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Hu v. Village of Midlothian

May 14, 2009

YAODI HU, PLAINTIFF,
v.
VILLAGE OF MIDLOTHIAN AND TIM HOPKINS, DEFENDANTS.



The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge

MEMORANDUM OPINION AND ORDER

Pro se plaintiff Yaodi Hu's*fn1 ("Hu") third amended complaint ("complaint") against the Village of Midlothian*fn2 ("Village") alleges violations of: 42 U.S.C. § 1981 (count I); the First Amendment (count II); the equal protection clause of the Fourteenth Amendment (count III); "Illinois law" (count IV); Article I, section 2 of the Illinois Constitution (count V); the due process clause of the Fourteenth Amendment (count VI); Article I, section 15 of the Illinois Constitution (count VII); "substantive due process" (count VIII); the Fifth Amendment (count IX); 65 ILL. COMP. STAT. 5/1-2-9 and 5/1-2-1 (count X); the equal protection clause of the Fourteenth Amendment (count XII); and the due process clause of the Fourteenth Amendment (count XIII).*fn3 The Village has moved for summary judgment on all counts.*fn4 For the following reasons, the motion is granted on counts I through III, V through IX, XII, and XIII. I decline to exercise supplemental jurisdiction over counts IV and X, which accordingly are dismissed.

I.

Hu is of Asian descent. He has resided at 3258 South Paulina in Chicago, Illinois since the late 1990s.*fn5 Hu owns the commercial property located at 3352 West 147th Street in Midlothian, Illinois ("property"). Hu is licensed by the state of Illinois as an insurance broker, and he intends to open and insurance brokerage office at the property.

The property is improved with a one-story commercial building. The front of the property consists of a sidewalk that runs parallel to 147th Street. The back of the property consists of a gravel parking lot, which is accessible from an alley behind the building. Hu attests that the backyard "was never improved as a parking lot" and it "was never completely graveled." Hu also attests that the backyard of the neighboring tavern is "filled completely with [a]sphalt and no grass could possibly grow." Hu further attests that the backyard of the neighboring barbershop is "similar" to his, and there are "grasses" and "trees." According to the Village's interrogatory answer, the neighboring properties' vegetation "has always been maintained."

Midlothian Municipal Code ("Code") § 4-18-9(B)(5) ("Vegetation Ordinance") requires that

All premises shall be appropriately maintained and lawns, hedges, bushes, trees and other vegetation shall be kept trimmed and from becoming overgrown and unsightly where exposed to public view or where such vegetation may constitute a blighting influence on adjoining property.

This provision shall not preclude the maintenance of undeveloped or underdeveloped land in its natural state.*fn6 Section 4-20-12(A) of the Code states that, "The fines and penalties which shall be imposed for the violation of the Building Code shall not be less than one hundred dollars ($100.00) nor more than seven hundred fifty dollars ($750.00) for each offense and a separate offense shall be deemed committed on each day during which a violation occurs or continues."

Steve Thornton ("Thornton") was employed by the Village during 2006 and the beginning of 2007 as a building inspector/property maintenance officer. On August 1, 2006, Thornton inspected the property and found the outdoor vegetation was not maintained and overgrown. Specifically, vegetation was growing though the cracks in the sidewalk in front of the building and weeds in the gravel parking lot were five feet tall. Hu attests that, "[a]t the time of the citations, the Village never made it clear to [him] what was the proper height of grass[;]" "the Village never properly noifie[d] [him] as to which part of the sidewalk is [his] responsibility[;]" and he "would also contend that the back of his yard is not visible to the public[.]" Thornton informed Roxanne Huegel ("Huegel"), the Village's Administrative Adjudication Systems Coordinator, of his findings.

On August 1, 2006, Huegel mailed a letter to Hu that advised him that the property had been inspected and was found to violate the Vegetation Ordinance. The Vegetation Ordinance was included with the letter. Hu was notified that he must remove overgrown vegetation within seven days. Thornton conducted a follow-up inspection on August 7, 2006. Thornton noted that the vegetation in front of the property had been removed, but the rear vegetation had not been cut. On August 21, 2006, Thornton performed another inspection. No progress had been made, and he issued Citation No. 701 for violation of the Vegetation Ordinance. Thornton attests that he did not issue the citation on account of Hu's race. On August 22, 2006, Huegel mailed a letter to Hu via certified mail, which indicated that the condition of the vegetation on the property was unsatisfactory and enclosed Citation No. 701. The citation indicated that the hearing date would be September 28, 2006 at 7:00 p.m. at 14801 South Pulaski in Midlothian. Hu signed the certified mail return receipt.

Hu disputes that the vegetation was overgrown during the August 7, 2006 and August 21, 2006 inspections, attesting that "[a]round August 2006," he hired a handyman "to cut both the front grass and the back grass[,]" and the handyman followed his "instruction of cutting the weeds and reporting back during that time that the grass in both front and back were cut." When asked about letters dated August 1, 2006 and August 22, 2006, Hu testified that he received "some of those[,]" in response to which

I believe I went over there and cut the grass several times. I believe the vegetation they mention, some of them is in the front part of the building and I actually hired a handyman to cut them if I get the notice. And I have some of the --- some of the vegetation . . . has been cut in the back . . . .

The parties agree that, in response to the citation, Hu hired a handyman to cut the vegetation behind the property. Also, when asked about the photograph of the back of the property, hand-dated "8-22-06,"*fn7 Hu testified "If it's 4 feet high, that's certainly high, there's no question about it. Yes, this one 8-22-06 that was probably a little high."

Timothy Hopkins ("Hopkins"), the Village's Hearing Officer, presided over the hearings on Citation No. 701. Hu never appeared at any hearing. Hu testified about the following "combination" of reasons why he never went to any hearing:

One is probably in the evening, that's kind of external inconvenience. One is probably the travel I have to take going in that direction in the evening. One is probably that, you know, I didn't put on my calendar on a specific date for appearing in that particular court date. I missed a couple of court dates on the City of Chicago traffic court and I end up with my driver's license suspended.*fn8 When asked about the letters giving him new court dates and telling him to appear, Hu testified that he "wouldn't say [he] received all of the following letters."*fn9 Hu was sent notice of each fine assessed against him and advised of the continued hearing dates.*fn10

Hopkins attests that he did not consider Hu's race when determining that the property violated the Vegetation Ordinance or assessing fines. Hopkins continued the hearings related to Citation No. 701 to ensure that maintenance of the rear vegetation continued and that vegetation was removed from the front of the property. Hopkins also continued assessing fines because no progress was being made as to maintenance, and he wanted to get the owner's attention so he would appear at a hearing.*fn11 On February 22, 2007, Citation No. 701 was dismissed.

According to James Connell ("Connell"), Building Superintendent for the Village, Edward Burbank ("Burbank") was employed as a building inspector/property maintenance officer during 2007 and 2008, but is no longer employed by the Village. Connell attests that Burbank inspected the property on June 19, 2007, and Citation No. 841 was issued based on the condition of the vegetation.*fn12 On June 22, 2007, Huegel sent a letter to Hu via certified and regular mail enclosing Citation No. 841, which indicated that a hearing was scheduled on July 26, 2007. Hu attests that he did not receive the June 22, 2007 letter. The certified mail return receipt indicates that the letter was returned to sender "unclaimed." On July 30, 2007, Huegel sent a letter to Hu enclosing the "Finding, Decisions, Order" ("FDO") from the July 26, 2007 hearing. The July 30, 2007 letter stated that the case was continued until August 9, 2007 at 7:00 p.m.

On August 14, 2007, Huegel sent a letter to Hu via certified and regular mail enclosing the August 9, 2007 FDO.*fn13 The August 14, 2007 letter stated that, if the overgrown vegetation was not removed from the property within seven days, then Public Works would cut the vegetation and a lien would be placed on the property for the costs.*fn14 The August 14, 2007 letter also stated that the case was continued until August 23, 2007 at 7:00 p.m. On August 28, 2007, Huegel sent a letter to Hu, which stated that the August 23 hearing was cancelled and that the case was continued until September 13, 2007 at 7:00 p.m.

In August, the Village cut the vegetation. On September 11, 2007, Huegel sent Hu a letter via certified and regular mail enclosing a bill for services performed by the Public Works Department.*fn15 The September 11, 2007 letter stated that failure to pay the bill by October 22, 2007 would result in a lien being filed against the property. On September 17, 2007, Huegel sent Hu a letter enclosing the September 13, 2007 FDO. The September 17, 2007 letter stated that the case was continued until October 11, 2007 at 7:00 p.m. On October 16, 2007, Huegel sent Hu a letter enclosing the October 11, 2007 FDO. The October 16, 2007 letter stated that the case was continued until November 8, 2007 at 7:00 p.m. On November 15, 2007, Huegel sent Hu a letter via certified and regular mail enclosing the November 8, 2007 FDO.*fn16 The November 15, 2007 letter stated that Citation No. 841 was closed pending payment of fines of $2,500.00 and that failure to pay within sixty days would result in a lien being attached to the property.

Hopkins also presided over the hearings on Citation No. 841. Hopkins increased the fines and violation dates because Hu did not appear at the hearings*fn17 or make any effort to maintain the vegetation*fn18 . Hopkins continued the hearings after the Village cut the vegetation. He continued to impose fines because the vegetation continued to grow without any evidence of maintenance.*fn19

Citation No. 841 was closed on November 8, 2007.*fn20

The procedures Hopkins took during the hearings on both citations did not deviate from the procedures he takes when vegetation is overgrown on other properties. Hopkins continues all citations even if proof is shown that the property is in compliance with the Code because, if a citation is dismissed and the property owner later fails to maintain the property, then a long period of time elapses before a hearing can be held on a subsequent citation. Hopkins dismisses a citation when the property owner demonstrates understanding of what is required and has continuously maintained the property for the period when a citation is active. For example, there is another property owner, who is Caucasian, with a history of overgrown vegetation. Initially, that property owner failed to appear and no progress was made on the condition of the vegetation. Hopkins continued the hearings for that property more times than for Hu's property. Hopkins also "assessed substantially higher fines against" the other property owner. Hu testified that the factual basis of his allegations that citations were issued and excessive amounts were fined because of his race is his "inference" and his "experience with other jurisdictions on how they handle the grass citations" as well as his "life experience dealing with Midlothian in the last two, three years . . . on different issues."

In 2005, 2006, and 2007, the Village issued twenty-five citations for violating the Vegetation Ordinance, of which fifteen were issued to Caucasians, two were issued to African-Americans, two were issued to Hispanics, two were issued to an Asian (both to Hu), two were issued to Middle Eastern individuals, and two were issued to unknown persons (one of which was a corporation). One property was cited in 2005 and 2006, when owned by different individuals of different races. The largest cumulative amount of fines was $14,800.00, which was assessed and recorded against another property owned by a Caucasian individual.

Section 4-11B of the Code governs signs ("Sign Ordinance").*fn21

Section 4-11B-2 defines a "projecting sign," in relevant part, as "[a]ny sign which is attached to a building or other structure and extends beyond the line of the building or structure or beyond the surface of that portion of the building or structure to which it is attached." It defines a "roof sign" as "[a]ny sign wholly erected, constructed or maintained upon or above the roof structure or parapet of any building with the principal support attached to the roof structure." Section 4-11B-5(G) provides as follows

Roof Signs: Roof signs which have not been erected prior to the effective date hereof are prohibited. Subsequent to the effective date hereof, no erection permits will be ...


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