Alice GUTH, Plaintiff-Appellant, v. TAZEWELL COUNTY, et al., Defendants-Appellees.
No. 11-3452.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 11, 2012. Decided Oct. 17, 2012.
580 F.3d 580
Michael Holly (argued), Attorney, Office of the States Attorney of Tazewell County, Pekin, IL, for Defendants-Appellees.
Before BAUER, POSNER, and WOOD, Circuit Judges.
The plaintiff in this suit under
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 related to the litigation are marked on the accompanying Google aerial photograph:
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,
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 recommended 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.
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 Committee, which is authorized to make binding settlements on behalf of the entire Board. See
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 component 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 homeowners 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
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 decisions,
One year after the Agreed Order was entered, the Zoning Board held the required hearing on the plaintiff‘s rezoning applications, and this time it recommended that they be approved. The County Board considered 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 objection 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 October 2007 at which her applications had again been denied.
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 something did occur that supported denial and may have swung critical votes against rezoning—the Board was 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, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (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, 83 S.Ct. 328, 9 L.Ed.2d 405 (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 Metropoli-
And in arguing retaliation she encounters an unsuspected 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 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 agricultural but would have been worth more—much more—than $25,000 per acre had they been zoned residential 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
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 causation, 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 had ever done, and for that loss the Board could not be held liable.
AFFIRMED.
William M. BLUE, Plaintiff-Appellant, v. HARTFORD LIFE & ACCIDENT INSURANCE COMPANY, Defendant-Appellee.
No. 11-3554.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 6, 2012. Decided Oct. 18, 2012.