When pietraszewski asked more than Espersens were willing to pay for the Property, Espersens promptly proceeded (as was permitted under Village's zoning ordinance) to seek and to obtain a resubdivision of their property into two buildable lots, each with 75 feet of frontage. Something less than two years later Pietraszewski applied unsuccessfully for a variation to permit her to build a single-family residence on her own undersized Property (see n.5).
In 1978 Conroys entered the picture when Pietraszewski sold them the Property for $ 5,500 (her original purchase price, see D. Ex. E).
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 decisions in the state courts, Conroys filed this action on April 4, 1988.
Section 1983 Analysis
Any Section 1983 liability on Village's part hinges on Conroys' ability to show they were deprived of a constitutional right under color of state law. Of course the "color of state law" component poses no difficulty where, as here, the claimed offender is a municipal corporation. But Conroys have not clearly articulated the constitutional rights allegedly infringed by Village.
One potential candidate might be the Just Compensation Clause of the Fifth Amendment, to the extent it may be deemed incorporated by the Fourteenth Amendment -- at least Complaint Count II para. 16 might arguably be read that way, and Conroys Mem. 6-7 cites to some precedents applying the Just Compensation Clause. But any claim pegged in those terms must fail on at least two grounds:
1. As this Court ruled in dismissing Count I, any such federal "taking" claim cannot be lodged where a state provides an adequate procedure for seeking just compensation and where the property owner has not utilized that procedure ( Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 194-95, 87 L. Ed. 2d 126, 105 S. Ct. 3108 (1985)). Like most states, Illinois provides just such an "inverse condemnation" procedure in cases such as this one (see, e.g., Chef's No. 4, Inc. v. City of Chicago, 117 Ill. App. 3d 410, 453 N.E.2d 892, 73 Ill. Dec. 67 (1st Dist. 1983)). Conroys did not pursue that route, and that is just as fatal to any Count II claim based on a "taking" theory as it was to their Count I claim.
2. Village never "took" anything from Conroys. They bought the Property with the zoning ordinance already in place. They do not and cannot claim a 75-foot frontage requirement is inherently invalid, and they must be viewed as having acquired the Property cum onere. By its terms the Just Compensation Clause applies only to the taking of "property," and Conroys' claimed deprivation of rights cannot fit within that description. They never had any right to build a residence on the Property that was somehow "taken" by the zoning ordinance.
If Conroys are to succeed, then, it can only be via the Due Process Clause. In that respect they acknowledge they are not leveling a total challenge to the validity of Ordinance § 5-4-3(C) (Conroys Mem. 1). Instead they dispute its applicability to the Property -- contending that the denial of their requested variance violated their substantive due process rights.
On that score Burrell v. City of Kankakee, 815 F.2d 1127, 1129 (7th Cir. 1987) (citing Village of Belle Terre v. Boraas, 416 U.S. 1, 39 L. Ed. 2d 797, 94 S. Ct. 1536 (1974)) puts the legal standard in these terms:
Thus, in order to prevail on a substantive due process claim, plaintiffs must allege and prove that the denial of their proposal is arbitrary and unreasonable bearing no substantial relationship to the public health, safety or welfare.