BENTON – A housing development business owned by former NCAA basketball referee and educator Ed Hightower is accused of lying in a discrimination lawsuit the business is pursuing against the City of Alton, Hightower's hometown.
In a March 21 brief for a motion to dismiss, attorney for the city of Alton - Charles Pierce of Belleville – challenges federal jurisdiction. He also claims Hightower’s Sunnybrook LP played a corporate shell game to pursue a lawsuit where no standing existed.
Sunnybrook’s complaint filed in December alleges that Alton unlawfully withheld a decision on a building permit for 40 apartments.
Represented by Andy Carruthers of HeplerBroom in Edwardsville, Sunnybrook moved to strike the brief on March 22.
“Plaintiff and its counsel have not lied and are not lying to the court,” Carruthers wrote.
Carruthers called the accusation ironic, “considering the lack of honesty that has been demonstrated by the defendants since the beginning of this housing project.”
“Plaintiff is the developer of the Sunnybrook project, and defendants want the project to fail.”
The dispute first led to litigation in Madison County circuit court.
On Nov. 5, Sunnybrook asked the court for a temporary order restraining Alton from requiring a subdivision plat.
Hightower signed an affidavit Nov. 7, stating that without a building permit by Nov. 13, Sunnybrook would lose an opportunity to receive substantial funds from Illinois Housing Development Authority.
On Nov. 13, associate judge David Dugan found a temporary order was not appropriate at the time.
He reserved jurisdiction, granted leave for Carruthers to amend the complaint, and set a conference in 60 days.
Hightower signed an affidavit on Dec. 5, stating Morrissey Construction filed two requests for building permits. The second request, he wrote, was still pending, and that Sunnybrook still had an opportunity with the state authority, provided the plat issue was resolved and a permit appeared likely.
On Dec. 11, Carruthers attached the affidavit to an amended complaint seeking an order for Alton to issue a permit.
On Dec. 13, Alton conceded it couldn’t require a subdivision plat, but the city didn’t concede that it needed to decide the permit.
Dugan found the matter moot and reserved all other issues.
On Dec. 19, Sunnybrook sued Alton and mayor Brant Walker in U.S. District Court.
Carruthers claimed they violated the Civil Rights Act of 1871 and the equal protection clause of the Constitution.
The suit alleges the city and Walker engaged in an improper and unlawful revitalization plan. They allegedly want to attract individuals who can afford suburban style residences and exclude those who cannot.
It also alleges that in the last 15 years, housing authorities of Alton and the county demolished hundreds of low income units in Alton while replacing them with 80.
For two years, Sunnybrook claims it engaged in planning to purchase land, design a project, obtain financing, and meet every requirement.
Walker signed a memorandum of understanding in June 2017, the suit claims, and he allegedly expressed support for a Madison County grant in a letter to the state authority. The state authority approved Sunnybrook in May 2018, the suit claims.
A few days after the approval, Sunnybrook claims it met with Walker who then recommended a change from duplexes to townhouses, and it agreed.
Sunnybrook also claims it agreed to smaller structural footprints, bigger side yards, more parking, and wider sidewalks, changes that added about $500,000 to the cost.
The suit claims that opposition then broke out, “based on discriminatory attitudes towards African-Americans and other groups.”
It goes on to allege that city employees spread misinformation, with opponents allegedly disseminating information via Facebook, with a significant portion containing racist undertones.
Sunnybrook alleges that Walker and the city falsely claimed that Walker was led to believe the project wouldn’t include rental housing.
The city allegedly sent a letter to the state authority on June 15, 2018, stating Sunnybrook would depress the value of single-family homes.
Two days later, the county grants committee held a meeting on Sunnybrook and projects in Highland and Granite City, the suit claims.
“Walker, nearly the entire city council and several of Walker’s supporters attended to show opposition to the project,” Carruthers wrote.
He wrote that Walker said Alton doesn’t need more rental property, and that the committee decided not to award any funds to Sunnybrook.
That decision cost Sunnybrook nearly $500,000 in anticipated funds, the suit claims.
Carruthers wrote that Walker panicked when the state authority awarded funding.
Hightower signed an affidavit for the Madison County action on Feb. 4, stating Sunnybrook potentially risked losing the tax credits.
On Feb. 11, Carruthers amended the Madison County complaint to request a preliminary injunction against requirements unsupported by city code.
On Feb. 14, in federal court, Pierce moved to dismiss the discrimination suit.
He wrote that the administrative process was ongoing, and that Sunnybrook alleged many of the same wrongs in Madison County under the guise of a state law claim.
He wrote that Sunnybrook didn’t establish standing in light of the fact that it didn’t request the permit.
“The entity which signed a memorandum of understanding with mayor Walker is not a party to this case,” Pierce wrote.
He wrote that it was Keller Construction that owned the property, with EBJJ, LLC having an option to purchase.
Pierce also moved to stay the action pending resolution in Madison County.
Carruthers opposed a stay on Feb. 28, identifying Sunnybrook as developer, contract purchaser, and future manager.
He wrote that the state court action sought to compel action by the city and in no way sought to determine whether the city violated Sunnybrook’s rights.
On March 14, he opposed Alton’s motion to dismiss the action.
“Despite filing its building permit application nearly four months ago, the city of Alton refuses to issue a decision either granting or denying the application,” Carruthers wrote.
He wrote that Sunnybrook would purchase the real estate from Keller Construction upon completion, and that Laborers Home Development Corporation would share operational and management duties with Sunnybrook.
He identified EBJJ, LLC as Sunnybrook’s partner.
On March 20, in Madison County, Sunnybrook moved for an order compelling the zoning administrator to issue a permit.
“Without court intervention defendant will never grant the building permit,” Carruthers wrote.
“Defendant is also aware of the financial difficulties this is causing plaintiff and how endless delay could lead to the loss of the tax credits necessary for this project.”
Dugan has set a hearing March 27.
On March 21, in federal court, Pierce invoked exceptional circumstances allowing a reply brief.
“The plaintiff is lying to the court and trying to pursue a lawsuit where no standing exists,” Pierce wrote.
He wrote that Sunnybrook LP attempted to do discovery relating to Sunnybrook affiliates, acknowledging Sunnybrook LP wasn’t involved in all the activities.
He wrote that Sunnybrook LP wasn’t formed until May 30.
“The burden is on the plaintiff, Sunnybrook LP, not Sunnybrook and its backup singers, to prove that it belongs in this court,” Pierce wrote.
Next day, Carruthers moved to strike the brief.
He wrote that Sunnybrook has been honest in describing its interest in the project.
“Plaintiff has also been completely forthright in detailing its relationship with third parties who are working on its behalf and for the benefit of the project,” Carruthers wrote.
He wrote that Alton impermissibly argued evidence concerning Sunnybrook’s formation that the city didn’t present in its motion to dismiss, which unjustly prevents it from responding.
He also wrote that Walker and the city discriminated against Sunnybrook’s predecessor and founding partners and their brief tries to villainize Sunnybrook and its counsel but didn’t address substantive factual and legal arguments.
Hightower is well known for having refereed 12 NCAA Division 1 Final Fours. He also spent more than four decades as a local educator and school administrator. He retired as superintendent of Edwardsville School District 7 in 2015. His daughter, Jennifer Hightower, is an associate circuit judge in Madison County.
The case was reassigned from Senior District Judge Phil Gilbert to District Judge Nancy Rosenstengel on March 25.