IN THE APPELLATE COURT OF ILLINOIS,

Points and Authorities
I. The Circuit Court Erred in Granting Summary Judgment In Favor of the Planned
Parenthood Defendants on that Portion of Count I Seeking Relief Pursuant to Section
5/11-13-15 of the Municipal Code. The Circuit Court Also Erred In Dismissing, Pursuant
To 735 ILCS 5/2-615, Plaintiffs’ Request In Count I For A Declaratory Judgment
Against The Planned Parenthood Defendants....................................................................25
A. Standard of Review ................................................................................................25
Purtill v. Hess, 111 Ill. 2d 229 (1986) ...........................................................................................25
Diamond Headache Clinic Ltd. v. Loeber Motors, Inc., 172 Ill. App. 3d 364 (1st Dist. 1988) ....25
Nedzvekas v. Fung, 374 Ill. App. 3d 618 (1st Dist. 2007) .............................................................25
King v. Linemaster Switch Corp., 238 Ill. App. 3d 729 (1st Dist. 1992).......................................26
B. The Circuit Court’s Grant of Summary Judgment Was Founded on the Mistaken
Conclusion that It Was Bound to Give Great Deference to the Leutkehans
Interpretation of the AZO. .....................................................................................26
65 ILCS 5/11-13-15 (West 2014) ..................................................................................................26
1. Plaintiffs’ Claim Pursuant to Section 11-13-15 of the Municipal Code Was
Not a Claim for Administrative Review and the Circuit Court Was Not
Required to Defer to Leutkehans’ Interpretation of the AZO. That
Interpretation Is Not the Kind of Deliberative Exercise of Municipal
Judgment Which Is the Hallmark of Legislative Decisions.......................26
65 ILCS 5/11-13-15 (West 2014) ..................................................................................................26
Aurora v. Navar, 210 Ill. App. 3d 126 (2d Dist. 1991) .................................................................26
Peet v. Bouie, 268 Ill. App. 3d 18 (3d Dist. 1994).........................................................................27
Morgan Place of Chi. v. City of Chi., 2012 IL App (1st) 091240 .................................................27
Wakeland v. City of Urbana, 333 Ill. App. 3d 1131 (4th Dist. 2002) ............................................28
LaSalle Nat’l Bank of Chi. v. Cook Cnty., 12 Ill. 2d 40 (1957) .....................................................28
Victory Auto Wreckers, Inc. v. Vill. of Bensenville, 358 Ill. App. 3d 505 (2d Dist. 2005) ............28
Dixon v. City of Monticello, 223 Ill. App. 3d 549 (4th Dist. 1991) ...............................................28
i
Cnty. of Kendall v. Rosenwinkel, 353 Ill. App. 3d 529 (2d Dist. 2004) ........................................28
Palella v. Leyden Family Serv. & Mental Health Ctr., 79 Ill. 2d 493 (1980) ...............................28
2. In The Absence of Any Decision-Making by the Aurora City Council, the
Body Vested with the Power to Make Legislative Decisions on Behalf of
the Citizens of Aurora, There Was No Legislative Decision. ..................29
City of Champaign v. Madigan, 2013 IL App (4th) 120662 ........................................................29
Archview v. Collinsville, 223 Ill. App. 3d 24 (5th Dist. 1991) .....................................................29
O’Connell Home Builders, Inc. v. City of Chi., 99 Ill. App. 3d 1054 (1st Dist. 1981) .................29
3. The Authority Relied Upon by Defendants in the Circuit Court Supports a
Finding that Aurora’s Decisions Were Administrative, Not Legislative. ..30
Dunlap v. Vill. of Schaumburg, 394 Ill. App. 3d 629 (1st Dist. 2009) ..........................................30
Scanlon v. Faitz, 57 Ill. App. 3d 649 (1st Dist. 1978) ...................................................................31
Aurora, Ill., Building Code, sec. 110.1 ..........................................................................................31
Aurora, Ill., Building Code, sec. 105.4 ..........................................................................................31
Aurora, Ill. Zoning Ordinance, sec. 3.2-5.1 ...................................................................................31
Aurora, Ill. Zoning Ordinance, sec. 3.2-6.1 ...................................................................................31
C. The AZO Unambiguously Made the Planned Parenthood Defendants’ Use a
Special Use (and Now a Prohibited Use) in the B-B Business District in Which It
Is Located. ..............................................................................................................31
Aurora, Ill. Ordinance O93-124 .....................................................................................................32
Aurora, Ill. Ordinance O06-64, effective July 2006, sec. 4.3-1.1 ..................................................32
1. Leutkehans’ Interpretation Violates the AZO’s Own Explicit Rules of
Construction. ..............................................................................................33
Aurora, Ill. Zoning Ordinance, sec. 12.1-1 ....................................................................................33
Aurora, Ill. Mun. Code, sec. 1-2 ....................................................................................................33
Dixon v. City of Monticello, 223 Ill. App. 3d 549 (4th Dist. 1991) ...............................................33
ii
2. Leutkehans’ Interpretation of the AZO Violates Fundamental Principles of
Statutory Construction. ..............................................................................34
Hahnenkamp v. Madison Cnty., 183 Ill. App. 3d 76 (5th Dist. 1989) ...........................................34
People v. Hart, 313 Ill. App. 3d 939 (2d Dist. 2000) ..............................................................35, 37
People v. Villarreal, 152 Ill. 2d 368 (1992)...................................................................................36
Aurora, Ill. Zoning Ordinance, sec. 8.6-2.1 ...................................................................................36
Wis. Cmty. Serv. v. City of Milwaukee, 465 F.3d 737 (7th Cir. 2006) ...........................................36
Grotto v. Little Friends, Inc., 104 Ill. App. 3d 105 (2d Dist. 1982) ..............................................37
3. Even Under a Legislative Review Standard, the Circuit Court Erred In
Determining That Leutkehans’ Interpretation of the Zoning Ordinance is
Not Arbitrary and Capricious Since It Reads Out of the Ordinance the
Explicit Legislative Requirement to Treat Not-for-Profit Health Related
Facilities as Special or Prohibited Uses. ....................................................37
Aurora, Ill. Zoning Ordinance, sec. 11, Amendments ...................................................................38
Aurora, Ill. Zoning Ordinance, sec. 10.5 .......................................................................................38
Chi. Heights v. Living Word Outreach, 196 Ill. 2d 1 (2001) .........................................................38
Martin v. City of Greenville, 54 Ill. App. 3d 42 (5th Dist. 1977) ..................................................39
D. The Circuit Court Erred in Granting Summary Judgment In Favor Of The Planned
Parenthood Defendants Despite The Fact That Their Development Constituted
Not Only An Impermissible Use But Also Ignored The Parking, Setback And
Tree Line Requirements For The Property. ...........................................................39
1. The Development Violates B-B Business Boulevard Zoning Standards.........39
Borrowman v. Howland, 119 Ill. App. 3d 493 (4th Dist. 1983) ....................................................39
Smith v. Grubb, 402 Ill. 451 (1949) ...............................................................................................39
Aurora, Ill. Zoning Ordinance sec. 10.7-12.2 ................................................................................40
Aurora, Ill. Building Code sec. 105.1 ............................................................................................40
Aurora, Ill. Building Code sec. 105.3(1), (7) .................................................................................40
iii
Aurora, Ill. Zoning Ordinance, sec. 8.6-5.2.E.ix ...........................................................................40
Aurora, Ill. Zoning Ordinance, sec. 8.6-5.2.E.xvi .........................................................................40
Aurora, Ill. Zoning Ordinance, sec. 8.6-5.B.i.a .............................................................................40
Aurora, Ill. Zoning Ordinance, sec. 8.6-5.2.G.iii ...........................................................................40
Reiter v. Neilis, 125 Ill. App. 3d 774 (3rd Dist. 1984)...................................................................40
2. The Planned Parenthood Defendants Neither Sought nor Received Variations
from the Strictures of B-B Business Boulevard Zoning. .................................41
Aurora, Ill. Ordinance O93-124 .....................................................................................................41
Aurora, Ill. Zoning Ordinance, sec. 10.7-13.5 ...............................................................................41
Evanston v. Chi., 279 Ill. App. 3d 255 (1st Dist. 1996) .................................................................41
Dean Milk Co. v. City of Aurora, 404 Ill. 331 (1949)....................................................................42
Grotto v. Little Friends, Inc., 104 Ill. App. 3d 105 (2d Dist. 1982) ..............................................42
Scanlon v. Faitz, 57 Ill. App. 3d 649 (1st Dist. 1978) ...................................................................42
Vill. of Wadsworth v. Kerton, 311 Ill. App. 3d 829 (2d Dist. 2000) ..............................................42
E. Plaintiffs Are Entitled to Relief Pursuant to the Declaratory Judgment Act in
Addition to or in Lieu of Relief Pursuant to Section 11-13-15..............................42
Doe ex rel. Ortega-Piron v. Chi. Bd. Of Educ., 213 Ill. 2d 19 (2004) ...........................................43
Country Mut. Ins. Co. v. D & M Tile, 394 Ill. App. 3d 729 (3d Dist. 2009) .................................43
735 ILCS 5/2-701(b) (West 2014) .................................................................................................43
II. The Circuit Court Erred In Prohibiting Plaintiffs From Conducting Any Discovery........44
Ramos v. Kewanee Hosp., 2013 IL App (3d) 120001 ...................................................................44
Jiotis v. Burr Ridge Park Dist., 2014 IL App (2d) 121293 ...........................................................44
65 ILCS 5/11-13-15 .......................................................................................................................44
Peet v. Bouie, 268 Ill. App. 3d 18 (3d Dist. 1994).........................................................................45
iv
Ill. Sup. Ct. R. 201(b).....................................................................................................................45
Ill. Sup. Ct. R. 201(c)(1) ................................................................................................................45
Klick v. R.D. Werner Co., 39 Ill. App. 3d 575 (1st Dist.1976) ......................................................45
III. The Circuit Court Erred in Dismissing Plaintiffs’ Counts for Administrative Review of
the Decisions of the Aurora ZBA and BCBA (‘261 Counts II and III & ‘1624) and for
Relief Under the Due Process Guarantee of the Illinois Constitution (Count IV).............47
Doe ex rel. Ortega-Piron v. Chi. Bd. Of Educ., 213 Ill. 2d 19 (2004) ...........................................47
Doyle v. City of Crystal Lake, 183 Ill. App. 3d 405 (2d Dist. 1989) ............................................48
Bull v. Am. Nat’l Bank & Trust Co., 112 Ill. App. 2d 32 (1st Dist. 1969) .....................................48
Trs. of Marion Kingdom Hall v. City of Marion, 638 F. Supp. 2d 962 (S.D.Ill.2007) .................48
Ill. Wood Energy Partners v. Cnty. of Cook, 281 Ill. App. 3d 841 (1st Dist. 1996) ......................48
Passalino v. City of Zion, 237 Ill. 2d 118 (2009) ...........................................................................49
Leavell v. Ill. Dep’t of Natural Res., 600 F. 3d 798, 805 (7th Cir. 2010) ......................................49
IL Const. art. I, § 2 .........................................................................................................................49
65 ILCS 5/11-13-25(b) (West 2014)..............................................................................................49
v
Nature of The Case And Judgment Appealed From
Defendant-Appellee Planned Parenthood of Illinois (“Planned Parenthood”)
engaged in a calculated, carefully executed, fraudulent scheme to avoid zoning and
building ordinances, and public attention, as it constructed a regional health facility in
Aurora, Illinois. When Planned Parenthood’s true intended use eventually came to light,
adjacent landowners and other community members reviewed the zoning and building
process, gathering information through Freedom of Information Act (“FOIA”) requests
directed to the City of Aurora (“Aurora”). Those residents and their attorneys reviewed
documents showing that Planned Parenthood developed the facility through two layers of
wholly-owned front companies, Defendants 21st Century Development, LLC (“21st
Century”), and Gemini Office Development, LLC (“Gemini”),1 under the guise that the
facility was to be a “White Envelope” medical office building, constructed for occupancy
by unknown future tenants who would be acquired at a later time and whose proposed
uses would be evaluated at such time. The residents saw that the Planned Parenthood
Defendants had misrepresented the use and identity of the tenant of the facility
throughout the development process, on numerous applications, in communications with
a host of Aurora administrators, and even in false statements made at public hearings.
(See, infra, at pp. 6, 8-9, 10-12).
As the residents compared the documents to the relevant ordinances, they
discovered that, by concealing the controversial Planned Parenthood name, the Planned
Parenthood Defendants also concealed an intended not-for-profit use that is prohibited in
1
Together, Defendants Planned Parenthood of Illinois, 21st Century Development, LLC,
and Gemini Office Development, LLC, are referred to as the “Planned Parenthood
Defendants.”
1
the applicable zoning district. Gemini had presented itself as constructing a “medical
office building,” permitted under the use category, “Offices, business and professional
including medical clinics.” However, the true intended use, a Planned Parenthood
regional health facility, was actually prohibited under the not-for-profit use category,
“Social Service Agencies, Charitable Organizations, Health Related Facilities, and
similar uses when not operated for pecuniary profit.” (See, infra, at pp. 8, 10).
Finally, the residents discovered that the Planned Parenthood Defendants
misstated the applicable zoning requirements (e.g., parking, setback, landscaping)
applicable to the property – and that Aurora administrators had applied the misstated
requirements in evaluating and approving the development, not the requirements imposed
by law. (See, infra, at pp. 12-14).
In the face of these facts, Aurora refused to act, instead leaving its residents,
Plaintiffs here, to litigate the matter directly with Planned Parenthood. Plaintiffs thus filed
administrative appeals seeking relief for these and other legal violations, but those
appeals were rebuffed as untimely by Aurora’s Zoning Board of Appeals (“ZBA”) and
Building Code Board of Appeals (“BCBA”), necessitating the instant lawsuits. (R.
C3434-3435, 3499, 3438, 3440-43, App. 126-141). These suits2 present counts for
equitable relief and private enforcement of Aurora zoning and building ordinances
(Count I), due process violations due to lack of timely meaningful notice (Count IV),
2
This appeal arises from two consolidated cases – 2008MR261 and 2008MR1624. ‘261
is the primary case. ‘1624 is a one-count complaint under the Administrative Review
Law for review of one of Plaintiffs’ three administrative appeals. The issues in ‘1624 are
essentially identical to those presented in Counts II and III of the ‘261 case. The operative
complaint in ‘261 is Plaintiffs’ Second Amended & Supplemental Complaint
(“Complaint”) (R. C3352-C3449; App. 44-141), as Supplemented (R. C4078-79; App.
142-44. The operative complaint in ‘1624 is located at R. C4762.
2
equal protection violations (Count V), and administrative review of the appeals boards’
untimeliness dismissals (‘261, Counts II and III; ‘1624). (R. C3352-415, App. 44-106; R.
C4762-4804). Over the past six years, the Circuit Court disposed of Plaintiffs’ claims
piecemeal, dismissing Counts II, III, IV, V, and parts of Count I on various preliminary
motions to dismiss, while finally adjudicating the remainder of Count I on the merits, by
granting the Planned Parenthood Defendants’ Motion for Summary Judgment. (R.
C3835-36, C4115, C4714, App. 1-2, 16, 29). Throughout the administrative appeals and
these lawsuits, Plaintiffs were barred from taking any discovery. (R. C4234, App. 24).
In its ruling granting summary judgment, the Circuit Court held that Plaintiffs’
Count I, in effect, seeks administrative review of Aurora’s application of its ordinances.
Even though the Aurora City Council had no part in the permits and approvals here, and
Aurora administrators were misled and mistaken, the Circuit Court clothed the zoning
and building approvals of those administrators with the dignity of legislative enactments.
The Circuit Court thus rejected Plaintiffs’ interpretation of Aurora’s ordinances under an
“arbitrary and capricious” standard of deference. The Circuit Court refused Plaintiffs’
attempts to apply the zoning use categories and physical requirements provided by
Aurora law to the property. (Supp. R. 659-64; App. 32-38).
Plaintiffs appeal the grant of summary judgment; preliminary dismissals of all or
parts of their Counts I, II, III, and IV; dismissal of the ‘1624 case; and blanket discovery
prohibition imposed on them throughout this lawsuit. (R. C4715-4719, App. 39-43).
Issues Presented for Review
I.
Whether the Circuit Court properly held that the AZO permits a developer
committed to 501(c)(3) charitable not-for-profit use to operate by characterizing its
3
operations as permitted under an “Offices, business and professional including medical
clinics” use category instead of prohibited under a more restrictive “Social Service
Agencies, Charitable Organizations, Health Related Facilities, and similar uses when not
operated for pecuniary profit” use category.
II.
Whether the Circuit Court properly held that a developer in a Planned
Development District (“PDD”) may avoid setback, parking, and landscape requirements
imposed by ordinance, when that developer did not apply for a variation of those
requirements, city officials did not consider whether to vary those requirements, and no
variation from those requirements was granted.
III.
Whether the Circuit Court erred in dismissing Plaintiffs’ request for declaratory
relief, included in Count I of the Complaint, and Plaintiffs’ administrative review and due
process claims, included in the ‘1624 Complaint and Counts II, III, and IV of the ‘261
Complaint.
IV.
Whether the Circuit Court erred in barring Plaintiffs from conducting any
discovery on the basis that Plaintiffs’ statutory and equitable claims are merely an
alternate vehicle to seek administrative review of zoning and building permit decisions,
and even though little or no discovery was conducted in connection with those
administrative appeals given their premature dismissal.
Jurisdictional Statement
This is an appeal as of right pursuant to Supreme Court Rules 301 and 303 from a
final judgment of the Circuit Court. On August 29, 2013, the Circuit Court disposed of
Plaintiffs’ last pending state claims by granting summary judgment in favor of the
Planned Parenthood Defendants on Count I. Plaintiffs timely filed their Notice of Appeal
4
on Monday, September 30, 2013, appealing from all or part of the Circuit Court’s May
21, 2010, October 15, 2012, and August 29, 2013 Orders.
Statutes And Ordinances Involved
The provisions of 65 ILCS 5/11-13-15 and 65 ILCS 5/11-13-25 are set forth in the
Appendix hereto at App. 145, 146. The provisions of the AZO, Aurora Ordinance No.
O93-124, and the July, 2006 amendment to the AZO referenced in Plaintiffs’ Brief are set
forth in the Appendix hereto at App. 147-164b, App. 165-176c, and App. 177-187,
respectively. The provisions of the Aurora Building Code referenced in Plaintiffs’ Brief
are also included in the Appendix hereto at App. 188-190a.3
Statement of Facts
After several years of searching for a suitable location for its regional
headquarters, Planned Parenthood arrived upon the subject property in Aurora, Illinois.
(R. C3012, Doc. 2 at ¶ 5; App. 201-02). In order to obtain and develop the property,
Planned Parenthood formed two layers of wholly-owned subsidiaries, first forming 21st
Century which is directly owned by Planned Parenthood, and then forming Gemini,
which is directly owned by 21st Century. (R. C3361 at ¶ 20; R. C3012, Doc. 2, at ¶¶ 5-6,
App. 201-02). The COO of Planned Parenthood, Teresa Huyck, served as the president of
Gemini. (R. C1257, C1265). The registered agent of Gemini was Kathleen M. Howard,
of the Perkins Coie law firm, counsel of record for the Planned Parenthood Defendants.
(R. C1266).
3
Unless otherwise stated, all AZO references are to the Aurora Zoning Ordinance
effective December 2006, the governing AZO for these proceedings. Aurora entered that
version of the AZO into the zoning appeal administrative record at R. C919-1169. All
ABC references are to the Aurora Building Code, relevant parts of which were entered
into the administrative record by Aurora at R. C2943-52, C2967-68.
5
The Subject Property
The subject property is part of the Fox Valley East PDD, which was established in
1973 as part of the creation of the Fox Valley Mall. (R. C642-824). Twenty years later, in
1993, the Aurora City Council enacted a Plan Description Modification to address the
zoning of the remaining undeveloped properties in the District, including the subject
property, by adopting Ordinance O93-124. (R. C4656-4667, App. 165-76). Ordinance
O93-124 assigned the subject property to a designated “Business Area” and prescribed
that the Business Area would be governed by the zoning uses and standards for properties
in Aurora’s B-B Business Boulevard zoning district. (R. C4660, 4662, 4665, App. 169,
171, 174). Ordinance O93-124 continues to govern the zoning for the property.
In December 2005, Gemini obtained a survey for the subject property, which
stated that, “5b. Property subject to terms & conditions contained in Trustee’s Deed
recorded as Doc. R2001-166187 & R2001-166188,” both of which deeds are in the chain
of title for the subject property. (See, A.L.T.A./A.C.S.M. Land Title Survey4; R. C4586;
C1990-93; C1995-98). Those deeds included covenants binding the property, providing
that it “shall be developed only as a ‘Business Area’ . . . under the Plan Description
Modification which . . . may only be used for the uses permitted in a B-B Business
Boulevard District” and that any developer “shall . . . obtain the City’s approval for a
Final Plan . . . which shall designate such real estate as a ‘Business Area.’” (R. C1993,
C1997). In March 2006, Gemini purchased the property, and Gemini’s deed also
incorporated by reference the limitations imposed by the Trustee’s Deeds. (R. C1985-88).
4
Included in Record as an oversize, loose exhibit.
6
The Land Use Petition for Final Plan and the Construction Application
In an Aurora PDD, a developer seeking to build must first apply for Final Plan
approval on an Aurora Land Use Petition, complying with the provisions of Aurora’s
Final Plan Review Checklist, Form P-4, and following Aurora’s Review Procedures:
Final Plan. (AZO 10.7-12.2, R. C1124-25, App. 162-63; R. C3366 at ¶ 35, App. 58; R.
C3417-22, App. 109-14). A developer must also apply for construction permits, using the
COMN Commercial New Construction permit application, the approval process for
which is indicated on Aurora’s COMN – Information Sheets (R. C3424-28, C3431, App.
116-20, 123).
In July 2006, Gemini filed its Land Use Petition and COMN permit application,
along with its required “Qualifying Statement,” and its Survey, Final Plan, and other plan
drawings and documents. (R. C3367 at ¶ 36, App. 59; R. C3417-19, App. 109-11; see, R.
C3012, Doc. 9; A.L.T.A./A.C.S.M. Land Title Survey4). Aurora’s Land Use Petition
requires that the developer provide in the Qualifying Statement a description of its
proposal in relation to certain community standards, including “public health, safety,
morals, comfort or general welfare,” “use and enjoyment of other property already
established or permitted,” “[p]roperty values within the neighborhood,” “normal and
orderly development and improvement of surrounding property,” “traffic congestion,”
and “applicable regulations of the zoning district in which the subject property is
proposed to be or is located.” (R. C3418, App. 110). In its Qualifying Statement, Gemini
represented that, “The proposed project meets all of the current zoning requirements as
set forth by the City of Aurora.” (R. C3419, App. 111). Gemini characterized its
development as a “Medical Office Building” that would “serve the public health and
7
general welfare of the community,” whose features would “enhance the current property
values of the neighborhood,” and that would “have minimum impact to the traffic in the
area.” (Id.).
Gemini did not further specify the intended use of the facility or its connection to
Planned Parenthood. (R. C3417-19, C3424-26, App. 109-11, 116-18). In its various
permit applications, Gemini listed itself as both Property Owner and Tenant, or indicated
that there was no tenant for the facility. (See, e.g., R. C2573 (Tenant “unknown at this
time”), C2575 (Tenant “same”), C2578 (Tenant “Gemini Office Development”), C2581
(Tenant “Gemini Medical Office”), C2584 (Tenant “Gemini Office Development”)).
Throughout the application and review process, Gemini successfully concealed the
details of Planned Parenthood’s intended use from Aurora. (R. C4638).
Aurora allows for “White Envelope” construction, where a developer has not yet
secured a tenant for its development but wishes to proceed with construction. No
certificate of occupancy is issued at the conclusion of White Envelope construction, for
the later-acquired tenants each apply for their own certificates of occupancy, a process
that includes a review in zoning of the tenants’ intended uses. (R. C3368 at ¶38, App 60;
R. C3431, App. 123; C3012, Doc. 21). The Building Permit eventually granted here
confirms White Envelope treatment. (R. C3429, App. 121 (“Special Notes and
Comments”: “Envelope permit.”)). However, no application for certificate of occupancy
was ever filed for the facility, and the Zoning Administrator would neither perform a
review of the Planned Parenthood use against the requirements of Aurora zoning law nor
issue the zoning permit required by AZO 10.2-1 and 10.7-15. (R. C3384 at ¶ 63, App. 76;
R. C3389-90 at ¶¶ 83-84, App. 81-82; R. C1104, C1126, App. 158, 163a).
8
When a developer requires permission for a special or prohibited use or for
variations from the physical requirements of Aurora zoning, the developer must detail
those requests on the Aurora Land Use Petition. (R. C3368 at ¶ 38, App. 60). The petition
includes sections for “Aurora Code Section[s] to be Varied,” for a “Brief Description of
Requested Action (i.e.: zoning requested; dimensions of variation; . . .),” and checkboxes
for “Special Use Petition” or “Rezoning Petition.” (R. C3417, App. 109). There is also a
space for “Non-profit Corp. Number.” (Id.). Gemini left all of these sections of its Land
Use Petition blank. (Id.).
The Aurora Final Plan Review Checklist, Form P-4, further requires an applicant
to provide a list of “[e]xceptions or variations to City Zoning or Subdivision Ordinances
being requested as part of the final plan including the specific section of the ordinance.”
(R. C3422, App. 114). Gemini neither submitted such a list nor otherwise indicated that it
required any variations from the strictures of Aurora’s zoning ordinances. (R. C3368-69
at ¶ 39, App. 60-61).5
The AZO generally provides developers a limited window of time to submit Final
Plans for their vacant parcels to be developed under the terms of a PDD. (R. C4550, App.
161; R. C3366 at ¶ 33, App. 58). For the Fox Valley East PDD, Final Plans were required
to be submitted by December 7, 2003. (R. C4672, App. 176). AZO 10.7-11 provides that
a developer may request in writing that the Aurora City Council extend the deadline for
final plan submission, but no such request was made or acted upon here. (R. C1123-24,
App. 161a-162).
5
Aurora’s Review Procedures: Final Plans states that a final plan petition will only be
deemed complete if it includes “all required information pursuant to those items indicated
on the Checklist for Final Plans, form P-4.” (R. C3421, sec. 2.C, App. 113).
9
The Intended Use of the Property
Unlike Gemini, a limited liability company, Planned Parenthood is an Illinois
Not-for-Profit Corporation, recognized as a public charity under IRS Sec. 501(c)(3). (R.
C3358-59 at ¶ 7, App. 50-51; R. C3362-63 at ¶ 25, App. 54-55). At the time of Gemini’s
application for permits, “Social service agencies, charitable organizations, health-related
facilities, meeting halls and similar uses when not operated for pecuniary profit in any
use district” were not permitted in any district. This category was a special use in the B-B
district at the time of Gemini’s application, allowable only if a special use permit was
granted by the Aurora City Council. (O06-64, 4.3-1.1, 4.3-1.1.FFF, R. C4563, C4566,
App. 183-87).6
The City Council would later amend the AZO on December 12, 2006, via
Ordinance O06-132, maintaining “Social Service Agencies, Charitable Organizations,
Health Related Facilities, and similar uses when not operated for pecuniary profit” as a
recognized use category, (Sub Use Category 6630) (R. C1156, App. 155), but prohibiting
that use category in the B-B Business Boulevard zoning district altogether, by eliminating
it from the list of allowable special uses in that district (AZO 4.3-1.1, 4.3-2, R. C969,
App. 152a; see also, AZO 8.6-4.4 (“All uses other than those expressly permitted in the
B-B Business-Boulevard District are expressly prohibited within the B-B district . . . .”),
6
The distinction between for-profit and not-for-profit uses was found elsewhere in the
AZO. (E.g., O06-64, 4.3-1.1.MM, allowing as a special use “Municipal or privately
owned recreation building or community center, when not operated for pecuniary profit,
in any use district,” 4.3-1.1.CCC, allowing as a special use “Recreation places, including
bowling alley, dance hall, gymnasium, skating rink, archery range, golf practice range,
miniature golf course or other similar places of amusement or entertainment when
operated for pecuniary profit in the B-3, BB, M-1 and M-2 districts;” (R. C4565-66, App.
185-186).
10
R. C1055, App. 154).
Planned Parenthood is bound by law to operate its Aurora facility on a not-forprofit basis. During the development process, unbeknownst to Aurora or the Plaintiffs,
Planned Parenthood secured from the Illinois Finance Authority (“IFA”) the issuance of
$8.05 million in tax-free State of Illinois §501(c)(3) bonds to finance the construction of
the subject facility. (R. C3363 at ¶ 26, App. 55). The terms of those tax-free bonds
specifically require that Planned Parenthood’s Aurora facility be owned and occupied by
a §501(c)(3) non-profit tax-exempt organization. (Id.). Further, pursuant to the applicable
provisions of the Internal Revenue Code, including sections 26 USC §501(c)(3), 26 USC
§145, 26 USC §513(a), and 26 USC §145(b), federal law requires that any facility
financed by such tax-free bonds must be operated for the non-profit charitable, scientific,
and educational purposes that provide the basis for the organization’s tax exemption.
(Id.). To ensure the non-profit use of the facility, Planned Parenthood recited to the IFA
that both Gemini and 21st Century, for-profit Illinois limited liability companies, should
be treated as “disregarded entities” for purposes of the operation of the facility. (R.
C4420).
Planned Parenthood further described its intended use to the IFA, not as a
“medical office building,” but as a “full service center . . . . This new site will give us an
opportunity to truly become a regional presence.” (R. C3364 at ¶ 28, App. 56; R. C2363)
(italics in original). Planned Parenthood further described its “full service center” as a
multi-function facility that would include “community education,” enabling Planned
Parenthood to “serve as a voice in the community . . . and engage the public in dialogue
that will further the rights of women” and to “expand [its] community education presence
11
in the suburbs for teen[s], parents, and clergy.” (R. C3364 at ¶ 28, App. 56; R. C2363;
see also, R. C3394 at ¶ 93.h-j, App. 86). Planned Parenthood expected roughly 13,000
visits each year upon opening, rising to 30,000 visits per year within five years. (R.
C2363; R. C3394 at ¶ 93.h, App. 86).
The Physical Characteristics of the Development
Ordinance O93-124 imposes B-B Business Boulevard zoning district physical
standards on the property in its Section III, stating that, “1. The standards applicable from
time to time to lands in B-B Business Boulevard Districts shall apply in such ‘Business
Areas’ . . . .” (R. C4665, App. 174).
The B-B district requires certain standards for setback and parking (e.g., 8.65.1.B.i.a (requiring a 35-foot front yard setback); 8.6-5.2.E.ix (requiring 24 spaces, “[s]ix
(6) parking spaces per doctor”) and 8.6-5.2.E.xvi (requiring 72 parking spaces, “[o]ne (1)
parking space for each three hundred (300) square feet of floor area”); and 8.6-5.1.G.ii
(requiring parking spaces of 190 square feet, at least 10 feet wide, and 25 feet of backup
space for perpendicular parking)). (R. C1056, C1058, C1063; App.155, 156, 157).
However, Planned Parenthood’s development does not comply with these standards,
providing a 30-foot setback instead of the required 35-foot setback, 70 spaces (54 + 16)
instead of the required 96 spaces (72 + 24), 9-foot-wide parking spaces instead of 10foot-wide spaces, and 24 feet of backup space instead of the required 25 feet. (R. C3367
at ¶ 37 App. 59; R. C3012, Doc. 9; Final Plan “As-Builts,” 11/29/07, Bates 13937).
Section III of Ordinance O93-124 provides that, as to zoning:
[S]tandards set forth in this Section III shall be applicable in lieu of
7
Included in Record as an oversize, loose exhibit.
12
comparable or similar standards or requirements of the Zoning Ordinance,
and all standards and requirements of the Zoning Ordinance inconsistent
with the standards set forth herein shall be inapplicable. Any uncertainty
between the applicability of a standard or requirement of the Zoning
Ordinance and the applicability of a standard set forth in this Modification
shall be resolved in favor of the standard set forth herein. (R. C4665, App.
174).
Before the Circuit Court, the Planned Parenthood Defendants contended that they
received “modifications and exceptions” under the AZO from the governing B-B zoning
standards. (R. C4705). The AZO standards are listed in its Section 10.7-13, Standards (R.
C1125; App. 163). As part of its method for imposing standards on a property, the section
allows that, “the plan commission may recommend and the . . . planning and
development committee . . . may grant, for all or specified areas of the planned
development district, modifications and exceptions from any provisions of this ordinance
. . . .” (AZO 10.7-13.5, R. C1126, App. 163a).
At no time during the permit and approval process did Gemini seek or in any way
indicate a need for “modifications and exceptions,” instead representing that, “The
proposed project meets all of the current zoning requirements as set forth by the City of
Aurora.” (R. C3369 at ¶ 41, App. 61, C3419, App. 111). The Planning Commission did
not consider or recommend modifications and exceptions, nor did the Planning &
Development Committee consider or grant modifications and exceptions. (R. C685,
2006.390, p. 51 (Planning Commission approving Final Plan on consent agenda); R.
C4300-05, C4308-11; R. C4498-C4500 at ¶¶ 3-5).
The Final Plan Approval Process
When the Land Use Petition and accompanying documents were referred to
Aurora zoning staff in August 2006, they reviewed the proposed final plan for substantial
13
conformance with the standards of the B-1 Business District – Local Retail, not the
standards of the B-B Business Boulevard district imposed by Ordinance O93-124.8 (R.
C4286). In fact, Aurora zoning staff did not apply, or even reference, O93-124 during the
planning and approval process. It was not until November 15, 2007, well over one year
later, after the facility was allowed to open, that Aurora acknowledged that Ordinance
O93-124 governs the zoning of the property. (R. C554).9
The Final Plan was passed quickly through the Plan Council, the Planning
Commission, and the Planning & Development Committee. No mention of ordinance
modifications or exceptions – or Planned Parenthood or not-for-profit use – was made at
any of these levels. (R. C3369-70 at ¶ 41-42, App. 61-62; see, e.g., R. C4300-05, C430811). On November 16, 2006, Gemini representatives went before the Planning &
Development Committee, which is composed of three of Aurora’s thirteen (13) voting
City Council members. (R. C4300-05). The transcript of that hearing shows that the
Committee reviewed various aspects of the plan, including determining whether the
landscaping would properly screen the neighboring properties, looking at traffic access
and congestion, and examining the type of businesses that would be using the property
and their impact on the neighborhood. (R. C4300-05). Alderman Elmore noted that she
was surprised by this petition and that she would normally discuss the details of a plan
like this with the neighbors of the facility. (R. C4304-05).
8
During the City’s later zoning review in August and September, 2007, Defendant Ed
Sieben, Zoning Administrator, would alternately represent that the allowable uses are
those applicable in the B-2 zoning district. (See, e.g., R. C2635).
9
Ordinance O93-124 was provided by the City to Plaintiffs and their attorneys on or
about October 10, 2007, as part of a supplement to a previously-filed FOIA request. (R.
C3387-88 at ¶ 78, App. 79-80). It is unknown why Ordinance O93-124 was not provided
previously.
14
In particular, the Committee wanted to know the identity of the intended tenant of
the facility. Alderman Elmore asked, “Is this building being built specifically for a
client?” The Gemini representative responded, “We’re in negotiations with a tenant; we
do not currently have a lease but we still want to move ahead.” (R. C4302). Later in the
hearing, Alderman Elmore opined that the facility would be “a nice buffer between [the
neighbors] and the retail center, and these usually are pretty quiet” and stated again that,
“I’d be interested to know who your client is, when you can release that.” (R. C4305).
The Committee members then approved the petition, 3-0. (R. C4308-11).
Under Aurora law, any City Council member may appeal the recommendation of
the Planning & Development Committee within 5 days, but none did so at the time.
Alderman Rick Lawrence stated later that he would have appealed the recommendation
had he known the true facts of the situation. (R. C3379 at ¶ 51, App. 71). Alderman Chris
Beykirch similarly expressed his disapproval of the location of the facility. (See, e.g.,
emails from Chris Beykirch to Melissa Ernst of 9/17/07 (“If Planned Parenthood would
have been upfront with the city, we could have done a much better job of helping them
locate. As it is, based on their admitted deceit, they will be located to [sic] the major
grocery and video store in the area.”) and of 9/18/07 (“I do not like the fact they took our
ability to plan out of our hands with their deception. I can’t imagine that even a pro-PP
person could see that the long term effects of their location are not good for my
neighborhood.”), R. C4682-88).
Aurora’s Review of the Development Process
In the following months, the Building Permit issued (R. C4314), along with other
permits, and construction. When construction was almost completed, in July 2007, the
15
Chicago Tribune revealed that the “Gemini Health Center” was actually to be a large
Planned Parenthood regional health facility. (R. C4318). In the article, the CEO of
Planned Parenthood, Defendant Steve Trombley, stated that, “Frankly, I’m surprised that
we were able to keep it a secret for so long. We didn’t want anything to interfere with the
opening . . . and, at this point, I don’t anticipate anything will stop that from happening.”
(Id.). Large public protests followed shortly thereafter, including a protest attended by
over 1,000 people. (R. C3012, Doc. 2 at ¶ 13, App. 203, 214-16).
On August 16, 2007, the Building Official of Aurora, Defendant Herman Beneke,
issued a temporary certificate of occupancy to Gemini, expiring September 17, 2007. (R.
C4321). Aurora law provides that a “temporary certificate of occupancy” may be issued
when a building or portions thereof may be occupied safely, with the caveat that such a
temporary certificate is without lasting legal effect. (See, AZO 10.3-2, R. C1106, App.
159 (“A temporary certificate [of occupancy] . . . shall not be construed in any way to
alter the respective rights, duties or obligations of the owner or of the city relating to the
use or occupancy of the land or building, or any other matter covered by this ordinance,
and such temporary certificate shall not be issued except under such restrictions and
provisions as will adequately ensure the safety of the occupants.”); ABC 110.4 , R.
C2951, App. 190 (“The building official is authorized to issue a temporary certificate of
occupancy . . . provided that such portion or portions shall be occupied safely.”)).
In late August, the Mayor of Aurora, Defendant Thomas Weisner, announced that
Aurora would review the development process for the facility and would hire private
legal counsel for that purpose. (R. C3385 at ¶ 68, App. 77). On August 31, 2007, John
Curley, Aurora’s Assistant Director of Community Development, wrote Gemini
16
representatives and informed them that a “full review of the process surrounding the
development of your property” had begun and that the August 16 temporary certificate of
occupancy was modified to forbid opening without written approval from Aurora. (R.
C2648).
On September 11, 2007, Assistant Director Curley informed Gemini
representatives that the review of the development process would not be complete by
September 18, the date that Planned Parenthood had announced as its opening. (R.
C2645). Two days later, Planned Parenthood filed suit for injunctive relief against Aurora
in the U.S. District Court for the Northern District of Illinois. (R. C2459). During the
argument on September 17 on Planned Parenthood’s Motion for Preliminary Injunction,
the Court, U.S. District Judge Charles Norgle presiding, called the statement of the
Gemini representative at the Planning & Development Committee “a misstatement” and
“an obfuscation.” (R. C2067-68). Counsel for Planned Parenthood, Chris Wilson, agreed,
stating that, “Correct, your Honor. And there is nothing in the Zoning Code – . . .” (R.
C2068).
On September 25, 2007, a local Aurora attorney met with and asserted to Aurora
Zoning Administrator, Defendant Ed Sieben, that the use category “Social Service
Agencies, Charitable Organizations, Health Related facilities, and similar uses when not
operated for pecuniary profit” applied and barred the Planned Parenthood use. (R. C338586 at ¶ 72, App. 77-78). Sieben agreed with the attorney. (Id.). Local residents, including
some of the Plaintiffs, presented that same use category to the Aurora City Council at its
meeting that night. (Id.). Almost immediately thereafter, all relevant Aurora officials
were forbidden from interacting with the public on issues related to the Planned
17
Parenthood development. (R. C3386 at ¶ 73, App. 78).
Release of Attorney Opinions and Grant of a Temporary Certificate of Occupancy
On the morning of October 1, 2007, without consulting the City Council, the
Mayor of Aurora announced a press conference, which he held later that day and at which
he released the opinions of private attorneys Richard Martens (“Martens”) and Philip
Leutkehans (“Leutkehans”), along with a statement from the Kane County State’s
Attorney, John Barsanti, that no criminal activity had occurred. (R. C3386 at ¶ 74, App.
78).10 The Mayor announced that any violations were insufficient to prevent the
development from proceeding but that, based on the Leutkehans report, Aurora would
require Planned Parenthood to affirm in writing that no major surgery would occur at the
facility. (R. C3386-87 at ¶¶ 74-75, App. 78-79). Later that day, a temporary certificate of
occupancy was issued, allowing Planned Parenthood to open. (R. C566).
Aurora’s review of the development process was the subject of great public
concern. In response to that concern, Aurora would later provide explanations, including
a Q & A, in its resident newsletter, the Aurora borealis. Question 3 of that Q & A reads,
“Why didn’t the City Council debate and vote on opening of the facility?” Answer, “As a
matter of law and practice, the issuance of occupancy permits is done through an
objective, administrative zoning process. It would be unlawful for the city to suddenly
change its practice. . .” (R. C1255). As well, staff had briefed the aldermen that they had
no legislative role in the review process. (See, e.g., August 28, 2007 email of Carrie Ann
Ergo, Public Information Officer of Aurora, assigning various Aurora staff with the task
10
While Martens reviewed parts of the development process for compliance with the
ABC, his review presumed that the development was in compliance with the AZO and
did not analyze any of the relevant zoning issues here. (R. C1270).
18
of briefing the aldermen that “issuing an occupancy permit is an administrative function,
not a legislative issue. At this point none of the [sic] them have voted on any action
regarding Planned Parenthood and per our process there is no need to do so . . . . If the
report finds that the city has no basis by which to withhold a final occupancy permit, staff
will proceed and issue the permit . . . .”, R. C2627).
Aurora released Leutkehans’ report with a redlined version, as he had apparently
provided a preliminary report to the City on September 17, 2007, and his final report on
October 1, 2007. (R. C1257). In his final report, Leutkehans concluded that, “there can be
no doubt that the intended user for the development was always Planned Parenthood.” (R.
C1258).
In his initial report, Leutkehans focused on the specific impact of Gemini not
disclosing that abortion services would be provided at the facility, along with analyzing
what kinds of abortions should be considered “major surgery.” (R. C1258). He opined
that, while Gemini misrepresented tenant information, the omission of the name Planned
Parenthood and of the fact that abortions would be provided at the facility were not
“material enough” misrepresentations to withhold a certificate of occupancy. (R. C126162).
In his redlined final report, Leutkehans included a paragraph addressing the
Plaintiffs’ contentions that the not-for-profit use is prohibited. He opined that, because
the terms of the use category, “Social Service Agencies, Charitable Organizations, Health
Related Facilities, and similar uses when not operated for pecuniary profit,”11 were not
11
In his report, Leutkehans quoted the prior not-for-profit use category effective in July
2006, not the one adopted in December 2006 and effective at the time of his report.
19
defined in the definitions section of the AZO, the defined terms “Medical Clinic” and
“Medical Center” were more specific. (R. C1259). Leutkehans also opined that the terms
of the not-for-profit use category were ambiguous and thus could not be applied to
Planned Parenthood. (R. C1259).
While Leutkehans conceded that, “The identification of the tenant would have
given the City the ability to analyze the law on these types of facilities in a more detailed
and complete fashion,” he stated that “neither the Planning Commission nor the City
Council inquired about the services to be performed at the facility.” (R. C1261-62).
Leutkehans did not reference the Planning & Development Committee, which did
specifically seek that tenant information, as noted supra.
Leutkehans also did not cite or reference the governing zoning ordinance for the
property, O93-124; the governing standards of the B-B Business Boulevard zoning
district; or the AZO’s section dealing with PDDs, Section 10.7. Leutkehans further
misidentified the zoning for the property, opining that the property is governed by the
standards of either a B-2 Business District or some combination of the B-1, B-2, B-3 and
O zoning districts. (R. C1258; R. C4438).
Litigation Over the Development
The next day, on October 2, 2007, Plaintiffs filed the first of their administrative
appeals, to the ZBA, challenging the development on the basis of various alleged
violations of the AZO. (R. C3387 at ¶ 71, App. 79; R. C3435, App. 128). On October 19,
2007, Plaintiffs amended their appeal to include allegations related to Ordinance O93124, which had only been supplied to Plaintiffs after the filing of their appeal. (R. C3388
at ¶ 78; App. 80).
20
Plaintiffs are or were property owners or tenants within 1200 feet of and
negatively impacted by the development (Nancy Maloney, Socorro Neito, Chad Flolo,
Natalie Flolo and Charles Amaning), and an organization of concerned citizens, Fox
Valley Families Against Planned Parenthood (“Fox Valley Families”), which includes
members who are property owners or tenants within 1200 feet of and negatively impacted
by the development. (R. C3358 at ¶ 6; App. 50).
Aurora sought to dismiss Plaintiffs’ appeal as untimely on the grounds that 1) the
Zoning Administrator had made no decisions related to the development after an October
2006 staff report (R. C1374-75) and 2) even the staff report was “not a final decision” but
a “recommendation” and not subject to administrative appeal (R. C1376-77), such that
there were no appealable zoning decisions made during the development process. The
ZBA dismissed the appeal as untimely, holding that it may only review decisions of the
Zoning Administrator and that the only relevant decision of the Zoning Administrator
occurred in October 2006, more than 45 days prior to Plaintiffs’ appeal. (R. C3449; App.
126). The Order of dismissal was served on January 9, 2008, and this lawsuit was timely
filed within 35 days, on February 13, 2008, as case no. 2008MR261. (R. C2-C43).
Aurora removed the case to Federal Court. (R. C126). The District Court entered
an Agreed Order staying Plaintiffs’ federal constitutional claims until the conclusion of
the state litigation and remanded to the DuPage County Circuit Court. (R. C203-04).
On July 1, 2008, Aurora granted the facility its certificate of occupancy. (R.
C617). On July 21, 2008, Plaintiffs filed further administrative appeals, addressing the
certificate of occupancy, to the BCBA and the ZBA. The ZBA dismissed the appeal
before it on August 27, 2008, holding that the Zoning Administrator had made no
21
decision or determination since the prior administrative appeal by Plaintiffs and that the
Zoning Administrator had not issued the Certificate of Occupancy. (R. C4804). The
BCBA disposed of its appeal in two Orders. The BCBA granted Aurora’s motion to
dismiss in its Order of September 10, 2008. (R. C3002). The BCBA cited ABC 112.2, in
noting that its jurisdiction was limited to “a claim that the true intent of this [building]
code or the rules legally adopted thereunder have been incorrectly interpreted, the
provisions of this [building] code do not fully apply, or an equally good or better form of
construction is proposed.” (R. C3003, 2951, App. 190). The BCBA also stated that it may
only review decisions of the Building Official. (R. C3003). The BCBA rejected the
invitation of Plaintiffs to review the propriety of “permits issued more than a year ago,”
“the original zoning determination,” “or if a current use of the property exceeds a zoning
restriction.” (Id.). The BCBA held that its jurisdiction only extended to a final punch list
of items that the Building Official had provided to Gemini in November 2007. (R.
C3004). While Plaintiffs had not asserted that the punch list items were erroneous or
incomplete (R. C2920-34), the BCBA ordered proceedings on that issue. On September
24, 2008, the BCBA found that the punch list of items was satisfied and denied the
appeal. (R. C3020).
Plaintiffs amended their complaint in case no. 2008MR261 to add a count for
administrative review of the BCBA decision (R. C225-C283) and filed a complaint in
administrative review of the ZBA decision, case no. 2008MR1624. (R. C4762-C4804).
The two cases were then consolidated. (R. C4882-83).
On May 21, 2010, Judge Neal Cerne, who was then presiding over the case,
resolved a variety of dispositive motions. (R. C3835). Judge Cerne denied motions to
22
dismiss Plaintiffs’ administrative review claims (Counts II and III), holding that “it would
be a violation of due process to block [Plaintiffs’] appeals as untimely if that untimeliness
was due to deception . . . .” (Supp. R. 341-342, App. 8-9). Judge Cerne also denied the
Planned Parenthood Defendants’ motion to strike Plaintiffs’ equitable count (Count I).
Noting that the Court believed “that Count I is largely dependent upon the ultimate
outcome of Counts 2 and 3,” Judge Cerne stayed Plaintiffs’ equitable count (Count I), in
favor of allowing the parties to proceed on the administrative review counts (Counts II &
III). (Supp. R. 344, App. 11).
In his May 21, 2010 Order, Judge Cerne dismissed Plaintiffs’ Illinois due process
claims, which were largely predicated on lack of meaningful, timely notice. Because
Judge Cerne’s ruling that Plaintiffs could proceed in administrative review even if
untimely was later vacated, Plaintiffs’ seek review here of Judge Cerne’s May 21, 2010
Order dismissing their Illinois due process claims. The May 21, 2010 Order also
dismissed Plaintiffs’ Illinois equal protection claims, which is not challenged here.
Aurora, along with its Planning Commission and Planning & Development Committee
and its individual officials, sought dismissal of Plaintiffs’ request for declaratory relief
included in Count I of the Complaint and dismissal of Plaintiffs’ administrative review
counts, asserting that they had no interest in the controversy. (R. C3792). Judge Cerne
granted that motion and dismissed those defendants, along with Planned Parenthood
President Steve Trombley. Judge Cerne also dismissed as to the Planned Parenthood
Defendants that portion of Count I which requested a declaratory judgment. These rulings
are included in this appeal.
On May 13, 2011, Judge Thomas Dudgeon vacated that part of Judge Cerne’s
23
May 21, 2010, Order allowing the tolling of the statute of limitations on Plaintiffs’
administrative appeals. (Supp. R. 465-67). Judge Dudgeon instead held that the statute of
limitations on administrative actions to the relevant boards is jurisdictional and not
subject to equitable defenses. (Id.).
Judge Paul Fullerton was then assigned the case. On March 19, 2012, Judge
Fullerton dismissed Plaintiffs’ administrative review counts (Counts II and III) and lifted
the stay on Plaintiffs’ equitable count (Count I). (R. C4115; App. 16). On October 5,
2012, Judge Fullerton entered a blanket protective order barring all discovery by
Plaintiffs, on the grounds that Plaintiffs’ equitable Count I essentially sought
administrative review of the zoning and building process. (R. C4234; App. 24). In his
ruling, Judge Fullerton held, that:
Section [65 ILCS 5/11-13-]25 . . . doesn’t come into play in this case
because there is no variance. There is no special use. So that doesn’t come
into play . . . I believe that what this court is being asked to do, you’re
challenging the conclusion of the Aurora’s zoning classification for this
defendant’s medical clinic. I think it’s going to be limited to the
administrative record. (Supp. R. 585; App. 28).
On August 29, 2013, Judge Fullerton entered summary judgment against
Plaintiffs on their Count I, (R. C4714; App. 29), holding that: (1) Aurora’s staff
application of Aurora zoning ordinances is entitled to legislative “arbitrary and
capricious” deference (Supp. R. 661-63; App. 34-36); ( 2) “approval of the development
of this medical office building, as a permitted use in a B-B District was not in error and
that this was a legislative decision” (Supp. R. 661-62; App. 34-35); (3) the physical
zoning characteristics (parking, setback, and landscaping) were “reviewed and approved
by the City of Aurora, and that there was nothing – nothing improper regarding this”
(Supp. R. 662-63; App. 3-36); and (4) the private attorney general statute, 65 ILCS 5/11-
24
13-15, “does not encompass the alleged violations of the application process.” (Supp. R.
663; App. 36). Plaintiffs appeal from Judge Fullerton’s Orders of March 19, 2012,
October 5, 2012, and August 29, 2013. (R. C4715-17).
Argument
I.
The Circuit Court Erred in Granting Summary Judgment In Favor of the
Planned Parenthood Defendants on that Portion of Count I Seeking Relief
Pursuant to Section 5/11-13-15 of the Municipal Code. The Circuit Court
Also Erred In Dismissing, Pursuant To 735 ILCS 5/2-615, Plaintiffs’ Request
In Count I For A Declaratory Judgment Against The Planned Parenthood
Defendants.
A.
Standard of Review.
Summary judgment is a drastic means of disposing of litigation which should only
be allowed when the right of the moving party is clear and free from doubt. Purtill v.
Hess, 111 Ill. 2d 229, 240 (1986). As the Court explained in Diamond Headache Clinic
Ltd. v. Loeber Motors, Inc., 172 Ill. App. 3d 364, 370 (1st Dist. 1988):
The moving party for summary judgment must affirmatively show a clear
legal right thereto, free from doubt. If any facts upon which reasonable
persons may disagree are identified, or if inferences may be fairly drawn
from the facts leading to differing conclusions, then the motion for
summary judgment must be denied and the resolution of those facts and
inferences must be made at trial.
In determining whether a party is entitled to summary judgment, the Circuit Court must
construe the pleadings, depositions and affidavits strictly against the moving party and
liberally in favor of the opponent. Dietz v. Spalla, 186 Ill. App. 3d 742, 745 (1st Dist.
1989). Only if “the defendant satisfies his initial burden regarding summary judgment
does the burden then shift to the plaintiff,” and the party in opposition to summary
judgment “may rest solely upon the pleadings to create a question of material fact until
the movant supplies facts that would clearly entitle him to judgment as a matter of law.”
Nedzvekas v. Fung, 374 Ill. App. 3d 618, 624 (1st Dist 2007). “The applicable standard of
25
review for evaluating the propriety of a trial court’s entry of summary judgment is de
novo.” King v. Linemaster Switch Corp., 238 Ill. App. 3d 729, 732 (1st Dist. 1992).
B.
The Circuit Court’s Grant of Summary Judgment Was Founded on the
Mistaken Conclusion that It Was Bound to Give Great Deference to the
Leutkehans Interpretation of the AZO.
The Circuit Court held that, in order to prevail on their request for relief pursuant
to 65 ILCS 5/11-13-15, Plaintiffs “must show, by clear and convincing evidence, that the
application by the City of Aurora of the zoning ordinance requirements is unreasonable
and arbitrary and bears no substantial relation to public health, safety, morals, or
welfare.” (Supp. R. 661, App. 34). The Circuit Court characterized Plaintiffs’ claim as
one for “administrative review.” (Supp. R. 660, App. 33). These rulings are in error.
1.
Plaintiffs’ Claim Pursuant to Section 11-13-15 of the Municipal Code
Was Not a Claim for Administrative Review and the Circuit Court
Was Not Required to Defer to Leutkehans’ Interpretation of the
AZO. That Interpretation Is Not the Kind of Deliberative Exercise of
Municipal Judgment Which Is the Hallmark of Legislative Decisions.
In the first instance, the Circuit Court was wrong in its finding that Plaintiffs’
claim pursuant to Section 11-13-15 was a “request for administrative review of the
decisions of the City of Aurora”. To the contrary, that provision allows the enforcement
of zoning and building ordinances by adjacent landowners “whose municipal authorities
are slow or reluctant to act, or where the interests of the municipality and general public
differ from the interests of the private citizens.” Aurora v. Navar, 210 Ill. App. 3d 126,
137-38 (2d Dist. 1991) (citations omitted). As this Court in Navar further explained,
“Clearly, the statute is intended to give property owners a legal tool to attack detrimental
neighborhood ordinance violators when the municipality has not done so.” Id.
In this case, the Circuit Court also erred in holding that Aurora’s decisions
26
relating to the Planned Parenthood Defendants’ development were legislative and entitled
to great deference. In Peet v. Bouie, the Appellate Court held in favor of plaintiffs
proceeding under a private attorney general statute,12 despite the fact that defendant had
obtained zoning approvals from the Will County Board – a special use permit and
rezoning – that purported to allow defendant’s use. 268 Ill. App. 3d 18, 20 (3d Dist.
1994). The Appellate Court rejected the defendant’s arguments “that the Board is the
final arbiter of whether a proposed use fits within the land’s zoning” and “that as long as
the Board knew what activities were going to be carried on and determined that those
activities were within C-3 zoning with a special use permit, we are precluded from
determining whether the defendant’s use violates the ordinance.” Id. at 21. The Appellate
Court rejected the argument that plaintiffs could not proceed under the private attorney
general statute because defendant had received zoning approvals from Will County. Id. at
22; see also, Morgan Place of Chicago v. City of Chicago, 2012 IL App (1st) 091240, ¶
39 (“the attempt by City Officials to do by agreement that which could only be done by
following the appropriate zoning procedure is not valid and would infringe on the legal
rights of other property owners”).
In this case, the Circuit Court was wrong in holding that Aurora’s treatment of the
Planned Parenthood facility as a permitted medical clinic rises to the level of a legislative
enactment. Aurora itself has stated that this “decision” was not really a decision at all,
and the Zoning Administrator neither made any decisions nor rendered any formal
opinions on the propriety of the Planned Parenthood use in a B-B zoning district.
12
The Counties Code, 55 ILCS 5/5-12107, contains a private attorney general statute
identical in relevant part here to the Municipal Code’s Section 11-13-15.
27
A deferential, legislative review standard is applied when a court is asked to void
or block enforcement of a zoning ordinance because that standard recognizes that the
courts have been asked to invade the municipality’s legislative authority to control land
use within its borders. See, e.g., Wakeland v. City of Urbana, 333 Ill. App. 3d 1131, 1139
(4th Dist. 2002) (quoting LaSalle Nat’l Bank, 12 Ill. 2d 40, 46 (1957)). However,
Plaintiffs here have not sought avoidance but enforcement of the AZO, according to its
express terms.
The opinion of a single private attorney, set forth in a single paragraph, is the
entire foundation for Aurora’s treatment of Planned Parenthood’s use as permitted. This
legal opinion by an arbitrarily selected attorney is entitled to no deference, much less
legislative deference. Victory Auto Wreckers, Inc. v. Vill. of Bensenville, 358 Ill. App. 3d
505, 507 (2d Dist. 2005) (“In construing [a] challenged ordinance, [the reviewing court]
set[s] forth and appl[ies] the same principles of construction that [it] would in construing
a statute.”); Dixon v. City of Monticello, 223 Ill. App. 3d 549, 555 (4th Dist. 1991) (“On
appeal, the trial court’s interpretation of the ordinance is reviewable as a question of
law.”); Cnty. of Kendall v. Rosenwinkel, 353 Ill. App. 3d 529, 543 (2d Dist. 2004)
(construction of county zoning ordinances is a “question[] of law to which we apply a de
novo standard of review”); Palella v. Leyden Family Serv. & Mental Health
Center, 79 Ill. 2d 493, 499 (1980) (“A legislative body, including the board of trustees of
a home rule village, is without power to say how the judiciary shall construe a legislative
enactment.”)
28
2.
In The Absence of Any Decision-Making by the Aurora City Council,
the Body Vested with the Power to Make Legislative Decisions on
Behalf of the Citizens of Aurora, There Was No Legislative Decision.
The Aurora City Council was not involved and took no action with respect to the
Planned Parenthood Defendants’ applications for zoning and building permits and
approvals, or the issuance of a certificate of occupancy. The Mayor was involved in the
later zoning review, but he is not the body vested with legislative authority in Aurora.
Neither he, nor any group short of a quorum of the 13 duly elected voting members of the
City Council may legislate. See City of Champaign v. Madigan, 2013 IL App (4th)
120662, ¶ 40 (“an individual alderman is not himself a public body. . . . Indeed, an
individual city council member, alone, cannot conduct the business of a public body. . . .
Instead, a quorum of city council members is necessary to make binding decisions.”).
The Planning and Development Committee only consists of three aldermen (R.
C4308), and their action to approve the final plan for the development was not legislative.
Moreover, the action of those three aldermen was based upon the misrepresentations
made by the Planned Parenthood Defendants, which prevented the Committee and
Aurora officials from evaluating the myriad negative impacts of the facility on the
adjacent residential neighborhood. (See, e.g., R. C3373 at ¶ 48.c, App. 65; C3377-79 at
¶¶ 49-51, App. 69-71; C3392-96 at ¶ 93, App. 84-88; C4682-8). These
misrepresentations were material and fatally taint any action taken thereon. Cf., Archview
v. Collinsville, 223 Ill. App. 3d 24, 27-30 (5th Dist. 1991) (upholding denial of building
permit when application did not include complete information about nature of medical
services (abortion) and true owner of facility), O’Connell Home Builders, Inc. v. City of
Chi., 99 Ill. App. 3d 1054, 1058 (1st Dist. 1981) (“The authority to deny an occupancy
29
permit based upon a material misrepresentation is inherent in the governing body.”).
In fact, when Planned Parenthood’s intended use of the property was made public,
the City Council was actively excluded from consideration of the question of whether a
certificate of occupancy should be issued to the Planned Parenthood Defendants.
Corporation Counsel Weingartz reinforced this point during one of her reports to the
Council, stating that, “City Council does not review requests of occupancy certificates.”
(R. C2229). Indeed, the City made public its decision to issue a certificate of occupancy
on October 1, 2007, before all of the members of the City Council were notified. (R.
C3386 at ¶ 74, App. 78).
3.
The Authority Relied Upon by Defendants in the Circuit Court
Supports a Finding that Aurora’s Decisions Were Administrative, Not
Legislative.
In support of their Motion For Summary Judgment, Planned Parenthood
Defendants relied exclusively upon Dunlap v. Vill. of Schaumburg, 394 Ill. App. 3d 629
(1st Dist. 2009), to support their position that the decisions to approve the Planned
Parenthood Defendants’ development were legislative and subject to the deferential
standard relied upon by the Circuit Court in granting summary judgment. In Dunlap, a
village ordinance was enacted granting a variation to the property owner. Id. at 631 (“The
Village board voted to adopt this recommendation [of the Village plan commission] and
passed an ordinance granting the requested zoning variation . . . . Dunlap contended that
the granting of this ordinance was improper under both Village ordinance and state
statute.”). The Appellate Court in Dunlap agreed that “if the variance were invalid, it
would not extend any protection to the [defendants] against suit by a neighbor under
section 11-13-15.” 394 Ill. App. 3d at 643.
Dunlap reinforces the conclusion that, under the facts presented here, there was
30
no legislative action. Here, no special use, rezoning, or variation was applied for,
considered, or granted. The Circuit Court here agreed when it held that, “Section [11-13]
25 [of the Municipal Code] . . . doesn’t come into play in this case because there is no
variance. There is no special use.” (Supp. R. 585, App. 28).
Like the Appellate Court in Dunlap, this Court should reject the Planned
Parenthood Defendants’ attempts to seek the protection of invalid permits and approvals.
See also, Scanlon v. Faitz, 57 Ill. App. 3d 649, 653-55 (1st Dist. 1978) (building permit a
“nullity” when issued without variation required by law); ABC 110.1, App. 190, 105.4,
App. 189b (“Permits presuming to give authority to violate or cancel the provisions of
this code or other ordinances of the jurisdiction shall not be valid.”); AZO 3.2-5.1 & 3.26.1, App. 151a (“No application for a building permit or other permit or license, or for a
certificate of occupancy, shall be approved by the zoning administrator, and no permit or
license shall be issued by any other city department, which would authorize the use or
change in use of any land or building contrary to the provisions of this ordinance, or the
erection . . . or occupancy of any building designed or intended to be used for a purpose
or in a manner contrary to the provisions of this ordinance.”).
C.
The AZO Plainly and Unambiguously Made the Planned Parenthood
Defendants’ Use a Special Use (and Now a Prohibited Use) in the B-B
Business District in which It Is Located.
In its ruling, the Circuit Court found that the City’s “approval of the development
of this medical office building, as a permitted use in a B-B District was not in error and
that this was a legislative decision.” (Supp. R. 661). The Circuit Court further concluded
that “this decision was within the City of Aurora’s discretion and that it was not arbitrary,
capricious, or unrelated to public health safety or morals.” (Supp. R. 662). The Circuit
Court erred in these rulings.
31
Ordinance O93-124 imposes B-B Business Boulevard zoning uses and standards
on the property. (R. C1051, App. 153; R. C3360-61 at ¶ 19, App. 52-53; Supp. R. 150,
155, 630-32). The Planned Parenthood Defendants were always on notice, based on the
provisions in their chain of title (R. C4579; C1990-93; C1995-98), that the uses of their
property were limited to those that were or might become permitted uses in a B-B district.
Not-for-profit operation is a critical issue in Aurora zoning use determination, and
the AZO regulates certain not-for-profit uses differently than their for-profit analogs.
Section 4.3-1.1.FFF of the AZO, as it read in July 2006, specifically identified as a
special use, “Social service agencies, charitable organizations, health- related facilities,
meeting halls and similar uses when not operated for pecuniary profit in any use district.”
(R. C4566, App. 186). As noted supra, the facility was always intended to be a Planned
Parenthood regional health facility, and Planned Parenthood is a not-for-profit, bound to
operate its facility for not-for-profit charitable purposes. The intended Planned
Parenthood use plainly falls within the not-for-profit use category, whether as a not-forprofit health-related facility or as a charitable organization.
However, when Gemini applied for zoning and building approvals, it misled the
City as to its intended use. (See, e.g., R. C2566-86.) As a result, during the permit and
approval process, Aurora zoning staff never evaluated the actual intended use, wrongly
concluding that the use as proposed would fall under the permitted use category,
“Offices, business and professional, including medical clinics.” (R. C1051; App. 153).
When Aurora’s retained private attorneys later evaluated the development
process, Leutkehans opined that:
This Special Use is not defined anywhere in the Zoning Ordinance and,
hence, is not as specific as the Medical Clinic and Medical Center
32
definitions. Any ambiguity in zoning ordinances must be found in favor of
the applicant. Given the lack of definition for Social Service Agency and
the definitions for Medical Clinic, Medical Center and Hospital, the
ambiguity would have to be looked at as stating that the planned use is
akin to either a Hospital or Medical Clinic.
(R. C4439). Leutkehans’ interpretation of the AZO disregards its express language and
basic principles of statutory construction.
1.
Leutkehans’ Interpretation Violates the AZO’s Own Explicit Rules of
Construction.
The AZO contains rules of construction which Leutkehans ignored, but which
make clear that the Planned Parenthood Defendants’ use was a special use at the time of
the application for zoning approval. (R. C1142). The AZO requires that “where this
ordinance imposes a greater restriction upon the use of land, buildings or premises . . .
than are imposed or required by such other ordinances . . . the provisions of this
ordinance shall control.” (AZO 12.1-1, R. C1142, App. 164; Aurora Mun. Code, sec. 1-2,
App. 218).
This rule of interpretation requires that when conflicting interpretations are
possible, the more restrictive interpretation is the one that controls. See Dixon v. City of
Monticello, 223 Ill. App. 3d 549, 556 (4th Dist. 1991). In other words, per the language
of the AZO, the “greater restriction” governs. (R. C1142). Here the “greater restriction,”
per the AZO, requires that a special use permit or rezoning be obtained prior to operating
“Social Service Agencies, Charitable Organizations, Health Related facilities, and similar
uses when not operated for pecuniary profit.” Leutkehans’ interpretation eviscerates the
requirement that a developer must engage special use or rezoning processes when seeking
to operate charitable organizations and health-related facilities not operated for pecuniary
profit (R. C4439), and should be rejected.
33
2. Leutkehans’ Interpretation of the AZO Violates Fundamental Principles
of Statutory Construction.
Leutkehans’ opinion asserts that the “[FFF] Special Use is not defined anywhere
in the Zoning Ordinance and, hence, is not as specific as the Medical Clinic and Medical
Center definitions.” (R. C4439). In the first instance, Leutkehans’ conclusion does not
logically follow from his premise. The absence of express definitions for the terms in the
not-for-profit use category does not somehow render those terms less specific than the
term “Medical Clinic.”
Moreover, the use of both defined and undefined terms in the AZO does not
create an ambiguity. “There is no need or requirement to list definitions for words that
have a common meaning and can be understood by the average person. To require
counties to define such words would result in lengthy and cumbersome ordinances.”
Hahnenkamp v. Madison Cnty., 183 Ill. App. 3d 76, 85 (5th Dist. 1989).
The relevant terms in the not-for-profit use category – “Health Related facilities,”
“Charitable Organizations,” “when not operated for pecuniary profit” – have understood
common meanings, fixed by standard dictionary definitions, such that separate ordinance
definitions for them would have added nothing to their meaning. Under Hahnenkamp, the
terms used in the not-for-profit use category require no further definition to be descriptive
and precise, and are at least as descriptive and precise as the “defined” term “Medical
Clinic.” Id. If anything, the fact that the Aurora City Council saw the need to assign a
definition to the term Medical Clinic indicates that the legislators believed that term
needed further defining, not that “Charitable Organizations,” “Health Related facilities,”
or “not operated for pecuniary profit” are in any way ambiguous.
The term “Health Related facilities,” when read together with the qualifying
34
language “when not operated for pecuniary profit,” makes clear that for-profit healthrelated facilities (such as a medical clinic) do not fall into the not-for-profit use category.
Not-for-profit health-related facilities do. This is the plain meaning of the ordinance,
consistent with its obvious intent to specially regulate non-profits.
Before the Circuit Court, Planned Parenthood asserted that the not-for-profit
qualifier, since it follows immediately after the phrase “and similar uses,” modifies
“similar uses” to those uses named – but not the named uses themselves. (R. C4701).
This argument is meritless and illogical. This reading would result in an absurd
interpretation that would make for-profit health-related facilities special uses, but forprofit facilities “similar to” health-related facilities not special uses. The plain intent of
the ordinance is to treat all health-related facilities and similar uses as special or
prohibited uses only if they are “not operated for pecuniary profit.” For-profit medical
operations do not fall within this definition.
The AZO already has a “Health and Human Services” use category (Sub Use
Category 6300), allowing “Health” facilities as a permitted use in certain zoning districts
where the not-for-profit use category (Sub Use Category no. 6630), instead requires a
special use permit. (R. C1155, 164a-b). Eliminating the modifier “not operated for
pecuniary profit” from “Health Related facilities” would thus create an absurd result,
creating inconsistent standards for the same zoning uses. Leutkehans’ interpretation
ignores the rule that, “Absurd constructions must be avoided.” People v. Hart, 313 Ill.
App. 3d 939, 941 (2d Dist. 2000) (internal citation omitted).
Leutkehans got exactly backwards which use category is more “specific.” (R.
C4439). The not-for profit use category reference to “Health Related facilities” is more
35
specific, because it includes consideration of profit/non-profit status within the class of
those facilities, unlike the more generic “Offices, business and professional including
medical clinics” category. Since a basic rule of statutory construction is that a specific
term prevails over a general one (see People v. Villarreal, 152 Ill. 2d 368, 379 (1992)),
the conclusion follows that, with respect to application of the not-for-profit use category,
the general category, “Offices, business and professional including medical clinics,”
applies to for-profit operations, while the more specific category, “Social Service
Agencies, Charitable Organizations, Health Related facilities, and similar uses when not
operated for pecuniary profit,” applies only to not-for-profit operations.
This reading is confirmed by AZO 8.6-2.1, which provides as the “Intent &
Purpose” of the B-B district: “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 . . . .” (R. C1051, App. 153; R. C4542). Professional
and business offices are usually “commercial,” meaning profit-making. A non-profit is
not taxed as a commercial business and so represents a loss of tax revenues in a
commercial zone such as the B-B district in which Planned Parenthood located. See, e.g.,
Wis. Cmty. Serv. v. City of Milwaukee, 465 F.3d 737, 754 (7th Cir. 2006) (upholding
prohibition on non-profit health clinic at location, in view of City’s interest in
commercial, tax-paying businesses at that site). Accordingly, construing the AZO to
provide that such not-for-profit use is special or prohibited is also consistent with the
purpose for creating the B-B district.
Further, Leutkehans did not even address the term “Charitable Organizations” in
relation to the intended use of the facility. (R. C4437-43). This classification clearly
36
describes Planned Parenthood, a 501(c)(3) not-for-profit charitable organization, which at
all times was the intended occupant of the facility, being built by its wholly-owned
subsidiary, Gemini. (R. C4602). As noted supra, the funding for the development was
obtained on the condition that Planned Parenthood would operate the facility as a not-forprofit facility in furtherance of its charitable purposes.
Leutkehans’ interpretation fails to give the terms of the ordinance their plain
meaning, fails to avoid absurdity, and embraces an interpretation at odds with the general
object of the B-B zoning district. His interpretation violates fundamental rules of
statutory construction and simply makes no sense. See Hart, 313 Ill. App. 3d at 941
(“The primary goal in construing a statute is to ascertain and give effect to legislative
intent. This goal is best achieved by looking to the plain meaning of the statutory
language. Where the language is clear and unambiguous, the statute must be applied
without further aids of statutory construction.”) (internal citations omitted).
Accordingly, Planned Parenthood’s use violates the AZO and is illegal. The
Leutkehans interpretation of the AZO has allowed a prohibited use to proceed, without
any relief having been granted from the strictures of the relevant zoning ordinances,
including their procedures requiring notice and hearing. See, e.g., Grotto v. Little Friends,
Inc., 104 Ill. App. 3d 105, 107 (2d Dist. 1982). Pursuant to Section 11-13-15, Plaintiffs
are entitled to relief from this illegal use.
3.
Even Under a Legislative Review Standard, the Circuit Court Erred
In Determining That Leutkehans’ Interpretation of the Zoning
Ordinance is Not Arbitrary and Capricious Since It Reads Out of the
Ordinance the Explicit Legislative Requirement to Treat Not-forProfit Health Related Facilities as Special or Prohibited Uses.
Even under a deferential “legislative” review standard, Leutkehans’ interpretation
of the AZO could not be sustained because it had the effect of modifying the ordinance,
37
but without adherence to the required procedures for doing so. See, generally, AZO, Sec.
11, Amendments (R. C1137-42, App. 163b-164); Sec. 10.5, Variations (R. C1108-11,
App. 159b-e). In Chi. Heights v. Living Word Outreach, 196 Ill. 2d 1, 23-24 (2001), the
Supreme Court evaluated under a legislative deference standard the Chicago Heights City
Council’s decision to deny a special use requested by a church in a limited service
business district. The Chicago Heights City Council acknowledged that its denial
reflected its desire “to exclude all non-commercial uses from the West Lincoln Highway
corridor.” Id. at 23. The Supreme Court concluded that this policy would result in an
effective amendment of the City’s zoning ordinance stating, “Adopting the council’s
reasoning would completely remove churches from the list of special uses set forth in the
City’s zoning ordinance. Other non-commercial uses which are listed as special uses
under the zoning ordinance, such as public parks and public libraries, would also be
eliminated.” Id. at 23-24. Such a de facto amendment of the zoning ordinance is
impermissible because, “The City’s zoning ordinance requires that certain mandatory
procedures regarding notice and hearing be completed before any amendment may be
made to the zoning ordinance . . . . The city council may not arbitrarily ignore these
mandatory procedural prerequisites to amending the City’s zoning ordinance.” Id.
In this case, acceptance of Leutkehans’ interpretation would result in a de facto
amendment of a validly enacted City ordinance without formal action by the Aurora City
Council, or even a nod to compliance with the mandated procedures for such an
amendment. His interpretation effectively strips out the requirement for special use or
rezoning for not-for-profit health facilities and charitable organizations, but without the
required notice and hearing procedures. For this reason, just as in Living Word Outreach,
38
the City’s action, even if considered “legislative,” is arbitrary and capricious and bears no
substantial relation to the public health, safety, morals, comfort and general welfare. Id.,
at 25 (citing Martin v. City of Greenville, 54 Ill. App. 3d 42, 45 (5th Dist. 1977)).
D.
The Circuit Court Erred in Granting Summary Judgment In Favor Of The
Planned Parenthood Defendants Despite The Fact That Their Development
Constituted Not Only An Impermissible Use But Also Ignored The Parking,
Setback And Tree Line Requirements For The Property.
The Circuit Court also granted summary judgment in favor of the Planned
Parenthood Defendants with respect to Plaintiffs’ claims that certain physical
characteristics of the property, specifically parking, setbacks and tree line obstructions,
violate the AZO. The Circuit Court stated, “The court finds that the record is clear that
the defendants’ materials expressly requested that its zoning be considered as part of the
PDD, and that it was reviewed and approved by the City of Aurora, and that there was
nothing – nothing improper regarding this . . . .” (Supp. R. 663). Although the Circuit
Court’s reasoning is difficult to follow, it appears the Circuit Court concluded that the
Planned Parenthood Defendants could effectively dictate, by virtue of the content of their
permits and applications, the criteria under which the City evaluated their requests. The
Circuit Court erred in reaching this conclusion.
1.
The Development Violates B-B Business Boulevard Zoning Standards.
The Planned Parenthood Defendants were on notice their property was governed
by B-B Business Boulevard zoning. (R. C4569, C4579). From time immemorial,
purchasers of land have been chargeable with knowledge of what is shown in the record
of their chain of title. Borrowman v. Howland, 119 Ill. App. 3d 493, 502 (4th Dist. 1983);
Smith v. Grubb, 402 Ill. 451, 464-65 (1949). As noted supra, the Planned Parenthood
Defendants submitted plans that misstated the applicable zoning requirements, submitted
39
a Qualifying Statement that misrepresented the governing zoning and the true impact of
the facility on the neighborhood, and misrepresented information about the true intended
use of the facility. The Planned Parenthood Defendants impermissibly failed to complete
Aurora’s land use and construction forms and applications accurately and completely.
See, e.g., AZO 10.7-12.2, ABC 105.1, 105.3.1-.7 (R. C1124-25, 2945, 2947, App. 162163, 189, 189b).
As noted supra, under the governing B-B Boulevard District standards, the
Planned Parenthood Defendants were required to provide 96 parking spaces, but only
provided 71; 10-foot parking spaces with 25 feet of back-up space, but only provided 9foot parking spaces with 24 feet of backup space; 35 feet of undeveloped setback, but
only provided 30 feet. (R. C3367-68, App. 59-60; AZO 8.6-5.2.E.ix & xvi, R. C1063,
App. 157; 8.6-5.1.G.ii, R. C1058, App. 156; AZO 8.6-5.B.i.a, R. C1056, App. 156).
Finally, the Planned Parenthood Defendants’ tree line, erected post-construction, invades
the required safety visibility area. (R. C3367-68; App. 59-60; AZO 8.6-5.2.G.iii, R.
C1058, App. 156).
The courts have rejected the argument that violations of such things as setback
requirements are “technical” and do not result in substantial injury, particularly where, as
in this case, they are intentional. See, Reiter v. Neilis, 125 Ill. App. 3d 774, 780 (3rd Dist.
1984). As the Appellate Court explained in Reiter, “The characterization of these
[setback] violations as mere technical violations makes a mockery of the legislature’s
efforts to protect the health and safety of property owners by regulating property use.” Id.
The Court recognized that permitting intentional violations would make future disregard
for zoning ordinances more frequent. The same considerations arise under the facts of
40
this case. The Planned Parenthood Defendants, represented by counsel throughout their
efforts, engaged in a considered and sophisticated plan to achieve their objective of
secretly building their facility in Aurora. In doing so, they disregarded the parking,
setback, and landscaping requirements of the B-B zoning applicable to the property.
Ignoring those violations undermines the health and safety concerns that Aurora sought to
obviate in imposing those standards and makes future violations by others more likely.
2.
The Planned Parenthood Defendants Neither Sought nor Received
Variations from the Strictures of B-B Business Boulevard Zoning.
The Planned Parenthood Defendants never sought variations from the governing
B-B standards. Even if such variations were allowed under the governing Ordinance
O93-124, AZO 10.7-13.5 requires that they be specifically considered and adopted. (R.
C1126, App. 163a)(“the plan commission may recommend and the . . . planning and
development committee . . . may grant, for all or specified areas of the planned
development district, modifications and exceptions from any provisions of this ordinance,
or the city subdivision control ordinance.”). The Aurora Plan Commission did not
recommend, and the Planning and Development Committee did not consider or grant
variations. Planned Parenthood’s argument that AZO 10.7-13.5 can be read to give these
bodies the power to grant variations from the strictures of validly enacted ordinances by
accident, and without deliberation or consideration of the wisdom of such variations, is
both illogical and not supported by the text. Moreover, Planned Parenthood’s reading of
AZO 10.7-13.5 would render that section unconstitutional as a standardless delegation of
legislative authority – the very power to change validly enacted ordinances. Evanston v.
Chicago, 279 Ill. App. 3d 255, 268 (1st Dist. 1996) (“We agree with Evanston and the
trial court that if the above section were construed to give authority without council
41
approval, it would clearly be unconstitutional as a delegation of legislative authority to an
administrative officer without standards.” (citing Dean Milk Co. v. City of Aurora, 404
Ill. 331, 336 (1949))).
The grant of permits and approvals by mistake will not excuse a developer’s
obligation to comply with the zoning requirements governing its property. See, e.g.,
Grotto, 104 Ill. App. 3d 105; Scanlon, 57 Ill. App. 3d at 653 (“[A]nyone who deals with a
governmental body does so at his own peril if he fails to accurately ascertain that one
who purports to act for the municipality stays within the bounds of his authority. This is
true even though the municipal agent himself may be unaware of the limits to his
authority and inadvertently exceeds them.”). In particular, a developer who actively
misstates the governing zoning standards on its applications cannot rely on the
subsequent issuance of permits therefrom to excuse zoning ordinance violations. Vill. of
Wadsworth v. Kerton, 311 Ill. App. 3d 829, 834 (2d Dist. 2000).
E.
Plaintiffs Are Entitled to Relief Pursuant to the Declaratory Judgment Act in
Addition to or in Lieu of Relief Pursuant to Section 11-13-15.
As part of the relief requested in Count I of the Complaint, Plaintiffs asked the
Circuit Court to “[d]eclare that the development of the subject property violates one or
more, or all, of the sections of Aurora law, as alleged herein.” (R. C3403; App. 96). In its
May 21, 2010 Order, the Circuit Court dismissed, pursuant to Section 2-615 of the Code
of Civil Procedure, Plaintiffs’ request for declaratory relief against the Planned
Parenthood Defendants included in Count I of Plaintiffs’ Complaint. The Circuit Court
also dismissed that claim with respect to Aurora, Thomas Weisner, Ed Sieben, Herman
Beneke, the Planning & Development Committee of the City of Aurora, and the Planning
Commission of the City of Aurora (collectively, “the City Defendants”), and the ZBA
42
and BCBA (which joined in the City Defendants’ motion to dismiss). (R. C3578). As set
forth infra at Argument III, a de novo standard of review governs rulings on motions to
dismiss pursuant to Section 2-615. Doe ex rel. Ortega-Piron v. Chi. Bd. Of Educ., 213 Ill.
2d 19, 24 (2004).
A declaratory judgment claim will lie if the plaintiff can identify a tangible, legal
interest, the defendant has an opposing interest, and an actual case or controversy exists
between the parties with respect to the interests. Country Mut. Ins. Co. v. D & M Tile,
394 Ill. App. 3d 729, 733 (3d Dist. 2009). A request for declaratory relief may be incident
to other claims. 735 ILCS 5/2-701(b). With respect to the Planned Parenthood
defendants, Plaintiffs stated a valid claim for declaratory relief. Plaintiffs, as adjacent
landowners, identified a tangible legal interest in enforcing the zoning and building
requirements applicable to the Planned Parenthood Defendants’ property. Plaintiffs’
Complaint adequately alleges the types of injury Plaintiffs have suffered or will suffer as
a result of the Planned Parenthood Defendants’ wrongful use of their property including,
among others, a loss in property values, increased foot and vehicular traffic, increased
noise and light, increased real estate and other taxes due to the potential loss of tax
revenue, the decreased availability of parking, and the loss of Plaintiffs’ right to notice
and an opportunity to be heard in connection with the Planned Parenthood Defendants’
use. (R. C3392-96, ¶ 93; App. 84-88). The Planned Parenthood Defendants have an
opposing interest in maintaining their use of the property and in continuing to circumvent
the zoning and building requirements applicable to their development. Further, there is an
actual controversy between the parties with respect to their respective interests.
The City Defendants argued Plaintiffs had failed to allege “a specific adverse
43
interest that exists between themselves and the City Defendants,” that, “[t]he focus of
Plaintiffs’ declaratory judgment action clearly is Planned Parenthood” and “[t]he nature
of the adverse interests between Plaintiffs and the Planned Parenthood defendants could
not be more palpable as set forth in the Complaint.” (R. C3792). The City Defendants
asserted they did not own or control the subject property and that they could not remedy
“the purportedly erroneous decisions” made by the ZBA and BCBA.” Id. However, the
City Defendants issued the various approvals and permits under whose protection
Planned Parenthood now operates its facility. The City Defendants maintain these permits
and approvals in effect. Without the assistance of the City Defendants in these regards,
Planned Parenthood could not operate.
Moreover, since this Court, or if this case is remanded, the Circuit Court, may
determine that any of the City Defendants, or the ZBA and BCBA, are nominal necessary
parties to any grant of declaratory relief as to the Planned Parenthood Defendants,
Plaintiffs request that the Court reverse the dismissal of Plaintiffs’ request for declaratory
relief as to those Defendants, as well.
II.
The Circuit Court Erred In Prohibiting Plaintiffs From Conducting Any
Discovery.
Discovery rulings, including requests for relief pursuant to Rule 191(b) are
subject to an abuse of discretion standard of review. See, Ramos v. Kewanee Hospital,
2013 IL App (3d) 120001, ¶76; Jiotis v. Burr Ridge Park District, 2014 IL App (2d)
121293, ¶¶23, 27. In this case, the Circuit Court manifestly abused its discretion in
foreclosing Plaintiffs from conducting any discovery at all.
The fact that deciding Plaintiffs’ Section 11-13-15 claim required the Circuit
Court to interpret and apply the provisions of the AZO did not convert that claim into one
44
for administrative review. See, e.g., Peet v. Bouie, 268 Ill. App. 3d 18, 19 (3d Dist. 1994)
(circuit court holding a bench trial on a private attorney general zoning claim, eliciting
testimony, issuing findings on use of property, impact of use, and evaluating use against
zoning ordinance). Under Supreme Court Rule 201(b), Plaintiffs had the right to obtain
by discovery “full disclosure regarding any matter relevant to the subject matter involved
in the pending action . . . to the claim or defense . . . existence, description, nature,
custody, condition, and location of any documents or tangible things, and the identity and
location of persons having knowledge of relevant facts.” While a protective order may
be sought to “prevent unreasonable annoyance, expense, embarrassment, disadvantage, or
oppression” (Rule 201(c)(1)), it cannot be used to violate the spirit of full disclosure in
litigation. Klick v. R.D. Werner Co., 39 Ill. App. 3d 575, 579 (1st Dist. 1976).
Plaintiffs did not seek to duplicate discovery conducted in connection with the
ZBA and BCBA proceedings. (R. C3433-49). Given the premature dismissal of their
appeals based on jurisdictional grounds, Plaintiffs were foreclosed from conducting
discovery on the merits of their administrative appeals. Although Plaintiffs were able to
obtain some information through FOIA requests directed to public entities, they have
never had any opportunity to discover relevant information in the possession of the
Planned Parenthood Defendants.
Moreover, the publicly available information only raises additional questions.
Even Martens and Leutkehans remarked upon the lack of a fully developed factual
record. For example, Leutkehans noted: “The City and its zoning authority has never
been informed as to what types of abortion procedures will be performed at the
facility . . . .” (R. C4441). Martens stated: “I was unable to determine what, if any,
45
information was known to those persons who signed the various permit applications as
the owner’s agent.” (R. C1272). Also: “I was unable to determine if Planned Parenthood,
which is a non-profit entity, has a lease, license, operating agreement, or other written
agreement with Gemini Office Development, LLC to occupy the land and health center
building.” Id.
In granting summary judgment in Planned Parenthood Defendants’ favor, the
Circuit Court disregarded Plaintiffs’ Rule 191(b) affidavit, submitted in connection with
the motion for summary judgment, which outlined the facts they believed they would
uncover in discovery, including, among other things: (1) evidence that identification of
the intended use of property is material to consideration of whether to approve a final
plan for the property and whether to place any conditions on the approval of a final plan;
(2) modifications and exceptions must be applied for by a developer and must be
considered by the Aurora planning and zoning staff, the Aurora Plan Council, the Aurora
Planning Commission and the Aurora Planning and Development Committee; and (3)
petitions and applications used by the City request detailed information from a developer
about development plans, including the intended use and any proposed modifications and
exceptions, because that information helps Aurora officials to protect the community, but
there was no evidence that Gemini ever accurately disclosed its true intended use or the
zoning regulations applicable to the subject property. (R. C4598-4502).
Based on its erroneous conclusion that Plaintiffs’ claims pursuant to Section 1113-15 of the Municipal Code essentially sought administrative review, the Circuit Court
entered a blanket protective order preventing Plaintiffs from conducting any discovery.
(R. C4234; Supp. R. 585). As discussed previously, the Circuit Court erred in equating,
46
and thus unduly limiting, Plaintiffs’ Section 11-13-15 claim to one for administrative
review. The Circuit Court’s discovery ruling was based on its misapprehension of
governing law, and this error of law renders the Circuit Court’s ruling an abuse of
discretion. A Circuit Court by definition abuses its discretion when it makes an error of
law. See, Macknin v. Macknin, 404 Ill. App. 3d 520, 530 (2nd Dist. 2010).
III.
The Circuit Court Erred in Dismissing Plaintiffs’ Counts for Administrative
Review of the Decisions of the Aurora ZBA and BCBA (‘261 Counts II and
III & ‘1624) and for Relief Under the Due Process Guarantee of the Illinois
Constitution (Count IV).
A de novo standard of review governs rulings on motions to dismiss pursuant to
Sections 2-615 and 2-619 of the Code of Civil Procedure. See, Doe ex rel. Ortega-Piron
v. Chi. Bd. Of Educ., 213 Ill. 2d 19, 24 (2004). The Circuit Court erred, as a matter of
law, in dismissing Plaintiffs requests for administrative review, under Section 2-619, and
for relief under the Due Process guarantee of the Illinois Constitution, under Section 2615, all pled as alternatives to the relief requested in Count I.
In initially denying the motions of the ZBA and BCBA to dismiss, Judge Cerne
recognized the inherent unfairness of a ruling that the time for filing Plaintiffs’
administrative appeals had expired before they had meaningful notice of the alleged
violations, let alone any possible notice of a basis for challenging those rulings, due to the
Planned Parenthood Defendants’ deception. The Circuit Court stated, “in my mind, it
would be a violation of due process to block their appeals as untimely if that untimeliness
was due to the deception as they have alleged.” (Supp. R. 342; App. 9). Judge Cerne thus
dismissed Plaintiffs’ claims under the Due Process guarantee of the Illinois Constitution.
(Id.). Subsequently, however, the Circuit Court (Judge Fullerton presiding), dismissed
Plaintiffs’ requests for administrative review, on the basis that Plaintiffs’ appeals were
47
not timely filed. (R. C4115; Supp. R. 547-551).
While the Circuit Court did allow Plaintiffs to proceed on the merits of their
claims via the private attorney general statute, it was improper to dismiss Plaintiffs’
administrative review and due process claims at the pleading stage. Plaintiffs contend that
their appeals were timely on the basis of Doyle v. City of Crystal Lake, 183 Ill. App. 3d
405 (2d Dist. 1989). In Doyle, an appeal was taken more than 45 days after a zoning
administrator made an internal, unpublicized decision. This Court in Doyle rejected the
ZBA’s finding that plaintiff’s appeal was untimely, explaining, “We fail to see how an
internal action of the municipality in this case, unknown to any potentially interested
parties, should trigger the running of the 45-day appeal period. It is clear that a person
cannot be aggrieved until he has some actual or constructive knowledge of the action
complained of or suffers some injury in fact.” Id., at 409; see also Bull v. Am. Nat’l Bank
& Trust Co., 112 Ill. App. 2d 32, 38 (1st Dist. 1969) (plaintiff “could not object to a
permit of which she had no knowledge.”); Trs. of Marion Kingdom Hall v. City of
Marion, 638 F. Supp. 2d 962, 975 (S.D.Ill.2007) (following Doyle); Ill. Wood Energy
Partners v. Cnty. of Cook, 281 Ill. App. 3d 841, 851 (1st Dist. 1996) (“A final and
binding decision by an administrative agency requires, at the very least, that the agency
has taken some definitive action with regard to the application before it and that the
applicant has been informed of the action.”).
In this case, Plaintiffs did not become “aggrieved” until the City allowed the
facility to open on October 1, 2007, until the City released the governing ordinance, O93124, to the public on or about October 10, 2007, and until the City issued the certificate
48
of occupancy on July 1, 2008. Plaintiffs filed administrative appeals shortly after each of
these events.
The Illinois Supreme Court has upheld the constitutional requirement that
adequate notice must be provided in the zoning context. Passalino v. City of Zion, 237 Ill.
2d 118, 126 (2009). The City Defendants’ actions in approving Planned Parenthood
Defendants’ illegal development, without affording Plaintiffs notice or any opportunity to
be heard, and the determinations that Plaintiffs’ right to seek administrative review was
foreclosed, before they had any conceivable awareness they were “aggrieved,” resulted in
a denial of their right to Due Process. Leavell v. Ill. Dep’t of Natural Res., 600 F. 3d 798,
805 (7th Cir. 2010) (“If the plaintiff alleges that the deprivation is pursuant to an
established state procedure, the state can predict when it will occur and is in the position
to provide a pre-deprivation hearing. Under those circumstances, the availability of postdeprivation procedures will not, ipso facto, satisfy due process.”).
The Due Process guarantee of the Illinois Constitution provides, in relevant part:
“No person shall be deprived of life, liberty or property, without due process of law.” IL
Const. art. I, § 2. 65 ILCS 5/11-13-25(b) provides: “The principles of substantive and
procedural due process apply at all stages of the decision-making process and review of
all zoning decisions.” The fundamental due process right protected by the Due Process
guarantee (as well as Section 11-13-25(b)) is the right to notice and an opportunity to be
heard before one’s property or liberty is taken or impaired. Under the circumstances
alleged in the Complaint, Plaintiffs adequately alleged violations of their Due Process
rights to meaningful notice and an opportunity to be heard.
49
Conclusion
For the above and foregoing reasons, Plaintiffs respectfully request that this Court
reverse the August 29,2013 summary judgment entered in favor of the Planned
Parenthood Defendants on Plaintiffs' request for relief pursuant to Section 11-13-15 of
the Municipal Code and that portion of the May 21,2010 Order dismissing Plaintiffs'
request for a declaratory judgment. In the alternative, Plaintiffs respectfully request that
this Court reverse that portion of the May 21, 2010 Order dismissing Plaintiffs' due
process claim (Count IV) and the March 19,2012 Order dismissing Plaintiffs'
administrative review claims (Counts II & III). Plaintiffs further respectfully request that
this Court remand this cause for further proceedings as directed by this Court, including
discovery as provided by Supreme Court Rules 201, et seq., and for such additional relief
as the Court may deemjust and appropriate.
itted,
~
One ofPlaintiffs-Appellants' Attorneys
Of Counsel:
Thomas Brejcha
Peter Breen
Thomas More Society,
a public interest law firm
19 South LaSalle St., Suite 603
Chicago, Illinois 60603
Tel. 312-782-1680
Fax 312-782-1887
Thomas G. alp
Attorney at Law
2111 Comprehensive Drive
Aurora, IL 60505
Tel. 630-851-4722 x4202
Fax 630-851-5040
50
CERTIFICATE OF COMPLIANCE
I certify that this brief conforms to the requirements of Rules 341(a) and (b). The
length of this brief, excluding the pages containing the Rule 341(d) cover, the Rule
341(h)(1) statement of points and authorities, the Rule 341(c) certificate of compliance,
the certificate of service, and those matters to be appended t
is 50 pages.
51
brief under Rule 342(a),