United States District Court, N.D. Illinois, Eastern Division
KAREN S. MCCARTHY, Plaintiff,
VILLAGE OF BARRINGTON, et al., Defendants.
MEMORANDUM OPINION AND ORDER
CASTILLO CHIEF JUDGE
Karen McCarthy brings this action alleging deprivation of her
constitutional rights against the Village of Barrington (the
"Village"), the Board of Trustees of the Village of
Barrington (the "Board"), Karen Darch, Jason
Lohmeyer, Todd Sholeen, James Daluga, Jeff Lawler, Greg
Summers, Jennifer Tennant, and Natalie Ossowski
(collectively, the " Village Defendants"). (R. 20,
Am. Compl. ¶¶ 78-112.) She also asserts that
Defendants Kara O'Dempsey and Adam O'Dempsey violated
Illinois' Zoning Enabling Act ("ZEA"), 65 III.
Comp. Stat. 5/11-1345. (Id. ¶¶ 113-19.)
Pursuant to Federal Rule of Civil Procedure 12(b)(6), the
Village Defendants move to dismiss only the claims alleging
deprivation of Plaintiffs constitutional rights. (R. 26,
Mot.) For the reasons stated below, the Village
Defendants' motion is granted, and Plaintiffs remaining
state-law claim under the ZEA is dismissed because the Court
declines to exercise supplemental jurisdiction over that
is a resident of Barrington, Illinois. (R. 20, Am. Compl.
¶ 4.) The Village is a municipal corporation located in
Cook and Lake Counties, Illinois, and the Board is the
legislative body for the Village. (Id. ¶¶
5-6.) Village Defendant Darch is the president of the Board
and a trustee of the Board, and Village Defendants Lohmeyer,
Sholeen, and Daluga are also trustees of the Board.
(Id. ¶ 7.) As for the remaining Village
Defendants, Lawler is the chief administrative officer of the
Village, Summers is the director of development services for
the Village, Tennant is the assistant director of development
services for the Village, and Ossowski is the planning and
zoning coordinator for the Village, (Id.
¶¶ 8-11.) Defendants Karen and Adam O'Dempsey
(collectively, the "O'Dempseys")-a married
couple-are Plaintiffs neighbors. (Id. ¶¶
January 2015, the O'Dempseys purchased a property located
on a lot that adjoins Plaintiffs property. (Id.
¶¶ 13, 28-29.) On March 6, 2015, the O'Dempseys
submitted a building permit application to the Village for
demolition of the existing house on their property so that
they could build a new house in its place. (Id.
¶¶ 30-31, 39, 41-42, 60.) Plaintiff asserts that
the O'Dempseys' construction plans incorrectly
classified space on the second floor of then planned house as
"attic space" to skirt floor space limitations
established by Village zoning ordinances. (Id.
¶¶ 32-35, 46-48.) Plaintiff claims that the Village
Defendants "knew or should have known" of the
misclassification, yet they issued a building permit to the
O'Dempseys allowing them to proceed with construction
without requesting a variance. (Id. ¶¶ 36,
39, 64, 74.) Plaintiff alleges that the Village Defendants
approved the O'Dempseys' building permit
"knowingly and without rational basis[.]"
(Id. ¶ 74.) The O'Dempseys finished
construction of their house in August 2016. (Id.
claims that the O'Dempseys' house was the only
"known case" in which the Village approved a
building permit for a house whose floor area exceeded the
limits set forth in the Village's zoning ordinances.
(Id. ¶ 86.) Plaintiff also claims that she is
"similarly situated to homeowners .. . who abut
properties where the property owners['] planned
construction . ..would result in a departure from ... the
Village's ordinances, and were required to apply for and
receive a variation permit." (Id. ¶ 87.)
She points to the Village's alleged issuance of a
building permit for a new house in June 2016 in which the
Village allowed that house to exceed floor area limitations
after a public hearing and grant of a variance. (Id.
asserts that the Village Defendants thwarted her attempts to
ascertain whether the O'Dempseys' new house complied
with zoning ordinances, and that they denied her access to
Village documents. (See Id. ¶ 51.) Plaintiff
alleges that on May 9, 2016, she was told at a Village Board
meeting that she could no longer view the Village's
documents without a request pursuant to the Freedom of
Information Act and prior approval from the Village's
attorney. (Id. ¶¶ 49-51.) Plaintiff claims
that she was then escorted out of the building by Village
police. (Id. ¶ 51.) On May 17, 2016, Plaintiff
then allegedly received a letter from Village Defendant
Lawler, which stated that Plaintiff could not visit Village
Hall without an appointment. (Id. ¶ 52.)
Plaintiff also claims that the very next day, she received
unsolicited documents from the Village, including but not
limited to plans of the O'Dempseys' house as it was
built that "create a misleading appearance of compliance
with" the Village's zoning ordinances. (Id.
¶¶ 54, 59.)
31, 2017, Plaintiff filed her initial complaint. (R. 1,
Compl.) Plaintiff filed her first amended complaint on
October 18, 2017, which alleges three causes of action under
42 U.S.C. § 1983 based on deprivation of her
constitutional rights, and one cause of action alleging a
violation of the ZEA, (R. 20, Am. Compl. ¶¶
claims that the Village Defendants violated Plaintiffs
constitutional right to equal protection because they
allegedly discriminated against her by failing to enforce
zoning ordinances against the O'Dempseys. (Id.
¶¶ 78-93.) In Count II, Plaintiff alleges that the
Village Defendants violated her procedural due process rights
under the Fourteenth Amendment because they failed to require
the O'Dempseys to apply for a variance, which would have
resulted in a public fact-finding hearing concerning the
O'Dempseys' construction plans. (Id.
¶¶ 94-104.) Count III asserts that the Village
Defendants violated Plaintiffs Fourteenth Amendment
substantive due process rights by "arbitrarily" and
"unreasonably" approving the O'Dempseys'
building permit and by failing to enforce the Village's
zoning ordinances. (Id. ¶¶ 105-12.)
Finally, in Count IV, Plaintiff alleges that the
O'Dempseys violated the ZEA by constructing a house in
violation of the Village's zoning ordinances.
(Id. ¶¶ 113-19.)
November 14, 2017, the Village Defendants filed a motion to
dismiss Counts I through III of the amended complaint. (R. 26
Mot.) As to Count I, they argue that Plaintiff fails to
allege an equal protection claim because she does not
plausibly allege that the Village Defendants intentionally
targeted her or that they lacked a rational basis for their
approval of the O'Dempseys' new house. (R. 27, Mem.
at 11-14.) The Village Defendants argue that the Court should
dismiss Counts II and III because Plaintiff has failed to
exhaust available state court and administrative remedies as
is required to maintain constitutional due process claims in
federal court that arise from a municipality's zoning
decision. (Id. at 7-11.) The O'Dempseys have not
filed a motion to dismiss or any other dispositive motion.
response, Plaintiff argues that the Court should deny the
motion to dismiss as to Count I because she plausibly alleges
that the Village Defendants approved the O'Dempseys'
new house without any rational basis and intentionally
discriminated against her by "burdening her with an
unlawful structure next door." (R. 35, Resp. at 4-12.)
With respect to Counts II and III, Plaintiff contends that
the Court should deny the motion to dismiss because she is
not required to exhaust available state-court and
administrative remedies. (Id. at 12-14.)
motion under Rule 12(b)(6) "challenges the viability of
a complaint by arguing that it fails to state a claim upon
which relief may be granted." Firestone Fin. Corp.
v. Meyer,796 F.3d 822, 825 (7th Cir. 2015) (citation
omitted). In order to survive a motion to dismiss under Rule
12(b)(6), the complaint must allege enough factual
information to state a claim to relief that is plausible on
its face. Doe v. Vill. of Arlington Heights, 782
F.3d 911, 914 (7th Cir. 2015). "A claim has facial
plausibility when the plaintiff pleads factual content which
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged."
Ashcroft v. Iqbal,556 U.S. 662, 678 (2009).
"The plausibility standard is not akin to a