Judge denies city's request to dismiss suit over weed control ordinances; response to class certification motion due Feb. 28

A federal judge will allow the owners of a Skokie inn to proceed with litigation against the City of Chicago challenging the constitutionality of the city’s weed control ordinances.

On Feb. 6, U.S. District Court Judge Charles Ronald Norgle denied the city’s motion to dismiss the suit, which had been brought in October by plaintiff Discount Inn Inc., of the 8000 block of N. Kenton Avenue in Skokie.

In his decision, Norgle declined to rule on “the merits of the case” brought by Discount Inn, saying that Discount Inn’s complaint meets the threshold requirements of judicial rules used to determine whether a case should be dismissed.

The judge wrote that the suit provides the city with “fair notice of the claims and grounds for relief, as well as plausible entitlement to relief.” He also noted the case “invokes a recognized legal theory” and “contains plausible allegations.”

Norgle’s ruling came after lawyers for the city filed a 30-page memorandum in support of its motion to dismiss, essentially responding to each of the counts spelled out in Discount Inn’s original complaint.

Represented by Wheeling attorney Ilia Usharovich, Discount Inn asserts in its suit that city ordinances limiting the height of weeds, requiring the installation of a fence around open lots and slapping hundreds of dollars in fines on landowners for each violation, go against the U.S. and Illinois constitutions, as various laws.

For instance, the inn argues that the city's fines ranging between $300 and $1,200 for not cutting weeds to required heights, or for not having a fence violates the U.S. Constitution's Eight Amendment, as the fines are “grossly disproportional” to the offense.

Likewise, Discount Inn contends the city’s enforcement tactics, which include sending workers onto private property to measure the height of the weeds, violates the Fourth Amendment, which prohibits illegal searches of private property.

Discount Inn also alleges in its complaint that the ordinances violate state laws, which it asserts prohibit the city from assessing fines of more than $750 and limit weed enforcement actions to state agencies.

In its complaint, Discount Inn asked the court to allow the suit to proceed to as a class action as it believes many others have been similarly impacted by the city’s ordinances.

The defendants have until Feb. 28 to respond to the motion for class certification and the inn has a March 14 deadline to submit its reply.

This story was updated. It previously said there was a hearing on Friday over the motion, but a docket entry posted after the story's initial publication shows the hearing was canceled and a briefing schedule was set.

The city’s attorney, Stephen R. Patton, in its now-denied motion to dismiss argued that the city’s weed control ordinances fall within its constitutional powers.

Among other reasons, the city claims its weed control ordinances and enforcement measures represent “reasonable means for the city to further its legitimate interest in controlling weeds.”

The city contends the fines, while steep, are both legal, as the “Excessive Fines Clause … is not incorporated against the states and their municipalities,” and are “reasonable” as they are needed “to deter neglect by property owners and to preserve public health, public safety, and residential values in the city’s neighborhoods.”

The fines, according to the city's request to dismiss the suit, do not run afoul of state law, because the fines, again, are “not wholly disproportionate to the offense.”

The city further claims that the Fourth Amendment prohibition against illegal searches does not apply to its steps to measure and document the heights of the weeds on Discount Inn’s property, as Discount Inn “is a corporation and does not reside on the properties and the height of weeds is in public view,” which negates any expectation of privacy.

On behalf of the city, Patton also argued state law does not preempt the city, as a home rule municipality, from regulating weeds within its borders or to impose penalties for violations.