Court rules that nuns, priests can build school, brewery and winery in McHenry County

Chicago Tribune

"Congratulations to the Fraternite Notre Dame as detailed in the Chicago Tribune article below and to the Firm’s Jim Geoly and Joan Ahn for the successful outcome they worked to achieve on their behalf."

Over the objections of some McHenry County officials and residents, a judge has ruled that an order of nuns and priests may build a boarding school, gift shop, brewery and winery on its grounds, writing that opposition to the proposal revealed “the good, the bad and the ugly” of the community.

The consent decree is based on an agreement between Fraternite Notre Dame and the McHenry County state’s attorney, and brings a resolution to years of acrimony and legal battles.

In 2015, the County Board voted 20-3 to reject the proposed development after hearing neighboring residents’ concerns that the development would increase traffic and might jeopardize water quality. After the Fraternite filed a federal lawsuit, State’s Attorney Patrick Kenneally negotiated an agreement with the group and referred it to the board. But the board never voted on the new proposed agreement, leaving it to Kenneally to decide on the deal.

The Fraternite, which began with claims of a religious vision in France in 1977, has its Mother House and runs a soup kitchen in Chicago’s Austin neighborhood. It is also known for running the St. Roger Abbey French Organic Patisserie in Wilmette. It already operates a seminary for friars and priests and a convent for nuns on its rural site near Marengo, but members, most of whom are nuns, want to expand there substantially.

In his opinion issued Monday, U.S. Magistrate Judge Iain Johnston criticized the board for “shirking a fundamental duty” to hold a hearing and vote on the new agreement.

McHenry County Board Chairman Jack Franks said the board rejected the proposed development before he took office on the advice of the prior state’s attorney, Lou Bianchi, who argued that the rejection was legally defensible.

Franks said he didn’t think the opposition was based on religious bigotry, but that the commercial development was not appropriate for land zoned for agriculture, and should have been fought in court.

But after a public hearing at which the nuns’ expert witnesses testified that the development would not impair traffic or water quality, and the county did not offer expert testimony, Kenneally advised that the county would likely lose the case if it went to trial.

“The state’s attorney (office) made the mess,” Franks said. “Let them clean up the mess.”

Franks also questioned whether the order has the financial resources to build and operate such an extensive development. The Fraternite members deferred comment to their attorney, who could not immediately be reached. Kenneally stood by the agreement and deferred comment to the judge’s order.

In the ruling, the judge found that the county had violated the Religious Land Use and Institutionalized Persons Act. The federal law prevents the government from imposing a substantial land use burden that obstructs the free exercise of religion without a compelling government interest and without trying less restrictive measures.

The court held its own public hearing on the matter, in October 2019, at which more than two dozen people spoke, and many others wrote letters objecting that the commercial development was inappropriate for a rural area next to a residential subdivision.

The judge wrote that “religious bigotry” years ago, in the form of vandalism of vehicle brake lines and lug nuts, and desecration of religious buildings and statues on the site formed a “painful backdrop” to the case.

While some neighbors objected to alcohol being served on the site, the judge noted that a golf course down the road serves alcohol and offers video gambling.

Some speakers also objected that the Catholic religious order was not Catholic enough, because it is not affiliated with the Roman Catholic Church, while others suggested that Catholic corruption tainted the order, the judge wrote.

The judge criticized board member Mary McCann for accusing Kenneally of placing his own Catholic religious convictions as the “basis” for the agreement, though the judge saw “no evidence” of that.

Under the agreement, Fraternite attorney Joan Ahn said, the order agreed not to seek permission for a proposed nursing home for three years, at which point the members may re-apply for approval.

“Generally, they’re happy with the results,” Ahn said of the nuns. “They’re looking forward to moving past the lawsuit and going back to their core religious mission.”

The religious order will limit the amount of outbound delivery traffic, and will keep 60% of the 125-acre site undeveloped open space. The gift shop could sell beer, wine and pastries, with a tasting room if it receives a required license to serve liquor.

A key concession the order made was to waive attorney fees of more than $250,000. Had it gone to trial and won, the judge wrote, the group probably could have gotten more than $1 million in lawyer fees from the county.

The agreement also provides that the Fraternite will seek not any services or money from the local school districts.

McCann said she only objected to Kenneally’s legal opinion, not his religious beliefs, saying that an outside expert on the Religious Land Use and Institutionalized Persons Act advised that the county could win parts of the case.

She objected that the order’s original proposal has grown substantially to include a three-story, 84,000-square-foot school and dormitory for 80 K-12 students, and a 15,000-square-foot barn to include the brewery, winery and canning — three times the size of the original proposal. The agreement does not require the Fraternite to start construction within any time limit, and allows construction to cover a period of five years, far longer than the usual two years, McCann said.

McCann would have liked the board to reject the agreement and hold a new public hearing. Any development would still have to go through normal design, code and permit requirements.

“Religious belief has nothing to do with this,” McCann said. “This is a land issue.”

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