                                    2015 IL App (1st) 140570

                                                                            FIFTH DIVISION
                                                                            March 13, 2015

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MICHAEL SCOTT, JAMES DES JARDINS, MARK                            )
GRAHAM, and LORRAINE PETTIGREW,                                   )
                                                                  )
       Plaintiffs-Appellants,                                     )       Appeal from
                                                                  )       the Circuit Court
               v.                                                 )       of Cook County
                                                                  )
CITY OF CHICAGO,                                                  )       13 CH 19928
                                                                  )
       Defendant-Appellee                                         )       Honorable
                                                                  )       Kathleen M. Pantle,
(and                                                              )       Judge Presiding
                                                                  )
LAKE PARK ASSOCIATES, INC.,                                       )
                                                                  )
       Intervenor-Defendant-Appellee).                            )


       JUSTICE McBRIDE delivered the judgment of the court, with opinion
       Presiding Justice Palmer concurred in the judgment and opinion.
       Justice Gordon specially concurred, with opinion.

                                            OPINION

¶1     Chicagoans Michael Scott, James Des Jardins, and Mark Graham, who own residential

properties on South Kenwood Avenue, and their neighbor, Lorraine Pettigrew, who owns

residential property on South Kimbark Avenue, brought an action against City of Chicago to

challenge the city council's decision to rezone property on 53rd Street between Kenwood and

Kimbark Avenues from retail zoning to a planned development pursuant to the Chicago Zoning

Ordinance. Chicago Municipal Code §17-13-100 et seq. (2009). Where there was once just a

parking lot and gas station on the north side of 53rd Street, the new zoning would allow for a mixed

use building that is 13 stories and 155 feet tall. The construction plans include 267 multi-family
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residential units, ground floor commercial space, and 218 parking spaces. The plaintiffs alleged

that the previous split zoning for the property was B1-2 and B3-2, which allowed for mixed use

construction no taller than 50 feet, like the neighboring buildings on 53rd Street which are at most

three stories tall. Thus, city council's rezoning to B3-5 and then to Planned Development No. 1218

would allow "over-sized" and "out-of-character" buildings in the "low scale" neighborhood,"

which would tower over the neighboring structures, blocking their access to sunlight and casting

"significant" shadows. The plaintiffs also complained there was inadequate provision for off-street

parking, which would result in the use and deprivation of scarce on-street parking. The plaintiffs

asked the court to declare the rezoning invalid because the changes to their neighborhood would

unjustifiably diminish property values and were arbitrary and capricious, in violation of the

plaintiffs' constitutional right to substantive due process. The owner of the rezoned property, Lake

Park Associates, Inc. (Lake Park), is affiliated with the University of Chicago. Lake Park

intervened in the action and sought dismissal pursuant to section 2-619(a)(9) of the Illinois Code of

Civil Procedure (see 735 ILCS 5/2-619(a)(9) (West 2012)) (Civil Code), arguing that the

complaint was defective because the plaintiffs had not complied with the notice requirements set

out in section 11-13-8 of the Illinois Municipal Code (see 65 ILCS 5/11-13-8 (West 2012))

(Municipal Code), which mandate that a party challenging a zoning ordinance give written notice

of the party's lawsuit to all property owners within 250 feet of the affected property. Lake Park also

joined in a motion to dismiss filed by City of Chicago pursuant to section 2-615 of the Civil Code

(735 ILCS 5/2-615 (West 2012)), contending the complaint did not state a cause of action for a due

process violation. The trial court granted Lake Park's motion to dismiss for failure to give pre-suit


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notice and did not reach the other motion. The plaintiffs appeal. For the reasons that follow, we

affirm.

¶2        Section 11-3-8 of the Municipal Code requires the plaintiffs to provide pre-suit notice of

their intent to file a declaratory judgment action seeking to have the new zoning classification

declared invalid. 65 ILCS 5/11-13-8 (West 2012). Section 11-3-8 provides as follows:

                          "In municipalities of 500,000 or more population [(e.g., Chicago)], 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. A property owner entitled to notice who shows that his property will be

                 substantially affected by the outcome of the declaratory judgment proceeding may

                 enter his appearance in the proceeding, and if he does so he shall have the rights of

                 a party. The property owner shall not, however, need to prove any specific, special,

                 or unique damages to himself or his property or any adverse effect upon his

                 property from the declaratory judgment proceeding." 65 ILCS 5/11-13-8 (West

                 2012).


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¶3     Thus, section 11-13-8 incorporates the notice requirements set out in section 11-13-7 of the

Municipal Code:

                       "[I]n municipalities of 500,000 or more population, an applicant for

               variation or special use shall, not more than 30 days before filing an application for

               variation or special use with the board of appeals, serve written notice, either in

               person or by registered mail, return receipt requested, on the owners, as recorded in

               the office of the recorder of deeds or the registrar of titles of the county in which the

               property is located and as appears from the authentic tax records of such county, of

               all property within 250 feet in each direction of the location for which the variation

               or special use is requested; provided, the number of feet occupied by all public

               roads, streets, alleys and other public ways shall be excluded in computing the 250

               feet requirement. *** If, after a bona fide effort to determine [the address of] the

               owner of the property on which the notice is served cannot be found at his or her

               last known address, or the mailed notice is returned because the owner cannot be

               found at the last known address, the notice requirements of this sub-section shall be

               deemed satisfied." 65 ILCS 5/11-13-7 (West 2012).

¶4     The plaintiffs mailed approximately 125 pre-filing notices, but did not attempt to send

notice to at least 26 other property owners whose land is within 250 feet of Lake Park's rezoned

property, excluding public roads, streets, and alleys. The plaintiffs did not send notices to the

owners of properties that are on the east side of Dorchester Avenue, of which there are seven, and

they made no attempt to notify owners of any tax exempt properties, of which there are 19.


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¶5     When the plaintiffs filed suit, they were statutorily required to also file a list of all property

owners given notice of the intent to sue. See 65 ILCS 5/11-13-7, 11-13-8 (West 2012). The

plaintiffs' list included the Chicago 14-digit Property Index Number or PIN for each parcel

followed by either the owner's name and mailing address or simply the word "exempt."

¶6     The plaintiffs had compiled their list with the assistance of a Chicago firm, Property

Insight, L.L.C. According to this firm, when it conducts searches for pre-suit notices, the "subject

property is identified and provided to us by our customers." In this instance, the plaintiffs' attorney

requested a search of all properties "within 250 feet of 1330 E. 53rd Street." Accordingly, the

search originated with the PIN for that specific street address and extended outward, 250 feet in

each direction from the boundaries of that PIN, excluding public roads, streets, and alleys. The

problem with using one common street address as the basis for the record search in this instance is

that the subject property consists of three different parcels, and, thus, there are three different

addressees and PINs. Therefore, the search did not extend far enough east, to Dorchester Avenue.

The other 19 omissions occurred because the search was performed only on the computerized

records of the Cook County Treasurer. When a Cook County property is exempt from taxation, the

treasurer's records do not list the name and mailing address of the record owner. (Thus, for some

properties on the plaintiffs' mailing list, the word "exempt" appeared instead of the owner's name

and mailing address.) The plaintiffs' search analyst neglected to search the records of the two other

agencies involved in recording and collecting property taxes in this county–the Cook County Clerk

and the Cook County Assessor.

¶7     Lake Park argued in its motion and then amended motion to dismiss that either type of


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omission (the omission of the Dorchester Avenue property owners and the omission of the tax

exempt property owners) was sufficient grounds for dismissal, because notice is a mandatory

prerequisite to bringing suit. After full briefing and oral argument, the trial court pointed out that

there was a third defect in the plaintiffs' property search, in that there was no indication that they

searched the records of the Cook County recorder of deeds. Section 11-13-7 requires that written

notice be given to property owners "as recorded by the office of the recorder of deeds *** and as it

appears from the authentic tax records of such county." (Emphasis added.) 65 ILCS 5/11-13-7

(West 2012). The court granted the dismissal with prejudice and this appeal was taken.

¶8     The plaintiffs contend that the dismissal of their complaint for failure to comply with the

notice requirement has been an undue and unnecessary sanction which the appellate court should

reject. Previously, in City Suites, this court found that "the language and mandate" of sections

11-13-7 and 11-3-8 of the Municipal Code are "clear in requiring that [pre-suit] notice be given in

all declaratory actions to invalidate zoning, without exception." LaSalle National Bank v. City

Suites, Inc., 325 Ill. App. 3d 780, 790, 758 N.E.2d 382, 390 (2001); 65 ILCS 5/11-13-7, 11-13-8

(West 2012). The plaintiffs contend that City Suites is distinguishable. They also contend that

sections 11-13-7 and 11-13-8 of the Municipal Code do not require "perfect identification of all

property owners" entitled to notice and that the appropriate standard is for plaintiffs to either make

a bona fide effort or achieve substantial compliance with the statutes.

¶9     The phrase "bona fide" appears in the final sentence of section 11-13-7 (the statute is

quoted above). The plaintiffs excuse their failure to notify the 19 tax exempt properties by arguing

they made a bona fide effort at compliance by retaining a firm that specializes in identifying


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properties within 250 feet of a given location (Property Insight, Inc.) and that the firm then made a

bona fide effort to locate all the record owners of the properties within the notice zone. Regarding

the failure to contact anyone on the east side of Dorchester Avenue, the plaintiffs contend they

justifiably limited their property search to the single PIN for 1330 East 53rd Street because the

municipality and Lake Park have consistently identified the rezoned property by this single

common address, such as when Lake Park's predecessor-in-interest prepared the Application for

Amendment to the Chicago Zoning Ordinance and when the City of Chicago prepared the

Ordinance. The plaintiffs calculate that their notices actually encompassed two of the three PINs

that were rezoned and "came up [just] two feet short" in determining the notice zone for the third

PIN, which they contend is further indication of their bona fide effort at compliance. The plaintiffs

propose that, "at a minimum," we allow the suit to proceed with respect to the two PINs where they

"achieved full compliance."

¶ 10    The plaintiffs' "substantial compliance" argument is based on authority indicating that a

mandatory statute does not always require strict compliance and that substantial compliance may

suffice, provided that (1) the purpose of the statute can be met without strict compliance and (2)

"[the] defendant [has not] suffered any prejudice from [the] plaintiff's failure to strictly comply."

Behl v. Gingerich, 396 Ill. App. 3d 1078, 1086, 920 N.E.2d 665, 671 (2009). According to the

plaintiffs, the municipality and Lake Park have the "most at stake" in upholding the planned

development and are committing "substantial resources" in defense of the city council's decision to

rezone, which means that "the practical need for any other property owner to intervene in the

litigation is negligible, if not zero."


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¶ 11   A section 2–619 motion to dismiss admits the legal sufficiency of the complaint and raises

defects, defenses, or other matters that act to defeat the claim. Krilich v. American National Bank

& Trust Co. of Chicago, 334 Ill. App. 3d 563, 569-70, 778 N.E.2d 1153, 1160 (2002). Municipal

ordinances, such as the zoning ordinance at issue here, are interpreted under the general rules of

statutory construction and interpretation. LeCompte v. Zoning Board of Appeals, 2011 IL App

(1st) 100423, ¶ 22, 958 N.E.2d 1065; Puss N Boots, Inc. v. Mayor's License Comm'n of the City of

Chicago, 232 Ill. App. 3d 984, 986, 597 N.E.2d 650, 652 (1992).We address questions of statutory

interpretation and rulings on section 2-619 motions de novo. JPMorgan Chase Bank, N.A. v. Earth

Foods, Inc., 238 Ill. 2d 455, 461, 939 N.E.2d 487, 490 (2010) (regarding statutory interpretation);

Krilich, 334 Ill. App. 3d at 569, 778 N.E.2d at 1160 (regarding section 2-619). Our task is to

ascertain and give effect to the intent of the legislature. JPMorgan, 238 Ill. 2d at 461, 939 N.E.2d

at 490. We do this by considering the plain language of the statute, and when it is clear and

unambiguous, we apply it as written without resorting to other rules of statutory construction.

JPMorgan, 238 Ill. 2d at 461, 939 N.E.2d at 490. We do not read in exceptions, conditions, or

limitations that were not expressed by the legislature. Martin v. Office of State's Attorney, 2011 IL

App (1st) 102718, ¶ 10, 959 N.E.2d 1264. We give each word, clause, and sentence reasonable

meaning and, to the extent possible, we do not render any statutory language superfluous. Gallaher

v. Hasbrouk, 2013 IL App (1st) 122969, ¶ 31, 3 N.E.3d 913.

¶ 12   Applying these principles to the facts at hand, we find that the municipal statutes are not

satisfied by the plaintiffs' efforts at pre-suit notice. We reach this conclusion in part because the

plaintiffs' search of the "authentic tax records" in order to give notice to other property owners was


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incomplete and we are not persuaded that the legislature condoned less than strict compliance with

the notice statutes. Precedent indicates that searching the county's "authentic tax records" in order

to give pre-suit notice includes searching not only the records of the Cook County Treasurer, but

also the records of the Cook County Clerk and the Cook County Assessor. Bishop v. Pollution

Control Board, 235 Ill. App. 3d 925, 932, 601 N.E.2d 310, 315 (1992). All three offices play a role

in the record keeping and collection of taxes. Bishop, 235 Ill. App. 3d at 932, 601 N.E.2d at 315.

Although this precedent concerned notice given in Montgomery County rather than Cook County,

the decision was based on Illinois statutes that apply here as well. See Bishop, 235 Ill. App. 3d at

932, 601 N.E.2d at 315. The trial court expressly relied on this precedent in granting Lake Park's

motion to dismiss and the court's order uses similar wording. Nonetheless, on appeal the plaintiffs

do not attempt to distinguish Bishop or cite contrary authority and they do not dispute the fact that

they made no attempt to search the records of the county clerk or the county assessor in order to

compile their pre-suit mailing list.

¶ 13   The plaintiffs misconstrue the statute when they argue section 11-13-7 recognizes "that

compliance with the statute may be difficult" and thus, "a bona fide effort to comply with the

statute may be sufficient." These are terms proposed by the plaintiffs. These are not the words of

the legislature. What the legislature said was that when a plaintiff makes a bona fide attempt to

serve a property owner "at his or her last known address," but the owner "cannot be found" at that

address or when "the mailed notice is returned because the owner cannot be found" at that address,

then "the notice requirements of this sub-section shall be deemed satisfied." 65 ILCS 5/11-13-7

(West 2012). That limited provision might apply when notice is addressed and mailed to a property


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owner who has relocated without updating his or her current mailing information and thus cannot

be found at the expected location. That limited provision does not apply here and it does not excuse

the plaintiffs' failure to serve the owners of tax exempt properties.

¶ 14   Moreover, we are not persuaded that their failure to send notice to the Dorchester Avenue

owners is insignificant or attributable to City of Chicago or Lake Park. The plaintiffs erred by

using only the common address, 1330 East 53rd Street, as the basis for their search of nearby

properties, excluding the Dorchester Avenue properties. They cannot blame their inadequate

search parameters on the municipality or Lake Park. The legislature did not use the term "common

address" or the term "common street address" in section 11-13-7 to define the plaintiffs' notice

obligation. Instead, section 11-13-7 specifies that notice is to be given to the owners of properties

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

requested." (Emphasis added). 65 ILCS 5/11-13-7 (West 2012). The statute also gives a second

indication that the use of a common address is insufficient in this context. The statute requires that

notices include both "(i) the common street address or addresses and (ii) the property index

number ('PIN') or numbers of all the parcels of real property contained in the area for which the

variation or special use is requested." (Emphasis added.) 65 ILCS 5/11-13-7 (West 2012). In other

words, the use of the term "location" coupled with the fact that the plaintiffs are required to set out

(1) the "common street address or addresses" and (2) the "property index number (PIN) or

numbers" for the property that has been rezoned confirms that the legislature intended for the 250

foot notice parameter to be measured with more care than from just a common address.

¶ 15   Furthermore, in the municipal zoning context, a common address alone is not sufficient


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identification of a property. The Chicago Zoning Ordinance defines zoning boundaries in terms of

streets, alleys, boundary lines, and property lines instead of by common addresses. Chicago

Zoning Ordinance §17-1-0800 (2012). See also Chicago Zoning Ordinance § 17-1-0602 (stating

that "[t]he language of the Zoning Ordinance must be read literally" and "regulations are no more

or less strict than stated"). Consistent with that standard, the ordinance that was adopted by the city

council in this instance describes the boundaries of the subject property in terms of streets and

alleys:

               "[The ordinance amends] Title 17 of the Chicago Municipal Code by changing all

               of the B1-2 Neighborhood Shopping District symbols and B3-2 Community

               Shopping District symbols as shown on Map Number 12-D in the area generally

               bounded by: the alley next north of and parallel to East 53rd Street; a line extending

               south beginning at a point 53 feet west of South Kenwood Avenue and ending at a

               point 101.8 feet west of South Kenwood Avenue; East 53rd Street; and a line

               beginning at a point 422.72 feet west of South Kenwood Avenue extending north to

               the alley next north of and parallel to East 53rd Street, to those of a B3-5

               Community Shopping District. Section 2 Title 17 of the Municipal Code of

               Chicago, the Chicago Zoning Ordinance, is hereby amended by changing all of the

               B3-5 Community Shopping District symbols as shown on Map Number 12-D in the

               area described in Section 1 of this ordinance to the designation of a Planned

               Development, subject to the use and bulk regulations set forth in the Plan of

               Development attached hereto and made a part thereof."


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The city council's records not only recite the boundaries of the subject property for zoning

purposes, but also include an "Existing Land-Use Map" that graphically depicts the subject

property and its neighboring parcels which are specified to be in use as residential,

commercial/office, institutional, parking garage, or surface parking. Following that there is a

"Planned Development Boundary and Property Line Map" which graphically depicts the precise

measurements of the boundaries of the area being rezoned and the square footage of the rezoned

area. In addition to these specific descriptions and depictions, the city council's materials include

the common address that the plaintiffs claim to have relied on when conducting their 250'

boundary search.

¶ 16   There are similar details in the application for rezoning which the plaintiffs contend was

another reason they were justified in limiting their property search to the single PIN for 1330 East

53rd Street.

¶ 17   For these reasons, we find (1) that the point for determining the properties to be given

pre-suit notice was the "location" of the subject property to be rezoned, not its common address or

addresses, and (2) that the plaintiffs' use of the common address, 1330 East 53rd Street, as the basis

for their search cannot be attributed to the municipality or the owner of the rezoned property. The

plaintiffs did not follow the Municipal Code. The plaintiffs' search parameters were wrong,

through no fault of the other litigants.

¶ 18   Moreover, the suggestion that we should let the suit go forward for two of the three rezoned

PINs because the plaintiffs "achieved full compliance" with the notice statute for those PINs is

contrary to the record and the plainly worded statute requiring notice "within 250 feet in each


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direction of the [rezoned] location." (Emphasis added.) 65 ILCS 5/11-13-7 (West 2012).

¶ 19   Our next consideration is whether "substantial compliance" with the pre-suit notice

requirements is acceptable in this instance. Both of the municipal statutes use the word "shall" in

defining the plaintiffs' pre-suit obligations. See 65 ILCS 5/11-13-8 (West 2012) (emphasis

supplied) ("not more than 30 days before filing suit for 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"); 65 ILCS 5/11-13-8 (emphasis supplied) ("an

applicant for variation *** shall, not more than 30 days before filing *** serve written notice).

"Typically, use of the word 'shall' in a statutory provision indicates that the legislature intended a

mandatory, rather than directory, provision." Behl, 396 Ill. App. 3d at 1086, 920 N.E.2d at 671;

Puss N Boots, 232 Ill. App. 3d at 986-87, 597 N.E.2d at 652-53 (stating that the use of "shall"

generally indicates a legislative intent to make a provision or a law mandatory). The plaintiffs cite

Behl for the proposition that, in some instances, "shall" in a mandatory statute means only

"substantial compliance."

¶ 20   As we outlined earlier, when determining whether substantial compliance or strict

compliance is expected, we are to take a two-step analysis. Behl, 396 Ill. App 3d at 1086, 920

N.E.2d at 671. First, we are to consider whether the purpose of the statute is achieved without strict

compliance. Behl, 396 Ill. App. 3d at 1086, 920 N.E.2d at 671. Second, we are to determine

"whether defendant suffered any prejudice from plaintiff's failure to strictly comply." Behl, 396 Ill.

App. 3d at 1086, 920 N.E.2d at 671. The plaintiffs cannot pass the first step. The purpose of a

statute is found by looking at the statutory language and giving those words their plain and


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ordinary meaning. Behl, 396 Ill. App. 3d at 1087, 920 N.E.2d at 671; JPMorgan, 238 Ill. 2d at 461,

939 N.E.2d at 490 (stating the general principle of statutory construction that the plain language of

the statute, when it is clear and unambiguous, is applied as written). It is clear from this particular

statutory language that the legislature intended for all property owners within 250 of the location at

issue to be notified of a challenge to the zoning ordinance. The statute itself explains the reason for

this requirement–a property owner entitled to notice may appear in the suit with all the rights of a

party. 65 ILCS 5/11-13-8 (West 2012). Thus, every property owner that is potentially interested in

taking part in the litigation must be made aware of the suit's existence. Even the plaintiffs here

concede that "the purpose of the pre-filing notice required for would-be zoning challengers is to

alert neighbors to their challenge and to allow neighboring owners the ability to defend the zoning

classification if they so desire." To that we add that some neighboring owners may indeed want to

intervene to defend the zoning classification while others will want to assist the plaintiff in

defeating it. Accordingly, unless all nearby property owners are given notice, the purpose of the

statute cannot be achieved.

¶ 21   Furthermore, the plaintiffs disregarded a significant number of relevant owners when they

mailed notices to approximately 125 property owners and ignored at least 26 others. Plaintiffs

contrast their efforts to send some notices with the fact that no notices were sent in two other cases

interpreting sections 11-13-7 and 11-13-8 of the Municipal Code. 65 ILCS 5/11-13-7, 11-13-8

(West 2012). In City Suites, neighboring property owners challenged the rezoning of residential

property into an off-site parking lot for a hotel, but the trial court dismissed their complaint. City

Suites, 325 Ill. App. 3d 780, 758 N.E.2d 382. Although the plaintiffs' failure to give pre-suit notice


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was just one of many issues on appeal, the appellate court found that plaintiffs must comply with

the pre-suit notice requirement, "without exception." City Suites, 325 Ill. App. 3d 780, 758 N.E.2d

382. This case was subsequently cited with approval in Figiel, where the property at issue was a

corner of a public park that was rezoned to allow for the construction of a children's museum and a

field house. Figiel v. Chicago Plan Commission, 408 Ill. App. 3d 22, 945 N.E.2d 71 (2011). The

Figiel plaintiffs tried to excuse their failure to give pre-suit notice to the fact that their amended

complaint was not styled as a "declaratory judgment" action and that instead of asking the court to

" ' declare' " the zoning amendment to be unconstitutional, the pleading asked the court to " 'enter a

finding' " that the rezoning was " 'arbitrary, capricious, unconstitutional, unreasonable and without

justification in law or in fact.' " Figiel, 408 Ill. App. 3d at 227, 945 N.E.2d at 75. They hoped to

avoid the scope of section 11-3-8 of the Municipal Code, which states, "when any zoning

ordinance *** is sought to be declared invalid by means of a declaratory judgment proceeding,

[the plaintiffs shall give notice] not more than 30 days before filing suit." 65 ILCS 5/11-13-8 (West

2012). Nevertheless, the trial and appellate courts determined the claim was properly characterized

as a declaratory judgment action and was governed by the pre-suit notice requirement. Figiel, 408

Ill. App. 3d 223, 945 N.E.2d 71. The distinction the current plaintiffs draw between themselves

and the plaintiffs in City Suites and Figiel is not persuasive. The property owners who were not

sent notice have been deprived of what the legislature intended–notice of the suit and opportunity

to show that their property "will be substantially affected by the outcome of the declaratory

judgment proceeding" (whether they oppose or support the rezoning) and that they should be

allowed to appear and participate in the proceeding with the "rights of a party." 65 ILCS 5/11-13-8


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(West 2012). The rights of these other property owners who were entitled to notice have been

prejudiced by the plaintiffs' insufficient efforts to provide pre-suit notice.

¶ 22    After the appellate briefs were filed, we granted the plaintiffs' motion for leave to cite

additional authority. The plaintiffs contend Andrews indicates that a statute requiring notice to a

set of property owners can be met by substantial, rather than strict, compliance with the terms of

the statute. Andews v. County of Madison, 54 Ill. App. 3d 343, 369 N.E.2d 543 (1977).

¶ 23    The plaintiffs fail to explain how the operative facts in Andrews are analogous to this case.

There is no similarity. The controversy in Andrews was whether adequate notice had been given of

a public hearing in 1976 at which citizens could voice their opinions on whether Madison County

should install sanitary sewers to serve more than 7,000 registered voters and improve portions of

three different townships. Andrews, 54 Ill. App. 3d at 355, 369 N.E.2d at 541. The proposed

project was not only massive, it was costly, and would require the issuance of $5 million in general

obligation bonds. Andrews, 54 Ill. App. 3d at 346, 369 N.E.2d at 535. Many people at the public

hearing expressed support for the project while many others objected. Andrews, 54 Ill. App. 3d at

346, 369 N.E.2d at 535.The most frequent objection was to the additional tax levy. Andrews, 54 Ill.

App. 3d at 346, 369 N.E.2d at 535. After the public hearing, members of the Madison County

board voted to approve the project and to levy additional taxes to pay for its construction and

maintenance. Andrews, 54 Ill. App. 3d at 346, 369 N.E.2d at 535.

¶ 24    The appellate court characterized the public hearing as an in rem taxation proceeding and

remarked on the well-settled proposition that taxation does not require personal notification to

satisfy due process. Andrews, 54 Ill. App. 3d at 356, 369 N.E.2d at 542. Instead, publication notice


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alone may be sufficient to satisfy due process concerns in the context of in rem taxation. Andrews,

54 Ill. App. 3d at 356, 369 N.E.2d at 542.

¶ 25   Pursuant to the statute at issue there, Montgomery County officials had published notice of

the hearing in a local newspaper. Andrews, 54 Ill. App. 3d at 346, 369 N.E.2d at 535. The editors of

the various local newspapers also printed numerous articles about the proposed sewer project.

Andrews, 54 Ill. App. 3d at 356, 369 N.E.2d at 542. In addition, the statute required Madison

County to mail individual notices to property owners of record, which the county officials had

done. Andrews, 54 Ill. App. 3d at 346, 369 N.E.2d at 535. However, a subsequent search showed

that the county's mailing list was incomplete and a group of property owners sought to enjoin the

project and the resulting tax burden in part because of the deficient mailing. Andrews, 54 Ill. App.

3d at 355, 369 N.E.2d at 542.

¶ 26   The appellate court found, however, that the notice required by statute and actually given

by county officials was "much more thorough" than the due process standard for in rem taxation.

Andrews, 54 Ill. App. 3d at 356, 369 N.E.2d at 542. The court was confident that, in combination,

the published notice and published stories meant that "substantially all affected persons were

aware of this opportunity to be heard in objection to the [proposed sewer project and tax

increase]." Andrews, 54 Ill. App. 3d at 356, 369 N.E.2d at 542. Therefore, although the county's

efforts were imperfect, the notice given "was sufficient to pass due process muster." Andrews, 54

Ill. App. 3d at 356, 369 N.E.2d at 542.

¶ 27   We are not reviewing a tax case and thus Andrews' analysis and the taxation precedent that

was so helpful in that case is not applicable here. Furthermore, the circumstances that occurred in


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Andrews were not repeated here. Mailing was the only method of pre-suit notice utilized by the

current plaintiffs, rather than the combination of public notice, media coverage, and individual

letters which publicized the Madison County board meeting. It was the combination of the

published notice and the "numerous news articles about the project" which lead the Andrews court

to find that "substantially all affected persons were aware of this opportunity to be heard."

Andrews, 54 Ill. App. 3d at 356, 369 N.E.2d at 542. Plaintiffs do not suggest that they published

notice in a local newspaper of their intent to file this suit. Moreover, the media coverage that

occurred, if any occurred, when a private property owner sought approval to demolish a Chicago

gas station and parking lot to make way for one large, mixed-use building, was undoubtedly less

than the extensive news coverage that occurred while Madison County officials were

contemplating digging up the streets and increasing property taxes for 6,920 property owners. The

plaintiffs' reliance on Andrews is not persuasive.

¶ 28   The plaintiffs emphasize that none of the Chicago property owners who were notified by

mail chose to intervene in this proceeding and the plaintiffs suggest this lack of participation is a

practical indication that substantial compliance with the notice requirement was sufficient. We

disagree. There is no way to determine whether the excluded property owners would have decided

to participate in the suit if they had known about it.

¶ 29   We also reject the contention that the plaintiffs are excused from strict compliance with the

notice requirement because The City of Chicago and Lake Park will vigorously defend the

rezoning. If the legislature intended that the municipality and the owner of the subject property

were the only truly interested defendants, then the legislature would have written the notice


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provision accordingly. The degree of opposition to the plaintiffs' suit by the municipality and the

property owner has no bearing on this statute. We cannot disregard any of the legislature's

wording. Gallaher, 2013 IL App (1st) 122969, ¶ 31, 3 N.E.3d 913.

¶ 30   For these reasons, we find that strict compliance with the pre-suit notice provision is

required and that this is not an instance when substantial compliance is adequate.

¶ 31   Finally, the plaintiffs have not addressed the additional notice requirement the trial court

pointed out had been overlooked by all the litigants. Section 11-13-7 requires that written notice be

given to property owners "as recorded by the office of the recorder of deeds *** and as appears

from the authentic tax records of such county." (Emphasis added.) 65 ILCS 5/11-13-7 (West

2012). This is a clear and unambiguous requirement that all plaintiffs inquire with both the office

of the recorder of deeds and the authentic tax records of the county. The recorded deeds ordinarily

should be searched so that plaintiffs capture the names and addresses of new property owners who

are not yet included in the county tax rolls. Regardless of why the legislature imposed this

requirement, it is undisputed that the current plaintiffs made no attempt to search the records of the

recorder of deeds. The total failure to comply with this notice requirement is reason alone to find

that the plaintiffs' suit was defective. Furthermore, the failure to address this fact on appeal is a

concession that the trial judge's ruling was correct.

¶ 32   In short, the record shows that the plaintiffs made multiple errors as they tried to comply

with the pre-suit notice requirement and that their failures cannot be excused or attributed to the

actions of the City of Chicago or Lake Park. The plaintiffs' failure to strictly comply with the

pre-suit notice requirement warranted the dismissal of their complaint with prejudice.


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¶ 33   In their reply brief and during oral arguments, the plaintiffs contended their "sincere but

imperfect efforts" to provide pre-suit notice should not result in the "ultimate penalty" of the

dismissal of their suit. They cite Hanna v. City of Chicago, 331 Ill. App. 3d 295, 308-10, 771

N.E.2d 2d 13, 24-25 (2002), for the proposition that Illinois courts are lenient with notice failures

and allow for "make-up notice." We reject this argument for any one of the following three

reasons.

¶ 34   First, the plaintiffs fail to cite any portion of the record that indicates they presented this

argument in the trial court and are now seeking our review of the judge's ruling. Arguments

presented for the first time on appeal are waived. Robidoux v. Oliphant, 201 Ill. 2d 324, 344, 775

N.E.2d 987, 998-99 (2002) (issues not raised in the circuit court cannot be raised for the first time

on appeal).

¶ 35   Second, this argument was not presented in the plaintiffs' opening brief. Arguments which

are omitted from an opening brief are waived. Ill. S Ct. R. 341(h)(7) (eff. Feb 6, 2013) (points not

argued in an appellant's opening brief "are waived and shall not be raised [for the first time] in the

reply brief, in oral argument, or on petition for rehearing").

¶ 36   Third, Hanna is distinguishable on the facts and the opinion does not suggest in any way

that the notice requirement should be relaxed. That case involved the rezoning of an entire

40-block neighborhood. Hanna, 331 Ill. App. 3d at 302, 771 N.E.2d at 19. The plaintiff challenged

the rezoning of his own property, unlike the current plaintiffs who challenged the rezoning of a

nearby property. The plaintiff's pre-suit notice was apparently perfect as to all property owners

within 250 feet of his own property. Hanna, 331 Ill. App. 3d at 302, 771 N.E.2d at 19. However, in


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a case of first impression, we determined that he would be required to also give notice to all

property owners within 250 feet of the rezoned neighborhood, despite his contention that this was

a burden that could not have been intended by the legislature. Hanna, 331 Ill. App. 3d at 310, 771

N.E.2d at 25. In contrast, here, we have plaintiffs who failed to attempt to notify numerous

property owners who were plainly entitled to notice because they were within 250 feet of the

affected property. Hanna does not excuse their noncompliance with the statute at issue. The

opinion does not state or imply that plaintiffs may be lax in giving pre-suit notice and that Illinois

courts will be "lenient" in enforcing the notice standard. The plaintiffs' failure to strictly comply

with the plainly worded notice requirement is fatal to their lawsuit concerning the Lake Park

development.

¶ 37   Lake Park also sought dismissal of the complaint pursuant to section 2-619(a)(1) of the

Civil Code, contending that the failure to strictly comply with the statute deprived the circuit court

of subject matter jurisdiction. 735 ILCS 5/2-619(a)(1) (West 2012). This argument was incorrect.

It was based on an election board case which has limited application and expressly states, "Illinois

courts do not have inherent authority to hear election cases, but may only exercise jurisdiction over

such cases when provided by statute." (Emphasis added.) Hough v. Will County Board of

Elections, 338 Ill. App. 3d 1092, 1093-94, 789 N.E.2d 795, 796 (2003). In Belleville Toyota, our

supreme court provided an in-depth analysis of subject matter jurisdiction in Illinois. Belleville

Toyota, Inc. v. Toyota Motor Sales U.S.A., Inc., 199 Ill.2d 325, 335, 770 N.E.2d 177, 184 (2002).

¶ 38   Finally, the City of Chicago filed a separate brief in support of the trial court's ruling and

argues, as an alternative ground for affirmance, that the plaintiffs did not adequately plead a due


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process claim. The City of Chicago contends the plaintiffs did not allege injury to any protectable

interest, in that there is no legal right to the free flow of light or air from adjoining land, no

entitlement to street parking, and no guarantee of increasing property values. The City of Chicago

also contends the plaintiffs' facial challenge to the rezoning did not state a claim because the

decision withstands a rational basis review. The trial court did not reach these arguments, but a

reviewing court may uphold the decision of the trial court on any grounds which are supported by

the record. Ultsch v. Illinois Municipal Retirement Fund, 226 Ill. 2d 169, 192, 874 N.E.2d 1

(2007). However, we find it unnecessary to reach these additional arguments because of our

conclusions above that the complaint was properly dismissed based on the plaintiffs' failure to

strictly comply with the pre-suit notice requirements.

¶ 39    The dismissal of the plaintiffs' lawsuit is affirmed.

¶ 40    Affirmed.



¶ 41    JUSTICE GORDON, specially concurring.

¶ 42    I am specially concurring in this case only because I have something to add to the

well-written opinion of the majority concerning legislative intent. In the rezoning world, the

developer of a property is required by statute or ordinance to notify all property owners normally

within 250 feet of the subject property of the rezoning request. The intent of the legislature or city

council is to make sure that every property owner within a certain distance of the subject property

that is to be rezoned has an opportunity to be heard at a public hearing so that the municipality can

hear how the rezoning is going to affect the rights of its citizens in close proximity of property that


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is subject to a rezoning application. After the property is rezoned, or after the rezoning request is

denied, the grieving party is required in Chicago to give the same type of notice to all property

owners within 250 feet of the subject property "not more than 30 days before filing suit for a

declaratory judgment" to invalidate the rezoning or to overturn the city's decision to deny the

rezoning. 65 ILCS 5/11-13-8 (West 2012). For decades, developers have had to resend notices

whenever any property owner within a required area was not served on rezoning applications as

the courts have interpreted the statute or ordinance to be mandatory. Figiel v. Chicago Plan

Comm'n, 408 Ill. App. 3d 223, 229-30 (2011). In 1961, section 11-13-8 of the municipal code was

enacted with basically the same language requiring a notice before instituting a declaratory

judgment proceeding in the courts whenever developers or property owners seek to overturn the

decision of the city of Chicago. Whoever files the suit, whether it be the developer or the property

owner, the language requires all property owners within 250 feet of the subject property to be

given a written notice. It cannot be relaxed for the developer and it cannot be relaxed for the

property owner because the legislature has intended for it to be mandatory so that those property

owners most affected will be given appropriate notice so that they can be heard. Anything less

could cut off the rights of those people who are the most vocal about the rezoning of the subject

property.




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