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WESTFIELD PTNRS., LTD. v. HOGAN

June 19, 1990

WESTFIELD PARTNERS, LTD., an Illinois Corporation, Plaintiff,
v.
RICHARD C. HOGAN, JEANNE D. HOGAN, SHELLY LATORIA, JOSEPH LATORIA, SHAWN STERNE, JULI STERNE, PETER SORENSEN, NANCY SORENSEN, DENNIS BOMBEREK, and VICKI BOMBEREK, Defendants



The opinion of the court was delivered by: NORGLE

 CHARLES RONALD NORGLE, UNITED STATES DISTRICT JUDGE

 Before the court is the motion of defendants, Richard C. Hogan, Jeanne D. Hogan, Shelly Latoria, Joseph Latoria, Shawn Sterne, Juli Sterne, Peter Sorensen, Nancy Sorensen, Dennis Bomberek, and Vicki Bomberek, to dismiss plaintiff's complaint. For the following reasons, defendants' motion is granted.

 On a motion to dismiss, the allegations of the complaint as well as the reasonable inferences to be drawn from them are taken as true. Doe v. St. Joseph's Hospital, 788 F.2d 411 (7th Cir. 1986). The plaintiff need not set out in detail the facts upon which the claim is based, but must allege sufficient facts to outline the cause of action. Id. The complaint must state either direct or inferential allegations concerning all of the material elements necessary for recovery under the relevant legal theory. Mescall v. Burrus, 603 F.2d 1266 (7th Cir. 1979). Dismissal under Rule 12(b)(6) is improper unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Papapetropoulous v. Milwaukee Transport Services, Inc., 795 F.2d 591, 594 (7th Cir. 1986).

 FACTS

 Accordingly, the pertinent facts are as follows. The plaintiff, Westfield Partners, Ltd. ("Westfield"), is an Illinois corporation engaged in the business of real estate development. Westfield purchased three parcels of land in Wayne Township, DuPage County, Illinois, which it hoped to develop into an upscale single family home subdivision named "Tall Oaks Estates". The preliminary plat provided ingress and egress to the subdivision via a road running between Fair Oaks Road to the west and Woodcreek Lane North to the east.

 All defendants live on Woodcreek Lane North. The defendants oppose the use of the proposed roadway to access Tall Oaks Estates. The defendants filed a Petition to Vacate Woodcreek Lane North as a public roadway, pursuant to Ill.Rev.Stat. ch. 121 para. 6-303. Vacation of the road would interfere with approval Tall Oaks Estates subdivision by the Village of Carol Stream and inhibit prices for individual subdivided lots. A public hearing was scheduled and notification of the hearing was provided by publication. *fn1" A hearing on the issue was held on August 18, 1989 and attended by the defendants, but not by plaintiff. On August 21, 1989, the Wayne Township Highway Commissioner filed with the Wayne Township Clerk his Memorandum of Decision to vacate Woodcreek Lane North as a public roadway. The Plat of Vacation was filed by the Wayne County Highway Commissioner in the office of the DuPage County Recorder of Deeds on August 28, 1989.

 Plaintiff, aggrieved by the Highway Commissioner's decision, filed the instant suit against the homeowners who had petitioned for the vacation. Plaintiff's complaint seeks relief in four counts. Count one, the only basis for federal jurisdiction, alleges that defendants conspired with Wayne Township officials *fn2" to deprive plaintiff of its right to develop the property without due process of law, in violation of 42 U.S.C. § 1983. Count two alleges that the defendants, along with Wayne County officials, intentionally vacated Woodcreek Lane North as a public roadway, knowing it would impair plaintiff's ability to develop Tall Oaks Estates, thereby interfering with plaintiff's prospective economic advantage. Count three claims that defendants have slandered the title of plaintiff's real estate. Count four seeks a declaratory judgment that the Plat of Vacation of Woodcreek Lane North is void. Westfield seeks compensatory damages in the amount of three million dollars and punitive damages in the amount of one million dollars against the homeowner-defendants.

 DISCUSSION

 At an initial court appearance by both counsel, the court, citing Coniston Corp. v. Village of Hoffman Estates, 844 F.2d 461 (7th Cir. 1988), inquired as to the propriety of filing this action in a federal forum. As noted in Coniston, as well as the more recent case of Northside Sanitary Landfill, Inc. v. City of Indianapolis, et. al., 902 F.2d 521 (7th Cir. 1990), the federal court is not a Board of Zoning Appeals. Despite this admonition, developers who are disappointed with local land use decisions persist in seeking federal avenues to receive favorable decisions. The court perceives this, with a great deal of alarm, as part of a growing trend of what have come to be known as "SLAPP suits". *fn3" The term "SLAPP" is an acronym for the phrase "strategic lawsuits against public participation". A SLAPP suit is one filed by developers, unhappy with public protest over a proposed development, filed against leading critics in order to silence criticism of the proposed development. *fn4" The filing of such suits has seen increasing use over the past decade. *fn5" Examination of the facts and allegations in plaintiff's complaint compel this court to view the underlying purpose of this suit with a great deal of skepticism.

 The court grants defendant's motion to dismiss count one on two grounds; 1) that defendant's Petition to Vacate, submitted to Wayne Township Highway officials, is absolutely privileged under the first amendment, and, in the alternative, 2) that plaintiff's complaint, on its face, fails to show that defendant's actions were taken "under color of state law" as is required by 42 U.S.C. § 1983.

 As to the first ground, the court holds that defendants' petitioning of Wayne Township officials is absolutely privileged under the first amendment, and defendants cannot incur § 1983 liability for those actions. Plaintiff's entire complaint against defendants is based upon nothing more than defendants' exercise of their right, under the first amendment, to petition the government for a redress of grievances. *fn6"

 The basis for the court's decision finds its genesis in what has come to be known as the Noerr-Pennington doctrine. The doctrine is based upon two Supreme Court decisions, Eastern Rail Presidents Conference v. Noerr Motor Freight, Inc, 365 U.S. 127, 5 L. Ed. 2d 464, 81 S. Ct. 523 (1961) and United Mine Workers v. Pennington, 381 U.S. 657, 14 L. Ed. 2d 626, 85 S. Ct. 1585 (1965).

 The Noerr case involved a dispute between a group of railroads and a group of trucking companies for primary control of the nation's long distance heavy freight hauling business. The railroads had engaged in an advertising campaign designed to curtail the use of trucks for long distance hauling, and most notably had persuaded the Governor of Pennsylvania to veto the "Fair Truck Bill" in his state. 365 U.S. at 129-31. The trucking companies filed suit against the railroads, alleging violations of the Sherman Act, §§ 1 and 2. *fn7" Id. The Supreme Court rejected the trucker's claims and held that ...


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