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MOBERG v. CITY OF WEST CHICAGO

February 3, 2003

RICHARD AND LAURA MOBERG, PLAINTIFFS,
v.
CITY OF WEST CHICAGO, AN ILLINOIS MUNICIPAL CORPORATION, MICHAEL GUTTMAN, INDIVIDUALLY, JOANNE GUGLIOTTA, INDIVIDUALLY, MICHAEL BAKER, INDIVIDUALLY AND SCOTT MARQUARDT, INDIVIDUALLY, DEFENDANTS.



The opinion of the court was delivered by: Amy J. St. Eve, United States District Judge.

MEMORANDUM OPINION AND ORDER

Defendant City of West Chicago ("West Chicago") has moved for summary judgment, and Defendants Michael Guttman, Joanne Gughotta, Michael Baker and Scott Marquardt (collectively, "the Individual Defendants") have also moved for summary judgment. For the reasons discussed below, both motions for summary judgment are granted.

LEGAL STANDARD

Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of triable fact exists only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Pugh v. City of Attica, 259 F.3d 619, 625 (7th Cir. 2001) (quoting Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)).

The party seeking summary judgment has the burden of establishing the lack of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The party that bears the burden of proof on a particular issue, however, may not rest on its pleadings but must affirmatively demonstrate that there is a genuine issue of material fact. Id. at 324, 106 S.Ct. at 2553. A mere scintilla of evidence in support of the non-movant's position is insufficient. See Anderson, 477 U.S. at 252, 106 S.Ct. at 2512. A party will be successful in opposing summary judgment only if it presents "definite, competent evidence to rebut the motion." EEOC v. Roebuck & Co., 233 F.3d 432, 437 (7th Cir. 2000).

The Court "considers the evidentiary record in the light most favorable to the nonmoving party, and draws all reasonable inferences in his favor." Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002). The Court accepts the non-moving party's version of any disputed facts but only if it is supported by relevant, admissible evidence. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996).

FACTUAL BACKGROUND

A. Plaintiffs' Acquisition of the Subject Property

In February of 1997, Plaintiffs Richard and Laura Moberg purchased property located at 227 West Grandlake Boulevard in West Chicago, Illinois ("the subject property"). (See R. 99-1, Pls.' L.R. 56.1(b)(3) Resp. to West Chicago, ¶¶ 9-10.) The subject property is approximately 1.7 acres and abuts a wetlands area. (See R. 98-1, Pls.' L.R. 56.1(b)(3) Resp. to Ind. Defs., ¶ 9.) Plaintiffs purchased the subject property at a sheriffs sale "as is" without conducting any survey or engineering inspection. (Id., ¶ 1.)

B. Applicable Zoning Restrictions

West Chicago has a comprehensive zoning ordinance that regulates the use and development of property. (See R. 98-1, Pls.' L.R. 56.1(b)(3) Resp. to Ind. Defs., ¶ 11.) Under the zoning ordinance, property owners must apply for an occupancy permit for any new use of property. (See R. 84-1, Ind. Defs.' L.R. 56.1(a)(3) Statement, Ex. E at Article V and § 5.2-1.) The zoning ordinance provides that no occupancy permit will issue unless the property complies with all of the requirements under the zoning ordinance. (Id.)

There are a number of specific requirements under the zoning ordinance that apply to the subject property and are relevant to this action. First, under the zoning ordinance, all areas used as driveways or for parking at the subject property are supposed to be paved. (See R. 98-1, Pls.' L.R. 56.1(b)(3) Resp. to Ind. Defs., ¶ 23.)*fn1

Second, outside storage is not authorized in the district where the subject property resides without a special use permit. (See R. 99-1, Pls' L.R. 56.1(b)(3) Resp. to West Chicago, ¶¶ 47-51. See also R. 85-1, Def. West Chicago's L.R. 56.1(a)(3) Statement, Ex. Q.)

Third, because it includes a wetlands buffer zone, the subject property must comply with the DuPage County Countywide Stormwater and Floodplain Ordinance ("the Stormwater and Floodplain ordinance"), which the West Chicago zoning ordinance incorporates by reference. (See R. 98-1, Pls.' L.R. 56.1(b)(3) Resp. to Ind. Defs., ¶ 29; R. 84-1, Ind. Defs.' L.R. 56.1(a)(3) Statement, Ex. B at p. 23.)

C. Permit History for the Subject Property

After they purchased the subject property, Plaintiffs leased it to Channel Communications. (See R. 99-1, Pls' L.R. 56.1(b)(3) Resp. to West Chicago, ¶ 29.) West Chicago inspected the subject property in June of 1997, and after corrections to cure various violations, West Chicago issued a certificate of compliance. (Id., ¶¶ 26-27.) Although it is clear that no special use permit was issued, it appears that Channel Communications may have used the subject property for outside storage. (See R. 98-1, Pls.' L.R. 56.1(b)(3) Resp. to Ind. Defs., ¶ 40.)

In 1998, Plaintiffs leased the subject property to Fioderosa Construction Company. (See R. 98-1, Pls' L.R. 56.1(b)(3) Resp. to Ind. Defs., ¶ 41.) Fioderosa Construction used the subject property for outside storage without an occupancy permit or a special use permit. (See R. 99-1, Pls.' L.R. 56.1(b)(3) Resp. to West Chicago, ¶ 30.) At some point, Fioderosa Construction expressed interest in purchasing the subject property from Plaintiffs, and it contacted West Chicago and Plaintiffs to ensure compliance with applicable zoning and occupancy regulations. (See R. 98-1, Pls.' L.R. 56.1(b)(3) Resp. to Ind. Defs., ¶ 43.)

In connection with its investigation of zoning and permits issues, Fioderosa Construction learned of a wetlands issue with the subject property. At some point, fill had been dumped in the wetlands buffer zone.*fn2 Remediation of the buffer zone would have required removal of the fill or landscaping. (See R. 84-1, Ind. Defs.' L.R. 56.1(a)(3) Statement, Ex. B at p. 24, 38-39, 60.) The wetlands issue prompted Fioderosa Construction to abandon the idea of purchasing the subject property. (See R. 98-1, Pls.' L.R. 56.1(b)(3) Resp. to Ind. Defs., ΒΆ 48.) Ultimately, Fioderosa Construction ...


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