Courthouse Square Residents File Lawsuit Against Developer

Eight Courthouse Square residents on Monday filed a lawsuit against Focus Development, the developers planning to build a senior housing development in downtown Wheaton.

Wheaton council members voted 4-3 Monday in favor of Focus Development's requests to amend the Courthouse Redevelopment Project Area Plan and Program and allow construction of a senior housing development instead of a previously approved condo building. The Council vote overrode a 6-1 vote recommending against approval from the Planning and Zoning Board.

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The lawsuit asks for declaratory and other relief, and alleges the developer misrepresented the development and violated the condominium act, Wheaton City Attorney Jim Knippen told City Council members Monday night.

Courthouse Land Development this year requested approval of a special use permit to build a six-story, 167-unit senior housing development at Courthouse Square, where developers originally planned to finish a condo development. The project, approved in 2004, remains incomplete as a result of the housing market crash in 2008.

If the complaint succeeds, Knippen said an Abutter's petition ordinance could apply, after more than 45 of 65 Courthouse Square residents filed a petition with the city Sept. 24.

According to the city’s guidelines for Abutter’s petitions, City Council can only pass an amendment to a development with five votes, if signed by more than half the owners of property adjacent to the proposed development.

Knippen said the petition would not trigger a 5-2 vote Monday night, partly because Abutter’s petitions were adopted before the existence of planned unit developments (PUD). Applying the petition to a PUD, he said, would be, “like trying to put a square peg in a round hole.”

The suit alleges developers violated the condo act and as a result, certain properies were never transferred into a master association. If the properties are in the master association and the complaint succeeds, Knippen said, the abutter’s statute could potentially apply.

Phil Luetkehans, who has represented residents in their objection to the development, said per the claims, the condo association at Courthouse Square should have turned over certain property to associations that had not been turned over. If they would have, he said an association—like the one to the north of the proposed senior facility, would have the right to file an abutter’s petition.

Henry Stillwell, attorney for Focus Development said he couldn't comment on the lawsuit, and that the developers will need to figure it out.

Wheaton City Manager Don Rose said as far as the city is concerned, Focus Development can begin the project immediately.