author: JUSTICE McLAREN PRESIDING JUSTICE REINHARD,

text:
    TAMPAM, INC., Plaintiff-Appellant, v. THE PROPERTY TAX APPEAL BOARD et al., Defendants-Appellees.
    Second District
    No. 2—90—0413
    Opinion filed January 31, 1991.
    Rehearing denied March 6, 1991.

      REINHARD, P.J., dissenting.
    Thomas R. McMillen, of Litigation, Arbitration & Mediation, of Winnetka, and Law Offices of Henry S. Dixon, of Dixon (Henry S. Dixon, of counsel), for appellant.
    Roland W. Burris, Attorney General, of Springfield (Dawn Wallarab, Assistant Attorney General, and M. Thomas Suits, of counsel), for appellee Property Tax Appeal Board.
    Dennis Schumacher, State’s Attorney, of Oregon (Douglas P. Floski, Assistant State’s Attorney, of counsel), for other appellees.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiff, Tampam, Inc., appeals from an order of the circuit court which awarded attorney fees in an amount substantially less than plaintiff had requested. Plaintiff contends that the trial court erred by refusing to award attorney fees for the work performed on a claim contained in its complaint and by using a lower than requested hourly rate to calculate the fee award. We affirm.

On October 24, 1988, plaintiff filed a second amended complaint. Count I of this complaint sought injunctive and monetary relief against the supervisor of assessments for Ogle County, the treasurer of Ogle County, and Ogle County itself for the alleged violation of plaintiff’s civil rights. Count I was based on the Civil Rights Act (42 U.S.C. §1983 (1988)). Plaintiff brought suit on its own behalf and as a representative of the following class:

“All owners of farms in Ogle County, Illinois containing public roads or highways, wasteland, and other land which has been illegally and unconstitutionally assessed and taxed by defendants.”

Plaintiff alleged that its farm contained portions of roadways maintained as public roads, wasteland which makes no contribution to cropland, and fields of irregular size and shape. Plaintiff contended that the above-mentioned property was improperly assessed. Plaintiff admits that county officials exempted from taxation public roadways that encroached upon plaintiff’s farmland, but alleged that the officials did not properly calculate the width of these roadways. Therefore, plaintiff was being overassessed. Plaintiff also complained that county officials were assessing all wasteland at $5 per acre when the statute required the wasteland to be assessed in relation to its contributory value to the farmland. Plaintiff asserted that these improper taxing procedures violated the due process rights of the class, denied the class members the equal protection of the laws and were discriminatory. Plaintiff sought to recover the allegedly improper taxes that had been previously paid, to prevent defendants from collection of these taxes in the future, and to receive attorney fees, costs and expenses.

Count II of plaintiff’s second amended complaint was a petition for administrative review of a decision of the Property Tax Appeal Board. Count II is not a part of this appeal.

Prior to trial, count I was settled by a stipulation insofar as it involved taxes that were being assessed on public roads and highways that encroached on plaintiff’s farmland and land classified as wasteland. Pursuant to the stipulation, if it was determined that a portion of a public road or highway had been improperly taxed to a landowner for the year 1988 or thereafter, the amount of said tax would be refunded. Thereafter, the actual amount of a farm owner’s land consumed by roads and highways would be assessed at the rate of $0 per acre for that landowner. Additionally, the stipulation provided that the assessment of all farmland in Ogle County which was classified as wasteland would be reduced from $5 per acre to $1 per acre for the 1988 tax bills and would be assessed at $0 per acre thereafter. Plaintiff’s attorneys agreed to submit to the court their claims for fees and costs. The stipulation was approved by the court on May 2, 1989.

The issues of the assessor’s failure to assess fields on the basis of their size and shape and the alleged improper classification of certain lands such as pastures and wood lots were not settled by the stipulation. No judgment order disposing of count I was entered, and no appeal was taken from the order approving the stipulation.

Plaintiff filed a petition for attorney fees and costs. The petition sought fees for lead counsel at the rate of $190 per hour while he was employed by the Chicago firm of Bell, Boyd & Lloyd and at the rate of $150 per hour while he was a sole practitioner. The total fee request for lead counsel was $43,312 plus a 50% enhancement due to the unusual and difficult nature of the case. Plaintiff also requested fees at the rate of $95 per hour for local counsel. This fee request totaled $6,140. The total fee request amounted to $74,694.

After a hearing on the matter, the court awarded fees in the reduced amount of $16,346. This award included a 35% reduction for the time spent on the roads and highways claim. The court found that this claim was not viable as a section 1983 claim and was factually and legally distinct from the wasteland claim. The court also reduced the rate of compensation for lead counsel from $190 and $150 per hour to $95 per hour. The court also deducted an additional $3,000 from the award of fees to lead counsel and $800 from the award to local counsel to “reflect the amounts involved in the case and the results obtained.”

On March 21, 1990, the court denied plaintiffs motion to reconsider .the fee award. However, the court did award an additional sum for the preparation of the petition for fees and expenses.

Plaintiff appeals from the court’s orders on fees and expenses entered on September 27, 1989, and March 21, 1990. This appeal was made pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)).

This court issued an order asking the parties to be prepared at oral argument to cite legal authority supporting the proposition that wasteland may be granted exempt status or assessed at zero without a judgmental determination of its contributory value to the farmland parcel pursuant to section 501e. While this issue was addressed by the parties at oral argument, they did not cite statutory authority. We have determined that a resolution of this issue is not specifically required to review the case at bar. Therefore, any discussion of this issue has been omitted from this opinion.

We feel it is necessary to state expressly the limited nature of this review. This court expresses no opinion as to the propriety of the agreements made by the parties and contained in the stipulation. Additionally, this opinion is limited solely to the issues raised by the appellant and countered by the appellees. Any other issues that may appear to have arisen as a result of the procedural history of this case or the unchallenged rulings of the court will not be discussed.

Attorney fees are recoverable in a civil action pursuant to section 1988, which states: “In any action or proceeding to enforce a provision of section[] *** 1983, *** of this title, *** the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” (42 U.S.C. §1988 (1988).) The amount of the fee award rests within the discretion of the trial court. Hensley v. Eckerhart (1983), 461 U.S. 424, 437, 76 L. Ed. 2d 40, 53, 103 S. Ct. 1933, 1941.

A plaintiff seeking attorney fees under section 1988 must initially establish that he or she is the prevailing party. (Hensley, 461 U.S. at 433, 76 L. Ed. 2d at 50, 103 S. Ct. at 1939; Texas State Teachers Association v. Garland Independent School District (1989), 489 U.S. 782, 788-89, 103 L. Ed. 2d 866, 875, 109 S. Ct. 1486, 1491.) A party who prevails by way of a settlement order rather than through litigation is not precluded from claiming attorney fees as the prevailing party within the meaning of section 1988. (Maher v. Gagne (1980), 448 U.S. 122, 129, 65 L. Ed. 2d 653, 661, 100 S. Ct. 2570, 2575.) Once a party has obtained the status of a prevailing party, the court must review the circumstances presented and determine the proper amount of attorney fees to be awarded.

The starting point for determining the amount of fees to be awarded is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. (Hensley, 461 U.S. at 433, 76 L. Ed. 2d at 50, 103 S. Ct. at 1939.) This sum is known as the “lodestar.” The court may then, in its discretion, increase or decrease this lodestar amount. (Hensley, 461 U.S. at 434, 76 L. Ed. 2d at 51, 103 S. Ct. at 1940.) There are 12 factors the trial court should consider in arriving at an award of attorney fees under section 1988: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. (Johnson v. Georgia Highway Express, Inc. (5th Cir. 1974), 488 F.2d 714, 717-19.) The trial court should provide a clear and concise explanation if it chooses to cut back the number of hours spent on the case or grant less than the requested hourly rate. Tomazzoli v. Sheedy (7th Cir. 1986), 804 F.2d 93, 97.

We first review the court’s decision that the public roads chailenge was not a viable action under section 1983 and, therefore, plaintiff was not entitled to attorney fees under section 1988. The trial court stated that Ogle County’s general guideline for estimating the width of roads and highways located on plaintiff’s property to determine the appropriate exemption from taxation was nothing more than an initial assessment tool and a fair substitute for costly governmental surveys. The court found that, “[i]f Tampam’s class had a federal constitutional claim on this point, it must be as a violation of substantive or procedural due process, that taxes were imposed on exempt land, or that the guidelines and correction remedies yielded inaccurate valuations.” The trial court held that this due process challenge could not be the basis of a section 1983 action because the State of Illinois provides adequate post-deprivation remedies.

In Parratt v. Taylor (1981), 451 U.S. 527, 68 L. Ed. 2d 420, 101 S. Ct. 1908, an inmate of a State prison brought suit against prison officials for the value of certain hobby materials that were lost when normal procedures for receipt of packages were not followed. The inmate alleged a violation of section 1983 claiming he was deprived of property without due process of law. The Supreme Court held that summary judgment in favor of the prison officials was proper because the inmate had not properly alleged a violation of the due process clause of the fourteenth amendment. (Parratt, 451 U.S. at 543, 68 L. Ed. 2d at 433-34, 101 S. Ct. at 1917.) The Court stated:

“[T]he deprivation occurred as a result of the unauthorized failure of agents of the State to follow established state procedure. There is no contention that the procedures themselves are inadequate nor is there any contention that it was practicable for the State to provide a predeprivation hearing. Moreover, the State of Nebraska has provided respondent with the means by which he can receive redress for the deprivation. The State provides a remedy to persons who believe they have suffered a tortious loss at the hands of the State.” Parratt, 451 U.S. at 543, 68 L. Ed. 2d at 434, 101 S. Ct. at 1917.

Plaintiff contends that the decision in Parratt has been clarified and narrowed by the Supreme Court in Logan v. Zimmerman Brush Co. (1982), 455 U.S. 422, 71 L. Ed. 2d 265, 102 S. Ct. 1148, and Hudson v. Palmer (1984), 468 U.S. 517, 82 L. Ed. 2d 393, 104 S. Ct. 3194. Plaintiff asserts that Parratt is now limited to situations involving the State’s commission of unforeseeable acts' against an individual and does not apply to acts taken by a governmental official as a custom or practice that affect an entire class of plaintiffs. We disagree with such a narrow interpretation.

In Logan, an employee was discharged purportedly as a result of a physical handicap, and he filed a timely charge of unlawful termination with the Illinois Fair Employment Practices Commission. Pursuant to established procedure (see Ill. Rev. Stat. 1979, ch. 48, par. 858), the commission has 120 days to convene a fact-finding conference designed to obtain evidence, ascertain the positions of the parties, and explore the possibility of a negotiated settlement. However, apparently through inadvertence, the commission did not schedule the conference within the 120-day statutory term. The Illinois Supreme Court found that the running of the 120-day term without a conference deprived the commission of jurisdiction to consider the employee’s complaint. (See Zimmerman Brush Co. v. Fair Employment Practices Comm’n (1980), 82 Ill. 2d 99.) The court also determined that the employee’s due process and equal protection rights were not violated as Illinois had provided for reasonable procedures to be followed upon the filing of a complaint. Zimmerman, 82 Ill. 2d at 108.

The United States Supreme Court reversed, stating that “the State may not finally destroy a property interest without first giving the putative owner an opportunity to present his claim of entitlement.” (Logan, 455 U.S. at 434, 71 L. Ed. 2d at 276-77, 102 S. Ct. at 1157-58.) The Court distinguished Parratt by noting that in Logan it was the State system itself that destroyed a complainant’s property interest by operation of law, not a random and unauthorized act by a State employee as in Parratt. (Logan, 455 U.S. at 435-36, 71 L. Ed. 2d at 277-78, 102 S. Ct. at 1157-58.) The Court noted that the employee was challenging the established State procedure that destroys his entitlement without due process, not the commission’s error. Logan, 455 U.S. at 436, 71 L. Ed. 2d at 278, 102 S. Ct. at 1158.

In the case at bar, like in Parratt, Tampam is complaining about the acts of the State. Tampam incorrectly equates its objections to the assessor’s custom and practice of exempting only a standard width of road from the tax roll with an objection to the procedures and practices established by the State to obtain redress for the assessor’s actions. This interpretation is not warranted by existing case law.

Tampam has also misinterpreted the Supreme Court’s decision in Hudson. Hudson was concerned with whether a prison inmate had a right of privacy in his prison cell entitling him- to the protection of the fourth amendment, and whether the inmate’s due process rights were violated when certain property was destroyed during a search of his cell. The Court, stating that “the State’s action is not complete until and unless it provides or refuses to provide a suitable post-deprivation remedy,” found that the inmate’s due process rights were not violated as the State provided for an adequate post-deprivation remedy. Hudson, 468 U.S. at 534-36, 82 L. Ed. 2d at 408-09, 104 S. Ct. at 3204-05.

In Beverly Bank v. Board of Review (1983), 117 Ill. App. 3d 656, taxpayers filed suit against the Will County Board of Review alleging violations of due process and equal protection under section 1983. The plaintiffs contended that the defendant improperly increased the assessment of all industrial and commercial property. The defendant admitted that it acted under color of State statutes and the plaintiffs had been deprived of property by taxation. However, the defendant insisted there had been no denial of plaintiffs’ constitutional right to due process. The court noted that Illinois statutes provide remedies for taxpayers who seek redress for excessive taxation and a party cannot maintain that he has been deprived of due process when he has declined to pursue the remedies which the State provides. (Beverly Bank, 117 Ill. App. 3d at 662-63.) The court concluded that “the action of the board of review, though illegal under the law of Illinois, did not deprive plaintiffs of their property without due process of law because Illinois law provides additional remedies to protect taxpayers from just the sort of arbitrary action by taxing officials as had been alleged here.” Beverly Bank, 117 Ill. App. 3d at 663.

We determine that the reasoning espoused in Beverly Bank and the principles set forth by the Supreme Court in the above-cited cases are applicable to the case at bar. The State’s action of improperly calculating the width of the roads that encroach on plaintiff’s property when computing an exemption is not complete until the post-deprivation remedy established by the legislature is exhausted to plaintiff’s detriment. Plaintiff did not avail itself of the remedies established by the legislature, and, therefore, it cannot claim a violation of due process. The court was correct in finding that plaintiff’s public roads claim as alleged was not a viable due process challenge under section 1983.

Tampam claims that even if its due process claim concerning the roads issue fails, its equal protection claim on this issue should allow for attorney fees to be awarded under section 1988. Tampam cites Beverly Bank to support this position. While we note that the court in Beverly Bank did remand the issue of whether the Board of Review violated the plaintiff’s equal protection rights, this action was taken in reviewing the grant of defendants’ motion for judgment on the pleadings and dismissal. The court simply found that plaintiff had sufficiently alleged a violation of equal protection rights in its complaint. The court did not address the merits of the contention to determine if the plaintiff was entitled to attorney fees.

In the case at bar, Tampam is seeking attorney fees pursuant to section 1988 due to defendants’ violation of equal protection. As stated earlier, to recover fees under section 1988, a party must achieve prevailing party status. (See Hensley, 461 U.S. at 433, 76 L. Ed. 2d at 50, 103 S. Ct. at 1939.) To prevail in an equal protection action, the plaintiff must establish intentional or purposeful discrimination. (Roche v. County of Lake (1984), 126 Ill. App. 3d 976, 983.) A discriminatory purpose is not presumed, and there must be a showing of clear and intentional discrimination. Roche, 126 Ill. App. 3d at 983.

While Tampam did allege elements of an equal protection violation in its complaint, there is nothing in the record to show clear and intentional discrimination. The court did not make any findings that the defendants either intentionally or purposefully discriminated against Tampam, and the settlement agreement does not recite this fact. While it is true that Tampam may have stated a cause of action for violation of its equal protection rights such as was the case in Beverly Bank, it does not automatically follow that it has obtained prevailing party status on this claim and is entitled to attorney fees. We determine that the trial court was correct in finding that Tampam was not entitled to attorney fees pursuant to section 1988 for its public roads claim.

Plaintiff argues that, even if the public roads claim was not a viable section 1983 claim, it should receive attorney fees associated with this issue because it is closely related to the wasteland claim. We disagree. A complaint alleging that county officials use certain established guidelines to calculate the width of public roadways that encroach upon farm owners’ property when granting tax exemptions has nothing to do with a complaint that these same officials do not comply with statutory requirements when assessing wasteland. Evidence establishing one form of misconduct is not relevant to establishing the other form of misconduct. (See Lenard v. Argento (7th Cir. 1987), 808 F.2d 1242, 1246.) The trial court was correct in determining that the two claims were separate and distinct.

Plaintiff next claims that, even if the court was correct in eliminating the time spent on the public roads claim in calculating the fee award, the exclusion of 35% of the total time spent on the case was arbitrary, excessive and in error.

Again, we note that the determination of a reasonable attorney fee award is within the discretion of the trial court. (Hensley, 461 U.S. at 436-37, 76 L. Ed. at 52-53, 103 S. Ct. at 1941.) In Ustrak v. Fairman (7th Cir. 1988), 851 F.2d 983, 987, the court stated:

“If ever there was a case for reviewing the determinations of a trial court under a highly deferential version of the ‘abuse of discretion’ standard, it is in the matter of determining the reasonableness of the time spent by a lawyer on a particular task in a litigation in that court. Not only is the trial court in a much better position than the appellate court to make this determination, but neither the stakes nor the interest in uniform determination are so great as to justify microscopic appellate scrutiny.” (Ustrak, 851 F.2d at 987.)

A trial court should either attempt to identify specific hours that should be eliminated or simply reduce the award to account for the limited success of the plaintiff. (Texas State Teachers Association, 489 U.S. at 789-90, 103 L. Ed. 2d at 875-76, 109 S. Ct. at 1492.) While the above principles were set forth in cases where a plaintiff succeeded on some, but not all claims, we believe these principles are also applicable to situations such as the case at bar in which an award of attorney fees is available for some but not all of the claims raised.

The trial court provided this court with a clear and extremely thorough discussion of its fee award in its order. The court set forth the applicable law and arrived at the conclusion that no more than 65% of the time spent on this litigation could be reasonably attributable to the wasteland challenge and the research and proceedings through which it straddled other issues. This court is not in a position to second-guess the trial court on this determination. We determine that the trial court’s finding was not an abuse of discretion.

The remaining claim concerns the fee award granted to plaintiff as a result of the settlement of the wasteland claim. Plaintiff contends that the court erred in compensating plaintiff’s attorneys at the rate of $95 per hour. Plaintiff cites Chrapliwy v. Uniroyal, Inc. (7th Cir. 1982), 670 F.2d 760, for the proposition that an attorney’s own rate rather than the local forum rate is the proper rate to be used in computing a reasonable attorney fee award. While Chrapliwy does provide this court with considerable insight into the appropriate rate to be used by the court in awarding fees, we do not share plaintiff’s beliefs that Chrapliwy supports its position.

In Chrapliwy, the district court awarded attorney fees to prevail- ■ ing plaintiffs. However, the court used a local forum hourly rate that was lower than the rate customarily charged by the plaintiffs’ out-of-town attorneys due to the court’s belief that it was mandated by law to do so. The reviewing court reversed the decision of the district court for failure to exercise its discretion and stated:

“A judge may well approach high rates with skepticism, and he may exercise some discretion in lowering such rates.
* * *
If a high priced, out of town attorney renders services which local attorneys could do as well, and there is no other reason to have them performed by the former, then the judge, in his discretion, might allow only an hourly rate which local attorneys would have charged for the same service.
* * *
We think that a judge, in allowing an attorney’s fees under Title VII or similar statute, has discretion to question the reasonableness of an out of town attorney’s billing rate if there is reason to believe that services of equal quality were readily available at a lower charge or rate in the area where the services were to be rendered.” Chrapliwy, 670 F.2d at 767-69.

In the case at bar, the trial court expressly stated that “[mjany [attorneys] in the local bar, certainly Tampam’s experienced local counsel Nye, could have quickly boned up on the applicable facets of section 1983 litigation; few if any would have been dissuaded by controversy from taking this straight forward tax case with its federal ‘twist’.” Plaintiff claims there was nothing in the record upon which the court could have based this conclusion. While it is true that the parties had not placed anything in evidence to establish the availability of local counsel, we find that the court could arrive at this conclusion without admitting evidence of this fact. The trial judge in this case has been a member of the Ogle County judiciary and legal community for many years. It is certainly appropriate for a judge to use his background, experience and common knowledge when making a discretionary ruling. The affidavits of plaintiff’s attorneys filed in support of its motion for reconsideration are not sufficient to refute the court’s conclusion. Local counsel’s affidavit states, “[t]o the best of my knowledge, no attorneys in the Fifteenth Judicial District would have been willing to take the aforementioned case.” (Emphasis added.) Out-of-town counsel’s affidavit states, “[n]or did affiant know of any private attorney in the western part of Illinois who would take this case.” (Emphasis added.) There is no indication that either of plaintiff’s attorneys had attempted to employ or even contact a local attorney to determine if one would have been willing to take this case. Again, the court was extremely complete in its discussion of this issue, and we determine that its decision is not an abuse of discretion.

Plaintiff contends that this fee award does not even cover its attorney’s overhead cost and will only serve to dissuade competent counsel from taking important civil rights cases. Awarding attorney fees based upon the cost of providing those services has been expressly rejected by the United State Supreme Court in Blum v. Stenson (1984), 465 U.S. 886, 79 L. Ed. 2d 891, 104 S. Ct. 1541. The Court stated that reasonable fees awarded pursuant to section 1988 are to be calculated according to the prevailing market rates in the relevant community, and the policy arguments in favor of a cost-based standard should be addressed to Congress instead of the Court. (Blum, 465 U.S. at 895, 79 L. Ed. 2d at 899-900, 109 S. Ct. at 1547.) Under the specific findings of fact made in this case, the court did not err by using a local forum rate to compute attorney fees.

Plaintiffs final contention is that the court erred by reducing the award of attorney fees by an additional $3,000 for lead counsel and $800 for local counsel. The trial court reduced the award to “reflect the amounts involved in the case and the results obtained.” Any downward modification of the lodestar figure should be for one of the enumerated factors and should be expressed in a dollar amount reflecting, as best as possible, the market value associated with the specific defect. (Lynch v. City of Milwaukee (7th Cir. 1984), 747 F.2d 423, 430.) The trial court specifically stated the reason for its reduction and the dollar amount of this reduction. An abuse of discretion occurs only when no reasonable person could take the view adopted by the trial court. (Lynch, 747 F.2d at 426.) We do not find that the court abused its discretion by reducing the lodestar figures by $3,000 and $800 respectively.

For the reasons stated above, the judgment of the circuit court of Ogle County is affirmed.

Affirmed.

GEIGER, J., concurs.

PRESIDING JUSTICE REINHARD,

dissenting:

I respectfully dissent. In this case, the only issue before the trial court on plaintiff’s petition for attorney fees was the amount of attorney fees pursuant to section 1988 (42 U.S.C. §1988 (1988)), not whether the “roads claim” was a viable section 1983 action (42 U.S.C. §1983 (1988)) so as to entitle plaintiff to fees. Therefore, I would find that the denial of fees for the “roads claim” was error. Further, I would find that the trial court abused its discretion by reducing the hourly rate to the local rate and by further reducing the award to reflect the amount involved and result obtained.

Because the parties stipulated to a settlement of count I, the trial court erred in determining the viability of the “roads claim” as a section 1983 cause of action. Count I of plaintiff’s second amended complaint based on a section 1983 cause of action alleged that defendants violated the class’ federally protected rights of due process and equal protection by improperly assessing and taxing certain types of farmland, including wastelands, land containing public roads, and lands of irregular size and shapes. The stipulation for settlement of count I included, among other things, a description of the plaintiff as “[a]ll owners of farms in Ogle County, Illinois, containing public roads or highways, or wasteland, which has been illegally or unconstitutionally taxed.” (Emphasis added.) The settlement also prescribes procedures allowing class members to obtain refunds for taxes improperly collected in the year of 1988 for taxes assessed against portions of public roads on private land and thereafter assessing public roads at the rate of $0 per acre for those landowners who were improperly taxed. The stipulation for settlement also agreed that plaintiff could recover attorney fees and stated “[pjursuant to 42 U.S.C. sec. 1988, Plaintiff’s attorneys will submit to the court their claims for attorneys’ fees and costs which have been incurred in connection with this litigation or for the claims involved in it.” (Emphasis added.) Plaintiff was a prevailing party pursuant to section 1988. (See Maher v. Gagne (1980), 448 U.S. 122, 129, 65 L. Ed. 2d 653, 661, 100 S. Ct. 2570, 2575.) Defendants did not contend otherwise in the trial court. Therefore, the only issue presented to the trial court was the petition for fees.

In the hearing on the petition for attorney fees, defendants contested only the reasonableness of the fees sought by plaintiff. Specifically, defendants contested plaintiff’s request for an enhancement, certain time discrepancies, the description of the work performed, the number of hours and the rate of pay. Defendants neither in their written response to the petition for fees nor at the hearing contested the viability of the "roads claims.” From the plain language of the stipulation for settlement, it is apparent that defendants settled the section 1983 claim involving public roads and highways. Therefore, the viability of the “roads claim” as a section 1983 action was not before the trial court. The only issue before the trial court was the reasonableness of the petition for fees. Thus, the trial court erred by sua sponte in its written decision addressing for the first time the issue of the viability of the “roads claim” as a section 1983 cause of action. Accordingly, without addressing the merits of whether of the “roads claim” is a valid section 1983 action as that issue was conceded by the settlement, I dissent from that portion of the majority opinion which affirms the trial court’s decision not to award attorney fees for the “roads claim.”

I also disagree with the majority’s conclusion that the trial court properly reduced plaintiff’s attorney fees to the local rate. Although the majority correctly cites passages from Chrapliwy v. Uniroyal, Inc. (7th Cir. 1982), 670 F.2d 760, this case supports plaintiff’s contention that the trial court erred in reducing the award. In reversing the trial court’s reduction of attorney fees to the local rate, the United States Court of Appeals for the Seventh Circuit in Chrapliwy stated:

“If, however, a party does not find counsel readily available in that locality with whatever degree of skill may reasonably be required, it is reasonable that the party go elsewhere to find an attorney, and the court should make the allowance on the basis of the chosen attorney’s billing rate unless the rate customarily charged in that attorney’s locality for truly similar services is deemed to require an adjustment.” (Chrapliwy, 670 F.2d at 769.)

If a plaintiff can show he has been unable through diligent, good-faith efforts to retain local counsel, attorney fees under section 1988 are not limited to the prevailing rate in the locality where the case is tried. Avalon Cinema Corp. v. Thompson (8th Cir. 1982), 689 F.2d 137, 140-41.

Contrary to the majority’s conclusion, plaintiff employed a local counsel, Philip H. Nye, Jr., who had practiced law in Ogle County for almost 30 years. According to Nye’s affidavit:

“[N]o attorney in the Fifteenth Judicial District would have been willing to take the aforementioned case on a regular hourly fee basis much less a contingency basis because of the uncertainty of the outcome of the litigation, the time-consuming complication imposed by the filing of a class action, and of litigation involving farm real estate taxes and a new and uncontested statute. Further adding to the reluctance of local attorneys to take the case in question is the fact that it involves filing litigation against local public officials.”

Lead counsel’s affidavit states, “[n]or did affiant know of any private attorneys in the western part of Illinois who would take this case on a contingent basis because of its high risk.” I believe plaintiff adequately met his burden to show that local counsel, except for Nye, who only provided legal assistance and was unwilling to act as lead counsel, were unwilling or unavailable to handle this case. Because both attorneys knew of no other local counsel who would take this case, it would seem futile for plaintiff to attempt to hire another local counsel, as the majority suggests, when attorney Nye with nearly 30 years of experience practicing law in the county knew of no other local attorney who would handle the case.

The majority also places great reliance on the trial judge’s own opinion that many attorneys in the local bar, including attorney Nye, could have “boned up on the applicable facts of section 1983 litigation.” Not only is there no basis in the record to support that conclusion but also there is no support for the majority’s statement that the trial judge in this case had the experience and background to make such a determination. Neither does the majority cite any authority to support the proposition that the trial judge may use his own background, experience and common knowledge to refute the affidavits to the contrary filed by plaintiff on this particular issue where no such counteraffidavits are filed by defendants.

Therefore, on this record, I would conclude that the trial court abused its discretion in finding services of equal quality were available at a lower rate in Ogle County than that charged by plaintiff.

I also disagree with the majority's conclusion that the trial court properly reduced the award of attorney fees by an additional $3,000 for lead counsel and $800 for local counsel. In reducing the award by these amounts, the trial court merely stated, “[a]fter much consideration and remembering our focus on the compensable ‘wasteland claim,’ we reduce the [lead counsel’s] compensation by $3,000 and Nye’s by $800 to reflect ‘the amounts involved in the case and the results obtained.’ ” This one sentence is not a specifically stated reason, as the majority contends; rather, it is merely a conclusion by the trial court and not the reasons for the conclusion. (See Lenard v. Argento (7th Cir. 1987), 808 F.2d 1242, 1247.) The United States Supreme Court has expressly stated that a trial court must provide a concise but clear explanation of its reasons for the fee award. (Hensley v. Eckerhart (1983), 461 U.S. 424, 437, 76 L. Ed. 2d 40, 53, 103 S. Ct. 1933, 1941.) Although the trial court’s explanation is undoubtedly concise, it is not a clear explanation of its reasons.

Furthermore, the use of the phrase, “the amount involved and the results obtained,” as a factor in awarding fees under section 1988 is explained in Johnson v. Georgia Highway Express, Inc. (5th Cir. 1974), 488 F.2d 714, 718. The court in Johnson noted the rationale behind this factor and stated, “[although the Court should consider the amount of damages, *** that consideration should not obviate court scrutiny of the decision’s effect on the law. If the decision corrects across-the-board discrimination affecting a large class, *** the attorney’s fee award should reflect the relief granted.” Johnson, 488 F.2d at 718.

In this case, the trial court’s decision to reduce plaintiff’s attorney fees based on this factor is incomprehensible. Plaintiff brought a class action on behalf of all owners of farms against the taxing bodies of a predominately agricultural county to prevent the county from taxing farmlands improperly. In the settlement, defendants agreed to two procedures: first, it must reassess all wasteland in Ogle County at the rate of $1 per acre for 1988 taxes and thereafter at the rate of $0 per acre; and second, it must refund any revenue improperly collected from a landowner in Ogle County for taxes based on public roads and highways and thereafter assess the rate at $0 per acre for that landowner. Clearly, rather than providing a basis to reduce the award of attorney fees, the factor pertaining to the amount involved and the results obtained actually bolsters plaintiff’s right to an award of attorney fees.

Plaintiff prevailed in forcing defendants to reassess all wasteland on farms in an agricultural county at the rate of $0 per acre and to assess public roads and highways at the rate of $0 per acre for all landowners improperly taxed in the past. Therefore, the trial court abused its discretion by reducing the award of attorney fees for this factor.


source: Caselaw Access Project

author: JUSTICE NICKELS

license: Public Domain

text:
    LILLIAN BURRGESS KOSROW, Personal Adm’r of the Estate of Mary Ann Hoffman, Deceased, et al., Plaintiffs-Appellants, v. RONALD S. ACKER et al., Defendants (State Farm Mutual Automobile Insurance Company, Garnishee-Appellee).
    Second District
    No. 2—90—0221
    Opinion filed February 6, 1991.

      Robert J. Long, Marcia A. Korducki, and Mark B. Belokon, all of Law Offices of Robert J. Long, Ltd., of Antioch, for appellant Lillian Burrgess Kosrow.
    Peter Alfieri, Richard D. Heytow, and James A. Borrasso, all of Crystal & Heytow, of Chicago, for appellant Carl E. Robinson.
    Robin R. Lunn and Robert J. Schuckit, both of Keck, Mahin & Cate, of Chicago, for appellant Richard J. Byrne.
    James L. Rados and Robert 0. Duffy, both of Beverly, Pause, Duffy & O’Malley, of Chicago, for appellee.
   JUSTICE NICKELS

delivered the opinion of the court:

Plaintiffs-appellants, Lillian Burrgess Kosrow, Carl E. Robinson and Richard J. Byrne (estates), are the administrators of the estates of Mary Ann Hoffman, Beverly Robinson, and Colleen Byrne, three women killed in a car accident when their car was struck by one driven by defendant Ronald S. Acker. Acker admitted liability, and the estates obtained a jury verdict against Acker and against defendant Jeffrey C. Smith, the owner of the automobile driven by Acker, based on negligent entrustment of his car to Acker. The claim of negligent entrustment was framed entirely as an issue of Acker’s permissive use of Smith’s car by both parties. In response to a special interrogatory submitted by defendant Smith, the jury responded that Smith had given Acker permission, express or implied, to drive Smith’s car at the time of the accident.

Smith appealed, but judgment was not stayed pending appeal because Smith was unable to post a sufficient bond. Estates instituted garnishment proceedings against garnishee-appellee, State Farm Automobile Insurance Company (insurer), for the limit of Smith’s liability policy, which provided coverage to others driving Smith’s car with his permission.

On Smith’s appeal, this court reversed the verdict against Smith, holding that the evidence so overwhelmingly favored Smith that no contrary verdict based on the evidence could ever stand as a matter of law. Insurer sought to recoup funds placed in escrow pending appeal in partial satisfaction of the judgment. The garnishment court granted insurer’s motion and ordered the return of the funds to insurer, and estates now appeal that order asserting that, based on the jury’s answer to Smith’s special interrogatory, insurer remains bound to provide coverage to Acker despite this court’s reversal of the verdict against Smith. We affirm the holding of the garnishment court.

The facts of this case have been thoroughly discussed by this court on two previous occasions. (See, e.g., Kosrow v. Acker (1989), 188 Ill. App. 3d 778.) Further, the facts are undisputed by the parties and not at issue on this appeal. However, the events which bring the parties yet again before this court are briefly summarized to provide the backdrop against which this appeal is considered.

Acker used Smith’s car and caused the accident that resulted in the deaths of the women whose estates now appeal. Estates sued both Acker, who admitted liability, and Smith on the theory of negligent entrustment. The jury found for estates, and against both Acker and Smith, including the special finding that Smith had expressly or implicitly given Acker permission to use Smith’s car. At the close of the estates’ case and again at the close of evidence, Smith sought a directed verdict. Again, in his post-trial motion, Smith asserted that the jury’s verdict and special finding were against the manifest weight of the evidence and sought a judgment notwithstanding the verdict or, alternatively, a new trial. Smith appealed. We reversed, holding as a matter of law that the evidence so overwhelmingly favored Smith that no verdict for estates based on the evidence could ever stand and that the trial court should have granted Smith’s motion for a directed verdict.

Insurer had filed a declaratory judgment action before trial of the underlying case asserting two policy defenses. Insurer asserted that Acker, Smith’s step-uncle, was not a relative within the meaning of the insurance policy. Because Smith had not given permission to Acker to operate the car, insurer further asserted that Acker was outside the policy’s coverage of permissive users. The court ruled that Acker was not a relative, but dismissed without prejudice insurer’s claim that no permission had been given as a fact question to be decided by the jury in the pending tort action.

After a jury returned a verdict against Smith, insurer once again filed a declaratory judgment action based on its permissive use defense, which was dismissed with prejudice as estopped by the jury's verdict to the contrary. Insurer filed an appeal, which was later withdrawn without explanation.

Estates assert that by reason of the jury’s special finding, Acker became an insured within the coverage of insurer’s policy and that our holding in Kosrow v. Acker (1989), 188 Ill. App. 3d 778, is not controlling because we did not explicitly overrule the special verdict, as well as additional arguments based on waiver and estoppel. Insurer responds that our determination that the evidence so overwhelmingly favored Smith that no contrary verdict could ever stand implicitly overruled the special finding.

The purpose of special findings is to test the general verdict against the determination of the jury as to specific issues of ultimate facts. (Sommese v. Maling Brothers, Inc. (1966), 36 Ill. 2d 263.) It is presumed the jury better understood the narrowly tailored issue presented in the special interrogatory, and the special verdict is, therefore, a more accurate reflection of the jury’s determination. (First National Bank v. Szwankowski (1969), 109 Ill. App. 2d 268.) Thus, a special verdict overrides a general verdict to the extent of any clear and absolute inconsistency. (Turner v. Thompson (1981), 102 Ill. App. 3d 838; Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1108.) However, a consistent special verdict is meaningless and of no consequence. (Zitlaw v. Woszenzynski (1981), 102 Ill. App. 3d 804, 810; Brock v. Winton (1980), 82 Ill. App. 3d 1010, 1012.) When the special verdict is consistent with the general verdict, “ ‘[t]he real question is whether there is sufficient evidence to support the general verdict.’ ” (Zitlaw, 102 Ill. App. 3d at 810; quoting Brock, 82 Ill. App. 3d at 1012.) Thus, when a jury renders a special verdict consistent with its general verdict, the special verdict has no effect, and judgment is entered only on the general verdict.

In this instance, the jury’s general verdict and special verdict were completely consistent. Thus, the special verdict was. without effect. The general verdict, including our decision in Kosrow (188 Ill. App. 3d 778) that the general verdict was so totally unsupported by the evidence so as to justify a directed verdict as a matter of law (see Merlo v. Public Service Co. (1942), 381 Ill. 300), controls the fact question of driver’s permissive use of insured’s car. Estates cannot, therefore, impose liability on insurer based on driver’s permissive use of insured’s car.

The garnishment court correctly held that our decision in Kosrow controlled and ordered the estates to return the funds paid by insurer in partial satisfaction of that reversed judgment. Therefore, we need not address estates’ estoppel and waiver arguments based on the withdrawal of insurer’s appeal of the dismissal of its declaratory judgment action.

The judgment of the circuit court of Lake County is affirmed.

Affirmed.

INGLIS and BOWMAN, JJ., concur.


author: JUSTICE INGLIS

text:
    DROVERS BANK OF CHICAGO, as Trustee, Plaintiff-Appellant, v. THE VILLAGE OF HINSDALE et al., Defendants-Appellees.
    Second District
    No. 2—90—0206
    Opinion filed January 31, 1991.
    Rehearing denied March 8, 1991.

      Gary L. Taylor, of Rathje, Woodward, Dyer & Burt, of Wheaton (Tracy D. Kasson, of counsel), for appellant.
    Clifford L. Weaver, Mark E. Burkland, and Jeffrey S. McCutchan, all of Burke, Bosselman & Weaver, and William E. Ryan and Arthur N. Christie, both of Burke & Ryan, both of Chicago, for appellees.
   JUSTICE INGLIS

delivered the opinion of the court:

Plaintiff, Drovers Bank of Chicago, acting as trustee under a trust agreement known as trust No. 82158, filed a complaint against defendants, the Village of Hinsdale (Village) and its board of trustees, alleging that the Village’s denial of plaintiff’s development plan was arbitrary and capricious and violated plaintiff’s fourteenth amendment equal protection and substantive due process rights. The trial court dismissed the last two counts of plaintiff’s third amended complaint which sought damages pursuant to section 1983 of the Civil Rights Act (42 U.S.C. §1983 (1988)). Plaintiff timely appeals, and the following issues are raised: (1) whether plaintiff’s allegations are ripe for adjudication; (2) whether plaintiff sufficiently alleged a valid fourteenth amendment substantive due process claim so as to recover section 1983 damages; (3) whether plaintiff sufficiently alleged a valid fourteenth amendment equal protection claim so as to recover section 1983 damages; and (4) whether plaintiff has alleged a viable claim for damages when the complaint alleges that defendants’ ordinances are vague and indefinite. We affirm.

Because this appeal is from a dismissal order, the allegations of the complaint must be considered true for purposes of the appeal. (Fernandes v. Margolis (1990), 201 Ill. App. 3d 47, 48.) In the complaint, plaintiff alleges that it is the legal owner of one acre of real property located on the east side of York Road, approximately 400 feet north of Salt Creek. The subject realty is within zone F planned development district. On January 26, 1984, plaintiff filed with the Village an application of development for the subject realty and requested the approval of a comprehensive plan of development and the issuance of a certificate of appropriateness.

On February 13, 1984, a public hearing on plaintiff’s application was held.'At the hearing, plaintiff submitted its comprehensive plan proposing the development, construction, and operation of a two-story office building with underground and above-ground parking facilities, consisting of 30,524 square feet in office space and a total of 111 parking spaces. The Village Plan Commission (Commission) recommended that the Board of Trustees (Board) deny the application. On March 6, 1984, the Board voted to accept the recommendation of the Commission, and plaintiff’s application for approval of the comprehensive plan and the issuance of a certificate of appropriateness was denied. The Board determined that plaintiff’s proposed development exceeded the allowable intensity of use under the Village’s zoning ordinance. (Hinsdale Zoning Ordinance ch._, §10 — 5D—5 (19_).) “Intensity of use,” as defined in the ordinance, is the “proportionate amount of area of a lot which is or may be occupied by main and accessory buildings in relation to the total area of the lot.” (Hinsdale Zoning Ordinance ch._, §10 — 1—2 (19_).) “Building area” is defined as the “total of the maximum horizontal area of a building and its accessory buildings if projected to ground level.” (Hinsdale Zoning Ordinance ch._, §10 — 1—2 (19_).) The Board determined that, when the area of plaintiff’s office building, including the underground parking garage, was all projected to ground level in accordance with the regulation, the development violated the F district intensity of use standards.

On March 15, 1984, plaintiff filed its first complaint against defendants. That complaint consisted of three counts. The first two counts sought injunctive and declaratory relief, while the third count sought monetary relief under section 1983 of the Civil Rights Act. In sum, plaintiff alleged that defendants misinterpreted and misapplied the ordinance’s provisions pertaining to calculating the realty’s intensity of use. Plaintiff maintained that parking facilities, whether located at ground level or below, were not to be included in the calculation. In including them, plaintiff argues that defendants’ actions were arbitrary and capricious, thereby denying plaintiff due process and equal protection of the law under the fifth and fourteenth amendments to the United States Constitution and sections 2 and 15 of article I of the Illinois State Constitution (U.S. Const., amends. V, XIV; Ill. Const. 1970, art. I, §§2, 15). Plaintiff further alleged that defendants knew that the parking facilities should not be included in calculating intensity of use under the ordinance, but included them anyway, thus constituting a willful and intentional abuse of power and authority.

On May 22, 1984, defendants filed a motion to strike and dismiss plaintiff’s complaint, which the trial court denied. Thereafter, defendants answered the complaint and filed nine affirmative defenses to count III. Defendants then filed a motion for judgment on the pleadings. On March 14, 1986, the trial court granted defendants’ motion as to count III, finding that the civil rights claim was premature pursuant to Williamson County Regional Planning Comm’n v. Hamilton Bank (1985), 473 U.S. 172, 190, 87 L. Ed. 2d 126, 141, 105 S. Ct. 3108, 3118.

On July 30, 1987, plaintiff filed a motion for leave to file an amended complaint. Under the amendment, counts I and II were identical to counts I and II of the original complaint. Counts III through VI attacked the constitutionality of the Village’s ordinances, and count VII of the amended complaint realleged the civil rights cause of action against defendants.

On September 8, 1987, defendants filed a motion to dismiss counts III through VII of plaintiff’s amended complaint. The trial court denied defendants’ motion as to counts III through VI. However, defendants’ motion was granted as to plaintiff’s civil rights claim in count VII of the amended complaint, the court finding that it had previously been ruled upon as count III of the original complaint.

Defendants then filed answers to counts I through V of plaintiff’s amended complaint. Count VI was dismissed by the trial court as a result of a motion to reconsider filed by defendant. Plaintiff then moved for summary judgment on counts III, IV and V of the amended complaint, which the trial court denied.

On October 4, 1988, plaintiff was granted leave to file its second amended complaint. Counts I through V of the second amended complaint were identical to the first amended complaint, and counts VI through IX sought civil rights damages. Defendants filed motions to dismiss under sections 2 — 615 and 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 615, 2 — 619). On May 30, 1989, the trial court granted defendants’ motions and dismissed with prejudice counts VI through IX of plaintiff’s second amended complaint. In doing so, the court cited Coniston Corp. v. Village of Hoffman Estates (7th Cir. 1988), 844 F.2d 461, 467, and explained that “plaintiff apparently believes if it uses the magic words it can meet the constitutional test [entitling it to application of Section 1983].” The court found that the facts, as pleaded by plaintiff, were conclusory and, thus, insufficient.

After the court’s ruling, plaintiff filed a motion for leave to amend the complaint on the basis of the trial court’s statement that the facts pleaded were conclusory. The trial court granted plaintiff’s motion, and on August 8, 1989, plaintiff filed its third amended complaint. The first five counts of this complaint are the same as counts I through V of the second amended complaint. These counts basically allege that the Village’s ordinances are unconstitutional and the board of trustees misinterpreted and misapplied the ordinance provisions when calculating the subject realty’s intensity of use. Counts VI and VII of the third amended complaint allege that plaintiff’s civil rights were violated. Specifically, in count VI, plaintiff alleges that defendants’ application of the intensity of use provisions was selective in nature, not uniform, and was done for the sole purpose of defeating plaintiff’s development plan, thereby denying plaintiff its right to due process of law and equal protection. Plaintiff alleges that defendants had full knowledge that there was no basis for the delineation between below ground level parking as opposed to ground level parking in calculating intensity of use. Plaintiff further alleges that defendants knew that plaintiff’s plan fully complied with the ordinance, but nonetheless willfully misapplied the intensity of use provisions and denied plaintiff’s application. In count VII, plaintiff alleges that the applicable zoning ordinances are vague and indefinite.

On August 24, 1989, defendant filed a section 2 — 615 (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615) motion to strike and dismiss counts VI and VII of plaintiff’s third amended complaint. The trial court granted defendants’ motion and dismissed the two counts with prejudice. The trial court’s order contained a finding that, pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)), there was no just reason to delay enforcement or appeal of the order. After plaintiff’s motion for rehearing was denied by the trial court, plaintiff timely filed its notice of appeal.

We first address the issue of whether plaintiffs allegations of civil rights violations are ripe for adjudication, as resolution of this issue may dispose of the cause. The doctrine of ripeness is generally applied to land use cases in order to avoid premature adjudication or review of administrative action. (Herrington v. County of Sonoma (9th Cir. 1987), 834 F.2d 1488, amended opinion (9th Cir. 1988), 857 F.2d 567, 568.) The United States Supreme Court has held that a constitutional challenge to land use regulations is ripe when the developer has received the planning commission’s “ ‘final, definitive position regarding how it will apply the regulations at issue to the particular land in question.’ ” (Herrington, 857 F.2d at 568-69, quoting MacDonald, Sommer & Frates v. County of Yolo (1986), 477 U.S. 340, 351, 91 L. Ed. 2d 285, 296, 106 S. Ct. 2561, 2567.) In determining that a final decision exists, it must be shown, at a minimum, that there was: (1) a rejected development plan, and (2) a denial of a variance. (Herrington, 857 F.2d at 569.) However, a landowner may avoid the final decision requirement if attempts to comply with the requirement would be futile. Herrington, 857 F.2d at 569.

Plaintiff first argues that the finality requirement only applies to “taking” claims brought pursuant to the fifth amendment just compensation clause and not to fourteenth amendment substantive claims. In support, plaintiff cites to P.L.S. Partners, Women’s Medical Center of Rhode Island, Inc. v. City of Cranston (D.R.I. 1988), 696 F. Supp. 788. In P.L.S. Partners, the plaintiff corporation proposed the construction of an outpatient abortion facility. Under the municipality’s ordinances, “health care facilities,” defined in part as those facilities providing outpatient care, were automatically permitted within the specified commercial zone, while “hospitals,” defined in part as those facilities providing inpatient care, required a special use permit. (P.L.S. Partners, 696 F. Supp. at 790.) The plaintiff brought an action against the defendant municipality when it frustrated construction of the facility by requiring plaintiff to obtain a special use permit to operate as a hospital, thereby violating due process and equal protection rights of women. (P.L.S. Partners, 696 F. Supp. at 791-92.) The Rhode Island district court determined that the cause was ripe for review, despite the plaintiff’s failure to seek the special use permit, since the plaintiff’s substantive due process challenge focused exclusively on the defendant’s decision to require the permit. (P.L.S. Partners, 696 F. Supp. at 795.) The plaintiff maintained that that decision erected “artificial and gratuitous obstacles in the path of a woman’s right to obtain an abortion, thereby impinging on privacy rights.” (P.L.S. Partners, 696 F. Supp. at 796.) The court determined that because the plaintiff alleged that the act of the official infringed on some substantive, constitutional right other than one premised on the takings clause, the ripeness doctrine did not apply. P.L.S. Partners, 696 F. Supp. at 796.

Initially, we note that our research indicates that the P.L.S. Partners opinion has never been cited by any court for authority or otherwise. In fact, several circuit courts have specifically held that, regardless of whether the violation alleged is a taking without just compensation or a deprivation of due process or equal protection, the decision of a municipality is not ripe, for review unless that decision is final and definite with respect to the property at issue. (Greenbriar, Ltd. v. City of Alabaster (11th Cir. 1989), 881 F.2d 1570, 1573; Hoehne v. County of San Benito (9th Cir. 1989), 870 F.2d 529, 532; Unity Ventures v. County of Lake (7th Cir. 1988), 841 F.2d 770, 775.) The Hoehne court explained:

“[L]and-use planning is not an all-or-nothing proposition. A government entity is not required to permit a landowner to develop property to the full extent it may desire. Denial of the intensive development desired by a landowner does not preclude less intensive, but still valuable development. *** The property owner, therefore, has a high burden of proving that a final decision has been reached by the agency before it may seek compensatory or injunctive relief.” (Hoehne, 870 F.2d at 532-33.)

We agree with this line of reasoning and reject P.L.S. Partners to the extent that it holds to the contrary. Further, we are able to distinguish P.L.S. Partners in that the plaintiff in that case alleged a violation of a fundamental constitutional right outside the zoning context (i.e., the right to privacy); no such allegation has been made in the case at bar. Therefore, we find that plaintiff must sufficiently allege that defendants’ decision was final in order to avoid dismissal.

As stated above, a proper allegation of finality requires at least: (1) a rejected development plan, and (2) b denial of a variance. (Herrington, 857 F.2d at 569.) Plaintiff’s third amended complaint clearly alleges that its development plan submitted to defendants was rejected. However, nowhere in the complaint is it alleged that plaintiff ever sought a variance. In its brief to this court, plaintiff maintains that it requested a textual amendment of the ordinance which would exclude parking from the building area computation. Plaintiff maintains that this amendment was rejected by defendants. In support, plaintiff cites to the exhibits attached to defendants’ section 2 — 615 motion to dismiss plaintiff’s second amended complaint and to defendants’ memorandum in support of that motion. However, on a motion to dismiss, the court will consider only the well-pleaded facts alleged in the complaint and any exhibits attached thereto. (Dunn v. Baltimore & Ohio R.R. Co. (1989), 127 Ill. 2d 350, 372.) Because plaintiff’s complaint does not allege that a textual amendment was sought, we may not consider it so for purposes of reviewing the motion to dismiss. Even if we were to consider the proposed amendment, it is not clear that such a proposal would satisfy the variance requirement. Apparently, the amendment was proposed in conjunction with plaintiff’s application. This was the single and only time plaintiff presented its plan. We do not find these circumstances to qualify as the type of variance contemplated under the case law. (See Williamson, 473 U.S. at 187-90, 87 L. Ed. 2d at 139-41, 105 S. Gt. at 3117-18; Herrington, 857 F.2d at 569.) Further, plaintiff has not demonstrated that attempts to comply with the final decision requirement would be futile. Therefore, it is bound to show that the requirement has been met. (Herrington, 857 F.2d at 569.) We do not find that plaintiff has made such a showing. See Herrington, 857 F.2d at 569.

In arguing that it has made such a showing, plaintiff presents a bootstrap-type argument. Plaintiff maintains that counts I and II contain the necessary ripeness allegations for declaratory relief under the fourteenth amendment, and count VI, which was dismissed, alleges the same fourteenth amendment violation but seeks monetary relief. Plaintiff argues that because defendants answered counts I and II of the second amended complaint, those counts are ripe for review and thus count VI is similarly ripe. However, plaintiff cites no authority in support of its position that answered claims are automatically deemed ripe for review; therefore, that argument is waived. 134 Ill. 2d R. 341(e)(7); City of Chicago v. Cross City Disposal, Inc. (1990), 200 Ill. App. 3d 520, 524.

Plaintiff next argues that because count VI attacks the constitutionality of the ordinance on its face, the ripeness doctrine does not apply. (Bright v. City of Evanston (1956), 10 Ill. 2d 178, 184-85; Beacon Hill Farm Associates II Limited Partnership v. Loudoun County Board of Supervisors (4th Cir. 1989), 875 F.2d 1081, 1084-85.) Initially, we note that it is count VII of plaintiff’s third amended complaint which claims the facial invalidity of the ordinance, not count VI. However, it does appear that plaintiffs statement of the law is accurate. Thus, while we may consider the validity of count VII, count VI of the complaint, which alleges that the ordinance was unconstitutionally applied to plaintiff’s property, was properly dismissed.

In count VII, plaintiff argues that a viable claim for damages exists under section 1983 because the applicable ordinances are vague and indefinite. Specifically, count VII attacks certain language from the F zone and Gateway ordinances. The F zoning classification provides that proposed uses will be permitted only upon the presentation of a comprehensive plan of development. In addition, the proposed use must not:

“A. Cause undue traffic congestion or create a traffic hazard;
B. Create dangerous or objectionable elements so as to adversely affect the character or property values in the adjacent areas;
C. Impair the public health, safety, morals, convenience, comfort prosperity and other aspects of the general welfare of the community.” Hinsdale Zoning Ordinance ch. 7, §10— 7 — 1 (19_).

Plaintiff also attacks the Historic Graue Mill Gateway ordinance. Under this ordinance, a developer is to file with the Village clerk an application for a certificate of appropriateness. (Hinsdale Zoning Ordinance ch. 8, §10 — 8—5 (19_).) The application will then be referred to the Plan Commission by the Village president and Board of Trustees upon verification that the application is complete. (Hinsdale Zoning Ordinance ch. 8, §10 — 8—8 (19_).) Within 45 days of filing the application, a public hearing will be scheduled. (Hinsdale Zoning Ordinance ch. 8, §10 — 8—8 (19_).) The Commission shall consider the application, and within 15 days after the hearing is closed, the Commission shall make its decision and issue to the Village president and Board of Trustees its findings and recommendation concerning the proposed Gateway Development Plan. (Hinsdale Zoning Ordinance ch. 8, §10 — 8—9 (19_).) The president and Board may approve or disapprove the proposed plan or refer the matter back to the Commission for further consideration. (Hinsdale Zoning Ordinance ch. 8, §10 — 8—10 (19_).) If the plan is approved, the president and Board shall issue a certificate of appropriateness. Hinsdale Zoning Ordinance ch. 8, §10 — 8—10 (19-).

In its complaint, plaintiff alleges that the above ordinances are unconstitutional because they are “vague, indefinite and do not reasonably inform owners of property *** what uses will or will not be applicable but reserves said decision solely to the discretion of the Village Board.” Plaintiff argues before this court that if the ordinance is proved to be vague and overly broad, plaintiff is entitled to recover section 1983 damages and section 1988 attorney fees. (See Chalmers v. City of Los Angeles (9th Cir. 1985), 762 F.2d 753, 758; Florida Pawnbrokers & Secondhand Dealers Association, Inc. v. City of Fort Lauderdale (S.D. Fla. 1989), 711 F. Supp. 1084, 1085; Fratiello v. Mancuso (D.R.I. 1987), 653 F. Supp. 775, 792.) However, plaintiff’s complaint simply alleges a constitutional challenge, which is insufficient to withstand a motion to dismiss. (Gaines v. Lane (7th Cir. 1986), 790 F.2d 1299, 1303.) If a complaint alleges that an ordinance, on its face, is inconsistent with a specific provision of the Constitution, that complaint will be dismissed where a thoughtful reading of the ordinance convinces the trial court that it is plainly within the bounds of the Constitution. (Gaines, 790 F.2d at 1303.) In the instant case the trial court held that count VII of plaintiff’s complaint failed to state a cause of action. We agree. While the cited ordinances do give defendants discretion in approving a proposed plan, they also contain guidelines to be implemented in rendering such a decision. We do not find these to be vague or overly broad.

We reject plaintiff’s argument that count VII of the complaint cannot be dismissed because it incorporates counts III through V, which allege an action for vagueness and were not dismissed by the trial court. Counts III through V are not at issue on appeal, and we are not bound by the trial court’s decision regarding those counts. Plaintiff has cited no authority to the contrary.

For the above-stated reasons, we affirm the judgment of the circuit court.

Affirmed.

REINHARD, P.J., and NICKELS, J., concur.