In the

United States Court of Appeals

For the Seventh Circuit

No. 11-3452

ALICE GUTH,

Plaintiff-Appellant,

v.

TAZEWELL COUNTY, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of Illinois.

No. 1:09-cv-1333-JES—James E. Shadid, Chief Judge.

ARGUED SEPTEMBER 11, 2012—DECIDED OCTOBER 17, 2012

Before BAUER, POSNER, and WOOD, Circuit Judges.

POSNER, Circuit Judge. The plaintiff in this suit under

42 U.S.C. § 1983 seeks damages from the governing body

of Tazewell County and from various subordinate

agencies and County officials (but we can disregard all

the defendants other than the County Board, and treat

the Board as the only defendant) for violating her constitutional rights. The district judge granted summary

judgment for the defendants.
2 No. 11-3452

The plaintiff owns five properties in a mixed rural/

suburban area in central Illinois, nine miles from

the City of Peoria and three miles from the Village of

Morton (population 16,000). She lives in a house that’s on

one of the parcels, but that parcel and the house are not

involved in the case. The other four parcels, totaling

about 190 acres and very near the house, were until

recently zoned agricultural; the parties refer to them

as parcels “A,” “B,” “C,” and “D.” All properties related to the litigation are marked on the accompanying

Google aerial photograph:
No. 11–3452                                                                                        3
4 No. 11-3452

A hog farm a few hundred feet from the house

almost abuts parcels A, C, and D. (B does not abut the

farm but can be reached only by driving past it.) The

additional properties labeled on the photo are the main

hog farm (the one adjoining A, C, and D is a satellite

facility), the Fligge parcel, and a parcel called Wolf Crossing. Both of those parcels used to be zoned agricultural,

just like A through D, but their owners persuaded

the County Board to rezone them as “rural residential”;

this was before the plaintiff succeeded in getting her

parcels rezoned. Tazewell County’s zoning code describes “rural residential” development as “development

in areas normally outside the reach of public facilities,”

Tazewell County Code, tit. 7, ch. 1, § 9(a)—in other

words, areas neither urban nor suburban in which nevertheless people can have homes without interfering

with agricultural and forestry uses. The larger of the

two properties, Wolf Crossing, is now a suburban subdivision.

In September 2004 the plaintiff asked the county’s

Zoning Board to recommend to the County Board that

parcel A be rezoned rural residential. (The rezoning

decision is made by the County Board rather than by

the Zoning Board.) The Zoning Board instead recommended that the County Board deny her application,

and the County Board, agreeing, did so the following

month. A year later the plaintiff asked the Zoning Board

to recommend that B and C be rezoned rural residential;

but again agreeing with the Zoning Board, the County

Board denied her applications.
No. 11-3452 5

The plaintiff responded to these disappointments by

suing the County Board in an Illinois state court. But on

the day, in October of the following year (2006), on which

the trial was to start, she agreed to a settlement with

the defendant, which the court entered on the court

record as an “Agreed Order.” The settlement was not

approved by the Board itself, even though it was the

defendant, but by the Board’s Risk Management Committee, which is authorized to make binding settlements on behalf of the entire Board. See 55 ILCS 5/1-6006.

The Agreed Order stated that the Board now agreed

that parcels A, B, and C—as well as parcel D, which

the plaintiff had not applied to rezone along with the

other parcels—should be rezoned rural residential. It

seems that the Board had based its earlier denial of

the plaintiff’s applications, in part at least, on the

proximity of the auxiliary hog farm, but had since

learned that the owner of the two hog farms was

planning to close them.

One might think the relevance of the hog farms to

the Board’s original decision would have been that

the plaintiff’s parcels, because of their proximity to the

hogs, were considered unsuitable for (human) residences.

Not so; the concern was not with the people who

might live on these parcels but with the hogs.

If the County Board wanted to retain a flourishing

agricultural industry in Tazewell County—as apparently

it does, for we read on its official website, “Welcome to

Tazewell County, Illinois,” www.tazewell.com (visited

Sept. 12, 2012), that “agriculture is an important compo-
6 No. 11-3452

nent of Tazewell County’s history and economy and it is

ingrained with the County’s identity and way of life.

Seventy-eight percent of the County’s land area consists

of farmland, and agriculture is poised to remain one of

the County’s defining industries”—it could not allow

unlimited residential development on land currently

zoned for agriculture. Residential development could

squeeze out agriculture long before all the agricultural

land had been bought for homes, because if the

character of the county changed from predominantly

agricultural to predominantly residential, the homeowners would have a potential claim of nuisance against

the farmers—not least the hog farmers.

It might seem that anyone who bought a home a few

hundred feet from a hog farm would not be heard to

complain about the grunts and odors emitted by the

hogs; the buyer would have been compensated by an

appropriate discount in the price of the land for the

home. But when the character of an area changes

gradually from commercial or industrial or agricultural

to residential, the homeowners, even though they

bought with knowledge of those uses of the land

adjacent to them, usually can seek to abate those uses

as private nuisances. Oehler v. Levy, 85 N.E. 271, 273 (Ill.

1908); Woods v. Khan, 420 N.E.2d 1028, 1031 (Ill. App.

1981); see Spur Industries, Inc. v. Del E. Webb Development

Co., 494 P.2d 700, 706-08 (Ariz. 1972). We say “usually”

because Illinois’s Farm Nuisance Suit Act, 740 ILCS

70/3, which has counterparts in other states, alters the

common law’s rejection of the defense of “coming to

the nuisance” by insulating farmers against nuisance
No. 11-3452 7

suits after a farm has been in operation for a year—but

with exceptions.

Allowing nuisance suits by newly arrived residents is

a sensible rule because it enables land to be put to

its highest-valued use; residential uses of land are

very often more valuable (judging by price) than nonresidential uses, such as agriculture. Sensible or not,

allowing such suits does threaten farmers, and if the

County Board wanted to preserve Tazewell County’s

agricultural industry without relying entirely on the

Farm Nuisance Suit Act, with its exceptions, this was a

reason to deny the plaintiff’s rezoning applications

even though her parcels were not at present being used

for hog farming, or indeed for anything. But this

ground for denial seemed to vanish when the owner

of the hog farms declared that he was closing the farms.

The Risk Management Committee decided there was

no longer a sound basis for resisting the plaintiff’s

state court lawsuit, and so it settled.

But although the Agreed Order stated that parcels A

through D should be rezoned for residential use, it did

not order that they be rezoned, and it could not. The

state courts have plenary power to review zoning decisions, 55 ILCS 5/5-12012.1, but no authority to rezone

property. The County Board has that authority, but

could exercise it only in accordance with the County’s

procedures for rezoning. Those procedures required a

hearing before the Zoning Board and (if a neighboring

landowner filed a formal objection) a three-fourths vote

by the County Board in favor of the rezoning, for the
8 No. 11-3452

rezoning to be approved. Tazewell County Code, tit. 7,

ch. 1, §§ 26(f)-(h).

One year after the Agreed Order was entered, the

Zoning Board held the required hearing on the plaintiff’s rezoning applications, and this time it recommended that they be approved. The County Board considered the recommendation and voted 11 to 10 in favor

of granting the applications. But because that was less

than a three-fourths majority and a formal objection had been filed, the vote resulted in the denial of

the applications. At the same meeting the Board

agreed to rezone the Fligge parcel from agricultural to

rural residential; Wolf Crossing had been rezoned

similarly earlier.

At last, the next year (2008), the Board relented and

granted the plaintiff’s applications. But by this time the

real estate market had collapsed, and her parcels were

no longer worth more zoned residential than they had

been when zoned agricultural. The plaintiff had gained

nothing from the rezoning because of the three years it

had taken her to obtain it, more precisely because of

the year’s delay after the Board’s meeting in October 2007 at which her applications had again been denied.

She argues that she was turned down at that meeting

because the Board’s members were angry with her for

having sued the Board over the previous denial of the

applications, and angry too with the state court for

having entertained that suit. At the meeting one of the

Board’s members remarked acidly that if the state court

judge wanted to do zoning he should resign and join
No. 11-3452 9

the Zoning Board, and another described himself as

“incensed” at the court. One might wonder why, if the

Board was offended by the state court suit, it had

settled rather than fought it and if necessary appealed

an adverse judgment to a higher state court. But maybe

the Board’s membership had changed in the year that

elapsed between the Agreed Order and the contentious

meeting, and become feistier. And remember that the

settlement had been made by a committee of the Board

rather than by the entire Board, and members of the

Board who were not on the committee may have disapproved of it.

If, as the plaintiff contends, the Board’s failure to

grant the rezoning applications violated the Agreed

Order, one might also wonder why she didn’t seek a

judgment of contempt from the state court, which (if one

may judge from the Board’s hostile reaction) had been

friendly to her suit; or seek plenary judicial review of

the Board’s decision, as she had done previously. She

couldn’t actually have obtained a judgment of contempt

for violation of the settlement, however, because the

Board could not rezone without a three-fourths vote,

and the vote to rezone failed to reach that threshold.

The Risk Management Committee, a mere sliver of the

Board, could not commit the Board to rule favorably on

the applications, whatever the Agreed Order said, as

that would require the Board’s closing its collective ears

to whatever might occur at the rezoning proceeding

that might provide grounds for denial. And in fact something did occur that supported denial and may have

swung critical votes against rezoning—the Board was
10 No. 11-3452

told that the hog farmer had changed his mind and was

turning the auxiliary hog farm that abutted parcels

A through D over to his son, who would continue to

operate it. And a Board member had gone and looked at

the auxiliary farm and reported that there were 60 to

100 hogs there.

The plaintiff challenges the October 2007 denial of

her rezoning applications on three grounds. The first is

that it constituted invidious discrimination in favor of

the owners of the Fligge and Wolf Crossing parcels

and thus a denial of equal protection to a “class of one.”

(She doesn’t claim to be a member of a traditionally

discriminated-against class.) Village of Willowbrook v.

Olech, 528 U.S. 562, 563-64 (2000) (per curiam); Hilton v.

City of Wheeling, 209 F.3d 1005, 1007 (7th Cir. 2000); see

Del Marcelle v. Brown County Corp., 680 F.3d 887 (7th Cir.

2012) (en banc). The aerial photo indicates, however,

that both parcels are farther from the main hog farm

than the plaintiff’s parcels are from the auxiliary hog

farm, and anyway there was evidence before the Board

that the hogs had been removed from the main farm.

The plaintiff’s second ground of attack is that the denial

of rezoning was in retaliation for her bringing the state

court suit. The filing of a lawsuit can be an exercise of

the First Amendment right of free speech if, as in “cause”

litigation, the suit articulates public concerns. NAACP

v. Button, 371 U.S. 415, 429-30 (1963); Chicago United

Industries, Ltd. v. City of Chicago, 669 F.3d 847, 852 (7th

Cir. 2012); Glatt v. Chicago Park District, 87 F.3d 190,

193 (7th Cir. 1996); Yatvin v. Madison Metropolitan School
No. 11-3452 11

District, 840 F.2d 412, 419-20 (7th Cir. 1988). But the sole

aim of the plaintiff’s zoning suit was to enhance the

value of her property. A suit such as hers, designed to

rectify a private grievance, could however be protected

by the petition clause of the First Amendment against

retaliation. Borough of Duryea v. Guarnieri, 131 S. Ct. 2488,

2498 (2011). But there would be no need to bring the

heavy artillery of a federal lawsuit into play, because

state remedies would be entirely adequate. The Illinois

courts can take effective measures against persons, including local government officials, in Illinois who try to

punish people who turn to those courts for relief, as the

plaintiff in this case did. Batagiannis v. West Lafayette

Community School Corp., 454 F.3d 738, 742-43 (7th Cir.

2006); Woodruff v. Mason, 542 F.3d 545, 560-61 (7th

Cir. 2008) (concurring opinion).

And in arguing retaliation she encounters an unsuspected obstacle: it is more difficult to prove the bad

intent of a legislative body, which is a collective, than of

an individual. Remember that a majority of the Board

voted in favor of the rezoning; they, at least, must be

exonerated from the charge of having retaliated against

the plaintiff for her state court suit. As for the others,

only two of them expressed irritation at the suit. Several

others said they wanted to protect agriculture in this

part of the county—a nonretaliatory motive for voting

against the applications. Some of the members who

voted against rezoning didn’t indicate a reason, and

as a result we don’t know whether enough votes

were motivated by a desire to retaliate to defeat the

rezoning. Finally, the refusal to rezone the parcels could
12 No. 11-3452

not be thought an irrational destruction of value

actionable as a denial of substantive due process, see,

e.g., Coniston Corp. v. Village of Hoffman Estates, 844 F.2d

461, 467 (7th Cir. 1988)—the equivalent of a taking of

property not for a public purpose.

That completes our discussion of the plaintiff’s liability

claim, but for completeness we note that her claim for

relief is flawed as well. She says that in 2007 her

parcels were worth less than $5,000 per acre zoned agricultural but would have been worth more—much

more—than $25,000 per acre had they been zoned residential and that she would have sold at least some of them

then. That is a permissible theory of damages. But she

is also or alternatively seeking damages for the loss of

value she would have sustained on parcels not sold,

the loss caused by the collapse of the housing market

when the housing bubble burst and brought much of the

economy down with it, with the result that by the time

the rezoning was finally approved in 2008 her land was

worth no more for residential than for agricultural use.

The County Board was of course not responsible for

the housing bubble or its collapse. The collapse was not

foreseen. There was no way the Board could have gauged

the risk of a collapse in residential housing values, in

which case a delay in granting rezoning applications

would harm the plaintiff. Generally a tortfeasor (the

plaintiff is accusing the Board of federal constitutional

torts, for which 42 U.S.C. § 1983 creates a federal remedy)

is not liable for creating unforeseeable risks. This

principle is old. It is illustrated by Berry v. Sugar Notch
No. 11-3452 13

Borough, 43 Atl. 240 (Pa. 1899), a case in which the motorman of a trolley, by speeding, caused the trolley to

arrive beneath a tree at the moment the tree collapsed,

damaging the trolley. The speeding had not increased

the likelihood of such an accident, as distinct from the

likelihood of a derailment, and so imposing liability

would not have induced the trolley system to adopt

safety measures designed to avoid a future such accident.

In modern law the principle of the Berry case is

discussed in terms of the distinction between “but for”

causation (sometimes called transaction causation, and

by philosophers a necessary condition) and loss causation, and is illustrated by a case in this court analytically

identical to the present one. In Movitz v. First National

Bank, 148 F.3d 760, 763-64 (7th Cir. 1998), had it not

been for the defendant’s negligence, the plaintiff

would not have found himself owning a building when

a disastrous downturn in the local real estate market

greatly reduced the building’s value. But the defendant

bore no responsibility for that downturn, and hence,

we held, it was not liable for the reduction in value.

“But for” causation or transaction causation refers

to acts of the defendant that cause the plaintiff to be in

the wrong place at the wrong time, and loss causation to

acts, which can be of someone or something else, that

made it the wrong place at the wrong time. The Board’s

delay in granting the applications to rezone resulted in

the plaintiff’s properties being rezoned at a time when

residential zoning had lost its value. But it had lost its

value for reasons unrelated to anything the Board
14 No. 11-3452

had ever done, and for that loss the Board could not be

held liable.

AFFIRMED.

10-17-12