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Mester v. Rettburg

June 30, 2008

PATSY MESTER, EVERETT LINGLEO, TERRY DAVIS AND RICHARD HAYNES, PLAINTIFFS,
v.
E. JACOB RETTBURG, JUDI BIVIN, RONALD JOMBOCK, O. ALLEN BUTCHER, FRANK MAYNERICH, M. TODD HATALLA, GARRY WHITSON AND MICHAEL MCCARTHY, INDIVIDUALLY AND AS BOARD MEMBERS OF THE OTTER LAKE WATER COMMISSION, OTTER LAKE WATER COMMISSION, ADGPTV, DEFENDANTS.



The opinion of the court was delivered by: Richard Mills, U.S. District Judge

OPINION

This case is before the Court on the Defendants' motion under Federal Rule of Civil Procedure 12(b)(6) to dismiss the Plaintiffs' complaint.

I. FACTUAL BACKGROUND

In support of their motion to dismiss, the Defendants note that the Plaintiffs' complaint alleges that Defendant Otter Lake Water Commission, ADGPTV ("the Commission"), is a municipal corporation providing water services to multiple counties in the State of Illinois. It is governed by Division 135 of Article 11 of the Illinois Municipal Code, 65 ILCS 5/11-135-1, et seq. The individual Defendants--Jake Rettberg, Judy Bivin, Ronald Jomback, Allen Butcher, Frank Maynerich, Todd Hatalla, Gary Whitson and Michael McCarthy--are members of the Board of the Commission. The commissioners are appointed to their positions. They are sued both in their individual and official capacities.*fn1

Over the last thirty years, the Commission has leased lots in the campground at Otter Lake to various individuals who include the Plaintiffs. The Plaintiffs are currently tenants at Otter Lake. Pursuant to their leases, the Plaintiffs have placed camping vehicles on the campsites.

The Plaintiffs were "permitted and encouraged" by "vendors" and by the Commission to improve campground lots with decks, landscaping, walkways and other improvements, and the Plaintiffs were permitted to stay on a particular lot for many consecutive years. The improvements were made with the permission and encouragement of the Commission and were made in order to adhere to the ordinances of the Commission. This costs the Plaintiffs "in cash and time."

The improvements are attached to the real estate and are not easily removed. Prior to June 20, 2007, the Plaintiffs bought and sold trailers and improvements on the open market and assigned or sublet leases with the full knowledge and acquiescence and encouragement of the Commission. Thus, the Plaintiffs say they had an expectation of reaping a reasonable return on their investment in the improvements on and to the lots.

Because the "current vendor's lease was scheduled to terminate in 2007," the Commission announced it would be taking over the operations of the campground. On June 20, 2007, the Commission adopted Ordinance No. 2007-02, and the individual Defendants all voted in favor of the measure. The complaint quotes only Section 7(M) of the Ordinance:

Campsite leases are not assignable, nor may a tenant sublet all or any portion of a Campsite. In no event shall a tenant transfer title to a Permitted Camping Vehicle to a third party while it is on Campsite. However, a tenant may remove and replace the Permitted Camping Vehicle at any time, so long as the tenant produces evidence of ownership of the replacement vehicle prior to placing it on the Campsite.

The Defendants note that the remainder of Ordinance No. 2007-02 is not attached to the complaint, but is attached to the memorandum in support of its motion to dismiss. "In ruling on a 12(b)(6) motion, a district court may take judicial notice of matters of public record without converting the 12(b)(6) motion into a motion for summary judgment." Anderson v. Simon, 217 F.3d 472, 474-75 (7th Cir. 2000).

The Plaintiffs allege that because of the ordinance, "much, if not all of the value of the trailer and the modifications and improvements were destroyed." In Count I of their complaint, the Plaintiffs contend that in adopting Ordinance No. 2007-02, the Commission and its individual members violated the Fifth and Fourteenth Amendments of the Constitution of the United States; Article I, Section 15 of the Illinois Constitution*fn2 and 42 U.S.C. § 1983 by subjecting "the Plaintiffs to deprivation of their constitutional rights by taking, damaging and destroying the Plaintiffs' personal property and expectation of return on investment without just compensation."

Count II is a state law inverse condemnation/regulatory taking count claiming that the private property of the Plaintiffs has been "effectively taken for public use" but that the Commission has "failed to commence eminent domain proceedings, or offer compensation to the Plaintiffs," in violation of 735 ILCS 30/10-5-5. Count II also says that the value of the Plaintiffs' property has been "effectively destroyed and the property is now unsuitable for economically viable purposes."

II. ANALYSIS

A. Legal Standard

In considering a motion to dismiss under Rule 12(b)(6), courts construe the complaint in the light most favorable to the plaintiff and accept as true all well-pleaded facts alleged, while drawing all possible inferences in its favor. See Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614, 618 (7th Cir. 2007). The complaint need only provide a "short and plain statement of the claim showing that the pleader is entitled to relief," sufficient to provide the defendant with "fair notice" of the claim and its basis. See Fed. R. Civ. P. 8(a)(2); see also Bell Atlantic Corp. V. Twombly, U.S. , 127 S.Ct. 1955, 1964 (2007). The Seventh Circuit recently emphasized that "[a]lthough the opinion contains some language that could be read to suggest ...


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