Alice Guth v. Tazewell County ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3452
A LICE G UTH,
Plaintiff-Appellant,
v.
T AZEWELL C OUNTY, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of Illinois.
No. 1:09-cv-1333-JES—James E. Shadid, Chief Judge.
A RGUED S EPTEMBER 11, 2012—D ECIDED O CTOBER 17, 2012
Before B AUER, P OSNER, and W OOD , Circuit Judges.
P OSNER, Circuit Judge. The plaintiff in this suit under
42 U.S.C. § 1983 seeks damages from the governing body
of Tazewell County and from various subordinate
agencies and County officials (but we can disregard all
the defendants other than the County Board, and treat
the Board as the only defendant) for violating her con-
stitutional rights. The district judge granted summary
judgment for the defendants.
2 No. 11-3452
The plaintiff owns five properties in a mixed rural/
suburban area in central Illinois, nine miles from
the City of Peoria and three miles from the Village of
Morton (population 16,000). She lives in a house that’s on
one of the parcels, but that parcel and the house are not
involved in the case. The other four parcels, totaling
about 190 acres and very near the house, were until
recently zoned agricultural; the parties refer to them
as parcels “A,” “B,” “C,” and “D.” All properties re-
lated to the litigation are marked on the accompanying
Google aerial photograph:
No. 11–3452                                                                                        3
4 No. 11-3452
A hog farm a few hundred feet from the house
almost abuts parcels A, C, and D. (B does not abut the
farm but can be reached only by driving past it.) The
additional properties labeled on the photo are the main
hog farm (the one adjoining A, C, and D is a satellite
facility), the Fligge parcel, and a parcel called Wolf Cross-
ing. Both of those parcels used to be zoned agricultural,
just like A through D, but their owners persuaded
the County Board to rezone them as “rural residential”;
this was before the plaintiff succeeded in getting her
parcels rezoned. Tazewell County’s zoning code de-
scribes “rural residential” development as “development
in areas normally outside the reach of public facilities,”
Tazewell County Code, tit. 7, ch. 1, § 9(a)—in other
words, areas neither urban nor suburban in which never-
theless people can have homes without interfering
with agricultural and forestry uses. The larger of the
two properties, Wolf Crossing, is now a suburban sub-
division.
In September 2004 the plaintiff asked the county’s
Zoning Board to recommend to the County Board that
parcel A be rezoned rural residential. (The rezoning
decision is made by the County Board rather than by
the Zoning Board.) The Zoning Board instead recom-
mended that the County Board deny her application,
and the County Board, agreeing, did so the following
month. A year later the plaintiff asked the Zoning Board
to recommend that B and C be rezoned rural residential;
but again agreeing with the Zoning Board, the County
Board denied her applications.
No. 11-3452 5
The plaintiff responded to these disappointments by
suing the County Board in an Illinois state court. But on
the day, in October of the following year (2006), on which
the trial was to start, she agreed to a settlement with
the defendant, which the court entered on the court
record as an “Agreed Order.” The settlement was not
approved by the Board itself, even though it was the
defendant, but by the Board’s Risk Management Com-
mittee, which is authorized to make binding settle-
ments on behalf of the entire Board. See 55 ILCS 5/1-6006.
The Agreed Order stated that the Board now agreed
that parcels A, B, and C—as well as parcel D, which
the plaintiff had not applied to rezone along with the
other parcels—should be rezoned rural residential. It
seems that the Board had based its earlier denial of
the plaintiff’s applications, in part at least, on the
proximity of the auxiliary hog farm, but had since
learned that the owner of the two hog farms was
planning to close them.
One might think the relevance of the hog farms to
the Board’s original decision would have been that
the plaintiff’s parcels, because of their proximity to the
hogs, were considered unsuitable for (human) residences.
Not so; the concern was not with the people who
might live on these parcels but with the hogs.
If the County Board wanted to retain a flourishing
agricultural industry in Tazewell County—as apparently
it does, for we read on its official website, “Welcome to
Tazewell County, Illinois,” www.tazewell.com (visited
Sept. 12, 2012), that “agriculture is an important compo-
6 No. 11-3452
nent of Tazewell County’s history and economy and it is
ingrained with the County’s identity and way of life.
Seventy-eight percent of the County’s land area consists
of farmland, and agriculture is poised to remain one of
the County’s defining industries”—it could not allow
unlimited residential development on land currently
zoned for agriculture. Residential development could
squeeze out agriculture long before all the agricultural
land had been bought for homes, because if the
character of the county changed from predominantly
agricultural to predominantly residential, the home-
owners would have a potential claim of nuisance against
the farmers—not least the hog farmers.
It might seem that anyone who bought a home a few
hundred feet from a hog farm would not be heard to
complain about the grunts and odors emitted by the
hogs; the buyer would have been compensated by an
appropriate discount in the price of the land for the
home. But when the character of an area changes
gradually from commercial or industrial or agricultural
to residential, the homeowners, even though they
bought with knowledge of those uses of the land
adjacent to them, usually can seek to abate those uses
as private nuisances. Oehler v. Levy, 85 N.E. 271, 273 (Ill.
1908); Woods v. Khan, 420 N.E.2d 1028, 1031 (Ill. App.
1981); see Spur Industries, Inc. v. Del E. Webb Development
Co., 494 P.2d 700, 706-08 (Ariz. 1972). We say “usually”
because Illinois’s Farm Nuisance Suit Act, 740 ILCS
70/3, which has counterparts in other states, alters the
common law’s rejection of the defense of “coming to
the nuisance” by insulating farmers against nuisance
No. 11-3452 7
suits after a farm has been in operation for a year—but
with exceptions.
Allowing nuisance suits by newly arrived residents is
a sensible rule because it enables land to be put to
its highest-valued use; residential uses of land are
very often more valuable (judging by price) than non-
residential uses, such as agriculture. Sensible or not,
allowing such suits does threaten farmers, and if the
County Board wanted to preserve Tazewell County’s
agricultural industry without relying entirely on the
Farm Nuisance Suit Act, with its exceptions, this was a
reason to deny the plaintiff’s rezoning applications
even though her parcels were not at present being used
for hog farming, or indeed for anything. But this
ground for denial seemed to vanish when the owner
of the hog farms declared that he was closing the farms.
The Risk Management Committee decided there was
no longer a sound basis for resisting the plaintiff’s
state court lawsuit, and so it settled.
But although the Agreed Order stated that parcels A
through D should be rezoned for residential use, it did
not order that they be rezoned, and it could not. The
state courts have plenary power to review zoning deci-
sions, 55 ILCS 5/5-12012.1, but no authority to rezone
property. The County Board has that authority, but
could exercise it only in accordance with the County’s
procedures for rezoning. Those procedures required a
hearing before the Zoning Board and (if a neighboring
landowner filed a formal objection) a three-fourths vote
by the County Board in favor of the rezoning, for the
8 No. 11-3452
rezoning to be approved. Tazewell County Code, tit. 7,
ch. 1, §§ 26(f)-(h).
One year after the Agreed Order was entered, the
Zoning Board held the required hearing on the plain-
tiff’s rezoning applications, and this time it recom-
mended that they be approved. The County Board con-
sidered the recommendation and voted 11 to 10 in favor
of granting the applications. But because that was less
than a three-fourths majority and a formal objec-
tion had been filed, the vote resulted in the denial of
the applications. At the same meeting the Board
agreed to rezone the Fligge parcel from agricultural to
rural residential; Wolf Crossing had been rezoned
similarly earlier.
At last, the next year (2008), the Board relented and
granted the plaintiff’s applications. But by this time the
real estate market had collapsed, and her parcels were
no longer worth more zoned residential than they had
been when zoned agricultural. The plaintiff had gained
nothing from the rezoning because of the three years it
had taken her to obtain it, more precisely because of
the year’s delay after the Board’s meeting in Octo-
ber 2007 at which her applications had again been denied.
She argues that she was turned down at that meeting
because the Board’s members were angry with her for
having sued the Board over the previous denial of the
applications, and angry too with the state court for
having entertained that suit. At the meeting one of the
Board’s members remarked acidly that if the state court
judge wanted to do zoning he should resign and join
No. 11-3452 9
the Zoning Board, and another described himself as
“incensed” at the court. One might wonder why, if the
Board was offended by the state court suit, it had
settled rather than fought it and if necessary appealed
an adverse judgment to a higher state court. But maybe
the Board’s membership had changed in the year that
elapsed between the Agreed Order and the contentious
meeting, and become feistier. And remember that the
settlement had been made by a committee of the Board
rather than by the entire Board, and members of the
Board who were not on the committee may have disap-
proved of it.
If, as the plaintiff contends, the Board’s failure to
grant the rezoning applications violated the Agreed
Order, one might also wonder why she didn’t seek a
judgment of contempt from the state court, which (if one
may judge from the Board’s hostile reaction) had been
friendly to her suit; or seek plenary judicial review of
the Board’s decision, as she had done previously. She
couldn’t actually have obtained a judgment of contempt
for violation of the settlement, however, because the
Board could not rezone without a three-fourths vote,
and the vote to rezone failed to reach that threshold.
The Risk Management Committee, a mere sliver of the
Board, could not commit the Board to rule favorably on
the applications, whatever the Agreed Order said, as
that would require the Board’s closing its collective ears
to whatever might occur at the rezoning proceeding
that might provide grounds for denial. And in fact some-
thing did occur that supported denial and may have
swung critical votes against rezoning—the Board was
10 No. 11-3452
told that the hog farmer had changed his mind and was
turning the auxiliary hog farm that abutted parcels
A through D over to his son, who would continue to
operate it. And a Board member had gone and looked at
the auxiliary farm and reported that there were 60 to
100 hogs there.
The plaintiff challenges the October 2007 denial of
her rezoning applications on three grounds. The first is
that it constituted invidious discrimination in favor of
the owners of the Fligge and Wolf Crossing parcels
and thus a denial of equal protection to a “class of one.”
(She doesn’t claim to be a member of a traditionally
discriminated-against class.) Village of Willowbrook v.
Olech, 528 U.S. 562, 563-64 (2000) (per curiam); Hilton v.
City of Wheeling, 209 F.3d 1005, 1007 (7th Cir. 2000); see
Del Marcelle v. Brown County Corp., 680 F.3d 887 (7th Cir.
2012) (en banc). The aerial photo indicates, however,
that both parcels are farther from the main hog farm
than the plaintiff’s parcels are from the auxiliary hog
farm, and anyway there was evidence before the Board
that the hogs had been removed from the main farm.
The plaintiff’s second ground of attack is that the denial
of rezoning was in retaliation for her bringing the state
court suit. The filing of a lawsuit can be an exercise of
the First Amendment right of free speech if, as in “cause”
litigation, the suit articulates public concerns. NAACP
v. Button, 371 U.S. 415, 429-30 (1963); Chicago United
Industries, Ltd. v. City of Chicago, 669 F.3d 847, 852 (7th
Cir. 2012); Glatt v. Chicago Park District, 87 F.3d 190,
193 (7th Cir. 1996); Yatvin v. Madison Metropolitan School
No. 11-3452 11
District, 840 F.2d 412, 419-20 (7th Cir. 1988). But the sole
aim of the plaintiff’s zoning suit was to enhance the
value of her property. A suit such as hers, designed to
rectify a private grievance, could however be protected
by the petition clause of the First Amendment against
retaliation. Borough of Duryea v. Guarnieri, 131 S. Ct. 2488,
2498 (2011). But there would be no need to bring the
heavy artillery of a federal lawsuit into play, because
state remedies would be entirely adequate. The Illinois
courts can take effective measures against persons, in-
cluding local government officials, in Illinois who try to
punish people who turn to those courts for relief, as the
plaintiff in this case did. Batagiannis v. West Lafayette
Community School Corp., 454 F.3d 738, 742-43 (7th Cir.
2006); Woodruff v. Mason, 542 F.3d 545, 560-61 (7th
Cir. 2008) (concurring opinion).
And in arguing retaliation she encounters an unsus-
pected obstacle: it is more difficult to prove the bad
intent of a legislative body, which is a collective, than of
an individual. Remember that a majority of the Board
voted in favor of the rezoning; they, at least, must be
exonerated from the charge of having retaliated against
the plaintiff for her state court suit. As for the others,
only two of them expressed irritation at the suit. Several
others said they wanted to protect agriculture in this
part of the county—a nonretaliatory motive for voting
against the applications. Some of the members who
voted against rezoning didn’t indicate a reason, and
as a result we don’t know whether enough votes
were motivated by a desire to retaliate to defeat the
rezoning. Finally, the refusal to rezone the parcels could
12 No. 11-3452
not be thought an irrational destruction of value
actionable as a denial of substantive due process, see,
e.g., Coniston Corp. v. Village of Hoffman Estates, 844 F.2d
461, 467 (7th Cir. 1988)—the equivalent of a taking of
property not for a public purpose.
That completes our discussion of the plaintiff’s liability
claim, but for completeness we note that her claim for
relief is flawed as well. She says that in 2007 her
parcels were worth less than $5,000 per acre zoned agri-
cultural but would have been worth more—much
more—than $25,000 per acre had they been zoned residen-
tial and that she would have sold at least some of them
then. That is a permissible theory of damages. But she
is also or alternatively seeking damages for the loss of
value she would have sustained on parcels not sold,
the loss caused by the collapse of the housing market
when the housing bubble burst and brought much of the
economy down with it, with the result that by the time
the rezoning was finally approved in 2008 her land was
worth no more for residential than for agricultural use.
The County Board was of course not responsible for
the housing bubble or its collapse. The collapse was not
foreseen. There was no way the Board could have gauged
the risk of a collapse in residential housing values, in
which case a delay in granting rezoning applications
would harm the plaintiff. Generally a tortfeasor (the
plaintiff is accusing the Board of federal constitutional
torts, for which 42 U.S.C. § 1983 creates a federal remedy)
is not liable for creating unforeseeable risks. This
principle is old. It is illustrated by Berry v. Sugar Notch
No. 11-3452 13
Borough, 43 Atl. 240 (Pa. 1899), a case in which the motor-
man of a trolley, by speeding, caused the trolley to
arrive beneath a tree at the moment the tree collapsed,
damaging the trolley. The speeding had not increased
the likelihood of such an accident, as distinct from the
likelihood of a derailment, and so imposing liability
would not have induced the trolley system to adopt
safety measures designed to avoid a future such accident.
In modern law the principle of the Berry case is
discussed in terms of the distinction between “but for”
causation (sometimes called transaction causation, and
by philosophers a necessary condition) and loss causa-
tion, and is illustrated by a case in this court analytically
identical to the present one. In Movitz v. First National
Bank, 148 F.3d 760, 763-64 (7th Cir. 1998), had it not
been for the defendant’s negligence, the plaintiff
would not have found himself owning a building when
a disastrous downturn in the local real estate market
greatly reduced the building’s value. But the defendant
bore no responsibility for that downturn, and hence,
we held, it was not liable for the reduction in value.
“But for” causation or transaction causation refers
to acts of the defendant that cause the plaintiff to be in
the wrong place at the wrong time, and loss causation to
acts, which can be of someone or something else, that
made it the wrong place at the wrong time. The Board’s
delay in granting the applications to rezone resulted in
the plaintiff’s properties being rezoned at a time when
residential zoning had lost its value. But it had lost its
value for reasons unrelated to anything the Board
14 No. 11-3452
had ever done, and for that loss the Board could not be
held liable.
A FFIRMED.
10-17-12