United States District Court, C.D. Illinois, Peoria Division
ORDER & OPINION
BILLY MCDADE UNITED STATES SENIOR DISTRICT JUDGE.
the Court is Defendants' Motion to Dismiss for Failure to
State a Claim and attendant memorandum (Docs. 10, 11) and
Plaintiff's response thereto (Doc. 14). On November 5,
2019, the Court requested supplemental memoranda from the
parties; they timely complied with that request (Docs. 16,
17). The Motion is now ripe for review. For the following
reasons, Defendants' Motion is granted.
parties have been embroiled in disputes over the property at
issue for some time now. (See Docs. 4 at 3-12, 11-1,
11-2, 11-3). The Court will limit this section to the
procedural history relevant to this decision.
April 1, 2019, the Defendant Ty Livingston, Zoning
Administrator, issued a Notice of Violation to Plaintiff
Gentlemen Gaming, LTD, on behalf of Defendant City of East
Peoria. (Doc. 11-1 at 24). The Notice stated:
YOU ARE HEREBY NOTIFIED that as of the date of this notice,
the above-listed property is in violation of Section 5-10-3
of the East Peoria Zoning Code . . . as you are causing,
permitting, or allowing a junkyard; the processing of mineral
products, including stone and gravel; and the outdoor storage
of materials, goods or products to exist on the Property
without a special use permit.
(Doc. 11-1 at 24).
timely appealed the Zoning Administrator's decision to
Defendant East Peoria Zoning Board of Appeals (ZBA). The ZBA
held a public hearing on the matter, at which Plaintiff's
attorney presented evidence and argument and examined
witnesses. (Doc. 11-1 at 4, 6-13). The evidence included
photographs of the property at issue, which depicted,
inter alia, several inoperable motor vehicles; piles
of tires; sheet metal and rusty metal objects and strips;
piles of wood, trees, and brush; and piles of concrete with
rebar located on the property. (Doc. 11-1 at 37-49; Doc. 11-2
at 1-8). After hearing the evidence and argument, the ZBA
went into closed session to discuss the matter; upon
reentering open session, the ZBA unanimously voted to uphold
the violation. (Doc. 11-1 at 13-14). A written decision
outlining the ZBA's decision was subsequently issued.
(Doc. 11-3 at 33-35).
survive a motion to dismiss the complaint must ‘state a
claim for relief that is plausible on its face.' ”
Doe v. Columbia Coll. Chi., 933 F.3d 849, 854 (7th
Cir. 2019) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). This requires the plaintiff to
“plead particularized factual content, not conclusory
allegations, that allows the court to plausibly infer the
defendant is liable for the alleged misconduct.”
Id. (citing Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)). The complaint “must give enough
details about the subject matter of the case to present a
story that holds together.” Vanzant v. Hill's
Pet Nutrition, Inc., 934 F.3d 730, 736 (7th Cir. 2019)
(quoting Swanson v. Citibank, N.A., 614 F.3d 400,
404 (7th Cir. 2010)). Additionally, the court
“accept[s] all well-pleaded facts as true and draw[s]
all reasonable inferences in favor of the plaintiff.”
Doe, 933 F.3d at 854.
raises several federal and state claims respecting the
administrative procedure below. Defendants argue each should
be dismissed. The Court will address each claim in turn.
Procedural Due Process Claims - Counts I and II
I and II of Plaintiff's Complaint challenge different
aspects of the administrative proceeding below on procedural
grounds. In Count I, Plaintiff alleges he was not
“afforded the due process of the due process of law in
violation of Fourth, Fifth and Fourteenth Amendments of the U.S.
[sic] Constitution” because the Zoning Administrator
did not cite the specific provision of the zoning code
Plaintiff was accused of violating. (Doc. 4 at 6). In Count II,