Wood River Township seeks to dismiss a local business owner’s lawsuit accusing it of causing the plaintiff’s business to flood and says he could sufficiently petition the government for relief through other means after he was allegedly banned from the township office.
The Township filed a motion to dismiss plaintiff Tim Hartweger’s lawsuit on June 14 through attorney Matthew Champlin of HeplerBroom LLC in Edwardsville.
The defendant argues that Hartweger’s complaint fails to set forth cognizable claims for relief.
The motion states that Hartweger fails to allege sufficient facts for the court to determine whether a taking occurred in his alleged Takings Clause violation. The defendants argue that temporary flooding caused by the government can be deemed a taking, but relevant factors must be carefully weighed.
“Here, plaintiff merely claims that defendant constructed and maintains a roadway, plaintiff’s business allegedly floods because of the roadway, and the water has caused ‘severe damage and inability to use the property,’” Champlin wrote.
However, the Township argues that the complaint does not include a date on which the alleged flooding occurred or the duration of the alleged flooding. The complaint also allegedly fails to state how the flooding was foreseeable, what the defendant’s alleged actions or inactions were, does not provide the type of property allegedly taken, does not assert ownership of the property, and fails to provide allegations “upon which to assess reasonable investment-backed expectation regarding the land’s use, or the severity of the alleged interference with the property.”
The defendant also argues that Hartweger fails to allege facts showing it prohibited him from petitioning the government.
“Here, plaintiff alleges that he was made to leave public property (the public counter in the Township’s building) based on his communications with public officials,” Champlin wrote. “He does not, however, set forth the alleged nature and purpose of those communications, nor does he allege that defendant prevented him from expressing his complaints in writing or over the telephone. He does not claim that he was entirely denied the right to petition the government.”
“Instead, plaintiff vaguely asserts that he was prevented from expressing unspecified grievances in person at the Township’s office on unspecified occasions,” he continued. “But the right to petition the government ‘does not include the absolute right to speak in person to officials.’”
Hartweger filed his two-count complaint in the Madison County Circuit Court on April 22 through attorney Thomas Maag of the Maag Law Firm LLC in Wood River. The Wood River Township removed the case to the U.S. District Court for the Southern District of Illinois on June 8.
According to the complaint, Hartweger operates a business in Wood River Township along a roadway constructed and maintained by the defendant. Hartweger claims that the roadway in its present condition changes the natural flow of water, causing it to flood his business. He alleges the flooding causes severe damage and the inability to use the property due to the “actual physical invasion by the water.” Hartweger claims the flooding issue constitutes a “taking,” for which he should be compensated by the defendants.
Hartweger alleges he complained to the defendant about the flooding issue, but the defendant “has a policy and practice, of not allowing plaintiff onto its property, including its public offices, to allow plaintiff to petition the government for redress of grievances.”
“That instead, under color of law, they order plaintiff to leave the otherwise public offices, in the public areas, and call the local police, to make him leave, in order to prevent plaintiff from making complaints about government service, or lack thereof,” Maag wrote.
Hartweger claims he has a right to petition for redress of grievances and to express his political opinion in a public forum.
“The policy and practice complained of, is based on the content of the communication by plaintiff,” Maag wrote, “and that the employees of defendant do not like having to deal with complaints, so they exclude plaintiff from being able to make complaints.”
Hartweger seeks $15,000 for each count in his complaint, plus court costs and attorneys’ fees.
U.S. District Court for the Southern District of Illinois case number 3:21-cv-546