Billie v. Village of Channahon, No. 22-1660 (7th Cir. 2023)

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In 1993 the Village of Channahon approved the plat of a residential subdivision lying within the DuPage River Special Flood Hazard Area. The Village subsequently issued permits for the construction of houses in this subdivision, all of which experience flooded basements when the river is at high water. The current owners of these houses contend that the Village violated the Constitution either by granting the permits to build or by failing to construct dykes to keep water away.

The Seventh Circuit affirmed the dismissal of their suit, noting the plaintiffs do not contend that the Village required them to build where they did or dig basements, or took any steps after the houses’ construction that made flooding worse. The Constitution establishes rights to be free of governmental interference but does not compel governmental intervention to assist persons. Even if the Village violated a local ordinance and a federal regulation, 44 C.F.R. §60.3(c)(7), by granting the applications without insisting that the houses be built higher, the Constitution does not entitle private parties to accurate enforcement of local, state, or federal law. The Village did not take anyone’s property, either by physical invasion or by regulation that prevented the land’s use. The river, which did invade their basements, is not a governmental body. Government-induced flooding of limited duration may be compensable but the -plaintiffs have not plausibly alleged that the water in their basements is “government-induced.”

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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 22-1660 CRAIG BILLIE, et al., Plaintiffs-Appellants, v. VILLAGE OF CHANNAHON, ILLINOIS, et al., Defendants-Appellees. ____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 20-cv-3294 — Mary M. Rowland, Judge. ____________________ ARGUED NOVEMBER 7, 2022 — DECIDED JANUARY 24, 2023 ____________________ Before FLAUM, EASTERBROOK, and ST. EVE, Circuit Judges. EASTERBROOK, Circuit Judge. In 1993 the Village of Channahon, Illinois, approved the plat of a residential subdivision lying within the DuPage River Special Flood Hazard Area. By August 1994 the Village had issued permits for the construction of seven houses in this subdivision. All seven experience ooded basements when the DuPage River is at high water. Plainti s, the current owners of these houses, contend that the Village violated the Constitution either by granting the 2 No. 22-1660 permits to build (without ensuring that the basements would remain dry) or by failing to construct dykes to keep water away. But plainti s do not contend that the Village required them to build where they did, or to dig basements to the depth they did, or took any steps after the houses’ construction that made ooding worse. The district court dismissed the complaint for failure to state a claim. 2022 U.S. Dist. LEXIS 50348 (N.D. Ill. Mar. 22, 2022). (Claims based on state law were dismissed without prejudice, and we do not mention them again.) This suit is barred by the principle that the Constitution establishes rights to be free of governmental interference but does not compel governmental intervention to assist persons in distress. In other words, the Constitution establishes negative rather than positive liberties. See, e.g., DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989); Castle Rock v. Gonzales, 545 U.S. 748 (2005). Homeowners are responsible for their own decisions. No one forced plainti s or their predecessors in interest to build houses in a oodplain. (At oral argument counsel for the plainti s asserted that the Village may have demanded deeper basements than the developer wanted to dig but conceded that the evidence at his disposal does not support that proposition, which does not appear in the complaint.) We may assume, as plainti s assert, that the Village violated both a local ordinance and a federal regulation, 44 C.F.R. §60.3(c)(7), by granting the developer’s applications without insisting that the houses be built a few feet higher above the DuPage River, but this just puts the DeShaney problem in focus: the Constitution does not entitle private parties to accurate enforcement of local, state, or federal law. See, e.g., No. 22-1660 3 Snowden v. Hughes, 321 U.S. 1, 11 (1944); Davis v. Scherer, 468 U.S. 183, 192–96 (1984); Nordlinger v. Hahn, 505 U.S. 1, 16 n.8 (1992); Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Archie v. Racine, 847 F.2d 1211, 1215–18 (7th Cir. 1988) (en banc). If the builders or original owners concealed ood risks from their purchasers, that might create a tort claim against the wrongdoers, but it does not create any constitutional claim against the government. All the Village did was grant applications made to it. That is to say, the Village did not get in the way of private choices. As the Constitution does not require governments to prevent private actors from making mistakes, plainti s lack a good claim. Plainti s’ argument under the Takings Clause fails because the Village did not take anyone’s property, either by physical invasion or by regulation that prevented the land’s use. The DuPage River, which did invade plainti s’ basements, is not a governmental body. Plainti s have not cited, and we did not nd, any decision deeming a ood a “taking” unless governmental action caused or magni ed the loss. Yet the Village did not create the rain, the river, or the oodplain. It did no more than allow people to act on their own choices. Arkansas Game & Fish Commission v. United States, 568 U.S. 23, 31–34 (2012), recaps the sorts of situations in which ood waters have been classi ed as takings. In all of them the government caused or contributed to the inundation. The Court summarized: “government-induced ooding can constitute a taking of property, and because a taking need not be permanent to be compensable, our precedent indicates that government-induced ooding of limited duration may be compensable.” Id. at 34. Plainti s have not plausibly alleged, however, 4 No. 22-1660 that the water in their basements is “government-induced”, so the complaint was properly dismissed. AFFIRMED

Primary Holding

Seventh Circuit rejects constitutional claims based on a village's approval of the construction of houses that are subject to flooding.

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