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August 31, 1993

BOB LUCAS, Plaintiff,

The opinion of the court was delivered by: MILTON I. SHADUR

 Bob Lucas d/b/a La Grange Carpet and Upholstery Company ("Lucas") has brought this 42 U.S.C. ยง 1983 ("Section 1983") action against the Village of La Grange ("La Grange") and three of its officials: Village Manager Scott Randall ("Randall"); Village Attorney Bernard Martin, Jr. ("Martin") and Building Commissioner Marlies Perthel ("Perthel"). Lucas alleges that he had property and liberty interests in an occupancy certificate, a business license and a sign permit for an upholstery shop in La Grange and that defendants violated his due process, First Amendment *fn1" and equal protection rights under the United States Constitution, as well as violating the laws of the State of Illinois, when it refused to issue those things to him or to allow him to display certain information on business signs at his establishment.

 Each side now moves for partial summary judgment. *fn2" For the reasons set forth in this memorandum opinion and order, defendants' motion is granted in part and denied in part and Lucas' corresponding motion is denied.


 Lucas is an upholsterer who resides in La Grange, where he has operated an upholstery business since 1987. It was in April 1987 that La Grange issued Lucas his first business license to operate under the name "La Grange Carpet and Upholstery" (P. 12(m) P 6). Then in March 1989 Lucas entered into a ten-year lease for the premises at 5 South La Grange Road, which is in the central business district in the main commercial thoroughfare that goes through La Grange (id. P 8). La Grange issued an occupancy certificate to Lucas to operate an upholstery shop at that address (id. P 9).

 Also in 1989 the La Grange Zoning Commission ("Commission") was in the process of preparing a draft of a proposed New Comprehensive Zoning Ordinance. On June 6 of that year La Grange's zoning counsel submitted to the Commission a proposed list of uses for various zoning districts for inclusion in the draft ordinance (D. 12(m) P 5). That proposal was modeled on the Village of Hinsdale's zoning ordinance, which does not permit upholstery and furniture repair in the downtown area. Under the proposed draft, Article V of the new ordinance would set up four different commercial districts (id. PP 6-10):

C-1, a central commercial district, was intended to provide an area in which to develop a concentrated pedestrian-oriented commercial shopping center.
C-1 did not allow upholstery or furniture repair. C-2, a limited service commercial district, was intended to provide areas in the Burlington-Hillgrove commercial corridor for existing commercial uses.
C-3, a central service commercial district, was intended to provide areas for the development of service, commercial and retail uses that required direct vehicular access.
C-4, a convenience commercial district, was intended to serve the day-to-day shopping and consumer service needs of the local low density residential neighborhoods.

 In November 1989 La Grange mailed "The Village Voice," a newsletter, to each resident and business in the village (D. 12(m) P 11). That newsletter gave notice of a public hearing that was to be held on December 4, 1989 concerning the proposed draft of the New Comprehensive Zoning Ordinance. Lucas denies receiving any notice at that time (P. 12(n) P 11). Two newspapers also published notice of the hearing (D. 12(m) P 11), which the Commission held on the scheduled date. No formal action was taken on the proposed ordinance at that time--or indeed for over a year thereafter.

 In 1990 Lucas wanted to move his shop to a new corner location next door that he thought would bring in more traffic and give him more space. In August of that year he wrote to La Grange to advise it that he was looking "to expand" his business from 5 South La Grange Road to the location next door at 1 South La Grange Road and that he had begun discussions with his potential landlord (P. Ex. 7). It will be recalled that some eight months had passed since the December 1989 hearing, with no change in the zoning ordinance having been enacted. But in terms of the proposed new ordinance that had been the subject of that hearing, both Lucas' existing location and his proposed new location were in the contemplated C-1 district.

 On November 15, 1990 Lucas applied for a business license, an occupancy certificate and a sign permit for the new 1 South La Grange Road location (P. Ex. 9). Lucas did not receive an immediate response from La Grange, so he sent La Grange a letter pointing out that it had been over two weeks since he had submitted his application and that he intended to vacate the 5 South La Grange Road premises around the first of the year (P. Ex. 11).

 On December 14, 1990 Lucas wrote to Randall (P. Ex. 13):

This is the second request we are making to you for our business for 1 South La Grange Road.
You have refused to return my phone calls and refused to give us our license. I was told by your people that due to the new zoning laws that there would be no upholstery shops allowed on La Grange Road when it is adopted.
We have submitted our application on November 15, 1990 (copy attached) in accordance with the existing ordinance, and have signed leases for the space accordingly. We hereby respectfully request that you give us our license immediately.

 On that same day Lucas entered into a ten year lease for one half of the first floor and all of the second floor at the new location to begin on February 1, 1991 (P. 12(m) P 13). In accordance with the lease requirements, Lucas then delivered to his landlord security deposits of $ 3000 and $ 3,750 on December 19, 1990 and January 7, 1991 respectively (id. PP 13-14). *fn4"

 During that same period La Grange continued to consider the proposed zoning amendments. At a meeting of the La Grange Village Board on or about January 28, 1991, Martin requested deferral of action on Lucas' application for a business license until after La Grange took action on the proposed zoning ordinance (id. P 26). Action on Lucas' applications was deferred.

 On January 28, 1991 La Grange did in fact adopt the proposed zoning ordinance (P. Ex. 20) and denied Lucas' application for sign permits and an occupancy permit for the 1 South La Grange Road location (D. 12(m) P 15)). On January 31 La Grange granted Lucas an occupancy certificate and license for a sales office at that address but not to do upholstery work. Then on February 25, 1991 Randall notified Lucas that his application for a business license had been denied as "in conflict with the new ordinance" (P. Ex. 20). Finally, Perthel's affidavit says that Lucas was told in January 1992 that La Grange was willing to issue "permits for signs displaying the word 'upholstery'" ( D. Ex. 1 P 17).

 On February 3, 1992 La Grange issued a violation Notice to Lucas, in part for displaying a business sign that included a telephone number (P. Ex. 23). That charge was ultimately dismissed on the merits by the Circuit Court of Cook County (id. Ex. 24).

 Lucas would attribute La Grange's actions to a conspiracy against him. Though he fails to set forth its genesis, he suggests that it derived from defendant Martin, who before becoming La Grange Village Attorney had represented another upholsterer in an action against Lucas. That case, which was Martin's sole representation of that client, ceased in 1987 (P. Mem. at 7).

 Section 1983

 Plaintiffs who invoke Section 1983 must make a two-tiered showing: that defendants' "conduct complained of was committed by a person acting under color of state law" and that defendants' "conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States" ( Parratt v. Taylor, 451 U.S. 527, 535, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981)). Because there is no dispute that all of defendants' actions were taken under color of state law or that La Grange may be held liable under Monell v. Department of Social Services, 436 U.S. 658, 690, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978), this opinion's discussion is limited to the second inquiry. On that score ...

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