New Burnham Prairie Homes, Inc. v. Village of Burnham

• Citation: 910 F.2d 1474
• Decision Date: 21 August 1990
• Docket Number: No. 89-1701,89-1701
• Parties: RICO Bus.Disp.Guide 7540, 30 Fed. R. Evid. Serv. 1052 NEW BURNHAM PRAIRIE HOMES, INCORPORATED, an Illinois Corporation, James E. Sylvester, James E. Sylvester Development Company, an Illinois Corporation, Constantine Karagias, Rita Karagias and Chicago Title & Trust Company, as Trustee under Trust Numbered 1076163, 1081362 and 1081361, Plaintiffs-Appellants, v. VILLAGE OF BURNHAM, Eldreth A. Rundlett, Individually and in his official capacity as Mayor of the Village of Burnham, Chairman of the Plan Commission and President of the Board of Local Improvements and Donald Danewicz, Individually and in his official capacity as Trustee of the Village of Burnham, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1474

910 F.2d 1474

RICO Bus.Disp.Guide 7540, 30 Fed. R. Evid. Serv. 1052

NEW BURNHAM PRAIRIE HOMES, INCORPORATED, an Illinois Corporation, James E. Sylvester, James E. Sylvester Development Company, an Illinois Corporation, Constantine Karagias, Rita Karagias and Chicago Title & Trust Company as Trustee under Trust Numbered 1076163, 1081362 and 1081361, Plaintiffs-Appellants, v. VILLAGE OF BURNHAM, Eldreth A. Rundlett, Individually and in his official capacity as Mayor of the Village of Burnham Chairman of the Plan Commission and President of the Board of Local Improvements and Donald Danewicz, Individually and in his official capacity as Trustee of the Village of Burnham, Defendants-Appellees.

No. 89-1701.

United States Court of Appeals Seventh Circuit.

Argued Dec. 13, 1989.

Decided Aug. 21, 1990.

Edmund B. Moran, Jr., Chicago, Ill., for plaintiffs-appellants.

Peter M. Rosenthal, Peter Coblentz, Katherine Janega, Rosenthal, Murphey, Coblentz & Janega, Chicago, Ill., for defendants-appellees.

Before WOOD, Jr., COFFEY and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

The plaintiffs brought a four count complaint against the defendants, alleging various improprieties in regard to the defendant Village's handling of the plaintiffs' applications for building permits. Before trial, the district court first dismissed on the pleadings the plaintiffs' 42 U.S.C. Sec. 1983 allegations of procedural and substantive due process violations and a state law claim. It later dismissed on summary judgment a claim under RICO and an equal protection claim. Count I (alleging violation of 42 U.S.C. Secs. 1981 and 1982) proceeded to a jury trial.

The jury returned a verdict in favor of the defendants. The district court entered final judgment and denied the plaintiffs' motions for new trial and to alter or amend the judgment. This appeal followed.

I BACKGROUND

A. Facts

The plaintiffs in this action were James Sylvester (a developer), Mr. Sylvester's

company (New Burnham Prairie Homes, Inc.), and Constantine and Rita Karagias, the owners of property involved in the projected development. The defendants included the Village of Burnham, Eldreth Rundlett (the Mayor of Burnham), and Donald Danewicz (a Trustee of the Village). In essence, this case concerns a claim that the Village of Burnham and the defendant Village officers unfairly hindered the plaintiffs' development plans. The dispute centers on two main factual allegations: that the defendants were motivated by racial animus in denying the building permits, and that the defendants required the plaintiffs to bear an unequal burden in purchasing land for a public retention pond.

1. Racial animus and the proposed projects

Karagias purchased four acres of vacant land in 1969. Karagias and Reliable Roofing Corporation (Reliable) entered into a buy and sell contract in 1977, which was the first step in what Reliable planned would be the building of rental apartments on the property. However, Reliable was unable to obtain building permits and the contract eventually was rescinded. The complaint alleges that this development fell through because the Village did not want blacks to move into the rental housing.

In 1979 Karagias entered into a contract to sell the property to Sylvester. The contract provided that portions of the property would be purchased as the property was developed ("take-out" basis). The development plan was approved by the Village and called for building thirty single-family homes on the property. Because of financial difficulty, however, Sylvester built only three houses and sold just one.

In 1980 Sylvester applied for a building permit to construct one rental apartment building, to be surrounded eventually by a mixture of single-family and apartment buildings. Sylvester never applied for financing of this project, and he had no experience in building or managing apartments. Sylvester claims that no action ever was taken on this plan due to the defendants' desire to limit the influx of blacks. The defendants dispute this conclusion: they claim that the Village's Board of Trustees approved Sylvester's site plan, but that the Village was concerned by Sylvester's suggestion that initially he would build a temporary rather than a permanent road in front of the building.

In 1981 Sylvester submitted a plan to construct fourteen six-unit condominium buildings. The plaintiffs claim that the defendants requested "voluminous documentation." Appellants' Br. at 11. Sylvester also claims that several of the defendants at two separate dinners in 1982 threatened that he never would get building permits if he planned to rent to blacks or if he did not pay Robert Biederman (another developer and former Village attorney) $30,000 as his portion of a retention pond that would service three developments (Biederman's, Sylvester's, and a third party's). Nevertheless, Sylvester received building permission and actually built four out of the planned sixteen condominium buildings.

The defendants assert that any delay experienced by Sylvester was tied to his delinquency in paying special assessment fees. ¹ The defendants also claim that approval of development plans followed when Karagias and Sylvester finally paid these assessments. On December 18, 1982, Karagias paid $20,228.88 for his delinquent assessments and for his 1983 assessments. Two days later, one of the building permits for a condominium building was issued. In 1983, when the assessments were up-to-date, two further permits were issued. There was also evidence that the Village was unable to obtain financing for the retention pond (see infra ) because of Karagias' reputation for not paying his special assessments.

2. Favoritism and the purchase of land for retention pond

Former Village attorney Robert Biederman owned property (the Southpointe parcel) adjacent to the Karagias property. In 1981 Biederman began construction of condominiums on the Southpointe parcel. The plaintiffs claim that Biederman did not have to submit the same materials as they had to submit in order to secure the building permits. Appellants' Br. at 11. Prior to construction, Biederman was informed that he would have to construct a retention pond due to stormwater drainage problems. He first suggested that he build a private pond, but the Village preferred a public pond to service the area, including the Karagias property.

Biederman purchased a parcel (known as "Outlot A") in 1981 for $63,000. The Village, desirous of putting the retention pond on that parcel, subsequently purchased part of the parcel for $90,000 through a special assessment condemnation. A hearing on the condemnation was held in June 1983, and the Circuit Court of Cook County confirmed the special assessment in May 1984. The plaintiffs allege that the defendants assured them that, if the plaintiffs did not object to the special assessment, then the Village would grant the plaintiffs' building permits. Appellants' Br. at 13. In February of 1984 Sylvester applied for a building permit for a six-unit condominium. No action has been taken on this application.

II CLAIMS DISMISSED BEFORE TRIAL

A. Standards of Review

Several of the plaintiffs' claims were dismissed on the pleadings; others were dismissed on summary judgment. The standards of review governing each are well settled. Dismissal of a claim is appropriate if there exists no set of facts that would support the claim and entitle the plaintiff to recover. Illinois Health Care Assoc. v. Illinois Dep't of Public Health, 879 F.2d 286, 288 (7th Cir.1989). In making this determination, we accept all well-pleaded allegations as true and draw all reasonable inferences from them. Id. Our review of the judgment of the district court is de novo. Villegas v. Princeton Farms, Inc., 893 F.2d 919, 924-25 (7th Cir.1990).

Our standard for dealing with a grant of summary judgment is also well established. The movant bears the burden of establishing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986) ("The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor."); United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam). When the moving party has met its burden, the nonmoving party then has the burden of presenting specific facts to show that there is a genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Co., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986). Summary judgment is inappropriate "if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 247, 106 S.Ct. at 2509. "In examining the district court's grant of summary judgment, our duty is to review de novo the record and the controlling law." PPG Indus., Inc. v. Russell, 887 F.2d 820, 823 (7th Cir.1989).

B. RICO

The plaintiffs maintain that the defendants committed a RICO violation, 18 U.S.C. Sec. 1962(c), ² by conspiring to deny the plaintiffs' building permit applications and by defrauding them with regard to the price of the retention pond. The district court granted summary judgment to the defendants based on its determination that the plaintiffs alleged only one scheme (defrauding the plaintiffs to acquiesce in the special assessment), and only one injury (restriction of the right to develop the property). New Burnham Prairie Homes, Inc. v. Village of Burnham, Mem. op. at 15, 1988 WL 132078 (N.D.Ill. Dec. 2, 1988). The district court concluded that the plaintiffs thus failed to meet the requirement of pattern of racketeering activity. On appeal,...