7421 W. 100th Place Corp. v. Village of Bridgeview
MEMORANDUM Opinion and Order Signed by the Honorable John Robert Blakey on 3/24/2017. Mailed notice(gel, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
7421 WEST 100TH PLACE CORP.,
VILLAGE OF BRIDGEVIEW,
Case No. 13-cv-4336
Judge John Robert Blakey
MEMORANDUM OPINION AND ORDER
Under the well-settled standards applicable here and set forth at length in
this Court’s prior rulings, Defendant’s Motion for Summary Judgment on the
Constitutionality of Ordinance No. 05-11 and on Damages  is denied. In the
Court’s prior ruling on the parties’ initial motions for summary judgment, the Court
held that the record, at that time, left “too many factual questions unanswered” for
the Court to determine whether District I-2A provides a “reasonable opportunity” to
disseminate adult speech. Mem. Op. and Order  22. Specifically, the Court
pointed to multiple factual disputes regarding parcels identified by Defendant as
“Parcel 20” and “Parcel 9.” Id. at 20-22.
In the prior ruling on Plaintiff’s motion to reconsider, this Court reiterated
that the issue of whether an adult use zoning ordinance allows for reasonable
alternative channels of communication “is necessarily fact-intensive,” “requires an
evaluation of multiple factors,” and ultimately “must be resolved on a case-by-case
basis.” Mem. Op. and Order  3 (internal citations and quotations omitted).
This Court concluded that Plaintiff’s newly discovered evidence did not alter its
conclusion that genuine issues of material fact remained. Id.
Admittedly, Defendant’s renewed Motion for Summary Judgment on the
Constitutionality of Ordinance 05-11 and on Damages  goes far in answering
many of this Court’s outstanding questions, at least as they pertain to this
particular issue. For example, Defendant provides substantial evidence on the size,
accessibility, and divisibility of the parcels in question, as well as the particular
functions of the nearby Muslim American Society. Plaintiff’s attempts to rebut this
evidence are largely ineffective.
At the same time, however, Defendant’s submissions introduce and confirm
uncertainty in other probative areas.
To satisfy even intermediate scrutiny,
Ordinance No. 05-11 must not only allow for reasonable alternative channels of
communication, but also be narrowly tailored.
See R.V.S., L.L.C. v. City of
Rockford, 361 F.3d 402, 410 (7th Cir. 2004). In its original summary judgment
ruling (incorporated herein by reference), this Court noted that “an underinclusive
regulatory scheme is not narrowly tailored.” Mem. Op. and Order  14 (quoting
Joelner v. Village of Washington Park, Illinois, 508 F.3d 427, 430 (7th Cir. 2007), as
am. on denial of reh’g (Apr. 3, 2008)).
In the same ruling, this Court, in a footnote, stated that based upon its
review of the record at that time, it appeared that the current location of PoleKatz
Gentleman’s Club satisfied the zoning and location restrictions of Ordinance No. 0511. Id. at 4 n. 4 (citing Defendant’s Local Rule 56.1 Statement of Undisputed Facts
 Ex. Y). This inference was based on the original report from Defendant’s
expert, which placed PoleKatz on the right (i.e. eastern) half of the dual-business
structure located at 7335 West 100th Place. Def.’s Local Rule 56.1 Statement of
Undisputed Facts  Ex. Y at 5 (stating “Polekatz Building (right-half)”)
This placement ostensibly put PoleKatz outside the 500-foot
residential buffer mandated by Ordinance No. 05-11 (as well as all other location
restrictions described in the Ordinance). See id. at 5 (figure shows PoleKatz outside
of all relevant buffer zones).
Consequently, PoleKatz’s nonconforming use
exemption seemingly did not apply.
Defendant’s renewed motion, however, includes a supplemental expert
report. Def.’s Local Rule 56.1 Statement of Undisputed Facts  Ex. D. This
report places PoleKatz on the left (i.e. western) half of the dual-business structure
located at 7335 West 100th Place. Id. at 2 (stating that the “portion of Parcel 12
actually used by Polekatz is the western-most half of the building”) (emphasis
added). This placement appears to put PoleKatz within the 500-foot residential
buffer. See id. at 3 (figure shows PoleKatz within 500-foot buffer). If this in fact the
case, then PoleKatz’s noncomforming use exemption, and by extension, the issue of
whether Ordinance 05-11 is narrowly tailored, remains in play (at least as its
residential buffer requirement).
As a final note, given the record and the remaining uncertainty as to liability,
this Court also declines to grant Defendant summary judgment as to damages. In
its motion, Defendant devotes substantial effort to contesting the lawful extent of
Plaintiff’s damages, particularly as they relate to lost profits. The Court agrees
that, as a general principle, Plaintiff must establish lost profits with “reasonable
certainty.” TAS Distrib. Co. v. Cummins Engine Co., 491 F.3d 625, 631 (7th Cir.
Whether Plaintiff satisfies this burden at trial remains to be seen.
Defendant fails to show, however, that Plaintiff will not be entitled to any damages
should liability be decided in its favor. For example, the issue of lost profits aside,
Defendant appears to acknowledge that Plaintiff at least paid application fees for
his failed attempts to establish an adult cabaret. Def.’s Mem. Supp. Mot. Dismiss
 3. Defendant’s renewed motion does not undermine the legitimacy of these
actual damages. Moreover, “when a party establishes that it is entitled to damages
but fails to prove the amount of those damages to a reasonable degree of certainty,”
nominal damages are still recoverable. TAS, 491 F.3d at 632.
In sum, as this Court has previously noted time and again, many genuine
issues of material fact exist and they preclude the granting of Defendant’s motion
for summary judgment—on liability or damages—as a matter of law. Therefore,
Defendant’s Motion for Summary Judgment on the Constitutionality of Ordinance
No. 05-11 and on Damages  is denied. The pretrial conference scheduled for
March 27, 2017 stands.
Dated: March 27, 2017
John Robert Blakey
United States District Judge
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