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LLC v. The Village of Broadview

United States District Court, N.D. Illinois, Eastern Division

September 5, 2019

CHICAGO JOE'S TEA ROOM, LLC and PERVIS CONWAY, Plaintiffs,
v.
VILLAGE OF BROADVIEW, HENRY VICENIK, FITZGERALD MULLINS, JAMES JOHNSON, JR., ROBERT PAYNE, MICHAEL TYL, JOHN FERGUSON, SAM D'ANZA, BEVERLY KEEHM, JUDY ABRAHAM, BILLY DAVIS, JUANITA HINTON JOHNSON, MINNIE REESE, and RAY DONATO, Defendants.

          MEMORANDUM OPINION AND ORDER

          JOHN Z. LEE UNITED STATES DISTRICT JUDGE

         Plaintiffs Pervis Conway and Chicago Joe's Tea Room, LLC (“Chicago Joe's”) were parties to a real-estate deal involving a plot of land in the Village of Broadview (“Broadview”) where Chicago Joe's intended to operate a strip club. The deal fell through when Broadview denied Plaintiffs the necessary zoning permits. Plaintiffs brought suit in 2007 against Broadview and a number of its employees and officials, alleging that the permit denial violated their rights to free expression under the First Amendment. Now, over twelve years later, Broadview moves to dismiss Plaintiffs' complaint under Fed.R.Civ.P. 12(b)(1), asserting that Plaintiffs lack standing to sue. For the reasons stated herein, the Court denies Broadview's motion [765].

         Background

         This case has a more-than-decade-long history that includes multiple motions for summary judgment and reconsideration. The Court presumes familiarity with the earlier orders issued and will discuss them only insofar as they are relevant to the motion currently under consideration.

         The events underlying this case began in November 2006, when Conway contracted to sell a plot of land located in Broadview to David Donahue (who is not a party to this case) for $1.25 million, including $30, 000 up-front earnest money. See Def.'s Mem. Supp. Mot. Dismiss, Ex. 5, Sales Contract at 1, ECF No. 762-6.[1] At some point after entering into the contract, Donahue assigned his rights in it to Chicago Joe's. See id., Ex. 7, Correspondence from Donahue to Conway, ECF No. 762-8; Pls.' Resp. Opp. Mot. Dismiss, Ex. 8, Correspondence from Donahue to Joseph Inovskis, ECF No. 788-5.[2] Chicago Joe's planned to operate a strip club on the property. See 2016 Opinion at *1.

         Two ordinances in Broadview's Zoning Code were relevant to Chicago Joe's plans- Section 10-7-4(D) (the “special-use ordinance”) and Section 10-4-6(D)(11) (the “adult-business ordinance”). See id. The subject property was zoned “Office / Industrial, ” meaning that businesses classified as “special uses”-such as restaurants, banks, animal hospitals, dry-cleaning establishments, daycare facilities, and adult-use facilities-were required to obtain a permit under the special-use ordinance. See Defs.' LR 56.1(a) Stmt. Facts, Ex. 3.A, Broadview Zoning Code § 10-4-4, ECF No. 25-5. This process involved attending a public hearing for the Village Board of Trustees to determine if the special use was (1) necessary for the public convenience at the location; (2) designed, located, and proposed to protect the public health, safety, and welfare; and (3) not likely to cause substantial injury to property values. See Def.'s Mem. Supp. Mot. Dismiss, Ex. 2, § 10-7-4(D), ECF No. 762-3. Additionally, the adult-use ordinance prohibited “adult businesses” from selling, distributing, or permitting “beer or alcoholic beverages on the premises.” Compl., Ex. C, § 10-4-6(D)(11), ECF No. 1.

         On December 22, 2006, Chicago Joe's (listed as “contract buyer”) applied for a special-use permit, seeking permission to operate an “adult use facility” with “the ability to sell alcohol.” See id., Ex. A, Zoning Appl. On February 28, 2007, the Broadview Planning Commission and Zoning Board held a hearing to determine whether to grant Chicago Joe's application. See Def.'s Mem. Supp. Mot. Dismiss, Ex. 8, Planning Comm'n Hr'g Tr. at 1, ECF No. 762-9. The Board voted to recommend denying the application based on the fact that Chicago Joe's proposed use involved the sale of alcohol, which was prohibited under the adult-business ordinance. Id. at 102:18-103:18. On March 5, 2007, the Broadview Board of Trustees voted to accept the recommendation, and the permit was denied. See id., Ex. 9, Bd. of Trs. Meeting Record at 3, ECF No. 762-10.

         The contract between Conway and Chicago Joe's was contingent on Chicago Joe's satisfying itself that “zoning and other governmental approvals” were acceptable for its intended project and that it could obtain financing. See Sales Contract ¶ 2, id., Rider ¶ R-4. Although Chicago Joe's ability to invoke these contingencies had expired by the time of Broadview's decision, Conway and Chicago Joe's continued to negotiate the sale and agreed to extend the closing date to June 30, 2007. Def.'s Mem. Supp. Mot. Dismiss, Ex. 11, Maksimovich Correspondence, ECF No. 762-12. Additionally, Chicago Joe's agreed to pay an additional $100, 000 in earnest money and to increase the purchase price to $1.35 million. Id.

         If the parties thought they might still be able to get zoning approval, two changes to local and state law eliminated this possibility. First, on April 16, 2007, Broadview amended its adult-business ordinance to prohibit such businesses from operating within 1, 000 feet of any residential property.[3] See Sept. 11, 2008 Mem. Op. & Order (“2008 Opinion”) at 5, ECF No. 67. Then, on August 16, 2007, the Illinois legislature amended 65 Ill. Comp. Stat. 5/11-5-1.5 to prohibit the placement of “adult entertainment facilities” “within one mile of . . . any school, day care center, cemetery, public park, forest preserve, public housing, or place of religious worship located in that area of Cook County outside of the City of Chicago.” 2016 Opinion at *3. It is undisputed that the subject property falls within this prohibition. See Id. at *4 (“[T]he entirety of Broadview falls within its scope in one fashion or another.”).

         The deal between Chicago Joe's and Conway never closed, and Plaintiffs brought suit in May 2007, seeking declaratory and injunctive relief, as well as damages.

         Instead of selling the property to Chicago Joe's, Conway entered into an “Articles of Agreement for Deed” with Trust No. 072982, a land trust, on August 8, 2007. Def.'s Mem. Supp. Mot. Dismiss, Ex. 4, Articles of Agreement for Deed, ECF No. 762-5. Under the agreement, Trust No. 072982 agreed to make monthly installment payments to Conway until the purchase price of $1.35 million was paid.[4] See Id. ¶¶ 1, 3. Once all the payments were made, Trust No. 072982 would be entitled to a warranty and quitclaim deed, which would be held in trust until that time. See Id. ¶ 28.

         In the meantime, this case continued, and the parties proceeded through multiple rounds of summary judgment. In September 2008, Judge Joan B. Gottschall (who previously was assigned to the case) declared the adult-business ordinance unconstitutional, because it restricted the time, place, and manner of First Amendment-protected free expression without any legislative findings as to the secondary effects of that expression. See 2008 Opinion at 24-36. In reaching that conclusion, Judge Gottschall also held that Plaintiffs could not pursue an as-applied challenge to the special-use ordinance because Broadview did not actually invoke the special-use ordinance's requirements in denying Plaintiffs' permit. See Id. at 22-24. Judge Gottschall also granted summary judgment to Defendants as to Plaintiffs' challenge to the vagueness and overbreadth of Broadview's Zoning Code, but denied summary judgment as to Plaintiffs' facial challenge to the special-use ordinance. See Id. at 40-43; Sept. 25, 2009 Mem. Op. & Order at 6 (“2009 Opinion”), ECF No. 125.

         The case was then transferred to this Court, which concluded that the August 2007 amendment to Illinois law rendered Plaintiffs' claims for declaratory and injunctive relief moot. 2016 Opinion at *4-7. The Seventh Circuit upheld that conclusion on appeal. See Chi. Joe's Tea Room, LLC v. Vill. of Broadview, 894 F.3d 807, 814-17 (7th Cir. 2018). Accordingly, Plaintiffs' sole remaining claim is for damages from the constitutional violation identified in Judge Gottschall's 2008 Opinion. See 2016 Opinion at *8-9.

         Legal Standards

         Under Rule 12(b)(1), a defendant may move to dismiss claims over which the federal court lacks subject-matter jurisdiction, including claims for which the parties lack standing. See ApexDigital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443 (7th Cir. 2009); Perry v. Vill. of Arlington Heights, 186 F.3d 826, 829 (7th Cir. 1999). In ruling on a Rule 12(b)(1) motion, the Court must accept as true all well-pleaded facts and may look beyond the jurisdictional allegations to evidence submitted on the issue of subject-matter jurisdiction. St. John's United ...


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