Peters, Bruce v. Village of Clifton ( 2007 )


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  •                           In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________
    No. 06-3735
    BRUCE PETERS,
    Plaintiff-Appellant,
    v.
    VILLAGE OF CLIFTON, an
    Illinois Municipal Corporation,
    ALEXANDER COX & MCTAGGERT,
    INCORPORATED and JOSEPH
    MCTAGGERT,
    Defendants-Appellees.
    ____________
    Appeal from the United States District Court
    for the Central District of Illinois.
    No. 05 C 2242—Michael P. McCuskey, Chief Judge.
    ____________
    ARGUED MAY 1, 2007—DECIDED AUGUST 22, 2007
    ____________
    Before RIPPLE, MANION and WILLIAMS, Circuit Judges.
    RIPPLE, Circuit Judge. Bruce Peters brought this action
    under 42 U.S.C. § 1983 against the Village of Clifton
    (“Village”), Alexander, Cox & McTaggert, Inc. (“ACM”)
    and Joseph McTaggert. He alleged that the defendants
    had trespassed on his property in order to expand the
    Village’s sewage discharge system and, in so doing, had
    committed an unconstitutional taking of his property in
    2                                               No. 06-3735
    violation of the Fifth and Fourteenth Amendments. On the
    Village’s Rule 12(b)(1) motion, the district court dismissed
    the action. Mr. Peters appealed. We agree that the dis-
    trict court properly dismissed the action, and, accordingly,
    we affirm the judgment of the district court.
    I
    BACKGROUND
    A. Facts
    Mr. Peters owns a parcel of agricultural land just outside
    the eastern edge of the village limits of Clifton, Illinois.
    ACM owns agricultural property within the village limits
    that directly abuts Mr. Peters’ land. Running eastward
    along Mr. Peters’ property is a waterway that empties
    into a drainage ditch. At some unknown time in the past,
    prior to Mr. Peters’ ownership of the property, farm
    drainage tile had been buried on Mr. Peters’ land. The tile
    was parallel to and beneath the waterway. The Village
    had an existing sewage line in the vicinity for some time.
    The line ran under ACM’s property.
    Mr. Peters claims that, in 2005, the private defendants, at
    the instruction of the Village, trespassed onto his land, dug
    up the old, non-functioning sewer tile and installed new,
    larger tile. This newly-installed tile, Mr. Peters contends,
    was then connected to the Village’s existing sewage tile “at
    or about the property line” between his land and that
    owned by ACM. R.1 at 4. The Village thus created, he
    maintains, an “unregulated[,] unlicensed sanitary sewer
    system discharging sewage through the farm tile within
    [Mr. Peters’] property.” 
    Id. at 3.
    Mr. Peters believes that
    the Village made these improvements in an attempt to
    No. 06-3735                                                      3
    make the adjacent land within the Village boundaries
    suitable for development.
    Mr. Peters claims that, to install the new tile, ACM, with
    the consent of the Village, came onto his property and used
    “various poisons on the nature preserve bordering the
    above ground drainage ditch, underneath which is the
    [Village’s] illegal sanitary sewage line.” He claims that this
    action destroyed trees and destabilized the land. 
    Id. at 4.
    Mr. Peters claims that acres of his farmland were ren-
    dered unsuitable for agricultural uses because of soil
    compaction and drainage of “untreated sewage and
    waste materials.” 
    Id. at 5.
    B. District Court Proceedings
    Mr. Peters filed a complaint in the United States District
    Court for the Central District of Illinois. He asserted that
    the defendants had committed an unauthorized taking
    of his property in violation of the Takings Clause of the
    Fifth Amendment of the Constitution as made applicable
    to the states through the Fourteenth Amendment. See
    Chicago, B. & Q. R. Co. v. City of Chicago, 
    166 U.S. 226
    ,
    233, 236-37 (1897). Mr. Peters requested compensatory
    damages for the taking and a permanent injunction for-
    bidding the Village from discharging any materials
    through the drainage tiles on his property.1
    The Village moved to dismiss the action under Federal
    Rule of Civil Procedure 12(b)(1) for lack of subject matter
    1
    Mr. Peters claims that, in the acts giving rise to his complaint,
    both the Village and the private defendants were acting
    under color of state law for purposes of liability under 42 U.S.C.
    § 1983.
    4                                               No. 06-3735
    jurisdiction, claiming that the action was not ripe. Specifi-
    cally, the Village contended that, before Mr. Peters could
    assert a takings claim in federal court, he was required
    first to seek compensation through appropriate state
    channels. This course was mandated, in the Village’s view,
    by the decision of the Supreme Court in Williamson County
    Regional Planning Commission v. Hamilton Bank of Johnson
    County, 
    473 U.S. 172
    (1985).
    In his memorandum opposing the motion to dismiss,
    Mr. Peters maintained that the Village was not a home
    rule municipality under Illinois law, and, therefore, had
    no eminent domain power with respect to his land.
    Mr. Peters further asserted that, because of the Village’s
    status, he could not institute inverse condemnation pro-
    ceedings against it and therefore was exempted from
    Williamson County’s exhaustion requirement on futility
    grounds.
    The district court agreed with the Village that, under
    Williamson County, Mr. Peters was obligated to show
    either that he had exhausted state remedies or that those
    remedies were unavailable to him. The district court
    assumed for purposes of its analysis that the Village had
    no eminent domain powers under Illinois law. The court
    concluded, however, that, if the only remedy the state
    provided for a taking was dependent upon a particular
    jurisdiction’s home rule status, the lack of an available
    remedy in a case such as this one would violate the Tak-
    ings Clause of the Illinois Constitution. The district court
    held that, absent explicit authority from the Illinois courts
    that no state remedy was available for takings effected by
    non-home rule jurisdictions, Mr. Peters was required to
    seek compensation from the state, whether titled an inverse
    No. 06-3735                                                     5
    condemnation proceeding or a suit in tort.2 Because
    Mr. Peters had not availed himself of state procedures
    for obtaining compensation, the court concluded that his
    claim for a violation of the Takings Clause of the Fifth
    Amendment was not ripe. Accordingly, the district court
    dismissed the case for lack of subject matter jurisdiction.3
    II
    DISCUSSION
    We review de novo a district court’s order dismissing a
    case for lack of subject matter jurisdiction under Rule
    12(b)(1). Small v. Chao, 
    398 F.3d 894
    , 897 (7th Cir. 2005). We
    must accept all facts stated in the complaint as true and
    must draw all reasonable inferences in the light most
    favorable to the plaintiff. Tricontinental Indus., Ltd. v.
    PricewaterhouseCoopers, LLP, 
    475 F.3d 824
    , 833 (7th Cir.
    2007).
    A.
    We pause at this point to set forth in some detail Mr.
    Peters’ arguments. In support of his contention that
    2
    See R.22 (Report of Recommendation of Magistrate Judge,
    adopted by the district court at R.25).
    3
    On Mr. Peters’ first attempt to appeal this decision, this court
    dismissed the appeal for lack of subject matter jurisdiction
    because the judgment was not a final resolution of all claims
    against all parties or an authorized interlocutory appeal. On
    Mr. Peters’ motion, the district court amended its judgment to
    dismiss all claims against all parties for lack of subject matter
    jurisdiction, and Mr. Peters timely appealed.
    6                                                     No. 06-3735
    Williamson County does not require exhaustion in this case
    and that therefore the matter is ripe for federal adjudica-
    tion, Mr. Peters makes three principal, but interrelated,
    arguments. First, Mr. Peters claims that Williamson County,
    by its terms, is limited to suits for compensation, not suits
    seeking to enjoin an “unlawful” taking, and, therefore, at
    minimum, his claim for injunctive relief should proceed
    immediately. Next, he claims that Williamson County does
    not require him to pursue speculative and unproven
    compensation procedures available in Illinois. Finally,
    he contends that Williamson County expresses a prudential
    ripeness requirement, not an Article III requirement,
    and that compelling reasons support a different pruden-
    tial rule in a case such as this one.4
    4
    Mr. Peters also claims that a cause of action under 42 U.S.C.
    § 1983 does not require “exhaustion” of state remedies, see Patsy
    v. Board of Regents, 
    457 U.S. 496
    , 516 (1982), and, at oral argu-
    ment, he stated that there is no “exception” to this general
    rule applicable to takings claims. In this respect, he misunder-
    stands the use of the term “exhaustion” in the context of
    Williamson County. As we stated in Daniels v. Area Plan Commis-
    sion, 
    306 F.3d 445
    (7th Cir. 2002),
    the additional ripeness requirements of Williamson County
    create a takings claim exception to Patsy’s general require-
    ment that exhaustion is not required in § 1983 suits. There-
    fore litigants, like the [plaintiffs] in this case, who assert a
    takings claim under 42 U.S.C. § 1983 may not rely solely
    on Patsy, but must meet the Court imposed ripeness require-
    ments of Williamson County prior to bringing a federal claim.
    
    Id. at 453;
    see also Williamson County Reg. Planning Comm’n v.
    Hamilton Bank of Johnson County, 
    473 U.S. 172
    , 194-95 & n.13
    (1985) (noting that “exhaustion” is not required, but that “no
    (continued...)
    No. 06-3735                                                          7
    More specifically, Mr. Peters contends that the Village’s
    sanitary drainage system and the occupation and use of
    his property for that system are illegal and unauthorized.
    In his view, the Village has no ownership rights over the
    property or over the ditch and tile on his property. Nor has
    the Village, as a municipal entity without home rule
    authority, any power of eminent domain over that prop-
    erty. Consequently, he argues, he is entitled to injunctive
    relief to end the occupation of the property by the Village.
    He relies on our decision in Daniels v. Area Plan Commis-
    sion, 
    306 F.3d 445
    (7th Cir. 2002).
    Mr. Peters then submits that there is another, and related,
    reason why he should not be required to observe the
    exhaustion requirement of Williamson County. He notes
    that Williamson County requires the exhaustion of state
    remedies only when the state procedures are available
    and adequate. Williamson 
    County, 473 U.S. at 194
    , 197.
    When no such procedure is available in state court, the
    requirement is inapplicable, and a litigant may resort to a
    takings claim in federal court without any antecedent
    4
    (...continued)
    constitutional violation occurs until just compensation has been
    denied,” and, therefore, resort to state procedures is necessary).
    Our cases have used “exhaustion” as a shorthand for the
    requirement of resort to available state process identified in
    Williamson County. See Greenfield Mills, Inc. v. Macklin, 
    361 F.3d 934
    , 957 (7th Cir. 2004); 
    Daniels, 306 F.3d at 453
    ; Forseth v. Vill. of
    Sussex, 
    199 F.3d 363
    , 372 (7th Cir. 2000). We continue to do so
    here, although we acknowledge the conceptual distinction
    between our usual use of the term, see Patsy, 
    457 U.S. 496
    , and
    the notion that an injured property owner’s takings claim is
    not ripe until just compensation is denied, see Williamson 
    County, 473 U.S. at 194
    -95.
    8                                               No. 06-3735
    litigation in the state forum. He contends that, because of
    its non-home rule status, the Village is exempt from an
    inverse condemnation remedy and, therefore, the only
    possible state remedies available to him are speculative
    and theoretical. Williamson County, he reminds us, im-
    poses on him no obligation to expend time and resources
    exploring such gossamer paths. The state avenue of relief,
    he further reminds us, must be “reasonable” and “certain”
    at the time of the taking. 
    Id. at 194
    (quoting Regional Rail
    Reorganizational Act Cases, 
    419 U.S. 102
    , 124-25 (1974)).
    Mr. Peters elaborates further that there is no specific
    statutory remedy for inverse condemnation in Illinois and
    that, therefore, a landowner who has been denied the use
    of his property by the government, without an eminent
    domain action having been brought, must bring a manda-
    mus action against that governmental entity to compel it
    to institute eminent domain proceedings. For such a
    mandamus action to succeed, however, the defendant
    governmental entity must have the authority to carry out
    the task that the plaintiff claims it has a clear legal duty
    to perform. Here, he continues, the Village, by virtue of its
    status as a non-home rule municipality, has no authority to
    bring the eminent domain proceeding which Mr. Peters
    believes should have been brought. Moreover, he contin-
    ues, with one exception not relevant here, the Village’s
    powers are limited to its own territory, and Mr. Peters’
    land is not within the boundaries of the Village. Conse-
    quently, from Mr. Peters’ perspective, inverse condemna-
    tion procedures are unavailable and inadequate and he
    may proceed in federal court to seek injunctive and
    compensatory relief.
    No. 06-3735                                                      9
    B.
    The Takings Clause of the Fifth Amendment provides
    that no “private property [shall] be taken for public use,
    without just compensation.” U.S. Const. amend. V. “While
    it confirms the State’s authority to confiscate private property,
    the text of the Fifth Amendment imposes two conditions
    on the exercise of such authority: the taking must be for a
    ‘public use’ and ‘just compensation’ must be paid to the
    owner.” Brown v. Legal Found. of Washington, 
    538 U.S. 216
    ,
    231-32 (2003) (emphasis added).
    “The Fifth Amendment does not proscribe the taking of
    property; it proscribes taking without just compensation.”
    Williamson 
    County, 473 U.S. at 194
    . This principle makes
    clear that, ordinarily, compensation, not an injunction, is
    the appropriate remedy for a taking that satisfies the public
    use requirement. Patel v. City of Chicago, 
    383 F.3d 569
    , 574
    (7th Cir. 2004). “[T]he federal courts’ role is not to enjoin
    localities from exercising their eminent domain powers,
    but to ensure that property owners are justly com-
    pensated when localities exercise that power.” 
    Id. at 574.5
      Because “[n]o constitutional violation occurs until just
    compensation has been denied,” Williamson 
    County, 473 U.S. at 195
    n.13, the Supreme Court has crafted a special
    ripeness doctrine that applies to claims arising under the
    Takings Clause. In Williamson County, the Supreme Court
    considered a claim for a temporary regulatory taking,
    5
    See also McKenzie v. City of Chicago, 
    118 F.3d 552
    , 556 (7th Cir.
    1997) (“States condemn and pay for land all the time; the
    Takings Clause of the fifth amendment supposes that money
    damages are a constitutionally adequate substitute for real
    property.”).
    10                                                No. 06-3735
    occasioned by zoning regulations covering a particular
    plot of land. The Court affirmed the dismissal of the action
    by the landowner, holding it premature on two separate
    bases. First, the Court ruled that the landowner had failed
    to obtain a final decision from the state agency responsible
    for the taking. Williamson 
    County, 473 U.S. at 190-94
    (explaining the final decision requirement). Second, the
    Court reiterated the principle that the Constitution does
    not prevent “taking[s],” but rather prohibits “taking[s]
    without just compensation.” 
    Id. at 194
    . A state need not
    provide compensation prior to, or contemporaneous
    with, the alleged taking, so long as there is a “reasonable,
    certain and adequate provision” at the time of the taking
    for an injured property owner to obtain just compensa-
    tion from the state after the taking has been accomplished.
    
    Id. at 194
    (quoting Regional Rail Reorganization Act 
    Cases, 419 U.S. at 124-25
    ); see also 
    id. at 196.
    Therefore, a plaintiff
    property owner cannot claim a violation of the Just Com-
    pensation Clause until he has sought and been denied
    compensation under available state court procedures. 
    Id. at 194
    n.13, 195.
    We have described the alternate bases for dismissing the
    claim in Williamson County as a two-pronged ripeness
    requirement for takings claims: (1) a final decision by
    the government entity responsible for the taking and
    (2) exhaustion of state procedures. Forseth v. Vill. of Sussex,
    
    199 F.3d 363
    , 372 (7th Cir. 2000). Since Williamson County,
    we also have recognized that allegations of physical takings
    are subject to a streamlined ripeness analysis; the taking
    itself constitutes a final action, and therefore a court need
    only assess whether the plaintiff had availed himself of
    appropriate state procedures. Greenfield Mills, Inc. v.
    Macklin, 
    361 F.3d 934
    , 958 (7th Cir. 2004).
    No. 06-3735                                                11
    Williamson County created a “limited exception to its
    exhaustion requirement based on the futility of seeking
    state court relief.” 
    Daniels, 306 F.3d at 456
    . If a property
    owner demonstrates that state procedures for obtaining
    just compensation are either unavailable or inadequate,
    the claim is immediately ripe in federal court. See William-
    son 
    County, 473 U.S. at 196-97
    ; 
    Daniels, 306 F.3d at 456
    , 457-
    58.
    Despite the strong presumption that damages, not
    injunctive relief, is the appropriate remedy in a Takings
    Clause action, our case law does acknowledge that there
    are limited circumstances in which injunctive relief is
    available. For instance, it is well accepted that, when the
    government has taken property for a private, rather than a
    public, use, injunctive or declaratory relief may be appro-
    priate. See 
    Daniels, 306 F.3d at 457
    n.11. Similarly, the
    Supreme Court has held that many facial challenges to
    legislative action authorizing a taking can be litigated
    immediately in federal court. See San Remo Hotel, L.P. v.
    City & County of San Francisco, 
    545 U.S. 323
    , 345 (2005); Yee
    v. City of Escondido, 
    503 U.S. 519
    (1992); see also Holliday
    Amusement Co. of Charleston v. South Carolina, ___ F.3d ___,
    
    2007 WL 1893384
    , at *2 (4th Cir. July 3, 2007) (“[T]he
    state procedures requirement does not apply to facial
    challenges to the validity of a state regulation.”).
    With these principles in mind, we now turn to Mr. Peters’
    specific contentions. Mr. Peters submits that this futility
    exception applies in this case. In his view, exhaustion
    would be futile here because an inverse condemnation
    remedy is not available to him under Illinois law. He
    relies on Illinois precedent that states that the usual remedy
    in Illinois “inverse condemnation” situations is a manda-
    mus action seeking to compel the responsible agency to
    12                                               No. 06-3735
    institute condemnation proceedings, see, e.g., Luperini v.
    County of DuPage, 
    637 N.E.2d 1264
    , 1268 (Ill. App. Ct. 1994);
    if the agency (or local government) has no authority to
    institute eminent domain proceedings, Mr. Peters contends,
    a mandamus action against it will fail, and the state
    will provide no remedy.
    Mr. Peters has not met his burden of demonstrating that
    it would be futile to pursue available remedies in state
    court. In Illinois, inverse condemnation is a judicially
    recognized remedy arising out of the self-executing tak-
    ings provision of the Illinois Constitution. Illinois Const.
    art. 1, § 15; see also Warner/Elektra/Atlantic Corp. v. County
    of DuPage, 
    991 F.2d 1280
    , 1284-85 (7th Cir. 1993) (explain-
    ing the availability of a judicially-created inverse condem-
    nation action under the Illinois Constitution); Roe v. Cook
    County, 
    193 N.E. 472
    , 474 (Ill. 1934) (interpreting the
    Takings Clause of the Illinois Constitution as self-execut-
    ing). Specifically, in Roe v. Cook County, 
    193 N.E. 472
    (Ill.
    1934), the Supreme Court of Illinois has stated that:
    [w]hen the Constitution forbids the taking or damaging
    of private property without just compensation and
    points out no remedy, and no statute affords one, for
    the invasion of the right of property thus secured, the
    common law, which affords a remedy for every wrong,
    will furnish the appropriate action for the redress of
    such grievance.
    ....
    It is entirely beside the point to say that even
    though our bill of rights assures every person that his
    property will not be taken for public use without just
    compensation, yet where a county or other public
    body violates this section by taking private property
    No. 06-3735                                                        13
    without condemnation proceedings, one may not
    recover simply because the Legislature has failed to
    provide any specific remedy. If this were true, the
    constitutional guaranty would be nugatory and private
    property could be taken with impunity and without
    redress to the injured property owner. The constitu-
    tional provision itself, without remedial legislation, is
    basic law, which not only confers a right but presup-
    poses a remedy.
    
    Id. at 473-74
    (emphasis added). Under Roe’s interpretation
    of the Illinois Constitution, the common law of Illinois
    will afford Mr. Peters a remedy. Indeed, Mr. Peters does
    not contend that Roe is no longer the law of Illinois; nor has
    he identified a single case in which compensation was
    refused on the basis that he asserts would doom his ef-
    forts to obtain relief in Illinois courts.6 Rather, Mr. Peters
    6
    Some of our sister circuits also have taken the view that a self-
    executing provision of a state’s constitution may constitute a
    sufficiently reasonable, certain and adequate remedy to satisfy
    the Fifth Amendment and, under Williamson County, is like-
    wise sufficient to require the plaintiff to proceed in state court
    before raising a federal takings claim. See Bateman v. City of
    West Bountiful, 
    89 F.3d 704
    , 708-09 (10th Cir. 1996) (“A property
    owner’s cause of action for inverse condemnation is provided
    by Article I, section 22 of the Utah Constitution. This constitu-
    tional provision is self-executing . . . . [The plaintiff]’s failure to
    avail himself of the procedure renders his claim premature.”);
    Villager Pond, Inc. v. Town of Darien, 
    56 F.3d 375
    , 380 (2d Cir.
    1995) (holding that when a state’s constitution provides a
    “straightforward takings clause,” even when no case provides
    compensation for the precise kind of taking alleged by the
    plaintiff, the plaintiff “is still required to look to the state for
    (continued...)
    14                                                  No. 06-3735
    claims that, despite the clear language in Roe, Illinois will
    not provide a remedy. He bases this assertion on his
    reading of Illinois precedent establishing the manner in
    which claims under § 15 ordinarily proceed, that is, by
    way of a mandamus action to force the municipality to
    institute eminent domain proceedings, see, e.g., 
    Luperini, 637 N.E.2d at 1268
    . Whatever subsequent Illinois cases
    say about the usual method a landowner might use to
    obtain compensation, Roe indicates that the courts of the
    state will find a remedy if a taking has occurred. Based on
    this clear statement by the Supreme Court of Illinois that
    a remedy is available to injured landowners, we con-
    clude that Mr. Peters “has not shown that the inverse
    condemnation procedure is unavailable or inadequate, and
    until [he] has utilized that procedure, [his] taking claim
    is premature.” Williamson 
    County, 473 U.S. at 197
    .7
    6
    (...continued)
    compensation before its takings claim will lie”). But see
    Asociación de Subscripción Conjunta del Seguro de Responsibilidad
    Obligatorio v. Flores Galarza, 
    484 F.3d 1
    (1st Cir. 2007) (“In our
    view, [reasonable, certain and adequate procedures] do not
    include litigation of a state takings claim or any general reme-
    dial cause of action under state law. Rather, the Supreme Court
    must have had in mind only those procedures specifically
    designed by the state to avoid constitutional injury in the first
    instance by providing a means for a plaintiff to obtain com-
    pensation for the government’s taking of property.”).
    7
    As we noted in Rockstead v. City of Crystal Lake, 
    486 F.3d 963
    (7th Cir. 2007), when “the obstacle to [just compensation] is a
    state common law doctrine,” a plaintiff may face greater
    difficulty in demonstrating that state procedures will fail him.
    
    Id. at 966.
    “Judges do not make statutes or constitutions and
    (continued...)
    No. 06-3735                                               15
    C.
    Finally, Mr. Peters contends that Williamson County’s
    requirements are prudential and insufficient to support the
    district court’s decision that it lacked subject matter
    jurisdiction in this case. He relies largely on Chief Justice
    Rehnquist’s concurring opinion in San Remo Hotel, L.P. v.
    City & County of San Francisco, 
    545 U.S. 323
    , 348-52 (2005),
    which, Mr. Peters contends, “exposed” Williamson County’s
    “fundamental and untenable doctrinal flaws.” Appellant’s
    Br. at 10 n.2.
    Williamson County’s ripeness requirements are prudential
    in nature. See Suitum v. Tahoe Reg’l Planning Agency, 
    520 U.S. 725
    , 733-34 & n.7 (1997); 
    Forseth, 199 F.3d at 368
    n.7.
    The prudential character of the Williamson County require-
    ments do not, however, give the lower federal courts
    license to disregard them. The Supreme Court has deter-
    mined, as a matter of law, when federal takings claims
    are ripe and has set forth a rule in Williamson County that
    this court is bound to follow. In the absence of compliance
    with Williamson County, the district court correctly dis-
    missed this action.
    Conclusion
    We affirm the judgment of the district court.
    AFFIRMED
    7
    (...continued)
    cannot change them, but they do make, and they can—and
    do—change, common law doctrines.” 
    Id. 16 No.
    06-3735
    A true Copy:
    Teste:
    _____________________________
    Clerk of the United States Court of
    Appeals for the Seventh Circuit
    USCA-02-C-0072—8-22-07