Coniston Corp. v. Village of Hoffman Estates

• Decision Date: 20 April 1988
• Docket Number: No. 87-1890,87-1890
• Citation: 844 F.2d 461
• Parties: CONISTON CORPORATION, et al., Plaintiffs-Appellants, v. VILLAGE OF HOFFMAN ESTATES, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 461

844 F.2d 461

10 Fed.R.Serv.3d 1294

CONISTON CORPORATION, et al., Plaintiffs-Appellants, v. VILLAGE OF HOFFMAN ESTATES, et al., Defendants-Appellees.

No. 87-1890.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 8, 1988.

Decided April 20, 1988.

Francis X. Grossi, Jr., Katten, Muchin & Zavis, Chicago, Ill., for plaintiffs-appellants.

Richard N. Williams, Hoffman Estates, Ill., David L. Ader, Ancel, Glink, Diamond, Murphy & Cape, Chicago, I11., for defendants-appellees.

Before POSNER, COFFEY, and EASTERBROOK, Circuit Judges.

POSNER, Circuit Judge.

The plaintiffs own a tract of several hundred acres of land, originally undeveloped, in the Village of Hoffman Estates, Illinois. Their complaint, laid under the ubiquitous section 1 of the Civil Rights Act of 1871, 42 U.S.C. Sec. 1983, charges that in turning down the site plan for a 17-acre parcel in the tract, the Village Board of Trustees and its members violated the Constitution and state law. The district court dismissed the complaint for failure to state a claim.

The procedure for land development set forth in the Village's ordinances--ordinances incorporated by reference in an agreement that the Village made with the plaintiffs, annexing their land to the Village--requires first of all that there be a general plan for development approved by the Village Board of Trustees. This condition was met; there is an approved plan for the plaintiffs' tract. The next step is that, as development proceeds, the developer must submit site plans setting forth his plans for developing particular parcels. The site plan is first submitted to the Village Plan Commission for its recommendation and is then forwarded to the Board of Trustees for its approval or disapproval. No criteria are set forth in the ordinances or anywhere else to guide the Board.

Over the years the plaintiffs have presented a number of site plans for parcels within their tract, and these plans have been approved by both the Plan Commission and the Board of Trustees. For the 17-acre parcel at issue in this case, the plaintiffs submitted a plan that envisaged the construction of five single-story commercial buildings with a total office space of 181,000 square feet. The Plan Commission recommended approval of the plan, finding that it conformed to the general plan for the development of the plaintiffs' tract and to all applicable legal regulations. The Board of Trustees, however, disapproved the plan. It gave no reasons for its action but one of the trustees indicated that the reason (her reason, at any rate) was that the village has a lot of unused office space. (The Plan Commission had also expressed concern with the amount of vacant office space in the village.) Asked by the plaintiffs to reconsider its decision the Board went into executive session and emerged with an announcement that it was adhering to its original decision. Again there was no statement of reasons.

Before we get to the merits of the plaintiffs' appeal we must decide whether we have jurisdiction. The defendants had filed a motion under Fed.R.Civ.P. 12(b)(6) to dismiss the complaint for failure to state a claim. The district judge granted the motion and ordered the complaint dismissed, but did not order the entry of a judgment dismissing the lawsuit; no one had asked him to. The dismissal of a complaint is not the dismissal of the lawsuit, see Bieneman v. City of Chicago, 838 F.2d 962 (7th Cir.1988) (per curiam); Benjamin v. United States, 833 F.2d 669 (7th Cir.1987) (per curiam), since the plaintiff may be able to amend his complaint to cure whatever deficiencies had caused it to be dismissed. As long as the suit itself remains pending in the district court, there is no final judgment and we have no jurisdiction under 28 U.S.C. Sec. 1291. This is particularly clear in a case such as the present one, where the plaintiff had not amended his complaint before it was dismissed and the defendant had not filed a responsive pleading; for then the plaintiff has a right to amend his complaint without leave of court. Fed.R.Civ.P. 15(a); Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1111 (7th Cir.1984).

If, however, it is plain that the complaint will not be amended, perhaps because the grounds of the dismissal make clear that no amendment could cure the defects in the plaintiff's case, the order dismissing the complaint is final in fact and we have jurisdiction despite the absence of a formal judgment under Fed.R.Civ.P. 58. See, e.g., Akins v. Board of Governors, 840 F.2d 1371, 1375 n. 2 (7th Cir.1988); Hickey v. Duffy, 827 F.2d 234, 238 (7th Cir.1987). That is this case, notwithstanding the district judge's mysterious statement that he was dismissing the complaint "in its present state." The complaint sets forth the plaintiffs' case in full; there appear to be no disputed or unclear facts; and the district judge found that the complaint stated no claim under federal law and he then relinquished his jurisdiction of the pendent state law counts in accordance with the usual rule that pendent claims are dismissed when the federal claims drop out before trial. The plaintiffs have no feasible options in the district court; the case is over for them there. Therefore they can appeal--but it would have been a lot simpler if either the plaintiffs or the defendants had asked the district court to enter a Rule 58 judgment order. We hope that, in the future, parties to litigation in this circuit will do that.

The plaintiffs' only federal claims are that they were denied "substantive" and "procedural" due process. They expressly waived any claim they may have had that the defendants, by preventing them from developing the 17-acre parcel in accordance with the site plan, took their property without paying just compensation, in violation of the Fifth and Fourteenth Amendments. In this court they try to withdraw their waiver because of intervening Supreme Court decisions which they argue have broadened the concept of a regulatory taking, but their effort is futile. The taking is complete when it occurs, and the duty to pay just compensation arises then, see, e.g., First Evangelical Lutheran Church v. County of Los Angeles, --- U.S. ----, 107 S.Ct. 2378, 2389 n. 10, 96 L.Ed.2d 250 (1987), but the suit for just compensation is not ripe until it is apparent that the state does not intend to pay compensation, Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 194, 105 S.Ct. 3108, 3121, 87 L.Ed.2d 126 (1985); Unity Ventures v. County of Lake, 841 F.2d 770, 773-74 (7th Cir.1988). These plaintiffs have not explored the possibility of obtaining compensation for an alleged regulatory taking. In fact, they do not want compensation; they want their site plan approved.

One might have thought that the takings clause would occupy the field of constitutional remedies for governmental actions that deprive people of their property, and hence that the plaintiffs' waiver of their takings claim would drag their due process claims down with it. But this is not correct; pushed to its logical extreme, the argument would read "property" out of the due process clause of the Fifth and Fourteenth Amendments. Even limited to claims of denial of substantive due process the argument may fail. Rather than being viewed simply as a limitation on governmental power the takings clause could be viewed as the source of a governmental privilege: to take property for public use upon payment of the market value of that property, since "just compensation" has been held to be satisfied by payment of market value, see, e.g., United States v. Reynolds, 397 U.S. 14, 16, 90 S.Ct. 803, 805, 25 L.Ed.2d 12 (1970). Compensation in the constitutional sense is therefore not full compensation, for market value is not the value that every owner of property attaches to his property but merely the value that the marginal owner attaches to his property. Many owners are "intramarginal," meaning that because of relocation costs, sentimental attachments, or the special suitability of the property for their particular (perhaps idiosyncratic) needs, they value their property at more than its market value (i.e., it is not "for sale"). Such owners are hurt when the government takes their property and gives them just its market value in return. The taking in effect confiscates the additional (call it "personal") value that they obtain from the property, but this limited confiscation is permitted provided the taking is for a public use. It can be argued that if the taking is not for a public use, it is unconstitutional, but perhaps not as a taking; for all the takings clause says is "nor shall private property be taken for public use, without just compensation." This language specifies a consequence if property is taken for a public use but is silent on the consequences if property is taken for a private one. Perhaps the effect of this silence is to dump the case into the due process clause. The taking would then be a deprivation of property without due process of law. The victim could bring suit under section 1983 against the governmental officials who took or are threatening to take his property, seeking an injunction against the taking (or an order to return the property if, it has been taken already--subject to whatever defense the Eleventh Amendment might afford against such a remedy) or full tort damages, not just market value.

There are two objections to this approach. First, the takings clause may be broad enough to take care of the problem without the help of the due process clause. The Supreme Court may believe that the takings clause, of its own force, forbids any governmental taking not for a public use, even if just compensation is tendered. There is language to this effect in a number of opinions, see, e.g., Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 241, 104 S.Ct. 2321, 2329, 81 L.Ed.2d 186 (1984), though it may be inadvertent, and...