# Rowell Chemical Corp. v. Village of Willow Springs

> District Court, N.D. Illinois · April 24, 2019

URL: https://www.frixlaw.com/law-library/cases/10140630

## Case

- **Court:** District Court, N.D. Illinois
- **Decided:** April 24, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10140630

## How later opinions describe it (automated extraction)

- finding when a claim is not ripe, a court lacks subject matter jurisdiction
- finding distinction between facial and as-applied challenges informs available remedy

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ROWELL-CHEMICAL CORP. and )
GARDNER-GIBSON TERMINAL, LLC, )
)
Plaintiffs, )
) No. 18 C 1829
v. )
) Judge Sara L. Ellis
VILLAGE OF WILLOW SPRINGS, )
a municipal corporation, )
)
Defendants. )

OPINION AND ORDER

After the Village of Willow Springs (the “Village”) passed Ordinance Number 2017–O–
41 (the “Ordinance”), Rowell-Chemical Corp. and Gardner-Gibson Terminal, LLC (collectively,
“Rowell”) filed the first amended complaint (“FAC”) challenging the Ordinance. Rowell claims
a violation of substantive due process (Count I), seeks a declaratory judgment that the Ordinance
does not apply to its business (Count II), and challenges the nonconforming use provisions of the
Village Code as unconstitutionally vague (Count III). The Village moves to dismiss for lack of
subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and failure to state a
claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). In the
alternative, the Village moves the Court to abstain under the Pullman abstention doctrine.
Because Rowell does not need to exhaust its administrative remedies prior to bringing a facial
challenge to the Ordinance, the Court denies the Village’s motion to dismiss for lack of ripeness.
The Court, sua sponte, dismisses Count II for lack of redressability. Because this case involves
substantial uncertainty of a local ordinance, and a state court’s determination of the applicability
of the Ordinance to Rowell could moot Rowell’s federal constitutionality claim, the Court
chooses to exercise its right to abstain under Pullman pending a state court decision regarding
the applicability of the Ordinance to Rowell’s business.
BACKGROUND1
Since 2009, Rowell has operated an asphalt storage and distribution business in the

Village at 10100 South Archer Ave., Willow Springs, Illinois (the “Distribution Terminal”),
which is within the L-1 Light Industrial District (“L-1 District”) with the consent and
endorsement of the Village. Title 9A, Chapter 7A, Section 6 of the Village Code does not permit
asphalt processing plants to operate in the L-1 District; however, Section 3 permits warehouses
and storage facilities. Rowell does not process asphalt; it simply stores and distributes asphalt.
Over the years, Rowell has applied for and received various permits and licenses from the
Village to expand its asphalt storage business. This expansion included building new storage
tanks, containment dikes, rail spurs, and heating facilities, among various other things. For
instance, in November 2015, Rowell applied for a building permit to construct two additional
asphalt storage tanks, and the Village approved Rowell’s application. In April 2016, Rowell

applied to build two more asphalt storage tanks. The Village again approved Rowell’s
application. Finally, in December 2017, Rowell applied for and again received a building permit
to construct two additional asphalt storage tanks.
On December 5, 2017, the Village Planning and Zoning Commission recommended that
the Board of Trustees (the “Board”) amend Chapter 7A to prohibit the establishment of asphalt
transfer stations, asphalt storage, asphalt processing, asphalt distribution and asphalt mixing
plants within the L-1 District because of alleged odors emanating from Rowell’s Distribution

1 The facts in the background section are taken from Rowell’s first amended FAC and are presumed true
for the purpose of resolving the Village’s motion to dismiss. See Virnich v. Vorwald, 664 F.3d 206, 212
(7th Cir. 2011); Local 15, Int’l Bhd. of Elec. Workers, AFL-CIO v. Exelon Corp., 495 F.3d 779, 782 (7th
Cir. 2007).
Terminal. On December 14, 2017, the president and Board of the Village enacted the Ordinance.
The Ordinance amended Chapter 7A, Section 6 to prohibit more than just asphalt plants,
extending the list of prohibited uses to “asphalt transfer stations, asphalt storage, asphalt
processing, asphalt distribution and asphalt mixing” in the L-1 District. Doc. 1-2 at 3–4. A

member of the Board stated that the intent of the Ordinance was to revoke Rowell’s business
license from the Village. However, just a week later, on December 21, 2017, the Village
approved Rowell’s building permit application for yet two more asphalt storage tanks. The
Village has yet to take any enforcement action against Rowell regarding the Ordinance.
LEGAL STANDARD
A motion to dismiss under Rule 12(b)(1) challenges the Court’s subject matter
jurisdiction. Fed. R. Civ. P. 12(b)(1). The party asserting jurisdiction has the burden of proof.
United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir. 2003), overruled on
other grounds by Minn-Chem, Inc. v. Agrium, Inc., 683 F.3d 845 (7th Cir. 2012). The standard
of review for a Rule 12(b)(1) motion to dismiss depends on the purpose of the motion. Apex

Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443–44 (7th Cir. 2009). If a defendant
challenges the sufficiency of the allegations regarding subject matter jurisdiction (a facial
challenge), the Court must accept all well-pleaded factual allegations as true and draw all
reasonable inferences in the plaintiff’s favor. See id.; United Phosphorus, 322 F.3d at 946. If,
however, the defendant denies or controverts the truth of the jurisdictional allegations (a factual
challenge), the Court may look beyond the pleadings and view any competent proof submitted
by the parties to determine if the plaintiff has established jurisdiction by a preponderance of the
evidence. See Apex Digital, 572 F.3d at 443–44; Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d
536, 543 (7th Cir. 2006).
A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not
its merits. Fed. R. Civ. P. 12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir.
1990). In considering a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well-
pleaded facts in the plaintiff’s complaint and draws all reasonable inferences from those facts in

the plaintiff’s favor. AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011). To survive
a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of a
claim’s basis but must also be facially plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct.
1937, 173 L. Ed. 2d 868 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.
Ct. 1955, 167 L. Ed. 2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S. at 678.
ANALYSIS
I. Subject Matter Jurisdiction
First, the Village argues that the Court should dismiss Rowell’s claims for lack of subject

matter jurisdiction because Rowell makes an unripe as-applied takings claim disguised as a due
process challenge to the Ordinance and has not exhausted its state law remedies under the
Williamson ripeness doctrine. Williamson County Reg’l Planning Comm’n v. Hamilton Bank of
Johnson City, 473 U.S. 172, 186, 105 S. Ct. 3108, 87 L. Ed. 2d 126 (1985); Flying J v. City of
New Haven, 549 F.3d 538, 544 (7th Cir. 2008) (finding when a claim is not ripe, a court lacks
subject matter jurisdiction); See Hager v. City of W. Peoria, 84 F.3d 865, 869 (7th Cir. 1996)
(“This court has applied [the Williamson] ripeness doctrine”). In response, Rowell argues that
the Williamson ripeness doctrine does not apply in this case because it makes a facial, not as-
applied, challenge to the Ordinance. See San Remo Hotel, L.P. v. City & County of San
Francisco, Cal., 545 U.S. 323, 325, 125 S. Ct. 2491, 162 L. Ed. 2d 315 (2005) (finding
petitioners were not required to ripen their facial attack on city ordinance in state court). The
Court notes that the Seventh Circuit’s recent decision in Kolton v. Frerichs clarifies that
“Williamson County has nothing to do with subject-matter jurisdiction.” 869 F.3d 532, 533 (7th

Cir. 2017). In a takings claim, Williamson requires the state court to give or deny just
compensation first, “instead of asking a federal judge to guess what a state court is likely to do.”
Id. at 535. Because the Village argues that Rowell’s claim is, in essence, an as-applied takings
claim, the Court must first determine the appropriate characterization of Rowell’s claims to see
whether Williamson applies.
As the name suggests, “an as-applied challenge represents a plaintiff’s objection to how a
particular ordinance was applied in the specific context in which the plaintiff found himself,”
whereas “a facial challenge represents the plaintiff’s claim that a specific ordinance cannot be
constitutionally applied in any context.” Napleton v. Vill. of Hinsdale, 872 N.E.2d 23, 27–28,
374 Ill. App. 3d 1098, 313 Ill. Dec. 263 (2007), aff’d, 891 N.E.2d 839, 229 Ill. 2d 296, 322 Ill.

Dec. 548 (2008). The Court could construe Rowell’s claim as an as-applied takings claim
because Rowell alleges that the stated intent of the Ordinance was to revoke its business license,
and that the enactment of the Ordinance interferes with its “right to use and enjoyment of [its]
property.” Doc. 22 ¶¶ 45, 50. Furthermore, Rowell’s FAC bases its claim on the Village’s
failure to consider the factors from La Salle National Bank of Chicago v. Cook County, 145
N.E.2d 65, 69, 12 Ill. 2d 40 (1957), which are only relevant to as-applied challenges. Napleton,
891 N.E.2d at 852 (finding La Salle factors inapplicable to facial challenges). On the other hand,
the Court could find Rowell’s claim to be a facial due process challenge primarily because
Rowell asks that the Court declare the Ordinance unconstitutional as a whole, not just in its
application to Rowell. Doc. 22 ¶ 54. Because Rowell seeks to invalidate the Ordinance in its
entirety and does not allege any actual enforcement of the Ordinance to date, it does not need to
exhaust its remedies before filing this claim. Daniels v. Area Plan Comm’n of Allen County, 306
F.3d 445, 458 (7th Cir. 2002) (finding litigants are not required to meet the Williamson ripeness

requirements for bringing a claim in federal court when solely mounting a pre-enforcement facial
challenge to the constitutionality of a statute under the Fifth Amendment). Finally, although the
Village argues that Rowell’s substantive due process is simply a takings claim in disguise and
thus still subject to Williamson, Rowell conceded that its takings claim in its original complaint
was premature; therefore, “in light of this concession, [Rowell’s] due process claims cannot
fairly be characterized as a takings claim.” Gen. Auto Serv. Station v. City of Chicago, No. 00 C
0368, 2004 WL 442636 at *5 (N.D. Ill. Mar. 9, 2004). The Court therefore views Rowell’s
claim as a facial substantive due process challenge to the Ordinance. Six Star Holdings, LLC v.
City of Milwaukee, 821 F.3d 795, 803 (7th Cir. 2016) (“[A] court may construe a challenge as
applied or facially, as appropriate.”).

The Village argues that Williamson still applies in facial challenges, directing the Court
to Northwestern University v. City of Evanston, 383 N.E.2d 964, 968, 74 Ill. 2d 80, 23 Ill. Dec.
93 (1978). However, the Court finds that this pre-Williamson case fails to support the Village’s
position because the Illinois Supreme Court specifically held “that a plaintiff who challenges the
validity of an ordinance on its face need not exhaust administrative remedies.” Id. As such,
Rowell’s claim is not subject to Williamson and Rowell need not have exhausted its
administrative remedies prior to the Court addressing this claim. The Court therefore denies the
Village’s motion to dismiss for lack of ripeness and subject matter jurisdiction.
Although the Village focuses its motion to dismiss on ripeness grounds on Count I, the
Court notes that Count II requests an as-applied declaration. Because the Court construes
Rowell’s claims as facial challenges and the Court is unable to grant as-applied relief to a facial
challenge, the Court dismisses Count II, sua sponte, for lack of redressability. Spokeo, Inc. v.

Robins, -- U.S. --, 136 S. Ct. 1540, 1547, 194 L. Ed. 2d 635 (2016) (finding a court’s ability to
redress plaintiff’s injury necessary for standing); Metallgesellschaft AG v. Sumitomo Corp. of
America, 325 F.3d 836, 842 (7th Cir. 2003) (“It is true, of course, that a district court may
dismiss a case sua sponte for lack of Article III standing”); Six Star Holdings, 821 F.3d at 803
(finding distinction between facial and as-applied challenges informs available remedy).
II. Failure to State a Claim
Next, the Village argues that Rowell fails to state a claim because it has not pleaded
exhaustion of remedies. However, because the Court finds that Rowell’s facial challenge is not
subject to Williamson, Rowell does not need to plead exhaustion. Daniels, 306 F.3d at 458
(finding litigants are not required to meet the Williamson ripeness requirements for bringing a

claim in federal court when solely mounting a pre-enforcement facial challenge to the
constitutionality of a statute under the Fifth Amendment). The Court denies the Village’s motion
for failure to state a claim on exhaustion grounds.2

2 Although the Village has not raised any other basis for dismissal for failure to state a claim, the Court
notes that the applicable standard in facial challenges is the rational basis test. Napleton, 897 N.E.2d at
853 (finding facial challenges are reviewed under the rational basis test). Indeed, “a plaintiff bears a very
heavy burden in a substantive due process action attacking a decision of local zoning officials.” Polenz v.
Parrott, 883 F.2d 551, 558 (7th Cir. 1989). Rowell must show that (1) the decision was arbitrary and
irrational, and (2) either a separate constitutional violation or the inadequacy of state law remedies. Id. at
558–59. The Court questions whether Rowell has sufficiently alleged these facts or would be able to
establish them going forward but the Village has not moved the Court to dismiss for failure to state a
claim on these grounds, so the Court does not reach a decision on this issue.
III. Pullman Doctrine
Finally, the Village moves the Court to exercise Pullman abstention. R.R. Comm’n of
Texas v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941). “Pullman abstention is
warranted only when (1) there is substantial uncertainty as to the meaning of the state law and

(2) there exists a reasonable probability that the state court’s clarification of state law might
obviate the need for a federal constitutional ruling.” Int’l Coll. of Surgeons v. City of Chicago,
153 F.3d 356, 365 (7th Cir. 1998). The parties agree that there is substantial uncertainty
regarding the Ordinance and the nonconforming use provisions of the Village Code. See Doc. 24
at 10–11; Doc. 27 at 15. As for a state court’s ability to address the issue, the Court
acknowledges that “if a statute is attacked as being excessively vague on its face, meaning that it
is susceptible of being misapplied in a variety of possible situations, the state court is unlikely to
be able to give it an interpretation that will prevent any of these possible misapplications, so
probably abstention would not enable the constitutional issue to be avoided.” Waldron v.
McAtee, 723 F.2d 1348, 1354–55 (7th Cir. 1983) (emphasis in original). However, like in

Waldron, the Ordinance is narrow in scope, limited just to asphalt related operations, and
therefore “the task for the state court is much more limited.” Id. at 1355. Rowell’s facial
challenge “will be moot if the ordinance turns out not to be applicable to [Rowell];” likewise,
Rowell’s vagueness challenge to the nonconforming use provisions will be moot if the
Ordinance is applicable to Rowell. Id. Like Waldron, then, the Court finds that this is a good
case for abstention. A state court could decide whether the Ordinance, and by extension, the
nonconforming use provisions of the Village Code, apply to Rowell and moot the need for a
federal determination of the constitutionality of the Ordinance or the Village Code. Id. (“If the
state court holds the ordinance inapplicable to his conduct, his federal claim will be moot.”); Int’l
Coll. of Surgeons, 153 F.3d at 365 (“Pullman abstention operates only where ‘the resolution of a
federal constitutional question might be obviated if the state courts were given the opportunity to
interpret ambiguous state law.””) (quoting Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716-
17, 116 S. Ct. 1712, 135 L. Ed. 2d 1 (1996)). Of course, “[i]f [the state court] holds the
ordinance applicable, [Rowell] can come back to the district court for an adjudication of its
constitutionality, unless he prefers to have the state court decide the whole case.” Waldron, 723
F.2d at 1355. Because the applicability of the Ordinance to Rowell will moot one of Rowell’s
constitutional issues, the Court exercises its power under Pu//man to abstain pending a state
court ruling on the applicability of the Ordinance to Rowell.
CONCLUSION
For the foregoing reasons, the Court denies the Village’s motion to dismiss [24]. The
Court, sua sponte, dismisses Count II for lack of redressability. The Court abstains from
deciding the merits of the remaining claims pending a state court ruling on the applicability of
the Ordinance to Rowell.

Dated: April 24, 2019 Oy. NI
SARA L. ELLIS
United States District Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10140630. Public record. Not legal advice.