United States District Court, N.D. Illinois, Eastern Division
RDB PROPERTY, LLC, and DAVID J. MIKLOS Plaintiffs,
THE CITY OF BERWYN, Defendant.
Charles P. Kocoras United States District Judge
the Court is Defendant City of Berwyn's (“the
City”) motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6). For the following reasons, the Court will
grant the motion.
purposes of this motion, the Court accepts as true the
following facts from the complaint. Murphy v.
Walker, 51 F.3d 714, 717 (7th Cir. 1995). All reasonable
inferences are drawn in Plaintiffs' favor. Tamayo v.
Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).
is an Illinois municipal corporation. Plaintiff RDB
Properties, LLC (“RDB”) is an Illinois limited
liability company who owns the property at issue in this
matter. Plaintiff David J. Miklos (“Miklos”) is
RDB's Member/Manager, and is a resident of Berwyn,
Illinois (collectively, “Plaintiffs”).
property is located on 1214 Scoville Avenue, Berwyn,
Illinois. Plaintiffs' street dead-ends into an alley
behind a large facility belonging to the Turano Baking
Company (“Turano”). The facility spans four
block-lengths between the main thoroughfares of Ridgeland
Avenue and East Avenue. In 2014, Turano bought the
residential properties on the southside of the alley behind
facts giving rise to this case occurred in December 2014,
when the City allowed Turano to demolish the dwellings on the
properties adjacent to the alley and construct a private
parking lot. The City granted Turano a zoning variance to
permit its construction of the parking lot in a residential
area and rezoned the former residential lots to mixed
commercial use. Plaintiffs allege that the City also gave
Turano part of the public land on which Scoville and
Gunderson Avenues were located, allowing Turano's parking
lot to extend uninterrupted from East Avenue to Elmwood
of the designs approved by the City, Turano built a
cul-de-sac at the end of Scoville and Gunderson Avenues to
block access to its private parking lot. As a result of the
newly constructed cul-de-sac on Scoville Avenue,
Plaintiffs' property- being adjacent to the
cul-de-sac-lost a public on-street parking spot. Plaintiffs
further allege that the City repeatedly failed to require
Turano to comply with its ordinances governing parking lots
and their surroundings.
allege that the value of their property was damaged by the
City's actions. Specifically, Plaintiffs allege the
City's actions facilitated increased noise from
operations and vehicular traffic in and around Turano's
facilities, caused security risks resulting from an increase
in vehicular and pedestrian traffic, allowed excessive light
from the parking lot, and caused Plaintiffs' property to
lose on-street parking as well as aesthetic value. Plaintiffs
further allege that the loss of parking spaces has made it
impossible to provide dedicated handicapped street parking
for individuals residing at Plaintiffs' property.
on these events, Plaintiffs filed a complaint on August 23,
2019, alleging a taking in violation of the Fifth Amendment
of the United States Constitution. On October 9, 2019,
Defendant filed a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6).
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) “tests the sufficiency of the complaint, not
the merits of the case.” McReynolds v. Merrill
Lynch & Co., 694 F.3d 873, 878 (7th Cir. 2012). The
allegations in the complaint must set forth a “short
and plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). A plaintiff
need not provide detailed factual allegations, but it must
provide enough factual support to raise its right to relief
above a speculative level. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). A claim must be
facially plausible, meaning that the pleadings must
“allow . . . 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 claim must be described “in sufficient
detail to give the defendant ‘fair notice of what the .
. . claim is and the grounds upon which it rests.'”
E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d
773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S.
at 555). “[T]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements,
” are insufficient to withstand a 12(b)(6) motion to
dismiss. Iqbal, 556 U.S. at 678.
City urges the Court to dismiss this case under Federal Rule
of Civil Procedure 12(b)(6), arguing that none of
Plaintiffs' alleged injuries were the product of a
government action. The City further argues that
Plaintiffs' injuries are not actionable under the Takings
Clause. The Court will address each argument in
allege a taking occurred when the City granted Turano a
zoning variance, failed to enforce ordinances, and eliminated
parking spaces by transferring public land to Turano. These
actions allegedly damaged the value of Plaintiffs'
property by facilitating increased noise from the Turano
facilities, increased security risk due to increasing
traffic, loss of public street parking, excessive light from
newly installed light fixtures, and loss of aesthetic value.
The City argues that it has no role in the alleged taking
because all actions that allegedly constitute a taking belong
to Turano, a private entity. The Court disagrees.
it may be true that the actual damages Plaintiffs suffered
directly resulted from actions taken by Turano, the City had
a significant role in facilitating Turano's actions.
According to Plaintiffs, the City granted Turano a variance
on the zoning of the land, failed to enforce ordinances
governing the use of Turano's land, transferred public
land to Turano, and approved Turano's parking lot design
that led to the ...