Akmakjian v. Village of Hoffman Estates, The

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

SAM AKMAKJIAN,

Plaintiff, No. 22 C 04023

v. Judge Thomas M. Durkin

THE VILLAGE OF HOFFMAN ESTATES,

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff Sam Akmakjian alleges Defendant Village of Hoffman Estates (the

“Village”) has denied his rezoning request in violation of his rights under the

Fourteenth Amendment and the Illinois Constitution. Akmakjian also alleges the

Village violated the Village’s Zoning Code through arbitrary and capricious conduct

and petitions the Court to issue a writ of mandamus. The Village moves to dismiss

for lack of subject matter jurisdiction and for failure to state a claim. Mot. to Dismiss,

ECF no. 15. That motion is granted because Akmakjian’s claims are not ripe for

adjudication.

LEGAL STANDARD

“It is well established that the existence of a case and controversy is a

prerequisite for the exercise of federal judicial power under Article III.” Sprint

Spectrum L.P. v. City of Carmel, Ind., 361 F.3d 998, 1002 (7th Cir. 2004). One

important requirement is that the case or controversy is “ripe” for adjudication. Id. If

a case is not ripe for purposes of Article III, the court should dismiss the case for lack

of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Biddison

v. City of Chi., 921 F.2d 724, 726 (7th Cir. 1991). In considering a motion to dismiss

for lack of subject matter jurisdiction under Rule 12(b)(1), the court must accept the

complaint’s well-pleaded factual allegations as true and draw reasonable inferences

in the plaintiff’s favor. Transit Exp., Inc. v. Ettinger, 246 F.3d 1018, 1023 (7th Cir.

2001).

BACKGROUND

Akmakjian, an Armenian-American, owns a 40,000 square foot property at

1180-1190 Apple Street in Hoffman Estates, Illinois. R. 1 ¶ 1. In the thirty years that

he has owned the property, the surrounding area has changed significantly from

largely residential to commercial. Id. Akmakjian’s property is subject to a restrictive

covenant that limits the lots in the subdivision to residential use only, yet it is abutted

on all four sides by commercial activity. Id. ¶¶ 10, 28. In 2018, Akmakjian petitioned

the Village to rezone his property from R-2 (One Family Residential) to B-2 (business

district) and to approve a proposed site plan for the development of a multi-tenant

retail/office building with a drive-thru facility. Id. ¶ 13. The Village Board denied his

application. Id. ¶ 17. In 2019, Akmakjian submitted a similar request to rezone the

property for commercial use, which the Board also denied. Id. ¶ 18. Akmakjian alleges

that Village staff told him that he should resubmit his rezoning application after the

next election. Id. ¶ 19.

In April 2022, Akmakjian sought the Village’s Planning and Zoning

Commission’s “courtesy review” of a development plan consisting of a scaled-back

one-story office building and a parking lot. Id. ¶ 20. Akmakjian alleges that during

the courtesy review, one Village Board Trustee stated, “I’ll never vote to flip these

residentials to commercial ever.” Id. ¶ 26.

Akmakjian sent a letter to the Village, requesting approval of his 2022 plan or

payment of a sum reflecting his lost economic opportunity. Id. ¶ 33. When the Village

did not respond, Akmakjian brought this suit under 42 U.S.C. § 1983, alleging

violations of the Takings Clause and Equal Protection Clause of the United States

Constitution. Id. ¶ 35. Akmakjian claims that the Village violated the Takings Clause

by declining to rezone his property as commercial, thereby depriving him of the

economically viable use of his property. Akmakjian also alleges that the Village does

not enforce the restrictive covenant limiting land to residential use on other lots and

that multiple properties in the same subdivision as his property violate the covenant.

Id. ¶¶ 29-31. He therefore alleges that the restrictive covenant is being selectively

enforced against him because of his Armenian ethnic origin in violation of the Equal

Protection Clause. Id. ¶¶ 32, 40. He also alleges violations of the Village’s Zoning

Code through arbitrary and capricious conduct and petitions the Court to issue a writ

of mandamus ordering the Village to rezone his property. The Village filed the instant

motion to dismiss, R. 15, arguing that the Court does not have subject matter

jurisdiction over Akmakjian’s claims because they are not ripe for review, and that

Akmakjian failed to state a claim.

DISCUSSION

The Takings Clause of the Fifth Amendment prohibits the government from

taking private property for public use “without just compensation.” U.S. Const.

Amend. V. A regulatory taking is a restriction on the use of property that is “so

onerous” it violates the Takings Clause without depriving the owner of all the

economic use of his property. Dyson v. City of Calumet City, 306 F. Supp. 3d 1028,

1045 (N.D. Ill. 2018). The court considers “a complex of factors” in determining

whether a regulation violates the Takings Clause. Id. at 1045-46 (citing Penn Cent.

Transp. Co. v. City of N.Y., 438 U.S. 104 (1978)).

Cases alleging violations of the Takings Clause are subject to a special ripeness

analysis. Forseth v. Vill. of Sussex, 199 F.3d 363, 368 (7th Cir. 2000). “In land use

challenges, the doctrine of ripeness 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.” Unity Ventures v. Lake Cnty., 841 F.2d

770, 774 (7th Cir. 1988) (citing Herrington v. Cnty. of Sonoma, 834 F.2d 1488, 1494

(9th Cir. 1987)). “Ripeness is, essentially, a question of timing.” Sprint Spectrum, 361

F.3d at 1002.

A claim, therefore, is not ripe until the plaintiff receives a final decision

regarding the application of the challenged regulations to the property at issue.

Williamson Cnty. Reg. Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 191-92

(1985). A decision is final when “there [is] no question . . . about how the regulation

at issue applies to the particular land in question.” Pakdel v. City & Cnty. of San

Francisco, Cal., 594 U.S. 2226, 2230 (2021). A plaintiff is required to “at least resort

to the procedure for obtaining variances and obtain a conclusive determination by the

Commission whether it would allow the proposed development, in order to ripen [his]

takings claim.” Suitum v. Tahoe Reg’l Plan. Agency, 520 U.S. 725, 737 (1997) (cleaned

up).

The Village argues that Akmakjian’s claims are not ripe because the Village

Board, which has the ultimate decision-making authority on zoning requests, has not

issued a final decision on his 2022 proposal. The Court agrees. “A final decision must

be demonstrated by a development plan submitted, considered, and rejected by the

governmental entity.” Unity Ventures, 841 F.2d at 775. Akmakjian alleges that he

sought a “courtesy review” from the Village’s Planning and Zoning Committee in

2022. R. 1 ¶ 20. But he does not allege that he submitted any formal request for his

development plan to the Village Board for consideration, or that the Village Board

made any final decision on it. The Village’s Subdivision Code provides that a courtesy

review by the Committee “shall not constitute a review by the Village Board and any

direction to proceed to development review before the [] Commission shall not be

construed as any indication of future project approval by the Village Board.” Vill. of

Hoffman Estates, Ill. Subdivision Code 10-2-2(B). Therefore, because the Village

Board has not come to a definitive position on Akmakjian’s 2022 proposed plan, there

is no final administrative action for this Court to review. See Williamson Cnty., 473

U.S. at 173 (“The administrative action must be final before it is judicially

reviewable.”); Willan v. Dane Cnty., No. 21-1617, 2021 WL 4269922 at *3 (7th Cir.

Sept. 20, 2021) (affirming the district court’s finding that claims under the Takings

and Equal Protection Clauses were not ripe where the plaintiffs did not allege that

they took the steps to obtain a zoning variance or that the county had reached a final

decision).

Akmakjian argues that the finality requirement is met because submitting his

2022 proposal to the Village Board would be futile. It is true that “[t]he final decision

requirement can be met with proof that attempts to comply would be futile.” Long

Grove Country Club Ests., Inc. v. Vill. of Long Grove, 693 F. Supp. 640, 653 (N.D. Ill.

1988). However, “mere allegations by a property owner that [he] has done everything

possible to obtain acceptance of a development proposal will not suffice to prove

futility.” Unity Ventures, 841 F.2d at 776 (cleaned up). Rather, he must at least show

that he made one meaningful application for the approval of his plan Id.

Akmakjian undercuts his own futility argument because he alleges that his

2022 redevelopment plan reconciles issues that the Village Board flagged with his

previous applications and proposes a significantly less intense development. R. 1 ¶¶

20-24. Moreover, one Village Board Trustee’s statement indicating that he would

never vote for rezoning does not indicate how the entire Board might vote. At this

point, it would be speculative for the Court to determine how the Board would vote

on Akmakjian’s 2022 application because, by Akmakjian’s own admission, it is

markedly different from the previous applications that he submitted. Akmakjian’s

claims are not ripe for adjudication and must be dismissed.

Finally, since Akmakjian’s federal claims are dismissed under the ripeness

doctrine, the Court need not analyze whether Akmakjian adequately stated a claim.

The Court further declines to exercise supplemental jurisdiction over the remaining

state law claims. Al’s Serv. Ctr. v. BP Prod. N. Am., Inc., 599 F.3d 720, 727 (7th Cir.

2010); Groce v. Eli Lilly & Co., 193 F.3d 496, 501 (7th Cir. 1999) ([I]t is well-

established law of this circuit that the usual practice is to dismiss without prejudice

state supplemental claims whenever federal claims have been dismissed prior to

trial.”).

CONCLUSION

For the foregoing reasons, the Village’s motion to dismiss (R. 15) is granted,

and Akmakjian’s case is dismissed without prejudice.

ENTERED:

Alona M Luthor.

Honorable Thomas M. Durkin

United States District Judge

Dated: February 27, 2023