FOX RIVER GROVE – Village officials want a federal court to throw out a lawsuit filed by Bettendorf Castle’s owners because the owners have yet to ask for permission from the village to run home tours.
According to court documents, Fox River Grove village officials say because Michael and Judy Strohl haven’t applied for a special-use permit through the village, a lawsuit against the village should be dismissed.
The argument was written by Julie Tappendorf, an attorney who was brought in by Fox River Grove to help write the village’s home tour ordinance.
“Plaintiffs do not allege in their complaint that they applied for or were denied a special-use permit that would absolutely preclude them from engaging in the home occupation uses,” Tappendorf wrote.
Under the ordinance, a home tour is a use of an owner-occupied residence or property with special architectural or historical significance for either home tours or special community-related events or activities that involve members of the public, whether any fee or donation is involved. A person who would give the home tours would need to obtain a special-use permit, which are approved by the Village Board.
In the lawsuit, the Strohls say the ordinance violates their First Amendment protection to free speech, freedom of association and the right to peacefully assemble.
The Strohls live in Bettendorf Castle, a house and grounds modeled after a castle in Luxembourg that includes turrets, a drawbridge and a dungeon.
The lawsuit against the village was originally filed in McHenry County Circuit Court, but it has since been transferred to federal court.
A federal judge later this month is scheduled to hear the arguments on whether the case should be dismissed.
Tappendorf argued the Strohls cannot establish “they have suffered any injury or harm because they neither applied for, nor were denied, a special-use permit. [The] plaintiffs’ freedom of association claim should be dismissed for failure to state that claim.”
Tappendorf also said courts routinely uphold a municipality’s ability to require a special-use permit even if the land use actually involves speech, or other constitutionally protected activities such as religious uses and adult businesses.
“While obtaining a special-use permit may make it somewhat more difficult to conduct tours and other regulated home occupations, that is nothing more than an incidental burden on the plaintiffs’ right of freedom of association,” Tappendorf wrote.
The lawsuit also names Village Board President Bob Nunamaker and Trustees Suzanne Blohm, Joanna Colletti, Steve Knar and Michael Schiestel.
Tappendorf argued that portions of the lawsuit also should be thrown out because the village president and trustees were acting as legislators when they enacted the ordinance and are protected by legislative immunity.