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CONROY v. VILLAGE OF LISLE

July 12, 1989

PATRICK CONROY and PATRICIA CONROY, Plaintiffs,
v.
VILLAGE OF LISLE, Defendant



The opinion of the court was delivered by: SHADUR

 MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE

 Patrick and Patricia Conroy ("Conroys") have filed a three-count Complaint against the Village of Lisle ("Village") -- purportedly under the Fifth Amendment, *fn1" the Fourteenth Amendment and 42 U.S.C. § 1983 ("Section 1983") *fn2" -- alleging:

 
2. Village deprived Conroys of their property under color of state law in violation of Section 1983 (Counts II and III).

 This Court's July 8, 1988 oral ruling (a) dismissed Count I for failure to state a currently viable claim but (b) confirmed that the Section 1983 counts sufficiently alleged a denial of substantive due process to withstand such dismissal.

 After minimal discovery both sides moved for summary judgment on the remaining counts. For the reasons stated in this memorandum opinion and order, Village's motion is granted, Conroys' is denied and this action is dismissed.

 Factual Background3

 In 1963 Donald Espersen and his wife Kathryn ("Espersens") acquired property located on Riedy Road in the Village of Lisle, part of a 1950 subdivision laid out in 100-foot-frontage lots. *fn4" Village's later-enacted zoning ordinance (adopted in 1970) classified the property as single-family residential and established a minimum frontage requirement of 75 feet for a buildable lot under its Section 5-4-3(C) ("Ordinance § 5-4-3(C)").

 Espersens' 150 feet of frontage thus qualified for division into two buildable lots, under Village's ordinance. Nonetheless, when in 1974 they contemplated resubdividing their property and then selling the east portion (using the west portion to build a home for themselves), they investigated the possibility of acquiring the 50 feet adjoining their property to the east (the east half of Lot 11, now the subject of this litigation -- the "Property") from its then owner, Janina Pietraszewski ("Pietraszewski") (D. Ex. F). *fn5" That of course would have enabled the total combined properties of 200 front feet to be developed with two more-than-minimum-frontage lots, conforming exactly to the original subdivision plat.

 In 1978 Conroys entered the picture when Pietraszewski sold them the Property for $ 5,500 (her original purchase price, see D. Ex. E). *fn6" Conroys were not new to Village -- not only did they live there, but they had previously bought four other lots in Lisle and had built houses on all four. All those other lots were 50-foot lots too, but each of them (unlike the Property) was a legal nonconforming lot that had been platted as a full lot (not, like the Property, as just half of a platted lot) before enactment of the zoning ordinance (Conroys Mem. 4).

 Nothing more happened until 1985, when Conroys decided they wanted to build on the Property. They applied for a building permit, which was approved on October 14, 1985 by Community Development Director/Building Commissioner Thomas F. Ewers ("Ewers") -- apparently both Ewers and Conroys were blissfully unaware that such construction was illegal because of Section 5-4-3(C) and because the Property was not exempt from its operation (that is, the Property was not a pre-ordinance legal nonconforming lot). Conroys proceeded to dig a big hole in the ground. Reality came crashing in a week later, however, when Ewers realized his error and suspended the permit.

 At that point Conroys sought a variance (an exemption from the applicability of Ordinance § 5-4-3(C) to the Property). At the conclusion of its January 16, 1986 public hearing on that application, the Zoning Board recommended denial of the variance to Village's Board of Trustees (D. Ex. A). On February 17, 1986 the Board of Trustees did just that (under Illinois law the power to grant variances is vested in the municipality's governing body, so the Zoning Board's action was purely advisory and recommendatory). Rather than seeking review of those ...


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