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PELFRESNE v. VILLAGE OF LINDENHURST

July 23, 2004.

C. PELFRESNE, Trustee under Illinois Land Trust No. 25, dated May 29, 1998, Plaintiff,
v.
VILLAGE OF LINDENHURST, an Illinois municipal corporation; ZALE EQUITIES, INC., an Illinois corporation; ZALE EQUITIES, LLC, an Illinois limited liability company; ZALE GROUP, INC., an Illinois corporation; NATURE'S RIDGE-LINDENHURST, LLC, an Illinois limited liability company; LaSALLE BANK NATIONAL ASSOCIATION, a national banking association, as trustee under Trust No. 11844; LEON JOFFE, an individual; PAUL BAUMUNK, an individual; KEN CZYZEWICZ, an individual; MARK FEDERMAN, an individual; MARY McCARTHY, an individual; FRED MESSMER, an individual; CARL NORLIN, an individual; BARBARA STOUT, an individual; PAT DUNHAM, an individual; CAROL ZERBA, an individual; and JAMES B. STEVENS, an individual, Defendants.



The opinion of the court was delivered by: REBECCA PALLMEYER, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff C. Pelfresne is a Michigan-based real estate developer who owns a parcel of land in the Village of Lindenhurst. Pelfresne filed this action in September 2003, alleging that he suffered loss to the value of his property as a result of the Village's action, at the behest of other local property owners, removing a road that had been situated along the edge of Plaintiff's property. Plaintiff seeks declaratory and injunctive relief and compensation for the loss of his property value. He alleges claims of restraint of trade, trespass, private nuisance, and civil conspiracy against Defendants, including real estate developers Nature's Ridge-Lindenhurst, LLC, Zale Equities, Inc., Zale Equities, LLC, Zale Group, Inc., and Leon Joffe ("Joffe") (collectively, "Zale Defendants"); Village of Lindenhurst (the "Village"), Village Trustees Ken Czyzewicz, Mark Federman, Mary McCarthy, Fred Messmer, Carl Norlin, Barbara Stout, Pat Dunham, and Carol Zerba, Village President Paul Baumunk ("Baumunk"), and Village Administrator James Stevens ("Stevens") (collectively, "Village Defendants"). Zale Defendants and Village Defendants filed separate motions to dismiss the complaint. For the reasons set forth below, Defendants' motions are granted in part and denied in part.

FACTUAL BACKGROUND

  According to the Complaint, Plaintiff C. Pelfresne,*fn1 who owns, markets, and develops real estate, is owner of a Trust holding approximately 100 acres of land located on what was formerly the northeast corner of Savage Road and Grass Lake Road in unincorporated Lake County, Illinois (the "Trust"). (Compl. ¶ 1.) Prior to its removal, Savage Road ran east-west and intersected Grass Lake Road, which runs northwest-southeast, at approximately a 45-degree angle. (Ex. A to Compl.)

  At some point prior to April 19, 2000, either the Zale Defendants or Defendant LaSalle Bank National Association ("LaSalle"), a national banking association with its principal place of business in Chicago, purchased or contracted to purchase approximately 80 acres of land then located at the southeast corner of Savage Road and Grass Lake Road in unincorporated Lake County, Illinois. (Id. ¶¶ 8, 15.) On an unspecified date, LaSalle became owner in fee simple title of that property, "with one or more of the . . . Zale Defendants owning the beneficial interest." (Id.) LaSalle and Zale Defendants intended to develop the property as a single-family development to be known as "Nature's Ridge" and an adjacent 3.45-acre commercial development in the northeast corner of the property (collectively, "Nature's Ridge"). (Id. ¶ 17.) To that end, prior to April 19, 2000, "[o]ne or more of [LaSalle or the] Zale Defendants had filed petitions and other documents with the Village . . . seeking to annex the Nature's Ridge property under the terms of a proposed annexation agreement that would require the Village . . . to re-zone the Nature's Ridge property to PUD-1 [Planned Unit Development-1] Residential," with the northeast corner to be re-zoned as "NB Neighborhood Business." (Id. ¶¶ 16, 18.) Their proposed development plan also called for removing the portion of Savage Road from its 45-degree intersection with Grass Lake Road to a point at least 1,000 feet east of that intersection, and replacing it with a section of road that curved south to form a 90-degree T-shaped intersection with Grass Lake Road. (Id. ¶ 19, 23; Ex. A to Compl.) The removed section of Savage Road included Plaintiff's entire 650-foot frontage onto Savage Road. (Compl. ¶¶ 22-23.) At an April 19, 2000 Village Plan Commission hearing regarding the proposed development plan, an attorney for the Trust objected to the proposed plan. (Id. ¶ 19.) Nevertheless, on an unspecified date after April 19, the Village and the Village Trustees approved the development plan, annexed Nature's Ridge, re-zoned the property as LaSalle and Zale Defendants requested, and approved a preliminary PUD authorizing the removal and relocation of the portion of Savage Road described above. (Id. ¶ 21.)

  Plaintiff claims that his attorney has repeatedly requested copies of documents relating to the annexation of the Nature's Ridge property, re-zoning the property, and removal and relocation of Savage Road, but that the Village and Village Administrator Stevens "refused prior to September 2003 to supply copies of these documents," and even then provided only a copy of the June 12, 2000 Annexation Agreement (no copy of which is part of the record). (Id. ¶ 24.) In late 2002, "one or more of [LaSalle or] Zale Defendants" removed and relocated the 1000-foot portion of Savage Road as described above, including all frontage of Plaintiff's property along the road pursuant to an agreement among the LaSalle, Zale Defendants, the Village, Stevens, and Baumunk. (Id. ¶ 25.) As a result, Plaintiff no longer has access to Savage Road. (Id.) Plaintiff alleges this removal and relocation was undertaken pursuant to an agreement among, and "with the full knowledge, consent, and participation of," LaSalle, Zale Defendants, the Village, Stevens, and Baumunk. (Id. ¶ 26.) Village Defendants concede that the June 12, 2000 Annexation Agreement constitutes such an agreement. (Memorandum of Village of Lindenhurst Defendants in Support of their Motion to Dismiss Complaint (hereinafter "Village Defs.' Mem."), at 3.) According to the Complaint, by removing and relocating a portion of Savage Road, LaSalle and Zale Defendants intended to "drive down the value of plaintiff's property in the hope that they can some day purchase the property for less and in retaliation for plaintiff's refusal to sell to these defendants." (Compl. ¶ 27.) The court notes that Plaintiff's Complaint does not detail any previous attempts by the LaSalle and Zale Defendants to purchase his property.

  Plaintiff filed the Complaint in this case on September 30, 2003. In Count I of his Complaint, brought against all Defendants, Plaintiff claims that Defendants failed to take any of the steps required by § 11-91-1 of the Illinois Municipal Code, 65 ILCS 5/11-91-1, including public notice, a public hearing, passage of a Village ordinance by three-fourths vote of the Village Board of Trustees,*fn2 or payment of just compensation to landowners who lost frontage onto Savage Road. (Id. ¶ 28.) Plaintiff seeks a declaration pursuant to 28 U.S.C. § 2201 that the Village did not properly vacate Savage Road, that Plaintiff has a right of access to Savage Road in its original location, that Village Defendants improperly consented to the unlawful removal of Savage Road, that Zale Defendants were without authority to remove Savage Road, and that Village Defendants were without authority to vacate Savage Road. (Id. ¶ 34.) Plaintiff also seeks a preliminary and permanent injunction under FED. R. CIV. P. 65 requiring those Defendants to restore Savage Road to its previous improved condition and location and prohibiting further development along the relocated portion of Savage Road. (Id.) Plaintiff alleges that he "has suffered irreparable injury, in that the real estate which he owns has been deprived of its access to and significant frontage on Savage Road and therefore substantially decreased in value," and that he "has no adequate remedy at law, in that this action involves access to Savage Road and interference with real property rights, which cannot be restored without an order from this court." (Id. ¶¶ 32-33.)

  Count II, titled "Inverse Condemnation," is brought only against Village Defendants. Plaintiff claims in this count that by closing the road, Village Defendants damaged his property for public use without just compensation as required by Article l, § 15 of the Illinois Constitution. According to Plaintiff, "the value of his property has substantially depreciated in fair cash market value" in an amount greater than $75,000.00 as a result of the roadway's removal. (Id. ¶¶ 36-37.) Village Defendants "have made no attempt to agree with Pelfresne as to the amount of damages sustained as a result of the removal of Savage Road," and they "have not compensated Pelfresne for . . . damage to his property." (Id. ¶¶ 38-39.) Plaintiff seeks a jury trial to determine the amount of such damage. (Id. ¶ 40.) In Count III, brought only against the Village, Plaintiff asserts that he is entitled under 65 ILCS 5/11-91-1 to be reimbursed for the depreciation in the fair market value of his property, as well as for the deprivation of his access to and frontage on Savage Road. (Id. ¶¶ 42-46.)

  Count IV, brought against all Defendants, alleges that property in the Lindenhurst area real estate market "is sold in interstate commerce and developed as residential and commercial property. . . . in interstate commerce using materials purchased and transported in interstate commerce." (Id. ¶¶ 48-49.) According to Plaintiff, Defendants violated § 1 of the Sherman Act, 15 U.S.C. § 1, as they "agreed, combined, and conspired" to annex the Nature's Ridge property and to relocate Savage Road in restraint of trade and commerce in the Lindenhurst area real estate market beginning in early 2000. (Id. ¶ 50.) The purpose of this "agreement and combination" was to favor LaSalle and the Zale Defendants over their competitors in the relevant market, i.e., Plaintiff, adjoining landowners, and other developers. (Id. ¶ 51.) As a result of the "agreement and conspiracy" among Defendants to relocate Savage Road onto LaSalle's property, Plaintiff claims, LaSalle and Zale Defendants have "sole access to a portion of Savage Road that was previously accessible by [P]laintiff and other competitors in the market, thus eliminating competition for the sale and development of real estate in that area. . . . [and] increased prices for purchasers and consumers in the relevant market." (Id. ¶ 53.)

  In Count V, Plaintiff avers that, for the Zale Defendants' benefit, all Defendants willfully, wantonly, and knowingly entered into an agreement to remove and relocate Savage Road without following the procedures set forth in 65 ILCS 5/11-91-1, et seq., and that each Defendant "committed one or more tortious acts in furtherance of the conspiracy, including but not limited to trespass, private nuisance, and restraint of trade and commerce." (Id. ¶¶ 58-61.) Count VI, brought against all Defendants, alleges that Defendants' "improper removal of Savage Road interfered with [Plaintiff's] property right in and use of the access to Savage Road and constitutes an unlawful trespass" that has resulted in a substantial loss in the property's value. (Id. ¶¶ 64-67.) In Count VII, brought against all Defendants, Plaintiff claims that Defendants'"improper removal of Savage Road has eliminated [Plaintiff's] right of access to and frontage on Savage Road and has therefore caused an unreasonable interference with the use and enjoyment of [Plaintiff's] property." (Id. ¶¶ 69-70.)

  Defendants offer several documents that Plaintiff concedes are public records. (Plaintiff's Response in Opposition to the Village of Lindenhurst Defendants' Motion to Dismiss (hereinafter "Pl.'s Resp. to Village Defs.' Motion"), at 2.)*fn3 These documents reflect the process by which the Village determined that Savage Road should be moved and demonstrate that Plaintiff continues to assess it. First, Zale Defendants offer a March 1998 document titled "Village of Lindenhurst Comprehensive Plan: 2020," prepared by Meehan & Company (hired by Village Administrator Stevens), which states in relevant part that the roadway alignment at the intersection of Savage and Grass Lake jeopardize the efficient and safe movement of local traffic. (Ex. A to The Zale Defendants' Reply in Support of the Zale Defendants' Motion to Dismiss the Plaintiff's Complaint (hereinafter "Zale Defs.' Reply Mem.").) Second, Defendants cite a November 10, 2003 Village ordinance, passed by all six listed Village Trustees,*fn4 purporting to vacate the removed portion of Savage Road and indicating that on an unspecified date, Lake County required the removal of that intersection as a condition to opening of the new one. (Ex. B to Zale Defs.' Reply Mem., at 2; Ex. 3 to Motion of Village of Lindenhurst Defendants to Dismiss Complaint (hereinafter "Village Defs.' Motion").)

  Third, Defendants cite an August 13, 2001 Village Ordinance approving an August 10, 2001 revised Final Plat for the Nature's Ridge Subdivision ("Final Plat"). (Ex. 1 to Village Defs.' Motion.) The Final Plat indicates that the owner of the Nature's Ridge property*fn5 granted Plaintiff access to the relocated portion of Savage Road:
Owner hereby grants to [Plaintiff] a limited, non-perpetual, non-exclusive easement . . . for the limited purpose of ingress and egress of farm implement vehicles and supporting vehicles but not any other type of motor vehicles, passenger or truck. This easement to become effective upon the vacation of a portion of Savage Road. . . . This easement shall only be available to [Plaintiff] and [his] farm lessees while the . . . property is zoned for farming and farming activities are actively conducted thereon. This easement shall automatically terminate . . . upon the . . . property changing its farm zoning classification or termination of active farming activities. In no event shall this easement benefit any commercial or residential subdivision on the contiguous property. (Ex. A to Ex. 1 to Village Defs.' Motion; Ex. C to Zale Defs.' Reply Mem.)
  Fourth, Village Defendants offer a June 12, 2000 Village Ordinance approving a June 27, 2000 Preliminary Plan/Tentative Plat (which is not attached) submitted by the owner of the Nature's Ridge subdivision, subject to the terms and conditions set forth in (1) the June 12, 2000 Annexation Agreement and (2) a July 20, 2000 memorandum from Meehan & Company. (Ex. 2 to Village Defs.' Motion.) The latter document states according to a planner retained by the Nature's Ridge property owner, "sight distance would be improved at the realigned location of this intersection." (Ex. B to Ex. 2 to Village Defs.' Motion, at 4.)

  Finally, Zale Defendants point to another untitled and undated document that, they assert, reflects conveyance to Plaintiff of land that was one-half of the removed portion of Savage Road that adjoined his property. (Ex. D to Zale Defs.' Reply Mem.) This document also indicates that Plaintiff's property adjoins Grass Lake Road but does not indicate the length of that abutment. (Id.) Zale Defendants claim this document is a Plat of Vacation that was recorded in the Lake County Recorder's Office on January 8, 2004, and that this land was conveyed pursuant to the Illinois Conveyances Act. (Zale Defs.' Reply Mem., at 3-4.)

  As noted, Zale Defendants have moved to dismiss Counts I, IV, V, VI, and VII against them; Village Defendants have moved to dismiss all counts against them.

  DISCUSSION

  I. Legal Standard

  On a motion to dismiss pursuant to FED. R. CIV. P. 12(b)(6), the court accepts all well-pleaded allegations in a counterclaim as true and draws all reasonable inferences in favor of the plaintiff. Cozzilron & Metal, Inc. v. U.S. Office Equip., Inc., 250 F.3d 570, 574 (7th Cir. 2001). The court must accept a pleading's factual allegations because "a motion to dismiss tests the legal sufficiency of a pleading." Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 675 (7th Cir. 2001). Dismissal under Rule 12(b)(6) is appropriate only if "it appears beyond doubt that the [nonmoving party] can prove no set of facts in support of his claim which would entitle him to relief." Lee v. City of Chicago, 330 F.3d 456, 459 (7th Cir. 2003) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). In other words, a complaint will survive a 12(b)(6) motion if it "narrates an intelligible grievance that, if proved, shows a legal entitlement to relief." U.S. Gypsum Co. v. Indiana Gas Co., Inc., 350 F.3d 623, 626 (7th Cir. 2003) (citations omitted).

  II. Standing

  Zale Defendants urge the court to dismiss Counts I, IV, V, VI, and VII on the ground that his alleged injury has not yet occurred and, thus, this case is not ripe for adjudication. (Memorandum of Points and Authorities in Support of [Zale] Defendant[s'] Motion to Dismiss the Plaintiff's Complaint (hereinafter "Zale Defs.' Mem."), at 5.) To satisfy Article III standing requirements, a plaintiff must demonstrate an "injury in fact" that is "(a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citations and internal quotation marks omitted). "At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, ...


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