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OSTERGREN v. VILLAGE OF OAK LAWN

December 18, 2000

RICHARD OSTERGREN AND LAURA OSTERGREN, PLAINTIFFS,
V.
VILLAGE OF OAK LAWN, A MUNICIPAL CORPORATION, ERNEST F. KOLB, INDIVIDUALLY AND AS PRESIDENT OF THE VILLAGE OF OAK LAWN, JEANNE FOODY GALZIN, INDIVIDUALLY AND AS HEALTH AND SANITATION INSPECTOR OF THE VILLAGE OF OAK LAWN, AND JOHN DOES 1-20, DEFENDANTS.



The opinion of the court was delivered by: Castillo, District Judge.

MEMORANDUM OPINION AND ORDER

Plaintiffs Richard and Laura Ostergren sued the Village of Oak Lawn ("the Village"), its President Ernest F. Kolb, its Health and Sanitation Inspector Jeanne Foody Galzin, and John Does 1-20, for damages, alleging that Defendants deprived them of their right in property without due process of law in violation of 42 U.S.C. § 1983, and that Defendants violated the United States and Illinois Constitutions' takings clauses. Plaintiffs also assert state law claims for trespass and conversion.

Presently before this Court is Defendants' Motion for Summary Judgment, which seeks judgment with respect to Plaintiffs' due process and takings clauses claims. For the reasons set forth below, Defendants' motion is granted with respect to Plaintiffs' federal claims.

RELEVANT FACTS

Plaintiffs Richard and Laura Ostergren own two properties in Oak Lawn, Illinois, located at 9541 South McVicker Avenue and 9540 Southwest Highway (the "Subject Properties"). In early spring of 1999, Defendant Jeanne Foody Galzin, the Health and Sanitation Inspector for the Village, received several complaints about the Subject Properties. Accordingly, Galzin, who was responsible for pre-demolition activities and inspection decisions for the Village, inspected the Subject Properties. Galzin determined that the buildings on the Subject Properties were in violation of several building codes and warranted demolition pursuant to 65 ILCS 5/11-31-1(e).*fn1

On May 24, 1999, Galzin sent Richard Ostergren ("Ostergren") separate notices informing him that each of the Subject Properties contains an open and vacant building that constitutes an immediate and continuing hazard, and that

unless the building at or on the property is demolished, repaired, or enclosed and unless any and all hazardous, noxious, or unhealthy substances or materials are removed from the property within thirty (30) days following [Plaintiff's] receipt of this letter, so that the immediate and continuing hazard to the community no longer exists, the Village of Oak Lawn intends to undertake such demolition, repair and/or clean up.

(R. 36-2, Pls.' Statement of Material Facts ¶ 7, Ex. 1, May 24, 1999 letters from Galzin to Ostergren.) Both letters referred to § 11-31-1 (e) of the Illinois Municipal Code. In addition, Galzin enclosed a list of building code violations with each letter, and indicated that Ostergren should contact her with any questions.

On May 26, Galzin sent Ostergren two additional letters informing him that buildings located on the Subject Properties "were an immediate and continuing hazard to the surrounding community and that if they were not repaired within thirty days, the Village would demolish them." (R. 30, Defs.' Statement of Material Facts ¶ 5.) The May 26 letters also referred to § 11-31-1(e), and were sent with lists of building code violations identical to the lists sent with the May 24 letters.

Shortly thereafter, Plaintiffs received a "Notice to Demolish or Repair" from Galzin for each of the Subject Properties. Both notices explained that, pursuant to § 11-31-1(e), the Village found that these properties contain open and vacant buildings and constitute immediate and continuing hazards. The notices also provided that

Unless the open and vacant building . . . is demolished, repaired, or enclosed, and unless any and all garbage, debris, and other hazardous, noxious or unhealthy substances or materials are removed from the Property . . . within thirty (30) days following the date of this Notice, so that an immediate and continuing hazard to the surrounding community and the public at large no longer exists, the building shall be demolished, repaired, or enclosed, and any garbage, debris, or other hazardous, noxious, or unhealthy substances or materials shall be removed by the Village of Oak Lawn. Any and all costs and expenses incurred by the Village in relation to said demolition, repair, and/or clean-up shall constitute a lien against the Property.

(R. 36-2, Pls.' Statement of Material Facts ¶¶ 11, 12, Exs. 5, 6, May 28, 1999 notices to demolish or repair.)

Defendants also posted enlarged copies of the Notice to Demolish or Repair on the Subject Properties on May 28. Ostergren saw at least one of these notices before the demolition.*fn2 Defendants also published copies of the "notices of demolition" i.e., the Notice to Demolish or Repair, for each property in the Daily Southtown newspaper on May 28, 29, and 30. (R. 36-2, Pls.' Statement of Material Facts ¶ 13.)

After receiving the letters from Galzin, Ostergren "took steps to correct the violations that had been cited on his property, and made efforts to contact defendant Galzin in this regard." (R. 36-2, Pls.' Statement of Material Facts ¶ 19.)*fn3 One of the first conversations between Galzin and Ostergren occurred on June 29 at one of the Subject Properties, where Ostergren was working with a crew of employees to clean up the property. At that time, Galzin informed Ostergren that the siding on the McVicker property had been tested for, and contained, asbestos, and therefore he could not remove the siding. In addition, a police officer who was with Galzin instructed Ostergren and his crew that they were not to enter the buildings on either of the Subject Properties. At this time, Ostergren informed Galzin that he had an agreement to rent out the Subject Properties and that the lessee had agreed to make any necessary repairs. Ostergren also made an appointment to meet with Galzin the following day at 2:00 p.m. Subsequently, that meeting was cancelled and rescheduled for July 1.

After Galzin departed from Plaintiffs' property on June 29, Village employees arrived at the site to mark the utility lines for disconnection. The Village employees informed Ostergren that this is generally done when a property is scheduled for demolition. The following day, June 30, Ostergren contacted his attorney, Scott Ladewig, to discuss the disconnection of the utility lines. Ladewig contacted Galzin and asked why the lines were being disconnected. Galzin informed him that it was being done for safety reasons.*fn4

On the afternoon of July 1, Ostergren met Galzin at her office and discussed the violations that had not yet been corrected at the Subject Properties.*fn5 Around the same time, the buildings on the Subject Properties were demolished. The Village asserts that it never promised or informed Plaintiffs that the demolition would not occur. (R. 30, Defs.' Statement of Material Facts ¶ 14.)*fn6

On December 12, 1999, Plaintiffs filed a complaint, alleging that Defendants violated 42 U.S.C. § 1983 by depriving them of their right in property without due process of law. Plaintiffs also asserted state law claims for trespass and conversion. On March 14, 2000, Plaintiffs filed an Amended Complaint, which added counts for violations of the United States and Illinois Constitutions' takings clauses. On October 6, 2000, Defendants filed a motion for summary judgment asking this Court to grant judgment in their favor on Plaintiffs' due process and takings clauses claims, and to refuse to exercise supplemental jurisdiction over Plaintiffs' state law claims for trespass and conversion.

On October 17, this Court ordered Plaintiffs to respond to Defendants' motion by November 14, and ordered Defendants to reply by November 21. Despite this Court's clear instructions, on November 14, Plaintiffs submitted a pleading styled "Plaintiffs' Motion for Summary Judgment" requesting that the Court grant summary judgment in favor of Plaintiffs on liability. In support of their motion, Plaintiffs filed a Statement of Material Facts, and a Memorandum (1) in Support of Plaintiffs' Motion for Summary Judgment, and (2) in Response to Defendants' Motion for Summary Judgment. Plaintiffs ...


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