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February 28, 1990

VILLAGE OF BOLINGBROOK, a Home Rule municipality, Defendant

The opinion of the court was delivered by: MORAN


 The plaintiffs challenge the Village of Bolingbrook's ordinance that requires landlords and property managers to consent to and pay for an inspection whenever they rent to new residential tenants and, further, that prospective tenants procure a "Rent/Lease Permit" before they may occupy a dwelling. We have before us Bolingbrook's motion to dismiss. For the following reasons, the motion is denied.


 Plaintiff American National Bank and Trust Company (the Bank) holds title to an apartment complex in Bolingbrook that is managed exclusively by plaintiff Inland Property Management, Inc., (Inland). They join with five individual tenants (the tenants) in asserting broadly that the provisions of Bolingbrook's Ordinance 88-44 violate rights under the Constitution and laws of the United States and the constitution and laws of the State of Illinois. In Count I, the tenants assert that the ordinance violates their rights to privacy and equal protection and impinges on their rights to travel and live in a dwelling. They ask that we declare the ordinance unconstitutional and enjoin its enforcement. Inland and the Bank seek the same relief in Count II, where, after repeating the allegations of Count I, they further contend that the ordinance violates their rights to equal protection and to be free of unreasonable searches. Pursuant to the ordinance Inland is collecting $ 80 from each new tenant to pay Bolingbrook's fee for inspecting each rental unit. In Count III, Inland asks our permission to place these funds in escrow while the lawsuit is pending and return the money to tenants if we determine that the ordinance is invalid.

 The second condition restricts landlords by permitting them to rent only to tenants who seek official licenses from the Village of Bolingbrook. Prospective tenants must complete and sign an application for a "Rent/Lease Permit" before landlords may legally rent a residence. The ordinance provides that Bolingbrook will issue the permit "following investigation to insure compliance with the provisions of this Chapter." When issued, the permit includes the following information that the tenants presumably must provide when they apply: the names, ages, relationships, and number of people who will live in the residence. When new members join an existing household, they must add their own personal information to the Rent/Lease Permit. *fn2" It is not clear whether Bolingbrook also requires a new inspection when a new member joins an existing household, as "change in occupancy" is defined in a section of the Code that is not before us.

 Any person who fails to comply with the terms of the ordinance, even by neglect or omission, is subject to a fine of up to $ 1000 for each offense. Each day that the ordinance is violated constitutes a separate offense.


 Bolingbrook has moved to dismiss for failure to state a claim and for lack of standing. As a preliminary matter, we note that discussion of this complaint is complicated by the fact that plaintiffs have lumped all the individual tenants' claims into Count I and all the claims of the Bank and Inland into Count II. With regard to the claims of the tenants, the parties have concentrated their arguments on the issues of standing and justiciability. In moving to dismiss for failure to state a cause of action, Bolingbrook appears to challenge the entire complaint, yet its argument addresses only some of the separate claims. In considering this portion of defendant's motion, we bear in mind that a complaint should be dismissed for failure to state a claim only when it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).

 I. Standing

 A. Tenants' Claims

 We note first that the tenants have not even alleged that they have obtained Rent/Lease Permits or otherwise been subjected to the constraints of the ordinance. They have not asserted that they reside in apartments managed by Inland, nor that they reside in Bolingbrook or intend to move to or within Bolingbrook in the future. When read in isolation, the complaint provides little support for the tenants' bid for standing.

 We do not read the complaint in isolation, however, because our file also contains defendant's answer to plaintiffs' motion for a preliminary injunction and a temporary restraining order. There, Bolingbrook states that the individual tenants have complied with the provisions of the challenged ordinance *fn3" but that Inland has refused to pay the inspection fees. We thus consider the motion to dismiss as though the complaint alleged these additional facts.

 As the tenants have been subjected to an ordinance that they assert violates their constitutional and statutory rights, they have alleged injury in fact and would certainly have standing to seek, at a minimum, retrospective relief. When litigants seek redress for past violations of their rights, the controversy is not moot. The tenants would clearly have standing to sue Bolingbrook officials for any monetary damages they allegedly sustained as a result of an unconstitutional ordinance. While the complaint does not seek damages, it does request an analogous form of retrospective relief.

 In Count III, Inland asserts that it has been collecting the inspection fees from its tenants but has not paid them to Bolingbrook. Inland seeks this court's permission to hold the inspection fees in escrow until we determine whether the ordinance is valid. Inland regards the fees as money that it will return to the tenants if we declare the ordinance unconstitutional. If this were simply a suit between Inland and Bolingbrook, the tenants would have standing to intervene to protect their stake in the fees that they might ...

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