Frank Rosenberg, Inc. v. Tazewell County, 88-2806

• Decision Date: 11 August 1989
• Docket Number: No. 88-2806,88-2806
• Citation: 882 F.2d 1165
• Parties: FRANK ROSENBERG, INC., Plaintiff-Appellant, v. TAZEWELL COUNTY, a body politic, Jerry Appenzeller, James Carius, James Dawson, Fred Ertmoed, Kenneth Eubanks, Thomas Fabry, Robert B. Forsyth, Robert Lutz, Larry Noreuil, Wilma O'Donnell, and Ralph Paluska, individually and as members of the Tazewell County Board, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1165

882 F.2d 1165

FRANK ROSENBERG, INC., Plaintiff-Appellant, v. TAZEWELL COUNTY, a body politic, Jerry Appenzeller, James Carius, James Dawson, Fred Ertmoed, Kenneth Eubanks, Thomas Fabry, Robert B. Forsyth, Robert Lutz, Larry Noreuil, Wilma O'Donnell, and Ralph Paluska, individually and as members of the Tazewell County Board, Defendants-Appellees.

No. 88-2806.

United States Court of Appeals Seventh Circuit.

Argued March 29, 1989.

Decided Aug. 11, 1989.

Brian D. Mooty, Julian E. Cannell, Kavanagh, Scully, Sudow, White & Frederick, Peoria, Ill., for Frank Rosenberg, Inc., an Illinois corporation.

John E. Cassidy, Cassidy & Mueller, Peoria, Ill., Stewart J. Umholtz, Office of the State's Atty. of Tazewell County, Pekin, Ill., for defendants-appellees.

Before POSNER, FLAUM, and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

The plaintiff-appellant Frank Rosenberg, Inc. (Rosenberg) brought this section 1983 action against Tazewell County, Illinois and individual present and former members of the Tazewell County Board (County Board). At the heart of Rosenberg's complaint is a 1986 County Board denial of a siting permit for a regional pollution control facility. The district court dismissed the action for lack of standing. Rosenberg filed a timely appeal. ¹ We now affirm.

I. BACKGROUND

A. Facts

In 1985, Rosenberg sought to sell land known as Rosenberg Industrial Park to Kirby-Coffman, Inc. (Kirby). Rosenberg Industrial Park formerly served as a municipal landfill for waste collected in Tazewell County; it is located one mile south of Pekin, in an unincorporated area of Tazewell County. Three letters from Kirby to Rosenberg allegedly form a contract for the sale of Rosenberg Industrial Park at a price of $2,500,000. ² However, Kirby's obligation to purchase the land was subject to several conditions precedent, one of which was the signing of a contract, by Kirby or one of its affiliates, to construct or participate in the construction of a waste-to-energy facility or other co-generation facility providing steam or energy. The letters also evidence that the parties understood that no firm funding commitment for such a project was possible until all necessary permits and contracts had been obtained.

The waste-to-energy facility was intended for a ten-acre tract located within Rosenberg Industrial Park. Under the Illinois Environmental Protection Act (the Act), Ill.Ann.Stat. ch. 111 1/2, para. 1001 et seq., the proposed waste-to-energy facility was considered a "regional pollution control facility." See Ill.Ann.Stat. ch. 111 1/2, para. 1003.32. Therefore, the proposed facility siting was subject to approval by various state and local authorities. Thus, before Kirby could begin construction on a waste-to-energy facility in satisfaction of a condition precedent to its contract with Rosenberg, it needed approval of the facility site. Kirby petitioned the Illinois Environmental Protection Agency, which gave initial approval to the proposed waste-to-energy facility.

Having cleared this first hurdle, Kirby next submitted an application to the County Board for its approval of the proposed facility location within Rosenberg Industrial Park. That application stated that Kirby had complied with all of the written application and notice requirements of the county board approval provision of the Act, see Ill.Ann.Stat. ch. 111 1/2 para. 1039.2, and therefore, the proposed facility to accept, handle, and incinerate municipal waste merited County Board approval. On July 21, 1986, the County Board held a public hearing at which Kirby presented oral testimony and written exhibits addressing the six criteria detailed in section 39.2 of the Act. Id.

On August 25, the County Board executive committee recommended that the full County Board approve Kirby's siting application. Two days later, however, the full County Board rejected the approval request by a vote of 14-7. On September 25, the County Board reconsidered its vote of August 27, and, by a vote of 11-10, again rejected Kirby's siting application. Voting against the application were defendant County Board members Appenzeller, Carius, Dawson, Ertmoed, Eubanks, Fabry, Forsyth, Lutz, Noreuil, O'Donnell, and Paluska. In conjunction with its September 25 vote, the County Board made findings of fact supporting its denial of the site location. See R.1 at Ex. G; see also Ill.Ann.Stat. ch. 111 1/2, para. 1039.2(e) ("Decisions of the county board ... are to be in writing, specifying the reasons for the decision."). Kirby did not appeal the County Board's decision to the Illinois Pollution Control Board or seek a writ of mandamus from the Illinois circuit court.

In a letter dated October 27, 1986, Kirby informed Rosenberg that, due to the County Board's refusal to approve the facility siting application, Kirby had ceased all its efforts relating to the construction of a waste-to-energy facility at the Rosenberg Industrial Park. Accordingly, Kirby and Rosenberg did not consummate the sale of Rosenberg Industrial Park for $2,500,000.

B. Decision of the District Court

Following the breakdown of the sale, Rosenberg brought this section 1983 suit alleging that:

29. The refusal of the Tazewell County Board to approve the siting application of Kirby-Coffman, Inc. had no reasonable basis, was against the manifest weight of the evidence presented to the Board, and was an arbitrary and capricious action that amounted to a confiscation of the Plaintiff's property in violation of the Fifth and Fourteenth Amendments of the United States Constitution.

30. The Defendant members of the Tazewell County Board who voted to deny the location request of Kirby-Coffman, Inc., acted in their individual and official capacities in an arbitrary and capricious manner with a deliberate and reckless disregard to the Plaintiff's constitutional rights, and as a consequence the Plaintiff was deprived of its property in violation of the Fifth and Fourteenth Amendments of the United States Constitution.

R.1 at 7 (emphasis supplied).

The district court dismissed Rosenberg's complaint for lack of standing. Frank Rosenberg, Inc. v. Tazewell County, No. 87-1289 (C.D.Ill. Aug. 31, 1988); R.8 [hereinafter Mem.op.]. In the district court's view, Rosenberg lacked standing because the agreement to purchase "gave rise only to an expectation that the agreement would be consummated," Mem.op. at 11, and therefore did not constitute "injury in fact." Id. "[A]t no point," the district court pointed out, did Rosenberg "have any state law interest in the issuance of the permit." Id.

II. ANALYSIS

Before this court, Rosenberg submits that the district court erred in holding that he lacked standing to bring this action. We review de novo the district court's determination on standing. See Waste Management of N. Am., Inc. v. Weinberger, 862 F.2d 1393, 1396 (9th Cir.1988). Moreover, "[f]or purposes of ruling on a motion to dismiss for want of standing, both the trial and reviewing courts must accept as true all material allegations in the complaint, and must construe the complaint in favor of the complaining party." Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975).

A. The Controlling Principles

The concept of standing has endured a long and difficult developmental period. Just a little more than twenty years ago, in Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), Chief Justice Warren, noting his agreement with Professor Freund, described standing as surrounded by "complexities and vagaries"--one of " 'the most amorphous [concepts] in the entire domain of public law.' " 392 U.S. at 98-99 & n. 18, 88 S.Ct. at 1951-52 & n. 18 (quoting Hearings on S. 2097 Before the Subcomm. on Constitutional Rights of the Senate Judiciary Comm., 89th Cong., 2d Sess. 465, 498 (statement of Prof. Paul A. Freund)). It would be a mistake, however, for the bench and bar to regard this important concept as an intellectual no-man's land today. Beginning with Flast, the last two decades have witnessed significant intellectual refinement of this most important concept, and "standing concepts have gained considerable definition from developing case law." Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3325, 82 L.Ed.2d 556 (1984). The Supreme Court has identified for our guidance the underlying policy concerns upon which this concept is built; it has also set forth an analysis embodying those policy concerns. It is our task to apply that analysis in the cases before us.

The policy concerns can be stated rather succinctly. In Flast, the Supreme Court suggested that courts begin their analysis of a standing problem by recalling that standing is really a conceptual subdivision of a broader jurisdictional requirement--the "case or controversy" requirement of Article III. This constitutional limitation on the power of federal courts embodies, noted the Court in Flast, "two complementary but sometimes different limitations." 392 U.S. at 95, 88 S.Ct. at 1949-50.

In part those words limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process. And in part those words define the role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government. Justiciability is the term of art employed to give expression to this dual limitation placed upon federal courts by the case-and-controversy doctrine.

Id. Standing is the aspect of justiciability that focuses on the qualifications of the party bringing the suit; the essence of the inquiry is "whether the litigant is entitled to have the court decide on the merits of the dispute or of particular issues." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975); see also FMC Corp. v. Boesky, 852 F.2d 981, 987-88 (7th Cir.198...