Case No. 98 C 7415
March 14, 2000
MEMORANDUM OPINION AND ORDER
In an eighteen-count complaint, John J. Popp, Sr. and his son, John J. Popp, Jr., allege that the City of Aurora and its former mayor, David Pierce, deprived them of various constitutional fights through several wrongful acts. The alleged misconduct, most of which took place a very long time ago, relates to certain real property held by a trust in which the Popps have a significant interest. The case is before the Court on a motion filed by the City and Pierce to dismiss all eighteen counts of the complaint on various grounds.
The George B. Popp Family Trust, Trust B is a spendtbrift trust created and existing under Illinois law. John J. Popp Sr. is the Trust's trustee, and John I. Popp, Jr. is one of the Trust's beneficiaries. The Trust owns, among other assets, real property in Aurora, Illinois, along the Kane County — DuPage County border; the Popps intended to develop the property with residential lots. On August 22, 1978, the City of Aurora adopted an ordinance that provided for the construction of a roadway (Felton Road) on the Trust's property. The ordinance provided that the cost of construction, estimated at almost $150,000, would be assessed and paid for (presumably at least in part by the Trust) in ten installments, with 7% interest accruing. The ordinance allowed the City to issue bonds to cover construction costs; the bonds were to be repaid by the assessment. Between 1978 and 1982, the City built Felton Road on the Trust's property.
In 1979, the City approved the Popps' preliminary plat for development of the Trust property. But the City refused to give final approval to the plat unless the Trust paid the entire balance of the special assessment and dedicated to the City the private property underlying Felton Road. After years of negotiations, in the summer of 1986, the Trust and the City reached an agreement: the Trust agreed to dedicate the property underlying Felton Road to the City, and, in exchange, the City agreed to consider and approve the Trust's final development plat. The City also agreed not to hold the development plat hostage because of any outstanding balance on the assessment. The Trust upheld its end of the bargain: on July 15, 1986, the Trust dedicated the Felton Road property to the City. Despite the parties' agreement, however, the City, led by Aurora Mayor David Pierce, refused to approve the Trust's final plat for development, leaving the Popps unable to move forward with their development plans.
It is unclear whether Pierce held the office of Mayor when plaintiffs negotiated the deal; it is clear, however, that he was not Mayor when the City passed the original ordinance providing for the construction of Felton Road.
To make matters worse for the Popps, between 1982 and 1985, the construction and grading of Felton Road caused water to pool on plaintiffs' property, ultimately resulting in the creation of wetlands, which according to the Popps decreased the property's value. In 1991 (while Pierce was still Mayor) the City authorized and built a permanent watermain on the Trust property to alleviate the flooding problems. The City never compensated the Popps for the loss of Trust property, whether in connection with the construction of Felton Road, the pooling of water on the property, or the construction of the watermain.
The Popps allege that Mayor Pierce disliked them intensely and used his political clout to punish them for supporting his opponents in various mayoral elections. According to the Popps, Pierce convinced the City to refuse to consider their final plat and authorized the construction of the watermain for the predominant purpose of harassing and harming them. The Popps allege that Pierce's final act of vengeance before leaving office in 1997 was to encourage the Kane County Forest Preserve to incorporate the Popp property into its expansion plans. This would mean that the Forest Preserve would take all rights in the property and pay the Popps the fair market value of the undeveloped land; if the Forest Preserve succeeding in condemning the property, it would also mean the end of any development plans the Popps may yet have harbored. On June 17, 1996, Pierce wrote to the Director of the Department of Natural Resources stating that the City was "very pleased that the Kane County Forest Preserve Commission is looking to acquire . . . the Popp property." Amended Complaint, Ex. C. Pierce also stated that the City "will do everything within its power to cooperate with the Forest Preserve District in clearing any title concerns which may arise during the transaction." Id. With the full support of the Mayor and the City — whose concurrence in the plan, according to the Popps, was a necessary perquisite to the action — on May 22, 1998, the Forest Preserve filed a condemnation action against the Popp property. To the best of the Court's knowledge, the Forest Preserve's condemnation action remains pending to this day.
The Popps filed an eighteen-count amended complaint against the City, its agents, representatives, officers, servants and employees, and against Pierce individually, alleging eleven claims under 42 U.S.C. § 1983 for violations of various rights secured by the U.S. Constitution, one claim under 42 U.S.C. § 1985(3) for conspiracy to violate those rights, and six claims for violations of various fights secured by the Illinois Constitution. The defendants have moved to dismiss all eighteen counts.
The purpose of a motion to dismiss is not to decide the merits of the challenged claims but to test their sufficiency under the law. Gibson v. Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In deciding a motion to dismiss, the Court reads the complaint liberally, dismissing only "if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which entitles him to relief." Conley v. Gibson, 355 U.S. 41, 45(1957). "A complaint may not be dismissed unless it is impossible to prevail `under any set of facts that could be proved consistent with the allegations.'" Forseth v. Village of Sussex, 199 F.3d 363, 368 (7th Cir. 2000) (quoting Albiero v. City of Kankakee, 122 F.3d 417, 419 (7th Cir. 1997)).
A. The Popps' Federal Takings and Due Process Claims (Counts 5, 9, 11, 13, 15, 17 and 18)
The Popps' amended complaint alleges five federal takings claims. In Count 9 the Popps allege that "in constructing Felton Road, the City invaded and possessed private real property owned by the Plaintiff," and that the "cloud on the Plaintiff's title to the subject property created by the . . . special assessment substantially interfered with, and continues to substantially interfere with, the Plaintiff's freedom to transfer ownership of, or interest in, the subject property." Amended Complaint. Count 9, ¶¶ 4-5. As a result of this taking, the Popps allege that they are entitled to just compensation in the amount of $200,000, plus another $2 million in damages. Id. ¶ 8, 11, 13. In Count 11 the Popps allege that "the City's construction of Felton Road resulted in an unlawful taking of the portions of the subject property owned by the Plaintiff which are adjacent to Felton Road that are encumbered by wetlands and excavated material." Amended Complaint, Count 11, ¶ 4. The Popps allege that they are entitled to just compensation for this taking in the amount of $750,000, plus another $2 million in damages. Id. ¶¶ 8, 10. In Count 13 the Popps allege that the City "repeatedly demanded that the [Felton Road] special assessment be paid and that the private real property underlying Felton Road be dedicated to the City as a precondition of considering for approval a final plat for the development of the subject property." Amended Complaint, Count 13, ¶ 4. They allege that "the City's aforesaid attempted extractions of money and private property as a precondition of accepting for review and considering a final plat for the development of the subject property prevented the Plaintiff from enjoying the highest and best use of its property and, upon information and belief, deprived the Plaintiff of any economically feasible use of the subject property." Id. ¶ 7. They also allege that "the City's refusal to accept for review and consideration the final development plat constituted an unlawful regulatory taking of the Plaintiff's private real property"; the Popps allege that they are entitled to just compensation in the amount of $1 million, plus another $2 million in damages. Id. ¶¶ 8, 13, 15. In Count 15, the Popps allege that "the City's invasion and possession of the Watermain property [the property on which the City built the watermain] resulted in an unlawful taking of the Plaintiff's private real property" for which they should be awarded just compensation in the amount of $50,000. Amended Complaint, Count 15, ¶¶ 4, 7.
In Count 5, the Popps allege that Pierce and the City concurred in the Forest Preserve's decision to incorporate the Popps' property into its expansion plans, not for a legitimate public purpose, but predominantly "to harass and harm the Plaintiff by enabling the Forest Preserve to extinguish the Plaintiff's claim to the subject property and thereby hinder the Plaintiff's ability to bring claims against Pierce, individually, and the City" under 42 U.S.C. § 193 and 1985(3) and under state law. Amended Complaint, Count 5, ¶ 6. The Popps further allege that Pierce and the City tried to cover up their improper purpose by refusing to turn over, in response to the Popps' FOIA request, Pierce's June 17, 1996 letter to the Department of Natural Resources.
In Count 17 the Popps allege that all of the above-described wrongful acts violated their procedural due process rights; in Count 18 they allege that these acts violated their substantive due process rights. The defendants argue that the Court should dismiss all of these claims because they are either not yet ripe for adjudication or are barred by the applicable statute of limitations.
1. Ripeness of the Popps' Federal Takings and Due Process Claims
Ripeness is an element of the case or controversy requirement of Article III of the United States Constitution, which we must consider before moving to the merits of the claims. Unity Ventures v. County of Lake, 841 F.2d 770, 774 (7th Cir. 1988). In land use challenges, the doctrine is "intended to avoid premature adjudication or review of administrative action. It rests upon the idea that courts should not decide the impact of regulation until the full extent of the regulation has been finally fixed and the harm caused by it is measurable." Herrington v. County of Sonoma, 834 F.2d 1488, 1494 (9th Cir. 1987), quoted in Unity Ventures, 841 F.2d at 774.
In Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 186(1985), the Supreme Court held that a taking claim (i.e., a claim that the application of government regulations effects a taking of a property interest) is not "ripe" for judicial resolution "until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue." Additionally, the Court noted, the Fifth Amendment "does not proscribe the taking of property; it proscribes taking without just compensation." Id. at 194 (citing Hodel v. Virginia Surface Mining Reclamation Association, Inc., 452 U.S. 264, 297(1981)) (emphasis added). Thus, if a state provides an adequate procedure for seeking just compensation, a property owner cannot claim a violation of the Fifth Amendment until he has used that procedure and been denied just compensation. Id. at 195. See also Forseth, 199 F.3d at 368 (federal courts are precluded from adjudicating constitutional property rights claims until: (1) the regulatory agency has had an opportunity to make a considered definitive decision, and (2) the property owner exhausts available state remedies for compensation).
Illinois does provide an adequate procedure for seeking just compensation. The Illinois Constitution, which is generally thought (at least in the land-use context) to provide greater protection than the United States Constitution, see International College of Surgeons v. City of Chicago, 153 F.3d 356, 367 (7th Cir. 1998); Equity Associates, Inc. v. Village of Northbrook, 171 Ill. App.3d 115, 124, 524 N.E.2d 1119, 1126(1988). forbids the taking or damaging of private property for public use "without just compensation as provided by law." Ill. Const., Art. 1, § 15. The legislature has provided the means for ensuring that an aggrieved landowner receives just compensation, see 735 ILCS 5/7-101, and the Illinois state courts have construed this statute to provide several remedies for landowners whose property is damaged or taken without just compensation. The landowner may seek an injunction to prevent the damage to property or taking of property in the first place, see Illinois Cities Water Co. v. City of Mount Vernon, 11 Ill.2d 547, 556, 144 N.E.2d 729, 734(1957); after the fact, he may file an "inverse condemnation" action, seeking to compel the City to pay just compensation for the taking, see Westwood Forum, Inc. v. City of Springfield, 261 Ill. App.3d 911, 922, 634 N.E.2d 1154, 1162 (1994), or an action for damages, see S.D. Childs Co. v. City of Chicago, 203 Ill. App. 235 (1917), or even a mandamus action to compel the City to institute eminent domain proceedings, see Luperini v. County of DuPage, 265 Ill. App.3d 84, 89, 637 N.E.2d 1264, 1268(1994). The questions for the Court, therefore, are (1) did any of the alleged wrongful conduct come to a final decision; and (2) if so, did the Popps pursue these remedies before turning to federal court.
The Popps first challenge the original taking of the property underlying Felton Road, which was accomplished by the City through an ordinance passed August 22, 1978. Assuming, without deciding, that the 1978 ordinance would satisfy the final decision requirement, the claim still fails the ripeness test because the Popps never challenged the ordinance or the taking in state court. Indeed, as far as the Court can tell, the Popps never told anyone that they were upset by the Felton Road ordinance. They never sought an injunction, they never sought mandamus or damages; instead, they filed this lawsuit 20 years after the fact. Accordingly, this claim, even at this late date, is premature. The same is true of the wetlands and watermain claims, which probably fall short on the first element too. The Popps never sought an injunction to prevent the construction of the watermain, they never sought damages for the accumulation of water, and they never made any effort to convince the City to pay just compensation for their alleged injuries.
The Popps also claim that the defendants refused to consider for approval their final development plat. Again, assuming without deciding, that this refusal was a final decision, the claim would still fail under the exhaustion requirement. The Popps never challenged the refusal; nor did they seek a variance to try to get the plat approved. Nor did the Popps pursue any of the remedies described above. Interestingly, in light of the context in which the Popps' refusal-to-consider claim arose, this claim may really be more of a contract claim than a taking claim: the Popps allege that they cut a deal with the City whereby they would agree to dedicate the land underlying Felton Road to the City in exchange for the City agreeing to consider for approval their final development plat, and they allege that the City failed to live up to its part of the bargain. See Towne v. Town of Libertyville, 190 Ill. App.3d 563, 569, 546 N.E.2d 810, 815 (1989). But whether this is a taking claim or a contract claim, one thing is clear: it belongs in state court.
The Popps also allege that the defendants' concurrence in the Forest Preserve's decision to take the Popps' property constituted a taking. Again, there is nothing in the complaint or in the Popps' response to the motion to dismiss to suggest that the Popps ever challenged either the concurrence or the condemnation. Moreover, the taking alleged in this claim — the Forest Preserve's condemnation of the Popps' property — has not yet been completed. The condemnation action is still pending, and, as far as the Court can tell, the Popps still hold title to the property. Until the condemnation action is over and until the Popps have been awarded just compensation, the "taking," in the constitutional sense, has not occurred. See Williamson, 473 U.S. at 195. Thus, this claim is also premature.
Relying on an Eighth Circuit case, McKenzie v. City of White Hall, 112 F.3d 313 (8th Cir. 1997), the Popps argue that their taking claims are excepted from Williamson's exhaustion requirement because they have alleged "pretextual takings" (i.e., takings accomplished for a private purpose), which are constitutional violations regardless of whether compensation is paid, as opposed to takings for which "just compensation" is required. The plaintiffs in McKenzie alleged that the City of White Hall refused to approve the zoning and building permits they needed to proceed with development plans unless they agreed to surrender a strip of land between the plaintiffs' intended development and a plot of undeveloped land to the north (the privacy buffer). Id. at 316. The plaintiffs further alleged that the City did so "without legitimate public concerns related to the requests." Id. The Eight Circuit held that the final decision and state remedy exhaustion requirements were necessary predicates to showing that there had been a taking of property without just compensation. Id. at 317. But, the court held, the McKenzies "need not pursue state procedures for a claim that the city took the privacy buffer without a justifying public purpose . . . because this is a Constitutional violation even if just compensation is paid. Id. The Popps argue that their claims we identical to the McKenzies, and they ask the Court to reach the same conclusion as the Eighth Circuit. We decline to do so for two reasons. First, McKenzie is not binding precedent, and the Court could not find a single case in the Seventh Circuit where the court excepted federal taking claims from the ripeness requirements on the basis urged by the Popps. Second, contrary to the Popps' assertion, their claims are not the same as those alleged by the McKenzies. The Popps' claim that the City refused to consider the final development plat is similar to the McKenzies' claim in that it alleges coercion on the part of the defendant city. But the McKenzies sought injunctive relief-namely the return of the privacy buffer — to remedy the constitutional violation; the Popps seek just compensation. Thus, the Popps' claims fall under the "just compensation" exception to the Fifth Amendment, not the "public use" exception, and the state remedy exhaustion requirement applies.
The Popps concede that they never challenged any of the City's decisions and that they never pursued any state remedies. But, they argue, it would have been futile for them to pursue approval of their final development plat because the Forest Preserve filed its condemnation action. First, the fact that more than a decade passed between the rejection of the plat and the filing of the condemnation action takes most of the wind out of this argument. Second, although the Seventh Circuit has recognized that a plaintiff may be able to get around the ripeness requirements by showing that attempts to obtain a final decision or to exhaust state remedies would be futile, establishing futility requires more than just a plaintiffs assertion. See Unity Ventures, 841 F.2d at 775-76. The Popps imply that the filing of the condemnation action makes it a foregone conclusion that they will lose all rights in all their property and that any money they receive in that action will be less than they could have gotten by developing the land. At this point, the Popps' argument is speculative: a jury has not yet fixed the fair market value of the property.
The Popps also argue that the fair market value they will be awarded when the Forest Preserve condemns their property will be less than they would have received had the City not "destroyed" the property by building Felton Road, building the watermain and allowing additional wetlands to be created. Even if they are right, the unfairness they claim is solely the result of their own actions (or inaction). In Gamble v. Eau Claire County, 5 F.3d 285, 286 (7th Cir. 1993), the Seventh Circuit held, in the land-use context, that "a claimant cannot be permitted to let the time for seeking a state remedy to pass without doing anything to obtain it and then proceed in federal court on the basis that no state remedies are open." Gamble's unexcused failure to exhaust her state remedies, according to the court, forfeited her rights to seek just compensation. Id. The same is true here. The Popps chose to sit silently by while the City built Felton Road, allowed water to accumulate on the property and built the watermain. They could have pursued any of the remedies outlined above and they chose not to. Their inaction does not permit them to now come into court complaining that their state remedies are no longer available; this is true whether the unavailability of the remedies is because of the Forest Preserve's condemnation action or because the state statute of limitations for pursuing those remedies has expired.
In short, Illinois provided adequate procedures for remedying the injuries alleged; because the Popps have not used those procedures, they cannot bring their claims in this Court. Counts 5, 9, 11, 13 and 15 are dismissed, on ripeness grounds, for lack of subject matter jurisdiction.
The Court reaches the same conclusion with respect to the Popps' due process claims. Due process claims in the land use context, like takings claims, are subject to the ripeness requirements set out in Williamson. See Forseth, 199 F.3d at 369 ("Although we have recognized the potential for a plaintiff to maintain a substantive due process claim in the context of land use decisions, . . . we have yet to excuse any substantive due process claim in the landuse context from Williamson's ripeness requirements.") (citations omitted); Unity Ventures, 841 F.2d at 776 (Ripeness applies to procedural due process claims as well as takings and substantive due process claims; the court "will not evaluate the adequacy of the procedures available to the plaintiffs before they have availed themselves of those procedures."). Thus, in light of our analysis above, we will dismiss Counts 17 and 18 as well.
2. Statute of Limitations
The conclusion that the Popps' claims are premature necessarily means that the defendants' statute of limitations argument fails: because the Popps' takings claims are not yet ripe, the statute of limitations on these claims has not yet begun to run. See Biddison v. City of Chicago, 921 F.2d 724, 728-29 (7th Cir. 1991) (a takings claim accrues, for statute of limitations purposes, when it ripens). This may seem absurd, given how long ago the alleged wrongful acts occurred. But it is the result compelled by the case law.
B. The Popps' Equal Protection Claim (Count 1)
In Count 1 the Popps allege that the City and Pierce "without any reasonable basis or regard for any legitimate governmental objective . . . singled out the Plaintiff for harassment, thereby impermissibly treating the Plaintiff differently than other similarly situated persons within their jurisdiction." Complaint, Count 1, ¶ 6. The Popps allege that Pierce instructed and conspired with the City to reject the final development plat after agreeing to approve it, that he instructed and conspired with the City to invade and possess the Popps' property for purposes of building a watermain, and that he encouraged and approved the Forest Preserve's decision to incorporate the Popps' property into its Kane County expansion. Id ¶ 4. The Popps further allege that in doing all of these things, Pierce "was motivated exclusively by ill will towards the Plaintiff as well as a desire to violate the Plaintiff's Fifth Amendment rights and to punish the Plaintiff for exercising his First Amendment right to support Pierce's political opponents. . . ." Id. The defendants argue that the Popps' equal protection claim is really a taking claim in disguise, which must be dismissed under Williamson.
The Seventh Circuit "has read Williamson broadly, rejecting attempts to label `takings' claims as `equal protection' claims and thus requiring `ripeness.'" Forseth, 199 F.3d at 370 (citing Unity Ventures, 841 F.2d at 775). But the Seventh Circuit has also recognized that a bona fide equal protection claim arising from land-use decisions may be made independently of a taking claim and without being subject to Williamson's ripeness requirements. See id.; Hager v. City of West Peoria, 84 F.3d 865, 870 (7th Cir. 1996). "Absent a fundamental right or a suspect class, to demonstrate a viable equal protection claim in the land-use context, the plaintiff must demonstrate `governmental action wholly impossible to relate to legitimate governmental objectives.'" Forseth, 199 F.3d at 370-71 (quoting Esmail v. Macrane, 53 F.3d 176, 180 (7th Cir. 1995)). This test is typically satisfied when the equal protection claim is based on:
(1) the malicious conduct of a governmental agent, in other words, conduct that evidences a "spiteful effort to `get' him for reasons wholly unrelated to any legitimate state objective," Esmail, 53 F.3d at 180; or (2) circumstances, such as prayer for equitable relief and a "claim [that] would evaporate if the [governmental body] treated everyone equally," that sufficiently suggest that the plaintiff has not raised "just a single takings claim with different disguises." Hager 84 F.3d at 870.199 F.3d at 371. The Popps claim does not satisfy the second test: in connection with their equal protection claim they seek damages (namely, $2 million), which is exactly what they seek in connection with their taking claims; they make no request for injunctive relief The claim arguably satisfies the first test: the Popps allegations evince a spiteful effort on Pierce's part to get them for supporting his political opponents, and the Popps specifically allege that Pierce and the City acted "without any reasonable basis or regard for any legitimate governmental objective. . . ." Complaint, Count 1, ¶¶ 4, 6. But, as we shall explain, whether or not we apply Williamson's ripeness requirements, the Court must nonetheless dismiss the Popps' equal protection claim: if we decide Williamson applies, the claim fails for the same reasons the other taking claims fail; if we decide Williamson does not apply, the claim is subject to the defendants' statute of limitations defense.
In Illinois, the statute of limitations for all § 1983 claims is two years. See Wilson v. Garcia, 471 U.S. 261, 275(1985) (in each state there is only one statute of limitations for all § 1983 claims); Ashafa v. City of Chicago, 146 F.3d 459, 461-62 (7th Cir. 1998) (in Illinois, that statute of limitations is two years). Although state law governs the length of the statute of limitations for the claim, federal law dictates when the clock starts ticking for any given § 1983 claim. See Sellars v. Perry, 80 F.3d 243, 245 (7th Cir. 1996). Generally, a § 1983 claim accrues when the plaintiff knows or has reason to know of the injury that is the basis of the action. Id. The City refused to consider the final plat in July 1986, more than a decade before the Popps filed their complaint on November 18, 1998, and the injury (the limitation on the Popps' right to use the land) occurred immediately. The Popps either knew or should have known about the injury at the time of the refusal or shortly thereafter. Nothing in the complaint or the motion papers suggests that the City hid its decision from the Popps. Accordingly, this part of the claim is time barred. So too with the watermain part of the claim: the City decided to build the watermain and built the watermain in 1991; the injury to property occurred then too, seven years before the Popps filed their complaint.
All this leaves of the Popps' equal protection claim is their allegation that Pierce "encouraged and approved the Forest Preserve's incorporation of the subject property into its aforesaid condemnation plans." This allegation is based on a letter Pierce wrote to the Forest Preserve stating that the City would "do everything within its power to cooperate with the Forest Preserve District in clearing any title concerns which may arise during the transaction." Pierce wrote this letter on June 17, 1996, but the Popps claim that they did not learn about the letter until December 1998, after they filed this lawsuit. When the Popps learned about Pierce's letter is immaterial. The injury claimed here is not Pierce's encouragement of the condemnation plan, but the condemnation itself; had the Forest Preserve simply ignored Pierce's letter, the Popps would not have been injured at all. Because the condemnation proceedings have not yet been completed, the injury has yet to occur. In short, Pierce's alleged encouragement of the Forest Preserve, the only part of the Popps' equal protection claim that is not time-barred, does not by itself give rise to an injury that can properly be the subject of a federal lawsuit.
Nor does Pierce's action, or the Popps' discovery of it in 1998, revive the time-barred aspects of the Popps' equal protection claim. See Scherer v. Balkema, 840 F.2d 437, 439-40 (7th Cir. 1988).
In addition, if, as the Popps allege, Pierce's concurrence in the condemnation plan was a perquisite to the filing of the proceedings, the Popps presumably can assert Pierce's improper motive as a defense in that proceeding. Although the Seventh Circuit has recognized a plaintiffs right to bring a true equal protection claim in the land-use context, see Forseth, 199 F.3d at 371; Esmail, 53 F.3d at 179-80, the court has yet to find such a claim in a case involving alleged wrongdoing that allows someone else (in this case the Forest Preserve) to infringe a landowner's rights. Nor has the court allowed such a claim to proceed in a case involving a pending state court condemnation action in which the landowner could assert the same claims raised in his federal equal protection claim. Under the particular facts of this case, the Court is persuaded that the Popps' equal protection claim (or what is left of it after we consider the statute of limitations) falls within the scope of Williamson and thus belongs in state court; the Popps may assert this claim and obtain the remedy they seek in the condemnation proceedings. Accordingly, Count 1 is dismissed.
The Popps, like Esmail, allege unequal treatment that was "the result solely of a vindictive campaign by the mayor." See Esmail, 53 F.3d at 179. The difference is that in Esmail, the mayor's vindictiveness directly caused the adverse impact on Esmail's property rights (the Mayor found Esmail guilty of various charges, ordered his liquor license revoked and ordered his second liquor license application to be denied. Id. at 177. In contrast, Pierce was not directly responsible for the Popps' injury. He sent one letter encouraging the Forest Preserve's condemnation plan; he neither ordered the property condemned nor caused it to be condemned. The Forest Preserve was free to ignore Pierce's letter, in which case the Popps would have had nothing to complain about.
C. The Claims Challenging the Ordinance and the Special Assessment (Counts 3, 4)
The Popps allege that the City enacted a facially invalid ordinance (Count 3) and that the ordinance contained a facially invalid special assessment (Count 4); the Popps ask the Court to strike the ordinance, to "quiet title to the [Popps'] property by effecting the removal of the cloud created by the City's void special assessment for the construction of Felton Road" and to enjoin the City from "taking any direct or indirect action towards enforcing or otherwise effecting payment of its aforesaid void special assessment." Amended Complaint, Count 3. ¶ 12; Count 4, ¶¶ 12-13. The defendants ask the Court to dismiss these claims because, among other reasons, they are time barred.
As we have already noted, the statute of limitations for all § 1983 claims in Illinois is two years, Ashafa, 146 F.3d at 461-62, and the claim accrues when the plaintiff knows or has reason to know of the injury that is the basis of the action. Sellars, 80 F.3d at 245. The City passed the allegedly invalid ordinance on August 22, 1978, and the City actually built Felton Road between 1978 and 1982. Additionally, the City established and confirmed the allegedly invalid special assessment in 1978 and began trying to collect money from the Popps shortly thereafter. Thus the Popps knew or should have known that the claimed injury — the taking of property — occurred in 1978, twenty years before the Popps filed this lawsuit.
The Popps argue that the statute of limitations has not expired because they have alleged continuing violations. According to the Popps, each day the ordinance remains in effect is a new violation of their rights that serves to extend the limitations period. The Popps are confusing a "continuing violation" with the continuing adverse consequences of past unlawful conduct. The unlawful conduct describe in Count 3 was complete when the City adopted the ordinance and built the road on the Popps' property; that they continue to feel the effects of that conduct is irrelevant for statute of limitations purposes. Count 3 is dismissed.
Count 4 is a little more tricky. Had the Popps alleged that the City attempted to enforce the ordinance to collect special assessment installments on various dates, each of those dates arguably may have given rise to a separate claim and a separate statute of limitations period. See Palmer v. Board of Education of Community Unit School District 201-U, Will County, Illinois, 46 F.3d 682, 686 (7th Cir. 1995). In theory, if the City had attempted to collect an installment after November 18, 1996, the claim might not be barred. But the Popps have alleged nothing to support this theory. Instead, they argue that each day the ordinance remains in effect constitutes a new violation, and this is simply not true. On the day the ordinance went into effect, the Popps lost whatever rights they had in not paying for Felton Road; any damages flowing from that loss were merely the continuing ill effects of the original violation. See Pontarelli Limousine, Inc. v. City of Chicago, 704 F. Supp. 1503, 1510 (N.D. Ill. 1989). The only wrongful conduct alleged in connection with Count 4 is the adoption of the ordinance, which occurred in 1978. Without some allegation of wrongful conduct — not just damages — within the statute of limitations period, the claim is time barred. Because there is no such allegation here, Count 4 is dismissed.
D. The Popps' First Amendment Claim (Count 7)
In Count 7 the Popps allege that Pierce maliciously interfered with and violated their First Amendment right to support Pierce's political opponents when he instructed and conspired with the City to refuse to consider for approval the Popps' final development plat; when he instructed and conspired with the City to invade and possess part of their property by building a watermain; and when he encouraged and approved the Forest Preserve's incorporation of the Popps' property into its Kane County expansion plans. This claim is identical in substance to the Popps' equal protection claim, and it is dismissed for the same reasons.
E. State Law Claims (Counts 6, 8, 10, 12, 14 and 16)
In Counts 6, 8, 10, 12, 14 and 16, the Popps allege that the same conduct that violates the United States Constitution also violates the Illinois Constitution.
1. State Law Takings Claim — Forest Preserve Condemnation (Count 6)
In Count 6 the Popps allege that Pierce and the City concurred in the Forest Preserve's condemnation plan (and in the taking of the Popps' property), not for a legitimate public purpose as required by the Illinois Constitution, but predominantly "to harass and harm the Plaintiff by enabling the Forest Preserve to extinguish the Plaintiff's claim to the subject property and thereby hinder the Plaintiff's ability to bring claims" against Pierce and the City under 42 U.S.C. § 1983 and 1985(3) and under Illinois law. Amended Complaint, Count 6, ¶ 5. This claim tracks Count 5, the federal takings claim based on the same conduct. The defendants argue that this claim should be dismissed for lack of ripeness because the taking described in the claim is not yet complete.
The Illinois Constitution, like the U.S. Constitution, prohibits takings of private property without just compensation. Art. I, § 15 (emphasis added). Thus, "[t]he taking of property in the constitutional sense is accomplished only by the filing of a petition, the ascertainment of value, and the payment of just compensation." Kleinschmidt Inc. v. County of Cook, 287 Ill. App.3d 312, 317, 678 N.E.2d 1065, 1068(1997), cert. denied, 522 U.S. 1117(1998). Generally, no taking occurs until either a purchase or sale agreement is negotiated and executed or until condemnation proceedings, including payment, are concluded. Forest Preserve District of DuPage County v. Brookwood Land Venture, 229 Ill. App.3d 978, 982, 595 N.E.2d 136, 140 (1992). According to the parties' pleadings, the Forest Preserve's condemnation action has not yet concluded; no compensation (whether or not just) has yet been paid. Thus, Count 6 is premature and must be dismissed.
2. Violation of Art. 1 § 5 of the Illinois Constitution (Count 8)
In Count 8 the Popps allege that Pierce's refusal to consider for approval the final development plat, his decision to build the watermain and his encouragement and approval of the Forest Preserve's condemnation plan violated the Popps' Article 1. § 5 right to support Pierce's political opponents. The defendants argue that the Court should dismiss this count for failure to state a claim.
Article 1, § 5 of the Illinois Constitution provides that "[t]he people have the right to assemble in a peaceable manner, to consult for the common good, to make known their opinions to their representatives and to apply for redress of grievances." Based on the allegations in the amended complaint, the Court would have thought the Popps were attempting to allege that Pierce did the things he did to punish them from supporting his political opponents. But the Popps' response to the motion to dismiss makes clear that the Popps are instead alleging that Pierce denied them the opportunity to petition the City for approval of their final development plat. See Memorandum in Support of Response to Defendants' Motion to Dismiss, at 30 ("In seeking the consideration of their final plat, the Plaintiffs were merely attempting to petition the government in a matter which they deemed important: obtaining the City's consideration of their conforming final plat for the development of the subject property."). Thus, the substance of Count 8 is: Pierce and the City failed to consider for approval the final development plat. This has nothing to do with the right to assemble and petition; this is the same takings claim that appears throughout the amended complaint.
3. The State Law Takings Claims (Counts 10, 12, 14, 16)
Counts 10, 12, 14 and 16 allege violations of Article 1, § 15 of the Illinois Constitution; these claims are the state counterparts to Counts 9, 11, 13 and 15, the federal takings claims. In Count 10, the Popps allege that the City took their private property to build Felton Road; in Count 12 the Popps allege that the City took part of their property by letting water accumulate to the point where untouchable wetlands were created; in Count 14 the Popps allege that the City and Pierce extorted property and money from them as a precondition to approving their final plat for development and then refused to even consider the plat for approval; and in Count 16 the Popps allege that the City and Pierce took part of their property to build a watermain. The defendants argue that these claims should be dismissed as time barred.
Section 13-205 of the Illinois Code of Civil Procedure specifies a five-year statute of limitations on actions "to recover damages for an injury done to property, real or personal, . . . and all civil actions not otherwise provided for. . . ." 735 ILCS 5/13-205. Under this section, all of the claims described above would be barred; the latest wrongful act alleged occurred in 1991, and the Popps filed this lawsuit in 1998. The Popps argue that this section is inapplicable to their claims; instead, they argue, their claims are subject to a twenty-year statute of limitations. In support of their argument they cite four cases, none of which is persuasive. Two of the cases cited by the Popps, Meyers v. Kissner, 149 Ill.2d 1, 549 N.E.2d 336(1992), and First Baptist Church of Lombard v. Toll Highway Authority, 301 Ill. App.3d 533, 703 N.E.2d 978(1998), involved continuing violations; the Popps' allegations involve separate and distinct wrongful acts. Rosenthal it City of Crystal Lake, 171 Ill. App.3d 428, 525 N.E.2d 1176(1988), involved an ejectment claim, which the Popps have not alleged. And Markgraff v. Rosenfield, 383 Ill. 468, 50 N.E.2d 479 (Ill. 1943), involved a claim under the Roads and Bridges Act, which specified a fifteen-year statute of limitations; that statute is not at issue here. Accordingly, the Court finds that the five-year statute of limitations applies, and the Popps' state takings claim are time-bred.
F. The Conspiracy Claim (Count 2)
In Count 2 the Popps allege that in violation of 42 U.S.C. § 1985(3), Pierce conspired with the City to interfere with and violate their First, Fifth and Fourteenth Amendment rights by: instructing the City to refuse to consider for approval the final plat for development; instructing the City to install the watermain on the Popps' property; and encouraging and approving the Forest Preserve's condemnation of the Popps' property. They further allege that this conspiracy directly and proximately caused them to sustain damages in excess of $2 million. "Section 1985(3) provides no substantive rights itself; it merely provides a remedy for violation of the rights it designates." Great American Federal Savings Loan Association v. Novotny, 442 U.S. 366, 372(1979). A plaintiff seeking to sue under this section "must locate a right independently secured by state or federal law. . . ." Stevens v. Tillman, 855 F.2d 394, 404 (7th Cir. 1988). Having concluded that the Popps' claims for violations of state and federal law must be dismissed, we dismiss the Popps' conspiracy claim as well.
For the reasons explained above, the defendants' motion to dismiss is granted. Judgment will enter in favor of defendants.