be adversely affected by, the County, which is the relevant inquiry into
timeliness applied in State of Illinois, 912 F.3d at 985.

The intervenors also rely on Freesen, Inc. v. County of McLean, 659 N.E.2d 411, 415 (Ill.
App. Ct. 1995), in which the state appellate court reversed the circuit court’s denial of a motion
to intervene on timeliness grounds. The state appellate court found that the intervenor was
entitled to believe that the defendant Village of Downs would represent his interests in a land use
dispute, and so his motion to intervene, filed shortly after media reports that the defendants had
reached a compromise to allow the plaintiff to continue operating an asphalt plant, was timely.
Freesen is unpersuasive. First, it is a state case applying state procedural law, and the proposed
intervenors have not explained how federal procedural law is similar or why this Court should
look to Illinois law in applying the federal rules of procedure or otherwise deviate from the
Seventh Circuit’s analysis in State of Illinois. Second, in Freesen, the court noted that the
motion to intervene came early in the case when “the only orders entered related to scheduling
and the County of McLean had not yet filed an answer.” Id. at 415. Therefore, the situation in
Freesen is inapposite to the situation present in this case, where the parties have long been at
issue, have engaged in settlement discussions before the Court dating back nearly three years,
and where these years of negotiations were on the verge of producing a proposed settlement.
The timeliness factors that look to prejudice also do not support the motion to intervene.
The parties have spent years negotiating a settlement agreement, including multiple days in
settlement conferences before this Court. Accordingly, the prejudice the parties would face if the
motion to intervene were granted would be great. See State of Illinois, 912 F.3d at 986-87. In
contrast, the prejudice to the proposed intervenors is at best speculative because, as with the
union in State of Illinois, the intervenors have a different forum for expressing their concerns.
Any act by the County of McHenry to approve the negotiated settlement proposal can occur only
after “advance notice of and the right to attend all meetings at which any business of a public
body is discussed or acted upon in any way.” 5 ILCS 120/1. The proposed intervenors have not
asserted that they would be unable to express their interests and views if a settlement proposal is
presented for approval by the County Board, ameliorating any concern about prejudice to the
intervenors.

Finally, the proposed intervenors have identified no unusual circumstances that would
support intervention. The unusual circumstance described in the motion to intervene occurred
when “[r]epresentatives of the Defendants informed the Intervenors, more than once, and
therefore a sufficient number of times to confirm, that the Defendants were no longer adequately
representing the Intervenors’ interests.” Dkt. 93 at 8-9. Up until then, the proposed intervenors
contend that the “County of McHenry coordinated its defense with Coral Township in order to
protect their interests in opposing Fraternité's Proposed Development.” Dkt. 97 at 5. Again, in
support, the proposed intervenors rely on Ligas v. Maram, 478 F.3d at 774, for their contention
that they reasonably relied on the County to represent their interests in this case up until the
County’s representatives “informed” them the County was no longer adequately representing
them. But, as noted above, Ligas does not address timeliness.

Moreover, the proposed intervenors admit they likely knew of this lawsuit from its
inception, and both the docket and media coverage from the time would have alerted them that
settlement discussions began back in 2016. See, e.g., Dkt. 29 (setting settlement conference for
October 17, 2016). This Court’s standing order on settlement conferences, which is available to
the public on its webpage, advises parties that “a settlement is a compromise that concludes a
legal dispute. And compromise occurs when the parties make concessions.” Standing Order on
Settlement Conferences at 3 (emphasis in original). It further warns that refusing to compromise
in any way during a requested conference could result in sanctions. Id. It is not unusual that by
agreeing to engage in settlement discussions before this Court, the County might engage in
discussions about allowing Fraternité some of the relief sought in the petition the County Board
previously denied. Nor is it unusual that the County would engage in such settlement efforts
without the intervenors’ participation or acquiescence given this Court’s Standing Order
requiring that all discussions at the settlement conference remain confidential. Id. at 3-4. Any
coordination must have ended when the confidential settlement discussions began in 2016.

On balance and in an exercise of its discretion, the Court finds that the factors relevant to
timeliness tilt in favor of a finding that the proposed intervenors’ motion is untimely: the motion
comes long after they knew their interests might be adversely affected by this litigation, the
parties would be prejudiced at this stage in settlement discussions while the proposed
intervenors’ prejudice would be low because they can still be heard by the County Board before
any settlement is approved, and they have identified no unusual circumstances that warrants the
timing of their motion. Because a motion to intervene must be timely, the Court need not
address the other three requirements to establish intervention as of right.

2. Permissive Intervention

Next, the proposed intervenors seek intervene under Fed. R. Civ. P. 24(b), which allows
for permissive intervention. However, as with intervention of right, the proposed intervenor
bears the burden of establishing timeliness of the motion, evaluated using the same four factors
relevant to whether a motion to intervene of right is timely under Rule 24(a). Grochocinski, 719
F.3d at 789. For all the reasons the motion to intervene is untimely under Fed. R. Civ. P. 24(a),
it is also untimely under Fed. R. Civ. P. 26(b). See United States v. City of Chicago, 796 F.2d
205, 212 (7th Cir. 1983) (district court that denied intervention of right on timeliness grounds
was within its discretion to deny permissive intervention on the same basis because “[t]imeliness
is also a factor under Rule 24(b).”).

3. Joinder of Necessary Party

Finally, Coral Township seeks to join the lawsuit as a necessary party under Federal Rule
of Civil Procedure 19(a). Under Rule 19(a), a party is required to be joined in an action if
feasible when (i) the court cannot accord complete relief in the absence of that party, or (ii)
disposing of the action in the party’s absence may impair its ability to protect its interest or leave
the existing parties subject to multiple or inconsistent obligations. The burden of establishing
that joinder is necessary falls on the party seeking joinder. Galiot v. Midwest Tennis Programs,
LLC, No. 17 CV 4739, 2017 U.S. Dist. LEXIS 191565, at *5 (N.D. Ill. Nov. 20, 2017).

Coral Township argues that the Court cannot grant complete relief to the existing parties
“because the Township would have to perform several necessary services to Fraternite to enable
Fraternite to develop and use the Subject Property in the manner requested in the Complaint’s
prayer for relief.” Dkt. 97 at 3-4. Coral Township also argues that its “statutory interest and
right to object” under 55 ILCS 5/5-12009 to Fraternité’s requests would be impaired if it were
not joined. Id. at 4.

In support, Coral Township relies on a case from the federal District Court of Delaware,
Acierno v. Preit-Rubin, Inc., for the proposition that joinder of local governments is required
when they will be “affected by the action or adequate relief cannot be awarded in their absence.”
Acierno v. Preit-Rubin, Inc., 199 F.R.D. 157, 162-63 (D. Del. 2001) (internal citation and
quotations marks omitted). However, the issue in Acierno was whether a county in Delaware
was a necessary party to a collateral challenge to one of its own decisions. It did not address an
Illinois township’s rights to challenge a county’s decisions.

Moreover, Coral Township has offered no example or elaboration on why this Court
cannot grant complete relief without its presence. For instance, it has not even described the
services that would be required of it if Fraternité's petition were granted, or why its presence in
this case is required for it to perform those services. As discussed above regarding intervention,
Coral Township has not established that it would be unable to object or otherwise express its
interests and views when any settlement proposal is presented to the County Board for its
approval.
Coral Township has failed to meet its burden of establishing that its absence would
impair its rights or leave the Court unable to afford complete relief. Accordingly, it has not
shown that it is a necessary party to this litigation.
CONCLUSION
For the reasons given, the petition to intervene [97] is denied.

Date: April 15, 2019 By: SX SS
Tain D. Johnston
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10140564. Public record. Not legal advice.