MOUNT VERNON – Former Madison County circuit judge David Dugan improperly ordered Alton to issue a building permit for Ed Hightower’s Sunnybrook apartment project, Fifth District appellate judges ruled on April 28.
They vacated Dugan’s grant of mandamus relief, finding judges can mandate ministerial acts of local governments but not discretionary acts.
That ends the dispute in Madison County, but Sunnybrook remains on Dugan’s docket in U.S. district court.
Sunnybrook sued Alton there in 2018, alleging racial discrimination.
Chief District Judge Nancy Rosenstengel denied a motion to dismiss the suit in 2019, and transferred it to Dugan after he joined the court last year.
Hightower undertook the Sunnybrook project, intending to provide 40 units in ten buildings, after reaching the top of two professions.
A career in education brought him to Edwardsville as school superintendent and a career as college basketball referee brought him to Final Four events.
In 2017, Hightower and former Alton mayor Brant Walker executed a memorandum to confirm that Sunnybrook owners would qualify for tax credits.
Walker notified state housing officials that the city supported Sunnybrook as “directly in line with Alton’s growth and revitalization efforts.”
Housing officials approved $1.9 million for the project on May 14, 2018.
Next day, Walker withdrew the city’s support.
Hightower’s team modified the plan, estimating the extra costs at $500,000.
They presented the changes to Walker and other officials, who advised them to present the changes to a committee of aldermen.
The committee supported the changes without any presentation.
Next day, Walker issued a press release retracting his support.
He asked housing officials to rescind their funding, stating Sunnybrook failed to adhere to a vision for growth and revitalization.
Project contractor Ryan Morrissey applied for a building permit in July 2018, and the city denied it.
The city offered to review a second application if it included a preliminary subdivision plat.
The city stated it needed a plat because renters could buy units in 15 years.
Morrissey applied in November 2018, without a plat, and Sunnybrook filed a complaint for a temporary restraining order in circuit court.
Dugan denied the order but reserved jurisdiction and granted Sunnybrook leave to amend its complaint.
Morrissey filed a third application, and Sunnybrook amended its complaint.
Dugan held a hearing on Dec. 13, 2018, and found a plat unnecessary.
Sunnybrook sued Alton in district court on Dec. 19, alleging violation of the Fair Housing Act.
Sunnybrook claimed the city’s actions constituted a pattern or practice of unlawful discrimination against groups of persons on the basis of race and color.
Sunnybrook sought actual and punitive damages.
In Madison County court, in March 2019, Sunnybrook moved for mandamus.
At a hearing, Dugan said, “It occurs to me the city for whatever reasons is just summarily not fulfilling its obligations with regard to these building permits.”
On June 5, 2019, he ordered Alton to issue a permit by June 7.
No permit followed, and Sunnybrook moved for a contempt order.
Dugan granted it and ruled he would impose sanctions of $500 per day.
Alton appealed.
By that time Alton had moved to dismiss the suit in district court, claiming Rosenstengel should abstain from a matter already in state court.
She rejected the argument in November 2019, finding the state court litigation would not dispose of the federal claims.
“Even if the state court were to grant all relief sought by Sunnybrook, its claim that defendants violated its civil and statutory rights, causing a lengthy delay in the project, a loss of $500,000 in funding, and an additional $500,000 in costs would still remain unresolved here,” she wrote.
In February 2020, on a joint motion, she stayed the proceedings pending a decision from the Fifth District.
Fifth District Justice John Barberis, formerly a Madison County circuit judge like Dugan, delivered the decision.
“Mandamus relief is an extraordinary remedy to compel the performance of a specific kind of behavior that is a ministerial duty of an officer and not an action that is discretionary,” Barberis wrote.
“Because Sunnybrook lacked a clear right to the permit and the court substituted its discretion for that of the city by compelling the city to issue Sunnybrook a building permit, the court’s writ of mandamus was improper.”
He found Dugan should have compelled a final decision on the third application, so Sunnybrook could have proceeded under administrative review or common law.
Justices Randy Moore and Barry Vaughan concurred.
The Justices didn’t vacate Dugan’s contempt order against Alton.
Barberis wrote that a civil contempt order must be obeyed until the issuing court or a reviewing court sets it aside.
Gary Meadows of Hepler Broom in Edwardsville represents Sunnybrook.
Charles Pierce of Belleville represents Alton.