                                                                                Digitally signed by
                                                                                Reporter of Decisions
                                                                                Reason: I attest to the
                               Illinois Official Reports                        accuracy and
                                                                                integrity of this
                                                                                document
                                      Appellate Court                           Date: 2018.06.14
                                                                                11:23:49 -05'00'




        Fox Valley Families Against Planned Parenthood v. Planned Parenthood of Illinois,
                                    2018 IL App (2d) 170137



Appellate Court           FOX VALLEY FAMILIES AGAINST PLANNED PARENTHOOD,
Caption                   SOCORRO NIETO, and CHARLES AMANING, Plaintiffs-
                          Appellants, v. PLANNED PARENTHOOD OF ILLINOIS, as
                          Successor in Interest to Planned Parenthood/Chicago, GEMINI
                          OFFICE DEVELOPMENT, LLC, and 21ST CENTURY OFFICE
                          DEVELOPMENT, LLC, Defendants-Appellees.



District & No.            Second District
                          Docket No. 2-17-0137



Filed                     March 6, 2018



Decision Under            Appeal from the Circuit Court of Du Page County, No. 08-MR-261;
Review                    the Hon. Paul M. Fullerton, Judge, presiding.



Judgment                  Affirmed.


Counsel on                Peter Breen, of Thomas More Society, of Chicago, for appellants.
Appeal
                          Christopher B. Wilson and Caitlin M. Foley, of Perkins Coie LLP, of
                          Chicago, for appellees.
     Panel                   JUSTICE ZENOFF delivered the judgment of the court, with opinion.
                             Justices McLaren and Hutchinson concurred in the judgment and
                             opinion.


                                              OPINION

¶1         Defendant, Gemini Office Development, LLC (Gemini), owns the property located at
       3051 East New York Street in Aurora, Illinois. The tenant of that property, defendant
       Planned Parenthood of Illinois, operates a facility where it provides abortions and other
       healthcare services. Planned Parenthood of Illinois is the sole and controlling member and
       owner of defendant 21st Century Office Development, LLC, which, in turn, is the sole and
       controlling member and owner of Gemini. Plaintiffs—Fox Valley Families Against Planned
       Parenthood, Socorro Nieto, and Charles Amaning—filed the instant action to challenge
       defendants’ use of the property. Specifically, plaintiffs alleged in their fourth amended
       complaint that such use constitutes an ongoing violation of the Aurora Zoning Ordinance
       (Aurora Code of Ordinances, Appendix A, as amended by Ordinance No. O15-062
       (approved Oct. 13, 2015)). The trial court dismissed the action pursuant to section 2-615 of
       the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2016)). Plaintiffs appeal. For
       the reasons that follow, we affirm.

¶2                                          I. BACKGROUND
¶3         This is the second time that this case has been before us. In Fox Valley Families Against
       Planned Parenthood v. Planned Parenthood of Illinois, 2015 IL App (2d) 131019-U (Fox
       Valley Families I), we remanded the matter for further proceedings on the issue of whether
       defendants’ ongoing use of the subject property violates the zoning ordinance. We made it
       clear that we expressed no opinion on the merits of that particular issue. Fox Valley Families
       I, 2015 IL App (2d) 131019-U, ¶ 107 (“We emphasize that we express no opinion on the
       merits of plaintiffs’ claim that Planned Parenthood’s ongoing use of the property violates the
       [zoning ordinance], even though plaintiffs maintain that this court should make that
       determination. Given the procedural posture of this case, it would be premature for this court
       to do so.”).
¶4         On remand, plaintiffs filed a fourth amended complaint seeking a declaratory judgment
       and an injunction pursuant to section 11-13-15 of the Illinois Municipal Code (65 ILCS
       5/11-13-15 (West 2016)). That statute provides a mechanism for property owners to seek
       redress for ordinance violations on neighboring properties.
¶5         The parties agree that the subject property is located in Aurora’s Business-Boulevard
       District (B-B District). They disagree as to whether the present use of the property is
       permitted in that district. According to defendants, the Planned Parenthood facility is indeed
       a permitted use, because it falls under the category of “Offices, business and professional,
       including medical clinics.” See Aurora Code of Ordinances, Appendix A, § 8.6-4.1(LLL), as
       amended by Ordinance No. O15-062 (approved Oct. 13, 2015). Plaintiffs, on the other hand,
       maintain that the use of the property more accurately comes under the umbrella of “Social
       Service Agencies, Charitable Organizations, Health Related Facilities, and similar uses when


                                                  -2-
       not operated for pecuniary profit.” See Aurora Code of Ordinances, Appendix A, § 20, Table
       One, as amended by Ordinance No. O15-062 (approved Oct. 13, 2015). Plaintiffs submit that
       this so-called “nonprofit use category” or “not-for-profit use category” is prohibited in the
       B-B District.
¶6         The parties outlined their respective interpretations of the zoning ordinance in the context
       of briefing defendants’ motion to dismiss the fourth amended complaint pursuant to section
       2-615 of the Code. The trial court granted that motion, concluding that plaintiffs failed to
       allege an ongoing violation of the zoning ordinance. Plaintiffs timely appealed.

¶7                                             II. ANALYSIS
¶8         Plaintiffs preliminarily contend that the law-of-the-case doctrine bars defendants’
       arguments. Plaintiffs also submit that it was improper for the trial court to dismiss the fourth
       amended complaint because we determined in the prior appeal that it would be premature for
       us to address the merits of their claim and “the case was in effectively the same posture” on
       remand. Plaintiffs further assert that defendants forfeited their statutory-interpretation
       argument by failing to raise it in the first appeal.
¶9         “[T]he law-of-the-case doctrine generally bars relitigation of an issue previously decided
       in the same case.” People ex rel. Madigan v. Illinois Commerce Comm’n, 2012 IL App (2d)
       100024, ¶ 31. When an appellate court decides a question of law, that decision ordinarily
       binds both the trial court on remand and the appellate court in a subsequent appeal. Madigan,
       2012 IL App (2d) 100024, ¶ 31. But “matters concerning the merits of a controversy that
       were not decided by a first appellate opinion do not become the law of the case.” Filipetto v.
       Village of Wilmette, 254 Ill. App. 3d 461, 466 (1993). That is true even if such issues were
       “presented but not decided in the prior appeal.” Filipetto, 254 Ill. App. 3d at 466.
¶ 10       The law-of-the-case doctrine does not bar defendants’ arguments. In Fox Valley Families
       I, we recounted that the trial court had granted summary judgment in defendants’ favor on
       plaintiffs’ “ongoing use” claim, based on its erroneous finding that “a legislative decision had
       been made approving of Planned Parenthood’s use of the property and that plaintiffs could
       not establish that the decision was arbitrary and capricious.” Fox Valley Families I, 2015 IL
       App (2d) 131019-U, ¶ 97. We held that defendants “were not entitled to judgment as a matter
       of law on [the ongoing-use] claim on the basis that the city made a legislative decision
       approving of Planned Parenthood’s use.” Fox Valley Families I, 2015 IL App (2d)
       131019-U, ¶ 107. However, we expressly declined to comment on the merits of plaintiffs’
       theory that the ongoing use of the subject property violates the zoning ordinance. Fox Valley
       Families I, 2015 IL App (2d) 131019-U, ¶ 107. Plaintiffs’ suggestion that we nevertheless
       made certain “preliminary finding[s]” on that issue is simply wrong.
¶ 11       For similar reasons, we decline to hold that defendants have waived, forfeited, or
       otherwise defaulted their arguments. Throughout much of the history of this case,
       defendants’ position with respect to plaintiffs’ claim of an ongoing ordinance violation was
       colored by an erroneous assumption that the City of Aurora had made a legislative decision
       approving of defendants’ particular use of the property. In Fox Valley Families I, we certainly
       contemplated that the parties would have a chance on remand to present their respective
       interpretations of the zoning ordinance without the effect of that erroneous assumption.
       Contrary to what plaintiffs propose, the case was not in the same procedural posture on
       remand as it had been on appeal.

                                                  -3-
¶ 12       The trial court dismissed plaintiffs’ fourth amended complaint pursuant to section 2-615
       of the Code. “A section 2-615 motion to dismiss challenges the legal sufficiency of a
       complaint based on defects apparent on its face.” Bueker v. Madison County, 2016 IL
       120024, ¶ 7. In reviewing the trial court’s ruling, we accept as true the well-pleaded facts in
       the complaint as well as the reasonable inferences that can be drawn from such facts. Bueker,
       2016 IL 120024, ¶ 7. “The critical inquiry is whether the allegations of the complaint, when
       construed in the light most favorable to the plaintiff, are sufficient to establish a cause of
       action upon which relief may be granted.” Ferris, Thompson & Zweig, Ltd. v. Esposito, 2017
       IL 121297, ¶ 5. Dismissal of a complaint is appropriate only where it is clearly apparent that
       the plaintiff can prove no set of facts that would entitle him or her to recovery. Ferris, 2017
       IL 121297, ¶ 5. Our review is de novo. Ferris, 2017 IL 121297, ¶ 5.
¶ 13       The parties present competing interpretations of the zoning ordinance. We construe
       municipal ordinances in the same manner as statutes. In re Application of the County
       Collector, 132 Ill. 2d 64, 72 (1989). Our primary objective is to ascertain and effectuate the
       legislative body’s intent. Henderson Square Condominium Ass’n v. LAB Townhomes, LLC,
       2015 IL 118139, ¶ 67. “Effect should be given to the intention of the drafters by
       concentrating on the terminology, its goals and purposes, the natural import of the words
       used in common and accepted usage, the setting in which they are employed, and the general
       structure of the ordinance.” Monahan v. Village of Hinsdale, 210 Ill. App. 3d 985, 993
       (1991).
¶ 14       The zoning ordinance divides Aurora into 23 zoning districts. See Aurora Code of
       Ordinances, Appendix A, § 4.1, as amended by Ordinance No. O15-062 (approved Oct. 13,
       2015). The parties agree that the subject property is part of the B-B District. Section 8.6 of
       the zoning ordinance governs the use of property in that district. Aurora Code of Ordinances,
       Appendix A, § 8.6, as amended by Ordinance No. O15-062 (approved Oct. 13, 2015).
       Specifically, section 8.6-4.1 identifies 99 categories of permitted uses, one of which is
       “Offices, business and professional, including medical clinics.” Aurora Code of Ordinances,
       Appendix A, § 8.6-4.1(LLL), as amended by Ordinance No. O15-062 (approved Oct. 13,
       2015). Section 8.6-4.2 then lists certain uses that are allowed in the B-B District with a
       special-use permit. Aurora Code of Ordinances, Appendix A, § 8.6-4.2, as amended by
       Ordinance No. O15-062 (approved Oct. 13, 2015). Section 8.6-4.4 provides that all uses that
       are not “expressly permitted” in the B-B District are “expressly prohibited.” Aurora Code of
       Ordinances, Appendix A, § 8.6-4.4, as amended by Ordinance No. O15-062 (approved Oct.
       13, 2015).
¶ 15       Defendants contend that their use of the subject property is permitted under the provision
       that allows “Offices, business and professional, including medical clinics.”
¶ 16       In their fourth amended complaint, plaintiffs alleged that defendants’ use of the property
       implicates a “more restrictive” zoning classification. According to plaintiffs, the property is
       also being used for political lobbying, voter education, and other community-organizing and
       educational activities. In plaintiffs’ view, the facility is thus “far more than any mere
       ‘medical office building.’ ” Plaintiffs alleged that defendants’ use of the property most
       accurately falls under a category that, under plaintiffs’ interpretation of the zoning ordinance,
       is banned in the B-B District: “Social Service Agencies, Charitable Organizations, Health
       Related Facilities, and similar uses when not operated for pecuniary profit.” Aurora Code of
       Ordinances, Appendix A, § 20, Table One, as amended by Ordinance No. O15-062

                                                   -4-
       (approved Oct. 13, 2015). Plaintiffs repeatedly referred to that particular use as the “nonprofit
       use category.” (On appeal, they call it the “not-for-profit use category.”)
¶ 17       Plaintiffs alleged that, when defendants applied for the necessary permits in July 2006,
       “the nonprofit land use could be permitted on the subject property pursuant to section 8.6-4.2
       of the [zoning ordinance], but only pursuant to a special use permit issued by the City
       Council, after notice and a public hearing.” (It is undisputed that defendants never sought a
       special-use permit.) According to plaintiffs, before defendants received their permits, the city
       council amended the zoning ordinance in December 2006 to, in plaintiffs’ words, “ban
       entirely any nonprofit land use from the subject property.” Therefore, plaintiffs concluded,
       defendants’ use of the property is an ongoing prohibited use under the zoning ordinance.
¶ 18       The trial court rejected plaintiffs’ interpretation of the zoning ordinance, as do we.
       Plaintiffs’ proffered distinction between for-profit uses of property in the B-B District (which
       plaintiffs contend are permissible) and nonprofit uses (which plaintiffs contend are
       impermissible) is not supported by the plain language of the zoning ordinance.
¶ 19       As noted, one of the permitted uses of property in the B-B District is “Offices, business
       and professional, including medical clinics.” Aurora Code of Ordinances, Appendix A,
       § 8.6-4.1(LLL), as amended by Ordinance No. O15-062 (approved Oct. 13, 2015). The plain
       language of that provision does not limit such uses to for-profit enterprises. Furthermore, the
       zoning ordinance defines1 the term “Clinic, Medical or Dental” as follows:
                “A building containing an individual practitioner or an association or group of
                licensed physicians[,] surgeons, dentists, clinical psychologists, or similar
                professional health care practitioners, including assistants. The clinic may include
                apothecary, dental and medical laboratories, and/or X-ray facilities, but shall not
                include in-patient care or operating rooms for major surgery.” Aurora Code of
                Ordinances, Appendix A, § 3.3, as amended by Ordinance No. O15-062 (approved
                Oct. 13, 2015).
       The zoning ordinance similarly defines the term “Clinic or Medical Center” as follows:
                “A ‘medical center’ or ‘medical clinic’ is an establishment where three (3) or more
                licensed physicians, surgeons or dentists engage in the practice of medicine or
                dentistry, operating on a group or individual basis with pooled facilities, which need
                not, but may, include coordinated laboratory, X-ray and allied departments, and the
                diagnosis and treatment of humans, a drug prescription counter (not a drugstore) for
                the dispensing of drugs and pharmaceutical products, orthopedic or optical devices to
                the patients of said physicians, surgeons, and dentists; but not including any exterior
                display or advertising sign.” Aurora Code of Ordinances, Appendix A, § 3.3, as
                amended by Ordinance No. O15-062 (approved Oct. 13, 2015).
       Neither of those definitions distinguishes between for-profit and nonprofit uses.
¶ 20       If the City of Aurora intended to require medical clinics in the B-B District to operate as
       for-profit enterprises, it certainly knew how to make such intent explicit. For example,
       section 8.6-4.2(B)(ii)(a) of the zoning ordinance allows the following uses in the B-B

          1
            Section 8.6-3.2(A) incorporates the definitions “[a]s provided for in the Rules and Definitions
       Section.” Aurora Code of Ordinances, Appendix A, § 8.6-3.2(A), as amended by Ordinance No.
       O15-062 (approved Oct. 13, 2015).

                                                    -5-
       District, with a special-use permit: “Amusement and recreational uses including archery
       range, golf practicing range, miniature golf course, swimming pools, swim clubs, roller
       skating rinks, dance halls, tennis courts, tennis buildings, bowling alleys or other similar
       places of entertainment when operated for profit.” (Emphasis added.) Aurora Code of
       Ordinances, Appendix A, § 8.6-4.2(B)(ii)(a), as amended by Ordinance No. O15-062
       (approved Oct. 13, 2015). In contrast to section 8.6-4.2(B)(ii)(a), section 8.6-4.1(LLL)
       permits medical clinics in the B-B District without expressly limiting such use to for-profit
       businesses. Plaintiffs nevertheless effectively ask us to read that restriction into section
       8.6-4.1(LLL). We are not free to do so. See Beggs v. Board of Education of Murphysboro
       Community Unit School District No. 186, 2016 IL 120236, ¶ 52 (“It is never proper for a
       court to depart from the plain language by reading into the statute exceptions, limitations, or
       conditions that conflict with the clearly expressed legislative intent.”); Gutraj v. Board of
       Trustees of the Police Pension Fund, 2013 IL App (2d) 121163, ¶ 14 (“ ‘[W]e should
       normally assume that whenever the legislature intended a limitation, it expressed that
       limitation; conversely, if the limitation is absent from the text, the legislature presumably did
       not intend the limitation.’ ” (quoting Illinois Bell Telephone Co. v. Illinois Commerce
       Comm’n, 362 Ill. App. 3d 652, 660 (2005))).
¶ 21       Plaintiffs emphasize that section 8.6-2.1 of the zoning ordinance provides:
               “The intent of the B-B business boulevard district is to combine residential,
               commercial, office and industrial development in an orderly arrangement along a
               major street so as to maximize the commercial service benefit it offers and to minimize
               its harmful affects [sic] on (1) traffic movement and flow; (2) traffic safety; (3) the
               various land uses within and in close proximity to the B-B district; and (4) the beauty
               of the community.” (Emphasis added.) Aurora Code of Ordinances, Appendix A,
               § 8.6-2.1, as amended by Ordinance No. O15-062 (approved Oct. 13, 2015).
       In plaintiffs’ view, “[p]ermitting not-for-profit uses in the B-B Business Boulevard District
       directly conflicts with that stated intent.” Plaintiffs seem to imply that nonprofit uses
       inherently provide less of a commercial-service benefit than for-profit uses. To the extent that
       this is what plaintiffs mean to suggest, they fail to develop a cogent argument in support of
       that proposition. Moreover, providing medical care might reasonably be considered a
       valuable commercial-service benefit in and of itself. It is also not difficult to imagine that a
       medical clinic, though operated not-for-profit, could provide a substantial
       commercial-service benefit simply by drawing large numbers of people into the district.
       Plaintiffs’ argument regarding commercial-service benefits is unpersuasive for the additional
       reason that some of the permitted property uses listed in section 8.6-4.1 of the zoning
       ordinance would seem to apply only to nonprofit or governmental entities. For example,
       religious institutions, libraries, post offices and postal substations, public-utility collection
       offices, and reading rooms are all permitted uses in the B-B District. See Aurora Code of
       Ordinances, Appendix A, § 8.6-4.1(W), (DDD), (VVV), (WWW), (YYY), as amended by
       Ordinance No. O15-062 (approved Oct. 13, 2015). So are clubs and fraternal organizations
       (Aurora Code of Ordinances, Appendix A, § 8.6-4.1(X), as amended by Ordinance No.
       O15-062 (approved Oct. 13, 2015)), which are nonprofit entities by definition. See Aurora
       Code of Ordinances, Appendix A, § 3.3, as amended by Ordinance No. O15-062 (approved
       Oct. 13, 2015) (defining “Club or Lodge, Private” as “[a] structure or part thereof used by a



                                                   -6-
       not-for-profit association of persons who are bona fide members paying dues and where
       facilities are restricted to members and their guests” (emphasis added)).
¶ 22       Furthermore, plaintiffs’ contentions about a so-called “nonprofit use category” or
       “not-for-profit use category” are rooted in a version of the zoning ordinance that has not been
       in effect for more than a decade. Prior to December 2006, the zoning ordinance contained a
       section 4.3-1.1(FFF), describing special uses, which provided as follows:
                “The city council of the City of Aurora shall have the authority to permit by
                ordinance the following uses of land or structures or both, subject to the conditions
                contained in the Administrative Section.
                                                   ***
                    FFF. Social Service agencies, charitable organizations, health-related facilities,
                meeting halls and similar uses when not operated for pecuniary profit in any use
                district.” Aurora Code of Ordinances, Appendix A, § 4.3-1.1(FFF), as amended by
                Ordinance No. O06-64 (approved July 25, 2006).
¶ 23       The only portion of the current version of the zoning ordinance that contains language
       similar to that formerly included in section 4.3-1.1(FFF) is now section 20, Table One. See
       Aurora Code of Ordinances, Appendix A, § 20, Table One, as amended by Ordinance No.
       O15-062 (approved Oct. 13, 2015). As noted above, the zoning ordinance creates 23 zoning
       districts. The respective sections of the zoning ordinance governing 17 of those districts
       specifically incorporate Table One.2 Table One, in turn, contains a chart listing a number of
       use categories. That chart indicates whether and under what circumstances the myriad uses
       are allowed in those 17 districts. Of relevance to this appeal, one use category listed in Table
       One is “Social Service Agencies, Charitable Organizations, Health Related Facilities, and
       similar uses when not operated for pecuniary profit.” According to Table One, a use under
       that category is a special use in 16 of the 17 specified districts but is not a permitted use in
       the “P” Park and Recreation District. Importantly, section 8.6 of the zoning ordinance, which
       relates to the B-B District, does not specifically incorporate Table One. Nor does Table One
       mention the B-B District. Instead, section 8.6-4.1 contains an extensive list of uses permitted
       in the B-B District, and section 8.6-4.2 identifies the applicable special uses. We also note
       that Table One makes no mention of medical clinics, which are expressly permitted in the
       B-B District pursuant to section 8.6-4.1(LLL).
¶ 24       Plaintiffs are correct that section 8.6-4.4 of the zoning ordinance indicates that all uses
       that are not expressly permitted in the B-B District are prohibited. They are also correct that
       the zoning ordinance does not designate “Social Service Agencies, Charitable Organizations,
       Health Related Facilities, and similar uses when not operated for pecuniary profit” as either a
       permitted or a special use in the B-B District. Plaintiffs extrapolate that such use must
       therefore be prohibited in the B-B District. The fault in plaintiffs’ logic, however, is that the
       language regarding “Health Related Facilities, *** and similar uses when not operated for

           2
             The “R-1” One-Family Dwelling District, governed by section 7.5 of the zoning ordinance, is one
       such example. See Aurora Code of Ordinances, Appendix A, § 7.5-4.1, as amended by Ordinance No.
       O15-062 (approved Oct. 13, 2015) (“The Permitted Uses for this district as identified in Table One:
       Use Categories shall apply.” (emphasis in original)); Aurora Code of Ordinances, Appendix
       A, § 7.5-4.2, as amended by Ordinance No. O15-062 (approved Oct. 13, 2015) (“The Special Uses for
       this district as identified in Table One: Use Categories shall apply.” (emphasis in original)).

                                                     -7-
       pecuniary profit” now comes from Table One, which neither mentions the B-B District nor is
       incorporated by reference in the substantive provisions regulating that district.
¶ 25       If the City of Aurora intended to restrict or prohibit nonprofit health-related facilities in
       the B-B District, it certainly knew how to do so. As previously noted, in section
       8.6-4.2(B)(ii)(a), the zoning ordinance explicitly states that certain amusement and
       recreational uses, “when operated for profit,” are allowed in the B-B District upon the
       issuance of a special-use permit. Aurora Code of Ordinances, Appendix A,
       § 8.6-4.2(B)(ii)(a), as amended by Ordinance No. O15-062 (approved Oct. 13, 2015).
       Additionally, the zoning ordinance is clear that “Social Service Agencies, Charitable
       Organizations, Health Related Facilities, and similar uses when not operated for pecuniary
       profit” are prohibited in the “P” Park and Recreation District. See Aurora Code of
       Ordinances, Appendix A, § 20, Table One, as amended by Ordinance No. O15-062
       (approved Oct. 13, 2015). In contrast, as explained above, medical clinics are designated as
       permitted uses in the B-B District, and there is no discernible intent to distinguish between
       for-profit and nonprofit uses of such facilities.
¶ 26       We hold that plaintiffs’ theory of an ongoing ordinance violation as alleged in their fourth
       amended complaint fails as a matter of law. Accordingly, the trial court properly granted
       defendants’ motion to dismiss the complaint, with prejudice, for failure to state a cause of
       action.

¶ 27                                  III. CONCLUSION
¶ 28      For the foregoing reasons, we affirm the judgment of the circuit court of Du Page
       County.

¶ 29      Affirmed.




                                                   -8-
