2025 IL App (1st) 241242-U No. 1-24-1242 First Division April 21, 2025
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ____________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ____________________________________________________________________________
CROSBY THEODORE, LLC, an Illinois ) Appeal from the limited liability company, ) Circuit Court of Cook County, Illinois ) Plaintiff-Appellant, ) ) v. ) No. 2023 CH 06295 ) CITY OF EVANSTON, an Illinois municipal ) corporation, ) Honorable ) Cecilia A. Horan Defendant-Appellee. ) Judge, presiding. ____________________________________________________________________________
JUSTICE COBBS delivered the judgment of the court. Justices Lavin and Pucinski concurred in the judgment.
ORDER
¶1 Held: Circuit court properly denied plaintiff-appellant’s motion for preliminary injunction.
¶2 This case concerns a property owner’s disagreement with the City of Evanston’s decision
to sell a vacant city lot to a non-profit affordable housing developer and an established church next
to the owner’s historical building. Following years of proposals, negotiations, and City Council
hearings that ultimately approved the sale, plaintiff-appellant, Crosby Theodore LLC, filed a multi- No. 1-24-1242
count complaint for injunctive relief and damages against defendant-appellee, the City of Evanston
(City), defendant Mount Pisgah Ministry, Inc. (Mt. Pisgah), a church, and defendant Housing
Opportunity Development Corporation (HODC), a non-profit affordable housing developer.
Plaintiff subsequently moved for a preliminary injunction to enjoin enforcement of all city
ordinances and resolutions effectuating the sale and property development. Following a three-day
hearing, the circuit court denied plaintiff’s motion. Plaintiff now appeals, arguing that the circuit
court erred in a multitude of ways when it denied its motion. For the following reasons, we affirm.
¶3 I. BACKGROUND
¶4 A. Events Prior to Litigation
¶5 The following facts are derived from the record on appeal, which includes plaintiff’s first
amended complaint and the parties’ filings regarding the motion for preliminary injunction.
¶6 1. The Corner Lot
¶7 The City, an Illinois municipal corporation and home rule unit of government, owns three
vacant parcels of land, located at 1805 Church Street, 1708 Darrow Avenue, and 1710 Darrow
Avenue in Evanston, Illinois (collectively, the Corner Lot). One of the parcels, 1805 Church, was
previously the site of a gas station and underground fuel storage tanks owned by Chevron. At some
point, the gas station left the premises and the tanks were removed. However, Chevron installed
an engineered asphalt barrier which was placed over what was found to be contaminated soil.
¶8 At some point in 2015, the Illinois Environmental Protection Agency (IEPA) became
involved with the Corner Lot to remediate 1801 and 1805 Church Street for future use. In
accordance with the Illinois Environmental Protection Act, the IEPA granted the City’s request for
“no further remediation” subject to certain conditions pursuant to a November 6, 2017, letter (the
first Remediation Letter). The first Remediation Letter indicated that it constituted “prima facie
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evidence” that the site “[did] not constitute a threat to human health and the environment” so long
as the controls and conditions delineated in the letter were followed. Notably, the first Remediation
Letter restricted the site to industrial and commercial use, but noted that the designated use could
be revised if further investigation or remedial action was conducted to make the land appropriate.
The letter also provided for specific controls and safety mechanisms for future use. Notably, the
letter directed that the asphalt barrier was to remain and be maintained over the contaminated soils
as a barrier to prevent inhalation. The letter also indicated that any future use must include the
installation of a full concrete slab or basement floor. Additionally, the letter advised that a safety
plan for any excavation and construction activities should be developed to avoid possible worker
exposure to the contaminated soil.
¶9 On March 8, 2018, and reissued on June 7, 2018, the IEPA published a second Remediation
Letter which granted the City’s request for a second “no further remediation” determination.
Relevant here, it provided that the site was now approved for residential, commercial, and
industrial use. The second letter maintained past engineering controls, including the maintenance
of the asphalt barrier, building a concrete basement floor, and safety plans for worker exposure.
¶ 10 2. Requests for Development Proposals
¶ 11 On July 29, 2019, and October 9, 2019, Evanston’s Fifth Ward held community meetings
discussing potential development ideas for the Corner Lot.
¶ 12 On January 14, 2020, the City issued a request for proposals (RFP) for the redevelopment
of the Corner Lot. It also created a website detailing proposal requirements and sought all
responses to be submitted by March 2, 2020, with selection to occur either in June or July 2020.
All proposals were to be reviewed by the City’s Community Development Department, the Public
Works Agency, the City Manager’s Office, the Economic Development Committee, and the City
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Council. The City’s desired use for the area was a three-story mixed-use building with an active
ground floor for retail, or an “iconic [two-story] building” for religious, community, or cultural
use. City staff also recommended a mixed-use building with commercial use on the first floor.
¶ 13 The RFP noted that the Corner Lot was adjacent to a vacant lot owned by Mt. Pisgah
Ministry, a church. Applicants were “highly encouraged” to determine if they could partner with
the church in redevelopment. Proposals would be considered based on, among other things, “past
development success” and “experience in working with municipalities of similar scale as
Evanston.”
¶ 14 Finally, the RFP referenced and attached the second Remediation Letter. 1 Therein, the RFP
advised developers of the asphalt barrier’s existence which had to be maintained over the
contaminated soils, that any future building had to include plans for a concrete slab or basement
floor, and that any future developer was obligated to comply with the other conditions delineated
within the letter.
¶ 15 3. Solicitation and Received Proposals
¶ 16 Plaintiff, Crosby Theodore LLC, is an Illinois limited liability company that owns a
building located at 1817 Church Street in Evanston. Plaintiff’s property is designated as an
Evanston Historic Landmark building and is currently leased to one commercial tenant, Jackson
LLP, a law firm. Following the release of the RFP, on August 16, 2021, plaintiff sent a letter to
the City Council expressing interest in developing the Corner Lot.
1 The RFP incorrectly listed the second Remediation Letter’s year of publication as 2019.
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¶ 17 Defendant Mt. Pisgah2 operates a church at 1815 Church Street in Evanston, which is
eastward adjacent to plaintiff’s location. As noted in the RFP, Mt. Pisgah also owns a vacant lot
directly east of its building, located at 1813 Church Street (collectively, the Pisgah Parcels).
Sometime in 2020, Mt. Pisgah submitted a proposal to develop the Corner Lot.
¶ 18 Defendant HODC is an Illinois not-for-profit corporation that develops affordable housing
in Chicago’s north suburbs. Defendant, Richard Koenig, is an Illinois resident and president of
HODC. On March 2, 2020, HODC also submitted a proposal to develop the Corner Lot.
¶ 19 4. Negotiations and Memorandum of Understanding
¶ 20 Following receipt of proposals, City staff recommended that HODC be awarded the bid.
However, following later negotiations between HODC and Mt. Pisgah, the two agreed to partner
in the overall redevelopment. As such, on December 1, 2020, Mt. Pisgah and HODC entered into
a “Memorandum of Understanding” (MOU), which memorialized a plan to jointly procure and
develop the Corner Lot. The MOU stated that Mt. Pisgah was to construct a new multi-million-
dollar church on the Corner Lot with HODC as the lead developer. The City’s Economic
Development Committee subsequently selected the joint project on December 2, 2020.
¶ 21 At some point, the parties discussed a “land swap,” in which HODC’s proposed taller
building on the Corner Lot would instead be moved and occupy the middle of the block, and Mt.
Pisgah would build its new church on the Corner Lot. The “land swap” plan required a partial land
exchange between the two entities and the City, where Mt. Pisgah would own land 75 feet east of
2 Plaintiff noted in the complaint that it could not locate an Illinois corporation by the name of “Mt. Pisgah Ministry, Inc.,” in the Illinois Secretary of State’s Department of Business Services database, despite the entity using this name in various legal submissions.
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the Corner Lot and HODC would own the remainder of the area between plaintiff’s property and
Mt. Pisgah’s development.
¶ 22 On June 30, 2021, Mt. Pisgah and HODC entered into the “1811-1815 and 1805 Church
Street Development Agreement.” The agreement delineated the parties’ intention to create a
church, an affordable housing project, retail space, and parking. Mt. Pisgah further agreed to
donate to HODC the land necessary to develop the housing project, with the parties’ arrangement
contingent on the City selling 1805 Church to Mt. Pisgah.
¶ 23 5. Ordinance 4-O-21
¶ 24 On February 8, 2021, the City Council introduced “Ordinance 4-O-21,” which formalized
its notice of intent to sell the Corner Lot. The ordinance stated that notice of the sale had been
published on January 14, 2021, in the Evanston Review, a local newspaper. The ordinance was
approved on February 11, 2021.
¶ 25 6. Special Use Permits and Variation Requests
¶ 26 On July 14, 2022, Mt. Pisgah submitted a variance application for 1801-1805 Church Street
and 1708-1710 Darrow Avenue. The proposed project was described as a new three-story church
with leased off-site parking on its vacant lot.
¶ 27 On July 15, 2022, HODC submitted a variance application for 1811-1815 Church Street
with Mt. Pisgah listed as the property owner. The variance application sought approval to demolish
Mt. Pisgah’s existing church and to construct a five-story mixed use building with 44 units, two
ground floor retail spaces, and enclosed ground floor and underground parking. The application
stated that the project would result in “increased impervious surface coverage,” which would help
control stormwater.
¶ 28 7. Land Use Commission Hearings
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¶ 29 On January 11, 2023, HODC and Mt. Pisgah presented their requests to the Evanston Land
Use Commission (LUC), a public body that recommends approval or rejection of land use requests
to the City Council. Plaintiff appeared at the hearing, and alleging no notice of the meeting,
requested a three-month continuance to review the requests. The LUC continued the meeting to
February 8, 2023.
¶ 30 On February 8, 2023, the LUC reconvened. Koenig testified, and plaintiff presented written
and oral testimony. The meeting was further continued to February 22, 2023.
¶ 31 On February 22, 2023, the LUC convened again and recommended approval to the City
Council as to HODC’s requested variances. However, the LUC did not recommend approval for
Mt. Pisgah’s requests.
¶ 32 On March 13, 2023, the City Council’s Planning and Development Committee held a
hearing on Mt. Pisgah’s request. It considered the LUC’s negative recommendation but
nonetheless recommended approval to the City Council.
¶ 33 8. Ordinance 35-O-23 (HODC)
¶ 34 On March 13, 2023, the City Council introduced “Ordinance 35-O-23,” which formally
adopted HODC’s variation request. The ordinance recounted HODC’s notice and publication
timeline, including its notice of the request in the Evanston Review, as well as through written
signage and mailed notice to all property owners within 500 feet of the property. The ordinance
also indicated that HODC’s variation was subject to a few amendments, including a reduction in
the building’s height and its dwelling units. Amongst other requirements, HODC was also required
to work with the City’s Preservation Commission prior to demolition, where the parties would
review the construction management plan and work with a structural engineer to prevent any
damage to plaintiff’s property. HODC was also ordered to ensure that its development plan
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complied with the City’s floodplain regulations and ordinances concerning watershed management
prior to the issuance of any building permits. Finally, prior to permit issuance, HODC was required
to share its construction management plan with plaintiff. The ordinance was approved and adopted
on April 10 and April 11, 2023.
¶ 35 9. Ordinance 34-0-23 (Mt. Pisgah)
¶ 36 On March 13, 2023, the City Council introduced “Ordinance 34-O-23,” which formally
approved Mt. Pisgah’s special use and variation request. Therein, the ordinance recounted a similar
notice and hearing timeline. On April 11, 2023, the ordinance was approved by the City with
certain conditions, including creating a management plan to coordinate construction with the
proposed HODC project. The ordinance also provided that any excavation of the contaminated
soil was to comply with federal, state, and local environmental protections.
¶ 37 10. Ordinance 51-O-23 and Resolution 22-R-23
¶ 38 On June 26, 2023, Ordinance “51-O-23” was introduced to authorize the sale of the Corner
Lot. Therein, the City approved funding for construction of HODC’s building for $4 million,
including a $2 million developer fee, with a majority of funds to be paid through grants, public
funds, and tax credits. The ordinance recounted that it had provided notice of the sale in the
Evanston Review. That same day, the City Council also introduced “Resolution 22-R-23,” which
approved two property survey plats for subdivisions 1801-1815 Church Street and 1708-1710
Darrow Avenue. Both were approved on July 10, 2023.
¶ 39 B. Court Proceedings
¶ 40 1. Complaint
¶ 41 On July 6, 2023, plaintiff filed a multi-count complaint and jury demand in the circuit court
of Cook County naming as defendants HODC, Koenig, Mt. Pisgah, and the City. The complaint
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was amended on February 26, 2024. Generally, plaintiff alleged that the overall RFP and process
approving the various ordinances and resolutions had lacked in transparency, had failed to consider
the objections and concerns of legal stakeholders, had failed to adhere to establishing variation
procedures, and had failed to protect its residents from environmental hazards. 3
¶ 42 2. Motion for Temporary Restraining Order 4
¶ 43 On July 11, 2023, plaintiff filed its motion for temporary restraining order against all
defendants, seeking to enjoin the City from enforcing its various ordinances and initiating the
transactions with Mt. Pisgah and HODC. We summarize the substance of plaintiff’s motion and
defendants’ responses below.
¶ 44 Plaintiff argued that, as an adjacent property owner, it had a protectible interest, and that
the City had violated both its substantive and procedural due process rights by failing to give proper
notice of the underlying zoning proceedings or considering the new development’s negative effects
to its property. Additionally, plaintiff argued it would suffer imminent and irreparable harm upon
demolition because, among other things: (1) it owned a one-hundred-year-old historic property
that was at risk for structural damage which HODC and Mt. Pisgah could not likely repair, (2)
demolition and construction would cause air, water, and sound pollution, potentially harm its
buildings, release contaminants, and cause financial expense in the event relocation of its building
occupants became necessary; and (3) the project failed to demonstrate adequate stormwater
management.
3 The amended complaint included nine separate claims against the City and eight various claims against defendants Koening, HODC and Mt. Pisgah, collectively. 4 A footnote in the circuit court briefing indicates that, by agreed order, plaintiff’s motion for temporary restraining order was treated as a motion for preliminary injunction.
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¶ 45 Regarding an inadequate remedy at law, plaintiff argued that damage to its property could
not be quantified or recouped through monetary damages and that any reinstallation of the
engineered environmental barrier around the contaminated soils would also be difficult, “if not
impossible to undo or quantify.” Further, plaintiff asserted that the City’s “nontransparent” RFP
process had failed to provide plaintiff with legally sufficient notice. Thus, plaintiff argued it was
likely to succeed on the merits. Finally, plaintiff argued that the balance of hardships and the public
interest favored its position because any damage from the proposed development was
“irreversible” in nature and further, the public interest weighed heavily in maintaining the current
church while the matter was adjudicated.
¶ 46 In its response, the City characterized plaintiff’s motion and unverified complaint as
conjecture and insufficient to stop a duly enacted legislative determination. Citing its home rule
powers, the City argued that plaintiff had no basis in law that would prevent it from exercising its
powers. Further, the City continued, plaintiff had neither standing nor a protectible property
interest to challenge the sale of the land under either the City code or the various ordinances and
resolutions. The City refuted plaintiff’s claim of irreparable harm, noting that plaintiff had failed
to provide any evidence as to real or imminent property damage. The City noted that plaintiff
ignored the safeguards outlined in the various ordinances to ensure that such harms would not
occur, which included a construction management plan, collaboration with the Preservation
Committee, and performance standards for stormwater management and soil removal.
¶ 47 The City also rejected plaintiff’s claim of an inadequate remedy at law, asserting the
availability of money damages in the event that defendants caused damage to plaintiff’s property.
Additionally, the City argued that plaintiff could not succeed on the merits because, as a home-
rule entity, the City’s decision to sell the land was entitled to judicial deference and its zoning-
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based ordinances carried presumptions of validity. Finally, the City argued that the potential loss
of funding for the project tipped the balance of hardships against issuing the injunction. The City
noted that its RFP and zoning procedures had produced a legislative decision that was in the City’s
best interest, which also had provided safety mechanisms for plaintiff and others during
construction.
¶ 48 Defendants Koenig and HODC (collectively, HODC) also filed a response supported by
Koenig’s affidavit and therein noted that the circuit court had “recognized HODC’s standing to
oppose [p]lainitff’s motion[.]” Relevant here, HODC argued that plaintiff had failed to show
irreparable harm by failing to allege any facts demonstrating that: any aspect of HODC’s
construction plans would lead to disturbance of the contaminated soil or that Mt. Pisgah would
deviate from any of the IEPA’s mandated requirements; the conditions set forth in the various
ordinances were insufficient to protect plaintiff and others; plaintiff had failed to allege how the
construction plans would damage its building; or HODC or the City would fail to comply with
Ordinance 35-O-23’s requirements to collaborate with the Preservation Commission or ensure that
the water management plan would comply with applicable restrictions prior to the issuance of
building permits. Further, HODC observed, it was plaintiff that actually remained the biggest
obstacle to the project, as it had refused to provide information to HODC regarding the depth of
its basement so HODC’s contractors could design the depth of its own to match harmoniously.
¶ 49 3. Hearing
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¶ 50 A hearing on plaintiff’s motion for preliminary injunction was held over three days,
beginning on February 7, 2024, and concluding on March 15, 2024. Multiple witnesses testified,
however, we recite only the testimony necessary for our disposition. 5
¶ 51 a. Erin Jackson
¶ 52 Jackson testified on behalf of plaintiff. On direct examination, she identified herself as the
corporate representative for plaintiff and that she owned the property at 1817 Church Street, which
was within 500 feet of the property at issue. Plaintiff’s sole tenant was Jackson LLP, a law firm
which occupied the entirety of the property. She had extensively restored the historical building,
including the property floor after the building suffered stormwater damage.
¶ 53 Jackson first became aware of the City’s RFP in 2020 and would check the City’s website
for updates. She believed the RFP process had been paused due to the COVID-19 pandemic. At
some point, Jackson sent a letter to the City in which she expressed an interest in developing
affordable housing on the Corner Lot. She did not receive a formal response but was later advised
by her city council representative that the “lot had been spoken for” by Mt. Pisgah and HODC.
She did not pursue the RFP any further.
¶ 54 Around Christmas 2022, Jackson learned that the Corner Lot’s redevelopment was moving
forward when she saw in the mail an announcement of a community meeting at Mt. Pisgah
regarding the project. She denied receiving any notice otherwise. She also denied receiving any
notice of future LUC meetings but admitted attending the initial and continued hearings in person
or virtually.
5 Other witnesses included: (1) Clare Kelly, City Council member for the First Ward of Evanston, called by plaintiff, and (2) Michael Griffith, a planner at the City, and called by the City. We also note that plaintiff raised repeated objections to HODC and Mt. Pisgah’s standing to participate in the hearing, which were overruled by the court.
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¶ 55 On January 11, 2023, Jackson attended the first LUC meeting on HODC and Mt. Pisgah’s
variance applications. Jackson was “alarm[ed]” as to the amount and number of requested
variations, in light of various water issues at her own property. As of that date, she had not been
provided any water management studies to mitigate her concerns.
¶ 56 Jackson also had environmental concerns, which were based on the 2017 Remediation
Letter. She wished to provide a safe work environment for her employees and to protect the
structural integrity of her property. She wanted to see environmental studies to ensure such safety
regarding the contaminants in the soil but had been provided no assurances otherwise.
¶ 57 Jackson admitted that Ordinance 35-O-23 granting HODC’s request contained conditions
which addressed her concerns, such as construction management. She did not believe construction
permits had been issued to HODC. HODC had never provided her copies of its plan, and she
believed that the ordinance served as a mandate to involve her or to have information shared with
her. She had also learned that HODC had met with the Preservation Commission and that they had
made some recommendations to the construction management plan. She did not believe the
enforcement mechanisms in the ordinance “had teeth” and felt the management plan was a
“template.” She was also concerned about HODC’s financial reserves for the project in case
anything went wrong.
¶ 58 On cross-examination, Jackson admitted that Ordinance 35-O-23 added conditions based
on her stated concerns, including HODC working with the Preservation Commission and ensuring
the construction plan complied with floodplain regulations. She also admitted to seeing HODC’s
construction plans that would manage stormwater release. She denied being invited by HODC to
meet with the company and its architects to discuss her stormwater management concerns, but
noted that she had been advised not to do so once this litigation had begun. When asked if she
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believed that the City was incapable of enforcing its requirements against HODC, she responded,
“[w]e were not given a report or evaluation or study or anything like that.” She feared potential
property damage based on her belief that HODC would not comply based on purported past
noncompliance at other properties in Evanston. When asked about the basis of her fear on this
particular project, she responded that she had not been provided with any engineering study to
prove otherwise and that it was “not [her] burden at this juncture.” She agreed that a neighbor did
not have a “veto” over building and permitting plans of another property.
¶ 59 Jackson admitted that Ordinance 34-O-23 addressing Mt. Pisgah’s request contained
conditions for construction management, excavation of contaminated soils, and parking. Jackson
testified that she had been made aware of the various IEPA remediation letters based on the RFP’s
references to them. She admitted that the second Remediation Letter expressly stated that the site
had been approved for residential, industrial, and commercial use. However, she viewed the
conditions and restrictions listed therein as controls for workers and not for adjacent property
owners. She did not have any other evidence beyond the first Remediation Letter to justify her
concerns. Jackson admitted that the current version of her complaint was “unintentional[ly]”
incorrect as it had only relied on the first Remediation Letter issued in 2017, and that she had only
found the 2018 version afterwards.
¶ 60 When asked if she had any evidence that Mt. Pisgah intended to disregard the issued
conditions or that the City would fail to enforce them, she responded that discovery in the case had
not yet begun and that no evidence had been provided otherwise. She admitted that the City could
not issue a permit to Mt. Pisgah without compliance, but still believed the City would issue one
because the project “ha[d] been pushed through” and that there were “a lot of environmental
concerns that were sidelined during [the] process.” She admitted to having no evidence that the
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City would issue permits without compliance, or that Mt. Pisgah would use unlicensed or
uninsured contractors. She felt that the conditions were “vague and broad,” that she was generally
unaware of the project’s development, and that her fears were grounded in “lack of information,
lack of detail, lack of data, lack of scientific studies, [and] candor.” She indicated that the basis for
the suit was to “gather that information and prevent imminent harm to [her] staff and building.”
¶ 61 On redirect examination, Jackson testified that her concerns about pollution were
“imminent” because once permits were issued, she would not be able to “undo potential and feared
damage,” and that she was “faced with so little evidence” that “defendants [were] going to protect”
her property, her employees, and her community at large.
¶ 62 b. Richard Koenig
¶ 63 Koenig testified on behalf of defendants. On direct examination, he testified that building
permits had not yet been issued for the current project. He had been aware of the environmental
controls laid out in the Second Remediation Letter, including rules regarding soil excavation and
removal. HODC also conducted soil testing on the Corner Lot that did not identify any
contaminants that exceeded IEPA levels. If there had been a restriction against residential usage
on the property, HODC would not have submitted a bid.
¶ 64 In accordance with the conditions set forth within the applicable ordinance, HODC had
met with and submitted a construction management plan to the Preservation Committee in January
2024. The plan addressed stormwater concerns by including underground stormwater vaults that
would collect water and release it slowly. The Commission had reviewed the plan and gave
recommendations with no further involvement. Koenig further testified that plaintiff had refused
to meet with him, HODC, and its architects regarding certain aspects of plaintiff’s building, such
as the depth of its basement to match HODC’s construction.
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¶ 65 2. Circuit Court Ruling
¶ 66 On May 14, 2024, the circuit court issued a written ruling denying plaintiff’s motion for
preliminary injunction. 6 Notably, the circuit court indicated that plaintiff had failed to meet its
burden on its motion as it failed to demonstrate that it “has or is likely to suffer the harm” it feared,
and had failed to “prove there is a fair question the danger of harm is real and imminent[.]”
¶ 67 On June 11, 2024, plaintiff filed a timely notice of appeal pursuant to Illinois Supreme
Court Rule 307(a)(1) (eff. Nov. 1, 2017) (allowing for interlocutory appeal after denial of
injunction request). 7
¶ 68 II. ANALYSIS
¶ 69 A. Standard of Review
¶ 70 The parties disagree about the applicable standard of review. Although plaintiff
acknowledges that generally orders denying motions for preliminary injunctions are reviewed
under an abuse of discretion standard, plaintiff nevertheless contends that de novo review is
appropriate here because the circuit court reviewed a question of law without making any factual
findings. The City disagrees, contending that abuse of discretion is proper. Based upon our review
of the proceedings, we agree with the City that the appropriate standard is abuse of discretion.
Smith v. Department of Natural Resources, 2015 IL App (5th) 140583, ¶ 22. As such, we will
reverse the court’s denial of the motion for preliminary injunction only if its ruling is arbitrary,
fanciful, or unreasonable, or when no reasonable person would adopt the court’s view. Id. “The
6 On April 15, 2024, plaintiff filed an unopposed motion to submit new evidence which purportedly showed that the City had mailed notice of the proposed Corner Lot development to the prior owners of plaintiff’s property rather than plaintiff. The motion was granted on April 18, 2024. 7 The City is the only defendant that filed a response in this appeal.
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relevant question for the reviewing court is whether there was a sufficient showing made to the
circuit court to sustain its order.” Id.
¶ 71 B. Arguments
¶ 72 On appeal, plaintiff’s challenge to the circuit court’s denial of its request for preliminary
injunction is multifaceted. Before proceeding, we set forth the applicable law. “The purpose of a
preliminary injunction is to prevent a threatened wrong or a continuing injury pending a trial on
the merits of the case.” Pardilla v. Village of Hoffman Estates, 2023 IL App (1st) 211580, ¶ 30.
“It provides relief to an injured party and preserves the status quo until a trial is held.” Id. “A
preliminary injunction is an extraordinary remedy” and is generally disfavored. Id. ¶ 31. Thus, a
preliminary injunction should only issue if the harm to the plaintiff without such relief is likely to
outweigh the harm to the defendant if relief is granted. Roxana Community School District No. 1
v. WRB Refining, LP, 2012 IL App (4th) 120331, ¶ 23.
¶ 73 “A party seeking a preliminary injunction must demonstrate (1) a clearly ascertained right
in need of protection, (2) irreparable injury in the absence of an injunction, (3) no adequate remedy
at law exists, and (4) a likelihood of success on the merits of the case.” Pardilla, 2023 IL App (1st)
211580, ¶ 32. “The party seeking the injunction must raise a fair question concerning the existence
of the claimed right, i.e., a fair question as to the existence of each element.” (Internal citation
omitted.) Smith, 2015 IL App (5th) 140583, ¶ 21. A party must “plead facts which clearly establish
a right to injunctive relief, and allegations consisting of mere opinion, conclusion or belief are not
sufficient[.]” In re Marriage of Stamberg, 218 Ill. App. 3d 333, 337 (1991). Courts do not decide
the case on the merits in such proceedings (Pardilla, 2023 IL App (1st) 211580, ¶ 32), nor do they
consider contested issues of fact. Smith, 2015 IL App (5th) 140583, ¶ 22.
¶ 74 1. HODC and Mt. Pisgah’s Participation in the Hearing
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¶ 75 We first address plaintiff’s offhand reference that the circuit court erred in allowing Mt.
Pisgah and HODC to participate in the preliminary injunction hearing. Plaintiff argues, without
citation to any authority, that the testimony elicited from Jackson’s improper cross-examination
by these parties was ultimately relied upon by the court in its decision, despite neither party having
standing to participate. The City responds that this argument is forfeited pursuant to Supreme Court
Rule 341(h)(7). We agree. Although it is true that plaintiff raised standing objections repeatedly
during the hearing, plaintiff has failed to support this contention here on appeal with any authority
as required by supreme court rules and thus has forfeited this argument. See Ill. S. Ct. R. 341(h)(7)
(eff. Oct. 1, 2020) (appellant’s contentions must be supported by citation of supporting
authorities); International Union of Operating Engineers Local 965 v. Illinois Labor Relations
Board, State Panel, 2015 IL App (4th) 140352, ¶ 20 (a party forfeits review of issue on appeal by
failing to support its argument with citation to authorities). Moreover, plaintiff’s own motion
indicates that it sought relief against all defendants, and it is undisputed that any effort to enjoin
the sale of the Corner Lot would affect Mt. Pisgah and HODC.
¶ 76 2. Permanent v. Preliminary Injunction
¶ 77 Next, plaintiff contends that the circuit court incorrectly applied the standard of proof for
a permanent injunction, which is higher than the standard for preliminary injunction, to its
assessment of the evidence. Plaintiff’s support for this contention is based on certain case citations
contained within the court’s written order. Unsurprisingly, the City denies that the court conflated
the two standards and that the court’s citation to various legal authority was to elucidate its point
that injunctive relief was not available for injuries that have not or may never occur.
¶ 78 We agree with the City and do not find the court assessed the merits of plaintiff’s motion
by an incorrect standard. We acknowledge that the cases cited by the circuit court in its order did
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not involve requests for preliminary injunctive relief. See Lewis E. v. Spagnolo, 186 Ill. 2d 198,
201-04 (1999) (dismissal of complaint pursuant to section 2-615 of the Code of Civil Procedure
regarding adequacy of school district conditions); Village of Wilsonville v. SCA Services, Inc., 86
Ill. 2d 1, 6 (1986) (trial on the merits regarding a chemical-waste disposal site presenting a public
nuisance); Garner v. County of DuPage, 8 Ill. 2d 155, 156, 160 (1956) (dismissal of complaint for
injunctive relief where plaintiff failed to show actual or threatened harm or adequate standing
challenging zoning ordinance); Swain v. Winnebago County, 111 Ill. App. 2d 458, 441, 472 (1969)
(dismissal of complaint seeking declaratory judgment that zoning ordinance was invalid).
However, it is clear that the court cited those cases merely to discuss the governing law regarding
standing, and thus, a protectible interest, and not for the burden of proof necessary for plaintiff to
prevail on its motion. See, e.g., In re Marriage of Stamberg, 218 Ill. App. 3d at 337 (“In order to
be granted a preliminary injunction, [plaintiff] must have standing in the cause, which requires a
showing of a clearly ascertainable right or interest.”); Village of Lake in the Hills v. Laidlaw Waste
Systems, Inc., 143 Ill. App. 3d 285, 292 (1986) (“As the concept of standing relates to a preliminary
injunction, it requires a plaintiff to establish that he [or she] has a clearly ascertainable right or
interest which needs protection” and “[g]enerally, the doctrine of standing makes it necessary for
a party seeking such relief to allege an injury in fact to some substantive interest [they] possess[]
which is recognized by statute or common law.”)
¶ 79 Further, the court’s ultimate and express conclusion that plaintiff had not raised a fair
question as to the sought relief indicates that the court assessed the evidence applying the
appropriate standard. See, e.g., Smith, 2015 IL App (5th) 140583 ¶ 21 (party seeking preliminary
injunction must raise a fair question as to the existence of the claimed right); Keefe-Shea Joint
Venture v. City of Evanston, 332 Ill. App. 3d 163, 169 (2002) (“[T]he plaintiff does not carry the
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same burden of proof [on a motion for preliminary injunction] that is required to prevail on the
ultimate issue”); cf. Butler v. USA Volleyball, 285 Ill. App. 3d 578, 582 (1996) (“[P]ermanent
injunctions are designed to extend or maintain the status quo indefinitely when the plaintiff has
shown irreparable harm and there is no adequate remedy at law,” and thus necessarily requires that
the court “decide[] the plaintiff’s success on the merits of the case.”); Kopnick v. JL Woode
Management Company, LLC, 2017 IL App (1st) 152054, ¶ 34 (noting that permanent injunctive
relief is contingent upon the plaintiff prevailing at trial on the merits of its claim). Here, the court
made no finding regarding the ultimate merits of the case, but instead confined its discussion to
one or two elements applicable to a preliminary injunction analysis, which we discuss below.
¶ 80 3. Merits of the Order
¶ 81 Plaintiff argues that the court erred in finding that it did not have a protectible right to
dispute the City’s zoning decisions. Plaintiff characterizes this as the only “conclusive finding”
the court actually made, while also acknowledging that some of the court’s order also touched
upon other elements, such as irreparable harm. As such, plaintiff further contends that the circuit
court also erred in failing to find that it would suffer irreparable harm, citing one case, Keefe-Shea
Joint Venture v. City of Evanston, 332 Ill. App. 3d 163 (2002), in support.
¶ 82 The City responds that the circuit court correctly denied the motion, as plaintiff failed to
show any protectible interest, particularly with regard to its hypothetical fears about environmental
damage and irreparable harm to its building and the surrounding community. Moreover, the City
points to the Second Remediation Letter, the ordinances and corresponding conditions in place to
mitigate any concerns, and the fact that construction permits had not yet been issued to either Mt.
Pisgah or HODC, as illustrative that plaintiff did not meet its burden on showing any imminent or
real harm.
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¶ 83 Generally, a zoning ordinance may be challenged on constitutional grounds as being
arbitrary and capricious and unrelated to public safety, health, and general welfare. See, e.g.,
LaSalle National Bank of Chicago v. Cook County, 12 Ill. 2d 40, 46-47 (1957). Here, the parties’
arguments with regard to plaintiff’s zoning challenge implicate two required elements to sustain a
motion for preliminary injunction, a showing of clearly ascertainable right and irreparable harm.
To establish a clearly ascertainable right in need of protection, a plaintiff must raise a fair question
that he has a substantive interest recognized by statute or common law. Delta Medical Systems v.
Mid-America Medical Systems, Inc., 331 Ill. App. 3d 777, 788-89 (2002). As for irreparable harm,
a plaintiff must establish evidence of an injury which cannot be adequately compensated by
damages or be measured by any certain pecuniary standard. (Internal citation and quotations
omitted.) Diamond Savings & Loan Co. v. Royal Glen Condominium Ass’n, 173 Ill. App. 3d 431,
435 (1988). However, “[i]rreparable injury does not necessarily mean injury that is great or beyond
the possibility of repair or compensation in damages, but is the type of harm of such constant or
frequent recurrence that no fair or reasonable redress can be had in a court of law.” Bally
Manufacturing Corp. v. JS&A Group, Inc., 88 Ill. App. 3d 87, 94 (1980).
¶ 84 To begin, we must first dispense with what permeates a great deal of plaintiff’s brief,
namely its repeated attempts to argue that the City failed to provide sufficient notice for the
proposed Corner Lot development, beginning with the RFP and continuing to the public hearings,
which, according to plaintiff, should invalidate the development projects at the outset. Plaintiff’s
contention is unavailing. Procedurally, the City’s Code contemplates both published and mailed
notice, and the city’s ordinances indicate that the first LUC hearing was published in the Evanston
Review. See Evanston Code § 6-3-8-10, “Procedures for Decisions on Major Variations.” Further,
even assuming that plaintiff did not receive mailed notice of the initial LUC hearing, the record
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reflects that plaintiff nevertheless appeared and even received a continuance to present oral and
written testimony, continued to attend hearings either in person or virtually until the ordinances
were approved almost six months later, and even had some of its concerns about the project
memorialized in the adopted ordinances. See Evanston Code § 6-3-8-10(B) (“The failure of
delivery of such [mailed] notice, however, shall not invalidate any such hearing” regarding major
variation requests and “[s]ubsequent notices are not required for continuances of a hearing, if
any”); Petersen v. Chicago Plan Comm’n of the City of Chicago, 302 Ill. App. 3d 461, 466 (1998)
(“The essence of due process is the opportunity to be heard at a meaningful time and in a
meaningful manner.”)
¶ 85 Turning to the order at issue, although at first blush the circuit court appeared to begin to
address plaintiff’s failure to establish an ascertainable right, it is clear that the greater part of the
order is concerned with plaintiff’s failure to show irreparable harm. Indeed, the court directly
quoted multiple portions of Jackson’s testimony in its decision, in particular highlighting the fact
that any feared physical damage to plaintiff’s building or feared exposure to pre-existing
contaminants was based on mere speculation. After recounting the testimony, the court concluded
that Jackson’s fears had failed to demonstrate that plaintiff had or was likely to suffer the feared
harms, in particular because plaintiff had “failed to provide [any] scientific studies or expert
witness reports or testimony supporting any claim of imminent injury” and thus, “the fears of its
principal [were] simply that—fears without any supported basis.”
¶ 86 In focusing on the irreparable harm aspect of the court’s analysis, then, we do not find the
circuit court’s conclusion to be arbitrary or unreasonable. See Pierce v. Cheruki, 2022 IL App (1st)
210339, ¶ 10 (Under the abuse of discretion standard, “the question is not whether the reviewing
court agrees with the action taken by the [circuit] court, but whether the [circuit] court acted
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arbitrarily, without employing conscientious judgment, or whether, in view of all the
circumstances, the court exceeded the bounds of reason and ignored recognized principles of law
so that substantial prejudice resulted.”) (Internal citation and quotations omitted.) It is true that we
have found that a plaintiff may seek injunctive relief for a prospective nuisance. See Helping
Others Maintain Environmental Standards v. Bos, 406 Ill. App. 3d 669, 689 (2010). “However,
the allegations necessary to bring such a claim must not be based on speculation or conjecture.”
Village of Willow Springs v. Village of Lemont, 2015 IL App (1st) 152670, ¶ 48; Bell Fuels, Inc.
v. Butkovich, 201 Ill. App. 3d 570, 572 (1990) (“[E]quitable relief will not be granted where only
a speculative possibility of injury is advanced and where injury is contingent upon uncertainties.”)
Here, it is difficult to view plaintiff’s proffered evidence as anything but conjecture at this stage in
the proceedings. Indeed, plaintiff’s own evidence reflects that much has been done to ensure, not
only its safety, but also the safety of the community at large.
¶ 87 To begin, as of 2018 through its Second Remediation Letter, the IEPA specifically
designated the Corner Lot as an area that could be developed for residential properties subject to
certain conditions and thus, by its own terms, operated as “prima facie evidence” that use of the
land was presumptively safe. These conditions were acknowledged by the City in its 2020 RFP,
were known to HODC at the time it submitted its variation request as shown through Koenig’s
affidavit and testimony, and the various ordinances approving Mt. Pisgah and HODC’s variance
requests contemplated such conditions in relation to the development projects.
¶ 88 Next, plaintiff’s submission of the applicable ordinances rebuts her own speculation that
the City was not concerned about damage to plaintiff’s historical property and the flooding issues
previously suffered by the area. Indeed, plaintiff admitted that conditions within Ordinance 35-0-
23 were specifically added following various public hearings at which plaintiff had been allowed
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to present evidence and testimony on these concerns. Such conditions required HODC to work
with the Preservation Commission to prevent any structural damage to plaintiff’s property, as well
as ensure that its building complied with applicable water management regulations, which Koenig
testified to having done so in January 2024.
¶ 89 Last, although plaintiff complained of not being provided with information as to whether
the development adhered to the ordinances’ conditions, the record does not reflect that building
permits have been issued by the City to begin development. It is true that Ordinance 35-0-23 recites
that HODC’s construction management plan must be shared with the owners of 1817 Church
Street, i.e., plaintiff’s property, to address construction impacts. However, it was Koenig’s
testimony that he attempted to meet with plaintiff’s representative to discuss the basement
construction to no avail, and Jackson’s testimony corroborated this where she indicated that she
was advised not to meet with HODC once litigation began.
¶ 90 Further, despite plaintiff’s characterization that the development projects were “pushed
through” and “vague,” plaintiff’s argument is belied by the record. Both proposals were submitted
in 2020, variance applications were submitted in 2022 after community outreach, and then there
were six months of public LUC hearings in 2023, each of which plaintiff attended, gave testimony
and was even granted a continuance. Further, as shown in the record, the City has agreed to not
move forward with the project until the litigation has completed. See Village of Willow Springs,
2015 IL App (1st) 152670, ¶ 51 (generic allegations of property value diminishment, lost tax
revenue, and road congestion insufficient to allege irreparable harm, especially where new
proposed facility had not yet been constructed, let alone approved for construction).
¶ 91 “The requirement of the showing of imminent injury is not satisfied by proof of a
speculative possibility of injury and such relief will not be granted to allay unfounded fears or
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misapprehensions.” (Internal citations and quotations omitted.) Smith, 2015 IL App (5th) 140583,
¶ 27. Here, plaintiff failed to meet its burden to establish a fair question of irreparable harm. Based
on this determination, we need not address any remaining elements to obtain a preliminary
injunction. Id. Ultimately, as the movant, plaintiff bore the burden to show it was entitled to
preliminary injunctive relief, an extraordinary and generally disfavored remedy. Without any
evidence to the contrary, there is no discernible reason in the record to disturb the court’s findings.
Accordingly, we do not find that the circuit court abused its discretion in denying plaintiff’s motion
for preliminary injunction.
¶ 92 III. CONCLUSION
¶ 93 For the reasons stated, the judgment of the circuit court of Cook County is affirmed.
¶ 94 Affirmed.
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