STANDARD BANK & TRUST v. Village of Orland Hills, 94 C 7582.

• Decision Date: 14 June 1995
• Docket Number: No. 94 C 7582.,94 C 7582.
• Citation: 891 F. Supp. 446
• Court: U.S. District Court — Northern District of Illinois
• Parties: STANDARD BANK & TRUST COMPANY, not individually but as Trustee under Trust Agreement dated July 25, 1974, and known as Trust No. 4098; and Hartz Construction Company, an Illinois corporation, Plaintiffs, v. VILLAGE OF ORLAND HILLS, an Illinois municipal corporation; Kyle Hastings, individually and as President of the Village of Orland Hills; Chris Andrews, Don Bigos, John Corich, Michael Puckett, Fran Aldous, and Steven Chairito, individually and as Trustees of the Village of Orland Hills; Velga DrillisElzis, individually; John Daly, as Administrator of the Village of Orland Hills; Bradley E. Brink, individually; and Earl Hermansen, individually and as Building Commissioner of the Village of Orland Hills, Defendants.

891 F. Supp. 446

STANDARD BANK & TRUST COMPANY, not individually but as Trustee under Trust Agreement dated July 25, 1974, and known as Trust No. 4098; and Hartz Construction Company, an Illinois corporation, Plaintiffs, v. VILLAGE OF ORLAND HILLS, an Illinois municipal corporation; Kyle Hastings, individually and as President of the Village of Orland Hills; Chris Andrews, Don Bigos, John Corich, Michael Puckett, Fran Aldous, and Steven Chairito, individually and as Trustees of the Village of Orland Hills; Velga DrillisElzis, individually; John Daly, as Administrator of the Village of Orland Hills; Bradley E. Brink, individually; and Earl Hermansen, individually and as Building Commissioner of the Village of Orland Hills, Defendants.

No. 94 C 7582.

United States District Court, N.D. Illinois, Eastern Division.

June 14, 1995.

Jack M. Siegel, Altheimer & Gray, Chicago, IL, for Standard Bank & Trust Co.

Jack M. Siegel, Altheimer & Gray, Chicago, IL, William K. Bass, Jon Jeffrey Patton, Phelan, Cahill, Devine & Quinlan, LTD., Chicago, IL, for Harte Const. Co.

David Lincoln Ader, Ancel, Glink, Diamond, Cope & Bush, Chicago, IL, Mathias William Delort, Keri-Lyn Joy Krafthefer, Michael Ray Gibson, Mark H. Sterk, Odelson & Sterk, Ltd., Evergreen Park, IL, for defendants.

Jeffrey T. Kubes, David M. Jenkins, Hinshaw & Culbertson, Chicago, IL, David Lincoln Ader, Ancel, Glink, Diamond, Cope & Bush, Chicago, IL, for Bradley E. Brink.

Richard T. Wimmer, Dennis G. Walsh, James Vincent Ferolo, Michael T. Jurusik, Klein, Thorpe & Jenkins, Ltd., Chicago, IL, David Lincoln Ader, Ancel, Glink, Diamond, Cope & Bush, Chicago, IL, Mathias William Delort, Keri-Lyn Joy Krafthefer, Michael Ray Gibson, Mark H. Sterk, Odelson & Sterk, Ltd., Evergreen Park, IL, for Earl Hermansen.

OPINION AND ORDER

NORGLE, District Judge:

Before the court are Defendant Bradley E. Brink's motion to dismiss for failure to state a claim upon which relief can be granted and the motion of the remaining Defendants for an abstention stay. For the following reasons, the former motion is granted. The court will reserve ruling on the latter motion.

I. BACKGROUND¹

This action is brought by the legal and beneficial owners of certain real estate located in the Defendant Village of Orland Hills, Standard Bank & Trust Company, and by Hartz Construction Company, the principal builder and developer in Orland Hills. The Complaint contains six counts. Count I is brought pursuant to 42 U.S.C. § 1983 and contains allegations that the Defendants, the City of Orland Hills and various city officials, deprived Plaintiffs of property rights without due process of law, and denied Plaintiffs equal protection of the laws. Count II alleges that the Defendants intentionally interfered with Plaintiffs' rights to construct and sell single family attached and detached homes in the Orland Hills. Count III contains allegations that Defendants intentionally interfered with Plaintiffs' contract with Orland Hills and similarly interfered with the Plaintiffs' business expectations that a prior Settlement Agreement would be carried out in accordance with its terms. Plaintiffs allege in Count IV that the Defendants named in their individual capacity conspired to "destroy the plaintiffs' business in the Village of Orland Hills by continual harassment, delays and unlawful acts intended to, and resulting in preventing them from constructing and selling homes." (Count IV, ¶ 1.) Plaintiffs claim in Count V that Defendants, especially Hermansen and Hastings, made defamatory statements that Hartz built substandard and unsafe homes in Orland Hills and deliberately failed to meet building codes. The final count, Count VI, involves allegations that Defendants breached a valid and enforceable contract, the Settlement Agreement. All counts with the exception of Count I, are state supplemental claims.

The aforementioned Settlement Agreement was entered into by Hartz, a predecessor entity of Standard Bank, and Orland Hills. The Settlement Agreement resolved a previous action brought by Plaintiffs against Orland Hills in a related case in the Circuit Court of Cook County, Illinois. In the state case, Plaintiffs sought injunctive relief and damages against Orland Hills and the named Defendants with regard to the village's refusal to issue to lift stop work orders and building permits with regard to the Ridgegate subdivision to be constructed and developed by Hartz. The Settlement Agreement addressed development issues relating to the Ridgegate project which related to the prior state cause of action, and also incorporated planned unit agreements for two additional projects, Pepperwood and Timberline. Subsequent to the resolution of the state law case, Orland Hills enacted Ordinance No. 93-16 which adopted the planned unit developments for the Timberline and Pepperwood subdivisions projects. In turn, Hartz secured zoning approval for both projects.

In July 1993, Hartz applied for building permits for the construction of single family homes in the Pepperwood and Timberline projects. Orland Hills, through its President and Board of Trustees, approved the preliminary engineering plans for the Pepperwood subdivision, but neither approved nor denied the plans for Timberline.

According to the Complaint, Bradley E. Brink ("Brink") was the "duly authorized engineering consultant" to Orland Hills. Orland Hills retained Brink on August 5, 1993. The following day, Orland Hills issued a stop work order to Hartz relating to a project called Timberline. On December 28, 1993, Hartz submitted final engineering plans for the Pepperwood project. On May 6, 1994, Brink made a partial review of the plans, and then issued a report to Orland Hills requesting additional information and questioning certain aspects of the plan. Brink did not approve nor deny the plans. On August 26, 1994, Hartz submitted revised final engineering plans to Orland Hills for further review. On October 7, 1994, Brink completed a second partial review of the engineering plans and issued another report, again asking for additional information and questioning certain aspects of the plans. However, according to the Complaint, Brink failed and refused to review all necessary items and aspects of the plans and did not issue a definitive list of required changes to the building plans.

II. DISCUSSION

In deciding a motion to dismiss, the court accepts all well-pleaded factual allegations as true, as well as the reasonable inferences that may be drawn from those allegations. Mid America Title Co. v. Kirk, 991 F.2d 417, 419 (7th Cir.1993). The complaint need not specify the correct legal theory nor point to the correct statute. Bartholet v. Reishauer A.G., 953 F.2d 1073, 1078 (7th Cir.1992). Because federal courts simply require "notice pleading," this court must construe pleadings liberally. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, ___ U.S. ____, ____, 113 S.Ct. 1160, 1163, 122 L.Ed.2d 517 (1993). In construing reasonable inferences, however, the court need not stretch allegations beyond their sensible and reasonable implications. Chan v. City of Chicago, 777 F.Supp. 1437, 1440 (N.D.Ill.1991).

A. COUNT I—CIVIL RIGHTS

Plaintiffs allege a claim for violation of civil rights against Defendant Brink under 42 U.S.C. § 1983. Plaintiffs allege that Brink, Orland Hills, and other named village officials, acted in an arbitrary and capricious manner by denying them the right to develop the Pepperwood and Timberline projects without sufficient substantive and procedural due process and further denied them of the equal protection of the laws. Brink contends that the allegations in Count I fail to state a claim under 42 U.S.C. § 1983. The court agrees.

1. Substantive Due Process

The law is clear:

Federal courts are not boards of zoning appeals. This message, oft-repeated, has not penetrated the consciousness of property owners who believe that federal judges are more hospitable to their claims than are state judges. Why they should believe this we haven't a clue; none has ever prevailed in this circuit, but state courts often afford relief on facts that do not support a federal claim. Is it that they have omitted the steps necessary to obtain review in state court and hope for the best in a second-chance forum? Well, we are not cooperating. Litigants who neglect or disdain their state remedies are out of court, period.

River Park, Inc. v. City of Highland Park, 23 F.3d 164, 165 (7th Cir.1994).

To properly plead a substantive due process claim, plaintiffs must first allege a separate constitutional violation or the inadequacy of state law remedies. Polenz v. Parrott, 883 F.2d 551, 558-59 (7th Cir.1989). In addition, plaintiffs must allege that the defendants acted in an "invidious or irrational" manner. Coniston v. Village of Hoffman Estates, 844 F.2d 461, 467 (7th Cir.1988). In the case sub judice, plaintiffs fail to allege that state law remedies are inadequate. Plaintiffs also fail to allege a constitutional violation separate than the fourteenth amendment.² These failures demand dismissal. Yet, even if plaintiffs met one of the above alternative elements, the plaintiffs did not sufficiently allege that Defendants acted either invidiously or irrationally.

In determining whether the Defendants' actions amount to invidious or irrational conduct, the court notes that "much governmental action is protectionist or anticompetitive; and nothing is more common in zoning disputes than selfish opposition to zoning changes. The Constitution does not forbid government to yield to such opposition; it does not outlaw the characteristic operations of democratic (perhaps of any) government, operations which are permeated by pressure from special interest." Coniston 844 F.2d at 467. As in Coniston, plaintiffs in the instant case argue that Orland Hills had no authority under state ordinances and the Settlement Agreement of the state...