United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
HONORABLE THOMAS M. DURKIN UNITED STATES DISTRICT JUDGE
Jim Pearson brought this action against Defendants Village of
Broadview, Mayor Sherman C. Jones, Building Commissioner
David Upshaw, and the Village Board of Trustees asserting two
claims titled Procedural Due Process (Count I) and Abuse of
Governmental Power (Count II). Before the Court is
Defendants' motion to dismiss both claims. For the
reasons explained below, Defendants' motion is granted in
part and denied in part.
12(b)(6) motion challenges the sufficiency of the complaint.
See Hallinan v. Fraternal Order of Police of Chicago
Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). Under
Rule 8(a)(2), a complaint must include “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). Under the
federal notice pleading standards, a plaintiff's
“factual allegations must be enough to raise a right to
relief above the speculative level.” Bell Atlantic
v. Twombly, 550 U.S. 544, 555 (2007). “In
evaluating the sufficiency of the complaint, [courts] view it
in the light most favorable to the plaintiff, taking as true
all well-pleaded factual allegations and making all possible
inferences from the allegations in the plaintiff's
favor.” AnchorBank, FSB v. Hofer, 649 F.3d
610, 614 (7th Cir. 2011). A defendant may raise the statute
of limitations in a motion to dismiss if “the
allegations of the complaint itself set forth everything
necessary to satisfy the affirmative defense.”
United States v. Lewis, 411 F.3d 838, 842 (7th Cir.
action arises out of Defendants' refusal to grant Pearson
a renewal of his 6b tax classification for a property located
in Broadview, IL. R. 26, Second Amended Complaint, ¶ 5.
The 6b tax classification is designed to encourage industrial
development and increase employment opportunities throughout
Cook County by offering a real estate tax incentive for the
development and rehabilitation of industrial structures. Cook
County Assessor's Office, Class 6b Eligibility Bulletin
(2018) (“Eligibility Bulletin”). The 6b tax
classification may be renewed by filing a renewal application
and by submitting a certified copy of the resolution or
ordinance by the municipality in which the property sits
stating that it supports and consents to the renewal of the
tax incentive. Id. at 4.
has owned the commercial lot at issue since January 14, 2005.
R. 26 ¶ 5. He submitted an application for the initial
6b tax classification to Defendants on April 14, 2005.
Id. ¶ 6. Defendants approved and granted the
application on June 20, 2005. Id. ¶ 7. In April
2014, Pearson submitted a renewal application to the Cook
County Assessor's office. Id. ¶ 8. A few
months later on September 19, 2014, Pearson sent a letter to
Defendants notifying them of the renewal application.
Id. ¶ 9. Pearson requested a board meeting for
consideration of the resolution supporting the renewal.
Id. At some point after he sent the letter, the
Defendants refused to grant him a hearing, and told him that
the “Village of Broadview would no longer be issuing 6B
resolutions to anyone.” Id. ¶ 20.
the same time, Pearson attempted to sell the property. On
September 15, 2015, he received a letter of intent to
purchase the property for $2, 750, 000. R. 6-1, Ex. E. The
prospective buyer visited the Village of Broadview's
municipal offices to inquire about the renewal application,
but was told by the building commissioner, defendant Upshaw,
that a $50, 000 campaign contribution “would make the
process go much smoother.” R. 26 ¶ 21. The
potential buyer rescinded her offer. Id. ¶ 22.
Pearson then received an offer from a new potential
purchaser, Graymills Corporation, on February 10, 2016 for
$2, 350, 000. Id. ¶ 23. Shortly thereafter,
Pearson discovered that Defendants had approved
Graymills' 6b application, allegedly before the purchase
was completed. Id. ¶ 24. It is not clear from
the complaint when Graymills legally obtained the property.
brings two claims. First, he alleges Defendants violated his
constitutional right to procedural due process by not
providing him a hearing for the renewal of the 6b tax
classification. R. 26 ¶ 15. Second, he alleges
Defendants abused their governmental power by approving
Graymills' resolution for the 6b classification.
Id. ¶ 24. Defendants moved to dismiss, arguing
the statute of limitations on his first claim has expired and
that Pearson has failed to state a claim under either count.
Statute of Limitations
courts adopt the forum state's statute of limitations for
deprivation of constitutional rights claims. See Wilson
v. Garcia, 471 U.S. 261, 261-62 (1985). A deprivation of
constitutional rights is litigated pursuant to 42 U.S.C.
§ 1983. See Nelson v. Campbell, 541 U.S. 637,
643 (2004). The limitations period for § 1983 claims is
based in state law, and the statute of limitations for §
1983 actions in Illinois is two years. See O'Gorman
v. City of Chicago, 777 F.3d 885, 889 (7th Cir. 2015).
But “the date at which the claim accrues and thus
starts the running of the limitations period is a matter of
federal law, and generally occurs when a plaintiff knows the
fact and the cause of an injury.” Id.
the complaint does not allege when Defendants denied Pearson
a hearing on the 6b tax classification. The Court can assume
that the failure occurred sometime after September 19, 2014,
when Pearson sent a request to Defendants for consideration
of the renewal application. It is not clear from the
complaint, however, that Pearson was aware of Defendants'
failure to grant a hearing before September 2015, when the
first buyer rescinded its offer because of Defendants'
failure to grant the renewal application and their alleged
solicitation of a bribe. See R. 26 ¶ 16.
Defendants cite General Auto Service Station v. City of
Chicago, 2004 WL 442636 (N.D. Ill. March 9, 2004) in
support of their argument that the statute of limitations
began running in September 2014, when Pearson submitted a
letter to Defendants notifying them of the renewal
application. In General Auto Service, the plaintiff
submitted a non-conforming use permit application in 1995
after receiving a notice that it was in violation of a zoning
ordinance. It did not receive a response, but did receive a
second notice of violation in August 1997. Id. at
*5. The application was then denied, the plaintiff appealed,
and the decision to deny the application was affirmed. The
plaintiff contended that the date the statute of limitations
began running was the date of the final judgment affirming
the denial. Id. at *7. The court disagreed and held
that the statute began to run when the plaintiff first became
aware of the denial through the second notice of violation,
not when he continued to feel the denial's “ill
effects” through later administrative proceedings.
Id. at *8. Here, however, there are no allegations
that Pearson became aware of the denial of the renewal before
September 2015. Unlike in General Auto Service,
Pearson does not allege that he received a letter or other
notification from Defendants informing him of the denial.
Taking the facts in the light most favorable to Pearson, it
is plausible he first became aware of the alleged violation
in September 2015, when the buyer rescinded its offer because
of the denial of the 6b tax classification. An act giving
rise to a claim occurs when the plaintiff “knows or
should know that his  constitutional right has been
violated.” Lawshe v. Simpson, 16 F.3d 1475,
1478 (7th Cir. 1994). Accordingly, Pearson's complaint is
not untimely on its face.