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Tyrer v. City of South Beloit

February 22, 2008

MARVIN F. TYRER, PLAINTIFF-APPELLANT,
v.
CITY OF SOUTH BELOIT, A MUNICIPAL CORPORATION, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 04 C 50353-Philip G. Reinhard, Judge.

The opinion of the court was delivered by: Ripple, Circuit Judge

ARGUED NOVEMBER 30, 2007

Before CUDAHY, RIPPLE and KANNE, Circuit Judges.

In August 2004, Marvin Tyrer filed a complaint in the United States District Court for the Northern District of Illinois in which he alleged that the City of South Beloit had demolished his house without due process of law or just compensation. He previously had filed a similar complaint in Illinois state court, and pursuant to the Colorado River abstention doctrine, the district court had chosen to stay the federal proceedings pending final disposition of the state court action. We affirmed the district court's stay order in Tyrer v. City of South Beloit, 456 F.3d 744 (7th Cir. 2006) ("Tyrer I").

On March 7, 2007, citing "changed circumstances," Mr. Tyrer filed a motion in the district court in which he requested that it lift the stay on the federal proceedings. On May 18, 2007, the district court denied his motion. For the reasons set forth in this opinion, we affirm the decision of the district court.

I. BACKGROUND

A. Facts*fn1

In September of 1997, Marvin Tyrer purchased residential property in the City of South Beloit, Illinois. The house on this property had been built in the early 1900s, prior to the enactment of city ordinances regulating minimum lot size, front-yard setbacks and minimum flood plain elevation requirements. Although the house did not comply with these regulations, it was deemed by the City to be a "legally nonconforming structure" because it had been built lawfully prior to the passage of the ordinances.

The City's zoning ordinances provide that, if a legally nonconforming structure is damaged, destroyed or substantially changed, it no longer is exempted from current zoning laws. Under these circumstances, the owner must apply for a variance. Shortly before Mr. Tyrer pur- chased the property, its previous owner had applied for and received a variance in order to remodel and add onto the house.

When Mr. Tyrer purchased the property in September 1997, no work had begun on these projects. In the spring of 1998, with the intent of carrying out the previous owner's building plans, Mr. Tyrer obtained the required building permits and commenced construction. After installing the walls, footings and foundation for the addition, Mr. Tyrer was informed that, to be in compliance with city ordinances, he needed to obtain additional fill for the purpose of covering the footings above the frost line. Mr. Tyrer complied with this request. In November 1998, however, a building inspector discovered that the additional fill was causing excess run-off onto neighbors' property and that Mr. Tyrer had exceeded the scope of his work permit.

The city clerk issued a cease and desist order in November 1998. Mr. Tyrer protested the order, but he ultimately was forced to halt construction. The City then issued a notice of demolition on January 4, 2000, pursuant to 65 ILCS 5/11-31-1.

On January 27, 2000, the parties met at City Hall and attempted to resolve their dispute. At this meeting, Mr. Tyrer presented building plans that he claimed would resolve the run-off problem and bring the house into compliance with city ordinances. The City disputed this claim. Its architect opined that his proposed plans would not eliminate the excess drainage on neighboring properties and that, instead, the entire structure had to be torn down and the fill removed. The Zoning Board of Appeals ultimately rejected Mr. Tyrer's plans, as well as his subsequent petition for a variance.

B. State Court Proceedings

In April 2000, Mr. Tyrer filed suit against the City of South Beloit in the Circuit Court of Winnebago County, Illinois. He alleged that the cease and desist order and the demolition order had deprived him of a property interest without due process of law; he also sought to enjoin the City from demolishing or further interfering with the use of his property. He amended his complaint in September 2001 to add a second count, alleging that the City's actions constituted a regulatory or temporary taking of his property that warranted just compensation under ...


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