United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Z. LEE UNITED STATES DISTRICT JUDGE
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
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.
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. 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. Chicago Joe's planned to operate a
strip club on the property. See 2016 Opinion at *1.
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.
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.
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.
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. 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
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.
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. 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.
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.
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.
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