Chicago Joe's Tea Room, LLC et al v. The Village of Broadview, et al

Filing 812

MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 9/5/19.Mailed notice(ca, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CHICAGO JOE’S TEA ROOM, LLC
and PERVIS CONWAY,

)
)
)
Plaintiffs,
)
)
v.
)
)
VILLAGE OF BROADVIEW,
)
HENRY VICENIK, FITZGERALD
)
MULLINS, JAMES JOHNSON, JR.,
)
ROBERT PAYNE, MICHAEL TYL,
)
JOHN FERGUSON, SAM D’ANZA,
)
BEVERLY KEEHM, JUDY
)
ABRAHAM, BILLY DAVIS, JUANITA )
HINTON JOHNSON, MINNIE REESE, )
and RAY DONATO,
)
)
Defendants.
)

07 C 2680
Judge John Z. Lee

MEMORANDUM OPINION AND ORDER
Plaintiffs Pervis Conway and Chicago Joe’s Tea Room, LLC (“Chicago Joe’s”) were
parties to a real-estate deal involving a plot of land in the Village of Broadview (“Broadview”)
where Chicago Joe’s intended to operate a strip club. The deal fell through when Broadview
denied Plaintiffs the necessary zoning permits. Plaintiffs brought suit in 2007 against Broadview
and a number of its employees and officials, alleging that the permit denial violated their rights to
free expression under the First Amendment. Now, over twelve years later, Broadview moves to
dismiss Plaintiffs’ complaint under Fed. R. Civ. P. 12(b)(1), asserting that Plaintiffs lack standing
to sue. For the reasons stated herein, the Court denies Broadview’s motion [765].

Background
This case has a more-than-decade-long history that includes multiple motions for summary
judgment and reconsideration. The Court presumes familiarity with the earlier orders issued and
will discuss them only insofar as they are relevant to the motion currently under consideration.
The events underlying this case began in November 2006, when Conway contracted to
sell a plot of land located in Broadview to David Donahue (who is not a party to this case) for
$1.25 million, including $30,000 up-front earnest money. See Def.’s Mem. Supp. Mot. Dismiss,
Ex. 5, Sales Contract at 1, ECF No. 762-6.1 At some point after entering into the contract, Donahue
assigned his rights in it to Chicago Joe’s. See id., Ex. 7, Correspondence from Donahue to
Conway, ECF No. 762-8; Pls.’ Resp. Opp. Mot. Dismiss, Ex. 8, Correspondence from Donahue to
Joseph Inovskis, ECF No. 788-5.2 Chicago Joe’s planned to operate a strip club on the property.
See 2016 Opinion at *1.
Two ordinances in Broadview’s Zoning Code were relevant to Chicago Joe’s plans—
Section 10-7-4(D) (the “special-use ordinance”) and Section 10-4-6(D)(11) (the “adult-business
ordinance”). See id. The subject property was zoned “Office / Industrial,” meaning that businesses
classified as “special uses”—such as restaurants, banks, animal hospitals, dry-cleaning
establishments, daycare facilities, and adult-use facilities—were required to obtain a permit under
the special-use ordinance. See Defs.’ LR 56.1(a) Stmt. Facts, Ex. 3.A, Broadview Zoning Code

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Broadview is the only remaining Defendant in this case; the Court has entered summary judgment
in favor of all the individual Defendants. See Chi. Joe’s Tea Room, LLC v. Vill. of Broadview, No. 07 C
2680, 2016 WL 1270398, at *9 (N.D. Ill. Mar. 31, 2016) (“2016 Opinion”) (entering summary judgment
in favor of Mullins, Johnson, Payne, Tyl, Ferguson, D’Anza, Keehm, Abraham, Davis, Hinton Johnson,
Reese, and Donato); Jan. 28, 2019 Order at 1, ECF No. 761 (entering summary judgment in favor of
Vicenik).
The parties dispute whether Donahue assigned his rights to Chicago Joe’s on January 16, 2007, or
December 12, 2006. This dispute is immaterial to the Court’s analysis.
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§ 10-4-4, ECF No. 25-5. This process involved attending a public hearing for the Village Board
of Trustees to determine if the special use was (1) necessary for the public convenience at the
location; (2) designed, located, and proposed to protect the public health, safety, and welfare; and
(3) not likely to cause substantial injury to property values. See Def.’s Mem. Supp. Mot. Dismiss,
Ex. 2, § 10-7-4(D), ECF No. 762-3. Additionally, the adult-use ordinance prohibited “adult
businesses” from selling, distributing, or permitting “beer or alcoholic beverages on the premises.”
Compl., Ex. C, § 10-4-6(D)(11), ECF No. 1.
On December 22, 2006, Chicago Joe’s (listed as “contract buyer”) applied for a specialuse permit, seeking permission to operate an “adult use facility” with “the ability to sell alcohol.”
See id., Ex. A, Zoning Appl. On February 28, 2007, the Broadview Planning Commission and
Zoning Board held a hearing to determine whether to grant Chicago Joe’s application. See Def.’s
Mem. Supp. Mot. Dismiss, Ex. 8, Planning Comm’n Hr’g Tr. at 1, ECF No. 762-9. The Board
voted to recommend denying the application based on the fact that Chicago Joe’s proposed use
involved the sale of alcohol, which was prohibited under the adult-business ordinance. Id. at
102:18–103:18. On March 5, 2007, the Broadview Board of Trustees voted to accept the
recommendation, and the permit was denied. See id., Ex. 9, Bd. of Trs. Meeting Record at 3, ECF
No. 762-10.
The contract between Conway and Chicago Joe’s was contingent on Chicago Joe’s
satisfying itself that “zoning and other governmental approvals” were acceptable for its intended
project and that it could obtain financing. See Sales Contract ¶ 2, id., Rider ¶ R-4. Although
Chicago Joe’s ability to invoke these contingencies had expired by the time of Broadview’s
decision, Conway and Chicago Joe’s continued to negotiate the sale and agreed to extend the
closing date to June 30, 2007.

Def.’s Mem. Supp. Mot. Dismiss, Ex. 11, Maksimovich

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Correspondence, ECF No. 762-12. Additionally, Chicago Joe’s agreed to pay an additional
$100,000 in earnest money and to increase the purchase price to $1.35 million. Id.
If the parties thought they might still be able to get zoning approval, two changes to local
and state law eliminated this possibility. First, on April 16, 2007, Broadview amended its adultbusiness ordinance to prohibit such businesses from operating within 1,000 feet of any residential
property.3 See Sept. 11, 2008 Mem. Op. & Order (“2008 Opinion”) at 5, ECF No. 67. Then, on
August 16, 2007, the Illinois legislature amended 65 Ill. Comp. Stat. 5/11-5-1.5 to prohibit the
placement of “adult entertainment facilities” “within one mile of . . . any school, day care center,
cemetery, public park, forest preserve, public housing, or place of religious worship located in that
area of Cook County outside of the City of Chicago.” 2016 Opinion at *3. It is undisputed that
the subject property falls within this prohibition. See id. at *4 (“[T]he entirety of Broadview falls
within its scope in one fashion or another.”).
The deal between Chicago Joe’s and Conway never closed, and Plaintiffs brought suit in
May 2007, seeking declaratory and injunctive relief, as well as damages.
Instead of selling the property to Chicago Joe’s, Conway entered into an “Articles of
Agreement for Deed” with Trust No. 072982, a land trust, on August 8, 2007. Def.’s Mem. Supp.
Mot. Dismiss, Ex. 4, Articles of Agreement for Deed, ECF No. 762-5. Under the agreement, Trust
No. 072982 agreed to make monthly installment payments to Conway until the purchase price of
$1.35 million was paid.4 See id. ¶¶ 1, 3. Once all the payments were made, Trust No. 072982

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That amendment has since been rescinded. See 2016 Opinion at *3.

Chicago Joe’s contends that it is the current tenant of the property under a lease agreement with
Trust No. 072982. This fact, whether true or not, is immaterial.
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would be entitled to a warranty and quitclaim deed, which would be held in trust until that time.
See id. ¶ 28.
In the meantime, this case continued, and the parties proceeded through multiple rounds of
summary judgment. In September 2008, Judge Joan B. Gottschall (who previously was assigned
to the case) declared the adult-business ordinance unconstitutional, because it restricted the time,
place, and manner of First Amendment-protected free expression without any legislative findings
as to the secondary effects of that expression. See 2008 Opinion at 24–36. In reaching that
conclusion, Judge Gottschall also held that Plaintiffs could not pursue an as-applied challenge to
the special-use ordinance because Broadview did not actually invoke the special-use ordinance’s
requirements in denying Plaintiffs’ permit. See id. at 22–24. Judge Gottschall also granted
summary judgment to Defendants as to Plaintiffs’ challenge to the vagueness and overbreadth of
Broadview’s Zoning Code, but denied summary judgment as to Plaintiffs’ facial challenge to the
special-use ordinance. See id. at 40–43; Sept. 25, 2009 Mem. Op. & Order at 6 (“2009 Opinion”),
ECF No. 125.
The case was then transferred to this Court, which concluded that the August 2007
amendment to Illinois law rendered Plaintiffs’ claims for declaratory and injunctive relief moot.
2016 Opinion at *4–7. The Seventh Circuit upheld that conclusion on appeal. See Chi. Joe’s Tea
Room, LLC v. Vill. of Broadview, 894 F.3d 807, 814–17 (7th Cir. 2018). Accordingly, Plaintiffs’
sole remaining claim is for damages from the constitutional violation identified in Judge
Gottschall’s 2008 Opinion. See 2016 Opinion at *8–9.
Legal Standards
Under Rule 12(b)(1), a defendant may move to dismiss claims over which the federal court
lacks subject-matter jurisdiction, including claims for which the parties lack standing. See Apex

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Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443 (7th Cir. 2009); Perry v. Vill. of Arlington
Heights, 186 F.3d 826, 829 (7th Cir. 1999). In ruling on a Rule 12(b)(1) motion, the Court must
accept as true all well-pleaded facts and may look beyond the jurisdictional allegations to evidence
submitted on the issue of subject-matter jurisdiction. St. John’s United Church of Christ v. City of
Chi., 502 F.3d 616, 625 (7th Cir. 2007). The Court must also draw all reasonable inferences in the
plaintiff’s favor. Id.
Analysis
Broadview contends that neither Plaintiff has standing to pursue the remaining damages
claim—Chicago Joe’s because it has never owned the subject property, and Conway because he
contracted to sell the property and was never personally invested in the plan to open a strip club.
The Court once again observes that “[t]he question of subject-matter jurisdiction here lies
close to the sometimes blurry line between standing and mootness.” Chi. Joe’s Tea Room, 894
F.3d at 812–13. Article III standing requires the plaintiff to show a “personal injury fairly traceable
to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.”
Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 678 (2016) (quoting Allen v. Wright, 468 U.S. 737,
751 (1984)). Article III “injury-in-fact” is a concrete and particularized, actual or imminent
invasion of a legally protected interest. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). “[I]f
the [litigant does] not have standing, the Court is without authority to consider the merits of the
action.” Swan v. Bd. of Educ. of City of Chi., 956 F. Supp. 2d 913, 918 (N.D. Ill. 2013). Although
a party must have standing at all stages of the litigation, “[w]hen a party with standing at the
inception of the litigation loses it due to intervening events, the inquiry is really one of mootness.”
Parvati Corp. v. City of Oak Forest, Ill., 630 F.3d 512, 516 (7th Cir. 2010). Mootness is the
“doctrine of standing set in a time frame: The requisite personal interest that must exist at the

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commencement of the litigation (standing) must continue throughout its existence (mootness).”
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000).
Here, although Broadview characterizes all of its contentions as relating to standing, it
raises arguments addressing Plaintiffs’ status with respect to the subject property at the time of the
permit denial (standing), as well as the effect subsequent developments—such as the parties’ later
negotiations and sale of the property to Trust No. 072982—have had on their relationship to the
property (mootness).
I.

Mootness
Broadview’s mootness arguments are unpersuasive. As explained in the Court’s 2016

Opinion, Plaintiffs’ only remaining claim is one for damages arising out of Broadview’s allegedly
improper denial of the special-use permit.5 See 2016 Opinion at *8–9. And such a claim, once
accrued, does not become moot based solely upon subsequent changes in the ownership rights of
the property. See Six Star Holdings, LLC, 821 F.3d at 803 (explaining that, because the plaintiff
had “already suffered an injury from the unconstitutional ordinances” by refraining from protected
speech, it had standing to seek damages); Parvati Corp., 630 F.3d at 514 (noting that damages
claims did not depend on the plaintiff’s “continued ownership of the property”); see also
Campbell-Ewald, 136 S. Ct. at 677 (“[W]hether a claim for prospective relief is moot is different
from the issue [of] claims for damages to remedy past harms.”).6 Accordingly, the principal issue

Although Judge Gottschall denied summary judgment as to Plaintiffs’ facial challenge to the
special-use ordinance, that element of Plaintiffs’ claims did not survive the Court’s 2016 Opinion. “[A]
facial challenge usually invites prospective relief, such as an injunction, whereas an as-applied challenge
invites narrower, retrospective relief, such as damages.” Six Star Holdings, LLC v. City of Milwaukee, 821
F.3d 795, 803 (7th Cir. 2016). Plaintiffs cannot pursue a challenge to the special-use ordinance where their
claims for equitable relief are moot and the special-use ordinance was not actually applied to them for
purposes of a damages claim.
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In its reply brief, Broadview makes a variety of arguments aimed at what it perceives to be
Plaintiffs’ attempt to add a claim at this late stage concerning the passage of the 2007 amendment to the

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raised by Broadview’s motion is whether either Plaintiff had standing to bring this action to begin
with—in other words, whether the permit denial caused Plaintiffs an injury-in-fact that damages
can appropriately redress.
II.

Chicago Joe’s Standing
Turning to standing, Broadview first contends that Chicago Joe’s lacked a sufficient

ownership interest in the property to obtain damages arising from the permit denial. In support,
Broadview cites two Illinois cases holding that a contract purchaser cannot apply for—or challenge
the denial of—a zoning permit. See Clark Oil & Refining Corp. v. City of Evanston, 177 N.E.2d
191, 192 (Ill. 1961); Zoeller v. Augustine, 648 N.E.2d 939, 942 (Ill. App. Ct. 1995). In both cases,
the Illinois courts explained that “[w]hen the validity of a zoning ordinance is questioned, the
plaintiff is generally the landowner whose right to use his land in an otherwise lawful manner has
been, or is in immediate danger of being, restricted by enforcement of the ordinance.” Clark Oil
& Refining Corp., 177 N.E.2d at 192; see Zoeller, 648 N.E.2d at 942 (“[O]ne must have title or a
possessory interest in subject property in order to seek to effectuate rezoning of that
property . . . . [A] contract to purchase, contingent upon rezoning of the subject property, is not a
sufficient interest to maintain a legal action[.]”). As Broadview sees it, because Chicago Joe’s
merely had a contractual right to purchase the property at the time of the permit denial (and never
did purchase it), Clark Oil and Zoeller doom Chicago Joe’s claim.
What Broadview fails to appreciate, however, is that federal standing principles are more
liberal than what is required under Illinois law. In fact, the Supreme Court has rejected the very
argument advanced by Broadview, explaining that “[s]tate law of standing . . . does not govern

Broadview Zoning Code. Broadview is correct that Plaintiffs’ remaining damages claim, which concerns
only the denial of the special-use permit that occurred prior to that amendment, does not encompass a
separate claim against Broadview for using the amendment to “target” Plaintiffs.

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such determinations in the federal courts. . . . Illinois may choose to close its courts to applicants
for rezoning unless they have an interest more direct than [a contract purchaser’s], but this choice
does not necessarily disqualify [the contract purchaser] from seeking relief in federal courts for an
asserted injury to its federal rights.” Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429
U.S. 252, 262 n.8 (1977). In Village of Arlington Heights, the Supreme Court recognized that a
contract purchaser may have standing to challenge a zoning denial if it can show any concrete
injury—whether economic or non-economic—fairly traceable to the defendant’s actions. See id.
at 262–63. In that case, the Court found that the plaintiff-contract purchaser had suffered both
economic injury in the form of expenditures made in support of its rezoning petition, as well as
non-economic injury to its goal of making “suitable low-cost housing available in areas where
such housing is scarce.” Id.
Recent cases applying Village of Arlington Heights follow a similar approach, permitting
contract purchasers to sue for constitutional violations so long as they can show some specific
harm. Toll Brothers, Inc. v. Township of Readington, 555 F.3d 131, 138–43 (3d Cir. 2009), is
instructive. There, a real-estate developer with an option to purchase a tract of land began
formulating plans to develop housing and an office park on the plot. Id. at 134–35. The township,
however, rezoned the tract in such a way to thwart the developer’s plans. Id. at 135. The developer
sued, claiming violations of its constitutional rights and alleging economic injury in the form of
lost profits and expenditures it incurred in planning the development. Id. at 135–36. The Third
Circuit, citing Village of Arlington as well as cases from the Fourth, Ninth, and Second Circuits,
concluded that an optionee such as the developer could show injury-in-fact from zoning
restrictions blocking a planned development. Id. at 138–39 (collecting cases). Furthermore, the
court concluded, the developer had established the requisite injury for standing, because it had

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“paid substantial sums in planning its proposed developments, seeking approval for its office
development, and maintaining its option.” Id. at 140. Furthermore, the court explained, the option
itself was a “valuable property right” that could be diminished by any effect on the underlying
property value occasioned by the zoning change. Id. at 141–42. After addressing the traceability
and redressability requirements in a similar fashion, the court held that the real-estate developer
had standing to sue. Id. at 143–44; see also Sullivan Props., Inc. v. City of Winter Springs, 899
F. Supp. 587, 592 (M.D. Fla. 1995) (concluding that a contract purchaser had standing to sue
because of its inability to “proceed with its proposed development of the property”).
The Court has not identified any Seventh Circuit precedent on the issue of whether a
contract purchaser has standing to challenge zoning decisions. Still, in light of Village of Arlington
Heights, the Court finds the analysis in Toll Brothers persuasive and concludes that Chicago Joe’s
contract-purchaser status does not categorically deprive it of standing. Thus, the controlling
question in this case is whether Chicago Joe’s suffered any concrete injury from Broadview’s
decision to deny it a special-use permit.7 Here, as was the case in both Arlington Heights and Toll
Brothers, Chicago Joe’s asserts that it suffered economic injury because it incurred costs in support
of its planned development and experienced lost profits. This is a sufficient injury-in-fact,
traceable to the permit denial, and redressable by a damages award. See Village of Arlington
Heights, 429 U.S. at 262; Toll Bros., 555 F.3d at 143–44; Sullivan Props., 899 F. Supp. at 592.
Broadview, however, raises a number of additional arguments worth mentioning. First,
Broadview contends that Chicago Joe’s has suffered no damages as a result of the permit denial,

Broadview, asserting that Donahue assigned his rights under the contract to Chicago Joe’s in
January 2007, contends that Chicago Joe’s cannot have standing because it was not the contract purchaser
at the time the permit application was filed in December 2006. But Chicago Joe’s had become a contract
purchaser by the time that Broadview denied the permit, which is the basis for the alleged injury.
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because its contract with Conway was contingent on financing and zoning and Chicago Joe’s could
have simply exited the contract with no adverse consequences. But, the contingent nature of the
contract does not nullify the injury Chicago Joe’s purportedly suffered as a result of the permit
denial. See 429 U.S. at 262. And, in any event, Chicago Joe’s right to void the contract based
upon these contingencies had expired by that time.
Broadview also asserts that, unlike the developer in Village of Arlington Heights, Chicago
Joe’s did not actually incur any expenditures; instead, it was Donahue who paid the earnest money
to Conway. In support, Broadview cites Donahue’s deposition, in which he testified that he had
transferred earnest money to Conway before transferring the interest in the contract to Chicago
Joe’s. See Pls.’ Resp. Opp. Mot. Dismiss, Ex. 1, Donahue Dep. at 177:21–178:21, ECF No. 7881. But Donahue further testified that Chicago Joe’s also paid earnest money after it received an
interest in the contract. See id. at 179:15-24. Moreover, even if Chicago Joe’s expended little in
advance of closing, the permit denial still “killed the deal” as the parties envisioned it, Chi. Joe’s
Tea Room, 894 F.3d at 814—leading to lost profits and a devalued contract. See Toll Bros., 555
F.3d at 141–42.8
Next, Broadview argues that any injury Chicago Joe’s did suffer is not traceable to the
permit denial, because Chicago Joe’s and Conway continued to negotiate the sale even after the
permit was denied. It is true that Chicago Joe’s and Conway extended the closing date to June
2007, and apparently neither party sued the other for breach of contract after it became clear that
the deal would not close. But the mere fact that the parties may have continued trying to salvage
the deal does not mean that the zoning denial caused no injury. The record shows that, after the

Additionally, as Plaintiffs point out, Chicago Joe’s still has a right to nominal damages for the
violation of its constitutional rights, even if economic injury cannot be shown. See Spokeo, Inc. v. Robins,
136 S. Ct. 1540, 1552 (2016).
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permit denial—which undisputedly prevented Chicago Joe’s from opening a strip club in
accordance with its plans—the parties never closed on the sale, and Chicago Joe’s never opened
its club. This is sufficient to show a “traceable” injury for purposes of standing. Whether and to
what extent intervening events or other facts may have mitigated either Plaintiff’s damages is a
question for the jury. See Abbott v. Lockheed Martin Corp., 725 F.3d 803, 808 (7th Cir. 2013)
(“Injury-in-fact for standing purposes is not the same thing as the ultimate measure of recovery.”).
Finally, Broadview argues, Chicago Joe’s cannot show injury-in-fact from the permit
denial given that it proceeded with its plans for the strip club despite the fact that the adult-business
ordinance prohibited its plans to serve alcohol. As an initial matter, the cases Broadview cites in
support of its position speak not to standing, but to the issue (previously addressed by the Court)
of whether a party can claim a vested right in a pre-amendment version of an ordinance. See, e.g.,
City of Elgin v. All Nations Worship Ctr., 860 N.E.2d 853, 858 (Ill. App. Ct. 2006) (holding that a
party cannot “acquire a vested right to conduct services in violation of [a] presumptively valid
ordinance”). These cases shed little light on the question of whether the ordinance itself has
harmed the plaintiff. On that issue, it is well-accepted that parties may sue for damages when an
unconstitutional ordinance has been applied in such a way as to cause injury, whether or not the
party “proceeded in violation” of the unconstitutional ordinance. See, e.g., Village of Arlington
Heights, 429 U.S. at 261–63 (holding that a property developer had standing to bring suit where
its contract was contingent on securing rezoning, which was denied).
Chicago Joe’s suffered an injury-in-fact when it was denied a permit to open the type of
establishment it had been planning to open, thereby severely crippling the deal between it and
Conway. This injury is traceable to Broadview’s actions and redressable by an award of damages.
Accordingly, the Court declines to dismiss Chicago Joe’s damages claim for lack of standing.

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II.

Conway’s Standing
Having concluded that Chicago Joe’s has standing to proceed on its damages claim, the

Court need not necessarily address the issue of Conway’s standing. “As long as there is at least
one individual plaintiff who has demonstrated standing . . . a court need not consider whether the
other . . . plaintiffs have standing to maintain the suit.” Chi. Joe’s Tea Room, 894 F.3d at 813
(internal quotation marks and citation omitted). Still, “even an individual plaintiff ‘bears the
burden of showing that he has standing for each type of relief sought.’” Laurens v. Volvo Cars of
N. Am., LLC, 868 F.3d 622, 625 (7th Cir. 2017) (quoting Summers v. Earth Island Inst., 555 U.S.
488, 493 (2009)). Because the only remaining issue in this case is Plaintiffs’ entitlement to
damages, the Court proceeds to determine if Conway has standing to pursue such relief.
When it comes to zoning permits, the standing of the property owner is generally assumed.
See Polenz v. Parrott, 883 F.2d 551, 556 (7th Cir. 1989) (“Because the property interest in such a
case is apparent,—it is the ownership interest in the land itself—the interest is often assumed
without discussion.”). Conway was the owner of the property at the time Broadview denied the
special-use permit. Indeed, the Seventh Circuit has already concluded that Conway had standing
by virtue of his ownership at the earlier stages of the case:
It is undisputed that Conway owned the property when Broadview denied the
application for a special-use permit . . . . The original contract between Chicago
Joe’s and Conway was contingent not on Chicago Joe’s actually obtaining zoning
approval but on its being satisfied that it could obtain that approval. Broadview’s
denial killed the deal—at least as the parties originally envisioned it. The evidence
of that result means that Conway has offered evidence of a concrete, actual injury
traceable to Broadview’s conduct . . . .
Chi. Joe’s Tea Room, 894 F.3d at 813–14. The Seventh Circuit also noted that “[d]amages based
on the abandoned sale could . . . redress Conway’s injury,” and that, although the complaint does

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not explain the nature of Conway’s damages, they appeared to be “different than the damages for
Chicago Joe’s.” Id. at 814 n.3.
Seeking to circumvent the Seventh Circuit’s analysis, Broadview argues that Conway did
not, in fact, have a sufficiently personal stake in the outcome of the permit application. In
particular, Broadview points to the fact that Conway was still able to sell the property within a
relatively short time. Furthermore, Broadview argues, during his deposition, Conway could not
identify any specific damages he had personally suffered from the permit denial. And in any event,
Broadview asserts, Conway was not personally involved in the permit application and did not care
if the permit was approved; indeed, he continued negotiating with Chicago Joe’s even after the
permit was denied.
For his part, Conway contends that he did suffer damages despite his sale of the property
to Trust No. 072982, because his Articles of Deed with the Trust allowed for payments to be made
over time rather than in one lump sum, requiring him to pay interest on his mortgage that he would
not have had to pay if he had been able to sell the property to Chicago Joe’s. Whether or not this
is the case is, again, an issue for the jury. In fact, all of Broadview’s arguments about whether
Conway suffered calculable damages go to his “ultimate measure of recovery,” and not the issue
of standing. Abbott, 725 F.3d at 808. The undisputed fact is that Broadview denied a permit
application for property owned by Conway, restricting his right to use that property or to sell it to
someone who might use it in a similar fashion. See Polenz, 883 F.3d at 556. As with Chicago
Joe’s, this injury is traceable to Broadview’s conduct and is redressable by damages to the extent
that they can be proven at trial. See Chi. Joe’s Tea Room, 894 F.3d at 813–14. Accordingly,
Broadview’s motion as to Conway is also denied.

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Conclusion
For the reasons stated herein, the Court denies Broadview’s motion to dismiss [765].

IT IS SO ORDERED.

ENTERED: 9/5/19

__________________________________
JOHN Z. LEE
United States District Judge

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