                                                                FIFTH DIVISION
                                                                March 4, 2011

No. 1-09-2584

MARGARET FIGIEL, JOHN FIGIEL, JANE THOMAS        )
RICHARD DAMASHEK, SUSAN GOLO, DUNCAN             )
BOURNE, LESLIE LODGSON, NANCY KIMBLE,            )
MARK KIMBLE, ERIC LENTING, GINA GUZMAN,          )
LOBA EMAMI, VICTORIA CARTON, JOHN                )       Appeal from the Circuit
WIZGIRD, ANNA ANTHONY, GAYLY OPEM,               )       Court of Cook County,
ROBERT OPEM, ALLAN GOLD, JUDITH GOLDMAN,         )       Illinois, County Department,
SUSAN PRICE, KIM LILLY, ARNOLD HIRSCH,           )       Chancery Division.
ELAINE D. COTTEY, PAUL T. COTTEY, PEARL          )
KREPES, NANCY HUNTER, CUTTIE BACON,              )       No. 2008 CH 32919
JEFFREY J. QUACKENBUSH, GENE NOZICKA,            )
MARK GREENBERG, HAYDEE PAMPEL, and JEFF          )
BADDELEY,                                        )
                                                 )       The Honorable Sophia Hall,
                          Plaintiffs-Appellants, )       Judge Presiding.
                                                 )
v.                                               )
                                                 )
THE CHICAGO PLAN COMMISSION, THE CHICAGO )
CHILDREN’S MUSEUM, THE CHICAGO PARK              )
DISTRICT, a Municipal Corporation, THE CITY OF   )
CHICAGO, a Municipal Corporation, LINDA SEARL,   )
Chairman of the CHICAGO PLAN COMMISSION,         )
MAYOR RICHARD M. DALEY, JOHN H. NELSON,          )
NANCY A. PACHER, DAVID WEINSTEIN, LEON           )
D. FINNEY, JR., DORIS B. HOLLEG, LYNIER          )
RICHARDSON, CAROLE BROWN, SMITA SHAH,            )
TOM BYRNE, ARNOLD L. RANDALL, GEORGE W. )
MIGALA, GARCIA M. SHIFRIN, PATRICIA              )
SCUDIERO, ALDERMAN WILLIAM J.P. BANKS,           )
ALDERMAN EDWARD M. BURKE, ALDERMAN               )
PATRICK O’CONNOR, ALDERMAN MARY ANN              )
SMITH, ALDERMAN BERNARD L. STONE, and            )
ALDERMAN REGNER “RAY” SUAREZ,                    )
                                                 )
                    Defendant-Appellee.          )

       PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court, with
opinion.
       Justices Joseph Gordon and Howse concurred in the judgment and opinion.
No. 1-09-2584

                                            OPINION

       The plaintiffs, Margaret Figiel, John Figiel, Jane Thomas, Richard Damashek, Susan Golo,

Duncan Bourne, Leslie Lodgson, Nancy Kimble, Eric Lenting, Gina Guzman, Loba Emami,

Victoria Carton, John Wizgird, Anna Anthony, Gayly Opem, Robert Opem, Allan Gold, Judith

Goldman, Susan Price, Kim Lilly, Arnold Hirsch, Elaine D. Cottey, Paul T. Cottey, Pearl Krepes,

Nancy Hunter, Cuttie Bacon, Jeffrey J. Quackenbush, Gene Nozicka, Mark Greenberg, Haydee

Pampel, and Jeff Baddeley, all owners of property located at 340 and 360 East Randolph Street,

in Chicago, brought an action against the defendants, the Chicago Plan Commission, the Chicago

Children’s Museum, the Chicago Park District, the City of Chicago, the chair of the Chicago

Planning Commission, Linda Searl, City of Chicago Mayor Richard M. Daley, David Weinstein,

Leon D. Finney Jr., Dori B. Holleg, Lynier Richardson, Carole Brown, Smita Shah, Tom Byrne,

Arnold L. Randall, George W. Migala, John H. Nelson, Nancy A. Pacher, Garcia M. Shifrin and

Patricia Scudiero, and aldermen William J.P. Banks, Edward M. Burke, Patrick O’Connor, Mary

Ann Smith, Bernard L. Stone, and Regner “Ray” Suarez, challenging the city council’s decision to

approve an amendment to one of the city’s planned developments pursuant to the Chicago Zoning

Ordinance (Chicago Municipal Code §17-13-100 et seq. (2009)), which would allow the

construction of a children’s museum and a new park district field house facility in the northeast

corner of Grant Park. The defendants sought a dismissal pursuant to section 2-619 of the Code

of Civil Procedure (Civil Procedure Code) (see 735 ILCS 5/2-619 (West 2008)), arguing that the

complaint was defective because the plaintiffs failed to comply with the notice requirements set

forth in section 11-13-8 of the Illinois Municipal Code (Municipal Code) (see 65 ILCS 5/11-13-8


                                                 2
No. 1-09-2584

(West 2008)), which mandate that a party challenging a zoning ordinance give written notice of

its lawsuit to all properties within 250 feet of the affected property. In the alternative, the

defendants sought dismissal pursuant to section 2-615 of the Civil Procedure Code (735 ILCS

5/2-615 (West 2008)), contending that the complaint failed to plead sufficient facts demonstrating

that the amendment to the zoning ordinance was arbitrary, capricious and unreasonable and did

not bear a rational relationship to public health, safety or welfare. The circuit court granted

defendants’ motion to dismiss pursuant to section 2-619 of the Civil Procedure Code (735 ILCS

5/2-619 (West 2008)), and the plaintiffs now appeal. For the reasons that follow, we affirm the

decision of the circuit court.



                                        I. BACKGROUND

        The following relevant facts are undisputed. On April 2, 2008, the Chicago Park District

(hereinafter the park district) and the Chicago Children’s Museum (hereinafter the museum) filed

an application1 (hereinafter the lakefront application), pursuant to the Lake Michigan and Chicago

Lakefront Protection Ordinance (see Chicago Municipal Code §16-4-100 (2009)), to construct a

new children’s museum and a park district field house facility in the place of an existing

underground park district field house and two levels of below-grade parking garage located in the

Daley Bicentennial Plaza in the northeast corner of Grant Park (i.e., the southeast corner of

Randolph Street and Columbus Drive). The site of the proposed construction is owned by the

City of Chicago (hereinafter the city) and the park district.


       1
           The record reveals that the application was numbered “Application No. 547.”

                                                   3
No. 1-09-2584

       On that same day, the museum and the park district filed a separate application

(hereinafter the planned development application) to amend Institutional/Transportation

Development No. 677, the planned development, which governs the relevant portions of Grant

Park, to permit the construction of the new children’s museum and the field house. In response

to comments received from the city’s planning staff and various city agencies, on May 2, 2008,

the museum and the park district submitted amended lakefront and planned development

applications.

       On May 15, 2008, the city’s zoning department, and the department of planning and

development submitted a written report to the city’s plan commission recommending that the plan

commission approve both the amended lakefront and planned development applications.

According to that report, the project proposed by the amended lakefront and planned

development applications complied with the policies and purposes of the Lake Michigan and

Chicago Lakefront Protection Ordinance (Chicago Municipal Code §16-4-100 (2009)). Among

other things, the report specifically found that “by locating the museum and the field house below

grade within Grant park proper and locating the only above ground structure on the Randolph

Street right of way” the project “maintained and improved the open water vista of Grant Park.”

       On May 15, 2008, the plan commission convened a public hearing to consider both the

lakefront and the planned development applications. At the conclusion of the public hearing, a

vote was taken and the plan commission approved both applications. Specifically, the

commission issued a written resolution adopting the report of the city’s zoning department and

the department of planning and development regarding the lakefront application and the findings


                                                4
No. 1-09-2584

of fact stated therein. The commission also recommended that the city council committee on

zoning approve the amendment to Institutional/Transportation Development No. 677,

contemplated by the planned development application.

        After considering the proposed amendment to Institutional/Transportation Development

No. 677 at a public hearing, on June 5, 2008, the city council committee on zoning voted in favor

of the proposed amendment. On June 11, 2008, the city council enacted an ordinance amending

Institutional/Transportation Development No. 677.

        On September 5, 2008, the plaintiffs, who are owners of property located at 340 and 360

East Randolph Street, which is within 250 feet of Grant Park and the proposed plan development,

filed a complaint in the circuit court challenging the ordinance approving the zoning amendment

and seeking de novo review of that ordinance pursuant to section 11-13-25 of the Municipal Code

(65 ILCS 5/11-13-25 (West 2008)). The plaintiffs alleged that they were unconstitutionally

deprived of both their substantive and procedural due process rights at each stage of the decision-

making that occurred in connection with the passage of this zoning amendment. With respect to

relief, the plaintiffs specifically asked the circuit court “to enter judgement declaring” the zoning

amendment unconstitutional (i.e., “void as arbitrary, capricious, unreasonable and without

justification in law or in fact”).2


        2
            We note that in that complaint, the plaintiffs did not challenge the plan commission’s

consideration of the lakefront application nor the plan commission’s decision to approve it.

Rather, on June 6, 2008, the plaintiffs filed a separate action (No. 08 CH 20346) in the circuit

court, challenging the decision of the plan commission. This separate cause of action is not part

                                                    5
No. 1-09-2584

        On October 27, 2008, the defendants, including the city, the city’s plan commission, the

park district and the museum, filed a combined motion pursuant to section 2-619.1 of the Civil

Procedure Code (735 ILCS 5/2-619.1 (West 2008)) to dismiss the complaint under sections

2-615 and 2-619(a)(9) of that Code (735 ILCS 5/2-615, 2-619(a)(9), 2-619.1 (West 2008)).

The defendants specifically contended that the cause should be dismissed pursuant to section 2-

619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2008)) because the plaintiffs had failed to

comply with the notice requirements of section 11-13-8 of the Illinois Municipal Code (65 ILCS

5/11-13-8 (West 2008)) prior to filing their complaint.3

        On December 31, 2008, prior to the court’s ruling on the defendants’ motion to dismiss,

the plaintiffs filed an amended complaint again seeking de novo review of the ordinance

approving the zoning amendment and arguing that the amendment violated their procedural and

substantive due process rights. This time, however, the plaintiffs did not ask the court to

“declare” the amendment unconstitutional but rather that the court “enter a finding” that the

zoning amendment was “arbitrary, capricious, unconstitutional, unreasonable and without


of or related to the issues raised in the plaintiffs’ appeal here.
        3
            As shall be demonstrated in more detail below, section 11-13-8 of the Illinois Municipal

Code requires that in municipalities with a population of 500,000 or more, any plaintiff seeking to

invalidate a zoning ordinance by means of a declaratory judgment action must provide written

notice of the lawsuit (either in person or by registered mail) to all property owners within 250 feet

of the affected property not more than 30 days before filing suit. See 65 ILCS 5/11-3-8, 11-3-7

(West 2008).

                                                    6
No. 1-09-2584

justification in law or in fact.”

        On January 21, 2009, the defendants responded by filing another combined section 2-

619.1 motion to dismiss the plaintiffs’ amended complaint. The defendants argued that although

the plaintiffs had worded the allegations in their amended complaint differently they were again

essentially seeking a declaration that the zoning amendment was unconstitutional. Accordingly,

the defendants argued that the plaintiffs were required to comply with section 11-13-8 of the

Municipal Code (65 ILCS 5/11-13-8 (West 2008)) before filing their lawsuit and that their failure

to do so was fatal to their amended complaint. The defendants alternatively argued that the

amended complaint was factually deficient as it failed to state claims of substantive or procedural

due process violations under either the Illinois or the United States Constitution.

        The plaintiffs firstly responded by conceding that they did not comply with section 11-13-

8 of the Municipal Code (65 ILCS 5/11-13-8 (West 2008)), but then nevertheless argued that

compliance was not necessary since their amended complaint was not a declaratory judgment

action but rather an independent cause of action brought pursuant to section 11-13-25 of the

Municipal Code (see 65 ILCS 5/11-13-25 (West 2008)).4


        4
            Section 11-13-25 of the Municipal Code, which shall be more fully discussed below in the

analysis section, is entitled “Actions subject to de novo review; due process,” and reads in

relevant part:

                  “(a) Any decision by the corporate authorities of any municipality, home rule or

        non-home rule, in regard to any petition or application for a special use, variance,

        rezoning, or other amendment to a zoning ordinance shall be subject to de novo judicial

                                                   7
No. 1-09-2584

        The defendants replied by arguing that section 11-13-25 (65 ILCS 5/11-13-25 (West

2008)) does not provide an independent cause of action, but rather merely seeks to clarify the

standard of review a court is to apply in evaluating certain municipal zoning decisions enumerated

in the statute.

        After the parties briefed the motions, the circuit court heard oral arguments on April 9,

2009. Subsequently, on May 7, 2009, in a written order, the circuit court granted the defendants

motion to dismiss pursuant to section 2-619 of the Civil Procedure Code (735 ILCS 5/2-619

(West 2008)). In doing so, the circuit court found that section 11-13-25 of the Municipal Code

(65 ILCS 5/11-13-25 (West 2008)) was not intended to create a new cause of action for

challenging zoning decisions, but rather to address the standard of review to be applied when

reviewing such decisions. The circuit court further found that the plaintiffs’ amended complaint

had sought a declaration that the zoning amendment was unconstitutional and that, therefore,

pursuant to section 11-13-8 of the Municipal Code, the plaintiffs were required to provide

requisite notice of their cause of action to the adjoining landowners prior to commencing their

suit (see 65 ILCS 5/11-13-8 (West 2008)). The court concluded that since the plaintiffs had


        review as a legislative decision, regardless of whether the process in relation thereto is

        considered administrative for other purposes. Any action seeking the judicial review of

        such a decision shall be commenced not later than 90 days after the date of the decision.

                  (b) The principles of substantive and procedural due process apply at all stages of

        the decision-making and review of all zoning decisions.” 65 ILCS 5/11-13-25 (West

        2008).

                                                    8
No. 1-09-2584

failed to provide such notice, their complaint was defective and could not proceed as a matter of

law.5

        The plaintiffs requested time to consider whether the dismissal should be with or without

prejudice. The trial court held the matter over to May 12, 2009, and on that date determined that

dismissal should be with prejudice. The plaintiffs filed a motion for reconsideration of the court’s

May 7 and May 12, orders, but that motion was denied by the circuit court. The plaintiffs now

appeal the dismissal of their amended complaint pursuant to section 2-619 of the Civil Procedure

Code (735 ILCS 5/2-619 (West 2008)).

                                              I. ANALYSIS

        A section 2-619 motion to dismiss admits the legal sufficiency of the complaint (i.e., all

facts well pleaded), but asserts certain defects, defenses or other affirmative matters that appear

on the face of the complaint or are established by external submissions that act to defeat the claim.

Wallace v. Smyth, 203 Ill. 2d 441, 447 (2002); see 735 ILCS 5/2-619(a)(9) (West 2008) (a

defendant may file a motion for involuntary dismissal on the grounds that “the claim asserted

against defendant is barred by [an] other affirmative matter avoiding the legal effect of or

defeating the claim”). The standard of review for an order granting a motion to dismiss pursuant

to section 2-619 is de novo. Tkacz v. Weiner, 368 Ill. App. 3d 610, 612 (2006).


        5
            We note that the circuit court’s decision was limited to the issues raised pursuant to

section 2-619 of the Civil Procedure Code (735 ILCS 5/2-619 (West 2008)) and that it did not in

any way address or encompass arguments raised pursuant to section 2-615 of the Code (735

ILCS 5/2-615 (West 2008)).

                                                     9
No. 1-09-2584

       In the present case, the plaintiffs contend that the circuit court erred when it dismissed

their amended complaint for failure to abide by the notice requirements of section 11-13-8 of the

Municipal Code. See 65 ILCS 5/11-13-8 (West 2008). The plaintiffs do not, nor could they,

dispute that if their amended complaint had been for declaratory relief, under section 11-13-8 of

the Municipal Code they would have been required to provide written notice of their suit to all

property owners within 250 feet of the building site. In that respect both the language of the

statute and the case law is clear that any property owner challenging a zoning ordinance must

provide such notice within 30 days before filing a suit for declaratory judgment. See 65 ILCS

5/11-13-7, 11-13-8 (West 2008)6; see also Hanna v. City of Chicago, 331 Ill. App. 3d 295, 309


       6
           Section 11-13-8 of the Municipal Code reads in relevant part:

                 “In municipalities of 500,000 or more population, when any zoning ordinance,

                 rule or regulation is sought to be declared invalid by means of a declaratory

                 judgment proceeding, not more than 30 days before filing suit for a declaratory

                 judgment the person filing such suit shall serve written notice in the form and

                 manner and to all property owners as is required of applicants for variation in

                 Section 11-13-7, and shall furnish to the clerk of the court in which the declaratory

                 judgment suit is filed, and at the time of filing such suit, the list of property

                 owners, the written certificate and such other information as is required in Section

                 11-13-7 to be furnished to the board of appeals by an applicant for variation.”

                 (Emphasis added.) 65 ILCS 5/11-13-8 (West 2008).

                 Section 11-13-7 of the Code, in turn, requires service of “written notice, either in

                                                    10
No. 1-09-2584

(2002), overruled on other grounds, Napleton v. Village of Hinsdale, 229 Ill. 2d 296 (2008)

(holding that the “Municipal Code is clear in its pronouncement that when a party seeks to have a

zoning ordinance invalidated by means of declaratory judgement, the party seeking such relief

shall serve written notice to owners of all property ‘within 250 feet in each direction of the

location’ which are affected by the alleged invalid ordinance”), quoting 65 ILCS 5/11-13-7 (West

2008); see also La Salle National Bank v. City Suites, Inc., 325 Ill. App. 3d 780, 790 (2001)

(“We find the language and mandate of [section 11-13-8 of the Municipal Code] to be clear in

requiring that notice be given in all declaratory actions to invalidate zoning, without exception.”

(Emphasis added.)).

       The plaintiffs therefore argue, just as they did before the circuit court, that compliance

with section 11-13-8 of the Municipal Code (65 ILCS 5/11-13-8 (West 2008)) was not necessary

as their action was brought pursuant to section 11-13-25 of the Municipal Code (65 ILCS 5/11-

13-25 (West 2008)). The plaintiffs contend, as they did below, that section 11-13-25 (65 ILCS

5/11-13-25 (West 2008)) creates an independent cause of action for de novo judicial review of

municipal zoning decisions, to which section 11-13-8 notice requirements do not apply (see 65

ILCS 5/11-13-8 (West 2008)). The plaintiffs argue that the circuit court’s finding to the contrary

was erroneous. We disagree.




       person or by registered mail, return receipt requested, on the owners *** of all property

       within 250 feet in each direction of the location for which the variation or special use is

       requested.” 65 ILCS 5/11-13-7 (West 2008).

                                                 11
No. 1-09-2584

        We begin by noting that since the circuit court’s dismissal of the plaintiffs’ cause of action,

and prior to the plaintiffs’ filing of this appeal, in Dunlap v. Village of Schaumburg, 394 Ill. App.

3d 629, 639 (2009), this appellate court specifically considered and rejected the argument that

section 11-13-25 of the Municipal Code (65 ILCS 5/11-13-25 (West 2008)) creates an

independent cause of action for challenging zoning decisions.7

        In that case, a property owner sued the Village of Schaumburg, challenging the village’s

decision to issue a zoning variance to neighboring homeowners to permit them to build a patio

room in the back of their house, against the village zoning’s ordinance requiring homeowners to

maintain a 30-foot backyard. Dunlap, 394 Ill. App. 3d at 630. The property owner in Dunlap,

initially brought her action pursuant to section 11-13-15 of the Municipal Code (65 ILCS 5/11-

13-15 (West 2006)), which empowers private landowners under certain circumstances to bring

suit to prevent unlawful land usage. Dunlap, 394 Ill. App. 3d at 632. In the alternative, just as

the plaintiff here, the property owner in Dunlap sought to proceed with her challenge to the

variance pursuant to section 11-13-25 of the Municipal Code (65 ILCS 5/11-13-25 (West 2008)),

contending that it “provide[d] her [with] an independent right of action against the Village that is

        7
            We note that the plaintiffs have not even attempted to distinguish the holding in Dunlap,

which outright rejects their claim that section 11-13-25 of the Municipal Code (65 ILCS 5/11-13-

25 (West 2008)) creates an independent cause of action for challenging zoning amendments. Nor

do the plaintiffs, for that matter, even cite to Dunlap in their initial brief, even though, as noted

above, that case had been published at the time of the filing of their appeal. The plaintiffs have

also not filed a reply brief.

                                                   12
No. 1-09-2584

not subject to the restrictions on suit under section 11-13-15.” Dunlap, 394 Ill. App. 3d at 639.

        The circuit court granted summary judgment in favor of the Village of Schaumburg, and

the appellate court affirmed. Dunlap, 394 Ill. App. 3d at 638. In doing so, the appellate court

specifically rejected the notion that section 11-13-25 of the Municipal Code (65 ILCS 5/11-13-25

(West 2008)) provides an independent cause of action by which a plaintiff can challenge a zoning

amendment or variance. The appellate court held that section 11-13-25 was not intended to

“expand [a] private landowners’ right to take judicial action against municipal zoning decisions,

but rather to clarify that when such challenges are properly made, the decisions are to be reviewed

under the standards for legislative rather than administrative actions.” Dunlap, 394 Ill. App. 3d at

642. The court in Dunlap therefore concluded that section 11-13-25 “affords [the plaintiff] no

independent or expanded right of suit,” and that the plaintiff’s “cause of action against [the

Village of Schaumburg] must therefore fail.” (Emphasis added.) Dunlap, 394 Ill. App. 3d at 642.

        In reaching this conclusion, the appellate court in Dunlap explained that section 11-13-25

of the Municipal Code was amended by the General Assembly in 2006 in response to the Illinois

Supreme Court’s decision in People ex rel. Klaeren v. Village of Lisle, 202 Ill. 2d 164 (2002). In

Klaeren, the residents of the Village of Lisle challenged the zoning board’s decision to grant a

special use permit to Meijer, Inc., to build a retail store in the village. Klaeren, 202 Ill. 2d at 167.

The Klaeren court faced the question of whether this decision should be reviewed as a legislative

or an administrative (i.e., quasi-judicial) decision, since the standards of review for each are

different. See Dunlap, 394 Ill. App. 3d at 640 (citing Klaeren, 202 Ill. 2d at 167). While

legislative decisions made by municipalities are generally subject to review only “ ‘for arbitrariness

                                                  13
No. 1-09-2584

as a matter of substantive due process,’ ” and will be upheld if they represent a rational means to

accomplish a legitimate purpose, administrative or quasi-judicial decisions are subject to a

heightened level of judicial scrutiny, requiring a reviewing court to determine not only whether

the zoning decision is arbitrary, but also whether it “was made in compliance with [the] criteria in

the zoning ordinance based upon the facts in the record.” Dunlap, 394 Ill. App. 3d at 640-41

(quoting City of Chicago Heights v. Living Word Outreach Full Gospel Church & Outreach

Ministries, Inc., 196 Ill. 2d 1, 14 (2001) and Millineum Maintenance Management, Inc., v.

County of Lake, 384 Ill. App. 3d 638, 647 (2008)).

       In Klaeren, our supreme court found that zoning decisions concerning special use permits

were administrative decisions and therefore required a heightened level of scrutiny to protect the

due process rights of the interested property owners. Dunlap, 394 Ill. App. 3d at 641 (citing

Klaeren, 202 Ill. 2d at 183). On the other hand, Klaeren found that all other zoning amendment

decisions fell under legislative decisions and were subject only to rational basis review. Dunlap,

394 Ill. App. 3d at 641 (citing Klaeren, 202 Ill. 2d at 183).

       As the appellate court in Dunlap noted, in response to the Klaeren decision, in 2006, the

Illinois legislature enacted an amendment to section 11-13-25 of the Municipal Code, in order to

define every “ ‘special use, variance, rezoning, or other amendment to a zoning ordinance’ ” as a

legislative act rather than as an administrative act for purposes of review. Dunlap, 394 Ill. App.

3d at 641 (quoting 65 ILCS 5/11-13-25(a) (West 2006)). In doing so, the legislature “[did] away

with any distinction in the standard of review between variances and other forms of zoning

ordinance amendments.” Dunlap, 394 Ill. App. 3d at 641. Accordingly, the Dunlap court found

                                                 14
No. 1-09-2584

that section 11-13-25 of the Municipal Code does not afford private property owners an

independent cause of action to challenge any type of zoning ordinance amendments. Dunlap, 394

Ill. App. 3d at 642 (citing 65 ILCS 5/11-13-25(a) (West 2006)).

       The rationale of the appellate court in Dunlap was recently reaffirmed by this appellate

court’s decision in Condominium Ass’n of Commonwealth Plaza v. City of Chicago, 399 Ill. App.

3d 32, 47-48 (2010). In that case, the plaintiffs sought to invalidate a zoning amendment that

allowed construction on a hospital campus, alleging that the amendment violated their due

process rights. Condominium Ass’n of Commonwealth Plaza, 399 Ill. App. 3d at 33-34.

Although the plaintiffs purported to bring suit pursuant to section 11-13-25 of the Municipal

Code (65 ILCS 5/11-13-25 (West 2008)), the appellate court, found, consistently with Dunlap,

that the sole purpose of section 11-13-25 was to clarify the standard that applies to judicial

review of zoning decisions. Condominium Ass’n of Commonwealth Plaza, 399 Ill. App. 3d at 47.

       We agree with the rationale of Dunlap and Condominium Ass’n, and find that under the

principles articulated therein, the plaintiffs here are without an independent cause of action to

challenge the amendment to the zoning ordinance. See Dunlap, 394 Ill. App. 3d at 641-42; see

also Condominium Ass’n of Commonwealth Plaza, 399 Ill. App. 3d at 47.

       The plaintiffs nevertheless assert that even if they have no independent cause of action

pursuant to section 11-13-25 of the Municipal Code (65 ILCS 5/11-13-25 (West 2008)), the

notice requirements of section 11-13-8 (65 ILCS 5/11-13-8 (West 2008)) would nevertheless not

apply to their cause of action because their amended complaint sought more than “declaratory

relief.” The plaintiffs specifically argue that their amended complaint requested relief “over and

                                                 15
No. 1-09-2584

above declaratory relief, including, but not limited to, de novo judicial review with respect to the

question of whether [the] City Council’s decision was ‘arbitrary and capricious’ as well as

whether an amendment to the [zoning ordinance] violates a series of longstanding injunctions

entered by the Illinois Supreme Court in [City of Chicago v. Ward, 169 Ill. 392 (1897), and its

progeny (‘Ward cases’)].” We disagree.

       We initially note that the plaintiffs’ contention that the aforementioned additional relief

sought “does not fall within the purview of declaratory relief” is made without any citation to

relevant authority to support the contention that such relief is unavailable though a declaratory

judgment action. It is axiomatic that in order not to waive an issue for purposes of appeal, a party

must support its arguments with citation to relevant authority. See Ill. S. Ct. R. 341(h)(7) (eff.

Sept. 1, 2006) (a point raised in a brief but not supported by citation to relevant authority fails to

satisfy the requirements of Supreme Court Rule 347(h) and is forfeited); see also County of

McHenry v. Thoma, 317 Ill. App. 3d 892 (2000). In addition, we note that in pointing out this

additional relief sought in their second amended complaint, the plaintiffs nowhere in their brief

provide a citation to the record pinpointing where in the amended complaint such additional relief

is sought. See Ill. S. Ct. R. 341(h) (6) (eff. Sept 1, 2006) (an appellant’s statement of facts must

include the “facts necessary to an understanding of the case” accompanied by “appropriate

reference to the pages of the record on appeal *** or to the pages of the abstract”).

       In fact, a careful review of the record reveals that the plaintiffs mischaracterize their

amended complaint. The record reveals that with respect to the relief sought, the plaintiffs’

amended complaint clearly and solely requests that, “the court enter a finding that the June 11,

                                                  16
No. 1-09-2584

2008, adoption of the Amendment to Institutional/Transportation Planned Development No. 677

was arbitrary, capricious, unconstitutional, unreasonable and without justification in law or in

fact.” Nowhere in the amended complaint do the plaintiffs request any specific relief with respect

to their allegations that the zoning amendment was arbitrary and capricious (i.e., that it was

unconstitutional) or that it violated the Ward cases, “over and above” their request for a “finding”

that the zoning amendment was invalid. The plaintiffs nowhere in their amended complaint

request an injunction pursuant to the Ward cases to prohibit the proposed planned development

by the defendants, as they would presumably have as infer they did below. In fact, the Ward

cases are mentioned in the plaintiffs’ amended complaint only in the context of the plaintiffs’

statement of facts, and are never later mentioned in either their argument section or in the

plaintiffs’ request for relief. Accordingly, the plaintiffs cannot in good conscience claim that the

relief they sought in their amended complaint fell outside the purview of “declaratory relief.” See

e.g., Michigan Boulevard Building Co. v. City of Chicago, 412 Ill. 350, 351-52 (1952) (noting

that the plaintiff sought “declaratory judgment” that a proposed park district project violated the

Ward injunctions); City Suites, 325 Ill. App. 3d at 784 (noting that the plaintiff’s complaint sough

declaratory judgment that a zoning amendment was unconstitutional).

                                        III. CONCLUSION

       Accordingly, for the aforementioned reasons, we find that the plaintiffs’ failure to comply

with the notice requirements of section 11-13-8 of the Municipal Code (65 ILCS 5/11-13-8 (West

2008)) was fatal to their amended complaint.

       We therefore affirm the finding of the circuit court.

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No. 1-09-2584

      Affirmed.




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