arlier this month, Dr. Sam Akmakjian (“Plaintiff”) filed a civil rights lawsuit against the Village of Hoffman Estates. The suit arises over the repeated denials in zoning variances to the properties which Dr. Arkmakjian has owned for nearly thirty years on the corner of Golf Road and Apple Street. The properties include about 40,000 square feet and which currently only shelters one single family home on the property.
Plaintiff claims that in the almost three decades since he first obtained the property, the character of the surrounding community has shifted dramatically. For example, the surrounding properties had been almost exclusively zoned as residential, but today they are almost entirety commercial. According to the complaint, all of the properties to the south, north, and east of the Property are zones and operated as commercial properties. For example, there is a car wash directly adjacent to the subject property.
While the complaint does not allege that the Village has not right to enact zoning restrictions, the claim is that the Village has denied applications with no rational basis in fact or law, that there has been a multi-year effort to deprive Plaintiff of economically beneficial use of the property, and the Village has continuously selectively enforced private Declaration of Covenants and Use Restrictions. Furthermore, the Plaintiff alleges that the disparate treatment from the Village is based on Plaintiff’s Armenian ancestry.
The complaint includes certain other relevant details that help paint the picture as to why this litigation is arising. For example, the adjacent car wash has been present in the community since 1956. However, in 2016 the car wash unveiled plans to expand its current operations, Plaintiff objected to the expansion, both in writing and in person to the Village. In order to expand the car wash, Gold Car Wash, Inc. had to obtain a special use permit from the Village, this was issued by the Village despite Plaintiff’s objections. Specifically, Plaintiff objected claiming it is difficult to rent out the residential property due to the noise and debris that come out of the car wash.
Today, the two adjacent lots owned by Plaintiff on the corner only include one single family residential home. Previously, it included a second home as well. However, after a prolonged time in which Plaintiff was unable to rent the property, Plaintiff decided to bulldoze the home and leave it as a vacant lot.
As he claimed there was no viable residential use of the Property available, he asked that the Village rezone the property from residential to commercial. Within the proposal, he asked that a multi-tenant retail/office building be permitted, he also asked that a drive-thru be permitted.
After exerting significant resources to have a plan proposed to the Village in 2018, the Planning and Zoning Commission approved the proposal 8-1 in 2018. The report noted the changes in character to the surrounding character over the years and the increased commercial zoning in the surrounding areas. However, the Village Board decided to vote against the proposal.
In 2019, Plaintiff submitted a similar proposal to rezone the property to commercial. That too, was rejected by the Village. Plaintiff was advised to try again after the following municipal election.
After taking some time off on offering proposals, Plaintiff came back in 2022 with a new iteration of the plan. This time, he went to the Planning and Zoning Commission seeking a “courtesy review” of a 4,500 square foot office building, without a drive-thru or similar type of retail proposals which he had previously included. This time, Plaintiff would be the sole tenant of the office building, as it would function as a dental office. The Village staff determined that there was enough space for setbacks and buffers, and that the parking would not create a problem.
While the 2022 proposal in front of the Village was only a courtesy review, and not a binding decision, members of the Village Board allegedly offered their input as to the proposal. The complaint alleges that one of the members said “I’ll never vote to flip these residentials to commercial ever.” Additionally, the Village discussion referenced the restrictive covenants which run with the property. These covenants were created in 1959, prior to the establishment of the Village of Hoffman Estates. Furthermore, the 2018 staff report indicates that the “Village is not a party to, nor does it enforce private covenants.”
Prior to the onset, Plaintiff did send a Demand Letter in May of 2022, requesting that the 2022 Development be permitted or to pay him for the economic loss. The complaint alleges that the Vilalge did not respond.
The complaint alleges the following:
- Equal Protection Violations, under the Fourteenth Amendment to the U.S. Constitution and under Article I, Section 2 of the Illinois Constitution;
- Takings Clause Violations, under the Fifth and Fourteenth Amendments of the U.S. Constitution, and Article I, Sections 2 and 15 of the Illinois Constitution;
- Violation of Ordinance-Arbitrary and Capricious Conduct; and a
- Writ of Mandamus.
It will be particularly interesting to see if the Count under the “Takings Clause” amounts to anything. While the Takings Clause count of the complaint does not go into detail about the Village’s decision to expand the car wash previously, it would seem like this too, would help to paint the picture as to how this might amount to a regulatory taking.
The 1922 decision Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) established that a government action might amount to a regulatory taking, even in the absence of actual physical disruption of the land. However, it would surely appear to be unlikely that a refusal to allow a zoning variance from residential to commercial would amount to a regulatory taking under the Fifth Amendment, given the other factors at play it might be possible to see that a Court might rule in the Plaintiff’s favor.
An additional factor to consider as to whether the regulatory taking doctrine might be suitable here, is the fact that the 2022 proposal varied greatly from the proposals in 2018 and 2019. While those had asked for mixed-use commercial zoning, and even a drive-thru, it would seem as if an owner-occupied dental suite would be one of the easier revisions to the plan that could be sought.
While this case may make for interesting law as it plays itself out in court, perhaps the Village Board will just go back and indicate that it will approve a zoning variance should he seek one again in the future.