2015 IL App (1st) 140570
FIFTH DIVISION March 13, 2015
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MICHAEL SCOTT, JAMES DES JARDINS, MARK ) GRAHAM, and LORRAINE PETTIGREW, ) ) Plaintiffs-Appellants, ) Appeal from ) the Circuit Court v. ) of Cook County ) CITY OF CHICAGO, ) 13 CH 19928 ) Defendant-Appellee ) Honorable ) Kathleen M. Pantle, (and ) Judge Presiding ) LAKE PARK ASSOCIATES, INC., ) ) Intervenor-Defendant-Appellee). )
JUSTICE McBRIDE delivered the judgment of the court, with opinion Presiding Justice Palmer concurred in the judgment and opinion. Justice Gordon specially concurred, with opinion.
OPINION
¶1 Chicagoans Michael Scott, James Des Jardins, and Mark Graham, who own residential
properties on South Kenwood Avenue, and their neighbor, Lorraine Pettigrew, who owns
residential property on South Kimbark Avenue, brought an action against City of Chicago to
challenge the city council's decision to rezone property on 53rd Street between Kenwood and
Kimbark Avenues from retail zoning to a planned development pursuant to the Chicago Zoning
Ordinance. Chicago Municipal Code §17-13-100 et seq. (2009). Where there was once just a
parking lot and gas station on the north side of 53rd Street, the new zoning would allow for a mixed
use building that is 13 stories and 155 feet tall. The construction plans include 267 multi-family 1-14-0570
residential units, ground floor commercial space, and 218 parking spaces. The plaintiffs alleged
that the previous split zoning for the property was B1-2 and B3-2, which allowed for mixed use
construction no taller than 50 feet, like the neighboring buildings on 53rd Street which are at most
three stories tall. Thus, city council's rezoning to B3-5 and then to Planned Development No. 1218
would allow "over-sized" and "out-of-character" buildings in the "low scale" neighborhood,"
which would tower over the neighboring structures, blocking their access to sunlight and casting
"significant" shadows. The plaintiffs also complained there was inadequate provision for off-street
parking, which would result in the use and deprivation of scarce on-street parking. The plaintiffs
asked the court to declare the rezoning invalid because the changes to their neighborhood would
unjustifiably diminish property values and were arbitrary and capricious, in violation of the
plaintiffs' constitutional right to substantive due process. The owner of the rezoned property, Lake
Park Associates, Inc. (Lake Park), is affiliated with the University of Chicago. Lake Park
intervened in the action and sought dismissal pursuant to section 2-619(a)(9) of the Illinois Code of
Civil Procedure (see 735 ILCS 5/2-619(a)(9) (West 2012)) (Civil Code), arguing that the
complaint was defective because the plaintiffs had not complied with the notice requirements set
out in section 11-13-8 of the Illinois Municipal Code (see 65 ILCS 5/11-13-8 (West 2012))
(Municipal Code), which mandate that a party challenging a zoning ordinance give written notice
of the party's lawsuit to all property owners within 250 feet of the affected property. Lake Park also
joined in a motion to dismiss filed by City of Chicago pursuant to section 2-615 of the Civil Code
(735 ILCS 5/2-615 (West 2012)), contending the complaint did not state a cause of action for a due
process violation. The trial court granted Lake Park's motion to dismiss for failure to give pre-suit
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notice and did not reach the other motion. The plaintiffs appeal. For the reasons that follow, we
affirm.
¶2 Section 11-3-8 of the Municipal Code requires the plaintiffs to provide pre-suit notice of
their intent to file a declaratory judgment action seeking to have the new zoning classification
declared invalid. 65 ILCS 5/11-13-8 (West 2012). Section 11-3-8 provides as follows:
"In municipalities of 500,000 or more population [(e.g., Chicago)], when
any zoning ordinance, rule or regulation is sought to be declared invalid by means
of a declaratory judgment proceeding, not more than 30 days before filing suit for a
declaratory judgment the person filing such suit shall serve written notice in the
form and manner and to all property owners as is required of applicants for
variation in Section 11-13-7, and shall furnish to the clerk of the court in which the
declaratory judgment suit is filed, and at the time of filing such suit, the list of
property owners, the written certificate and such other information as is required in
Section 11-13-7 to be furnished to the board of appeals by an applicant for
variation. A property owner entitled to notice who shows that his property will be
substantially affected by the outcome of the declaratory judgment proceeding may
enter his appearance in the proceeding, and if he does so he shall have the rights of
a party. The property owner shall not, however, need to prove any specific, special,
or unique damages to himself or his property or any adverse effect upon his
property from the declaratory judgment proceeding." 65 ILCS 5/11-13-8 (West
2012).
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¶3 Thus, section 11-13-8 incorporates the notice requirements set out in section 11-13-7 of the
Municipal Code:
"[I]n municipalities of 500,000 or more population, an applicant for
variation or special use shall, not more than 30 days before filing an application for
variation or special use with the board of appeals, serve written notice, either in
person or by registered mail, return receipt requested, on the owners, as recorded in
the office of the recorder of deeds or the registrar of titles of the county in which the
property is located and as appears from the authentic tax records of such county, of
all property within 250 feet in each direction of the location for which the variation
or special use is requested; provided, the number of feet occupied by all public
roads, streets, alleys and other public ways shall be excluded in computing the 250
feet requirement. *** If, after a bona fide effort to determine [the address of] the
owner of the property on which the notice is served cannot be found at his or her
last known address, or the mailed notice is returned because the owner cannot be
found at the last known address, the notice requirements of this sub-section shall be
deemed satisfied." 65 ILCS 5/11-13-7 (West 2012).
¶4 The plaintiffs mailed approximately 125 pre-filing notices, but did not attempt to send
notice to at least 26 other property owners whose land is within 250 feet of Lake Park's rezoned
property, excluding public roads, streets, and alleys. The plaintiffs did not send notices to the
owners of properties that are on the east side of Dorchester Avenue, of which there are seven, and
they made no attempt to notify owners of any tax exempt properties, of which there are 19.
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¶5 When the plaintiffs filed suit, they were statutorily required to also file a list of all property
owners given notice of the intent to sue. See 65 ILCS 5/11-13-7, 11-13-8 (West 2012). The
plaintiffs' list included the Chicago 14-digit Property Index Number or PIN for each parcel
followed by either the owner's name and mailing address or simply the word "exempt."
¶6 The plaintiffs had compiled their list with the assistance of a Chicago firm, Property
Insight, L.L.C. According to this firm, when it conducts searches for pre-suit notices, the "subject
property is identified and provided to us by our customers." In this instance, the plaintiffs' attorney
requested a search of all properties "within 250 feet of 1330 E. 53rd Street." Accordingly, the
search originated with the PIN for that specific street address and extended outward, 250 feet in
each direction from the boundaries of that PIN, excluding public roads, streets, and alleys. The
problem with using one common street address as the basis for the record search in this instance is
that the subject property consists of three different parcels, and, thus, there are three different
addressees and PINs. Therefore, the search did not extend far enough east, to Dorchester Avenue.
The other 19 omissions occurred because the search was performed only on the computerized
records of the Cook County Treasurer. When a Cook County property is exempt from taxation, the
treasurer's records do not list the name and mailing address of the record owner. (Thus, for some
properties on the plaintiffs' mailing list, the word "exempt" appeared instead of the owner's name
and mailing address.) The plaintiffs' search analyst neglected to search the records of the two other
agencies involved in recording and collecting property taxes in this county–the Cook County Clerk
and the Cook County Assessor.
¶7 Lake Park argued in its motion and then amended motion to dismiss that either type of
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omission (the omission of the Dorchester Avenue property owners and the omission of the tax
exempt property owners) was sufficient grounds for dismissal, because notice is a mandatory
prerequisite to bringing suit. After full briefing and oral argument, the trial court pointed out that
there was a third defect in the plaintiffs' property search, in that there was no indication that they
searched the records of the Cook County recorder of deeds. Section 11-13-7 requires that written
notice be given to property owners "as recorded by the office of the recorder of deeds *** and as it
appears from the authentic tax records of such county." (Emphasis added.) 65 ILCS 5/11-13-7
(West 2012). The court granted the dismissal with prejudice and this appeal was taken.
¶8 The plaintiffs contend that the dismissal of their complaint for failure to comply with the
notice requirement has been an undue and unnecessary sanction which the appellate court should
reject. Previously, in City Suites, this court found that "the language and mandate" of sections
11-13-7 and 11-3-8 of the Municipal Code are "clear in requiring that [pre-suit] notice be given in
all declaratory actions to invalidate zoning, without exception." LaSalle National Bank v. City
Suites, Inc., 325 Ill. App. 3d 780, 790, 758 N.E.2d 382, 390 (2001); 65 ILCS 5/11-13-7, 11-13-8
(West 2012). The plaintiffs contend that City Suites is distinguishable. They also contend that
sections 11-13-7 and 11-13-8 of the Municipal Code do not require "perfect identification of all
property owners" entitled to notice and that the appropriate standard is for plaintiffs to either make
a bona fide effort or achieve substantial compliance with the statutes.
¶9 The phrase "bona fide" appears in the final sentence of section 11-13-7 (the statute is
quoted above). The plaintiffs excuse their failure to notify the 19 tax exempt properties by arguing
they made a bona fide effort at compliance by retaining a firm that specializes in identifying
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properties within 250 feet of a given location (Property Insight, Inc.) and that the firm then made a
bona fide effort to locate all the record owners of the properties within the notice zone. Regarding
the failure to contact anyone on the east side of Dorchester Avenue, the plaintiffs contend they
justifiably limited their property search to the single PIN for 1330 East 53rd Street because the
municipality and Lake Park have consistently identified the rezoned property by this single
common address, such as when Lake Park's predecessor-in-interest prepared the Application for
Amendment to the Chicago Zoning Ordinance and when the City of Chicago prepared the
Ordinance. The plaintiffs calculate that their notices actually encompassed two of the three PINs
that were rezoned and "came up [just] two feet short" in determining the notice zone for the third
PIN, which they contend is further indication of their bona fide effort at compliance. The plaintiffs
propose that, "at a minimum," we allow the suit to proceed with respect to the two PINs where they
"achieved full compliance."
¶ 10 The plaintiffs' "substantial compliance" argument is based on authority indicating that a
mandatory statute does not always require strict compliance and that substantial compliance may
suffice, provided that (1) the purpose of the statute can be met without strict compliance and (2)
"[the] defendant [has not] suffered any prejudice from [the] plaintiff's failure to strictly comply."
Behl v. Gingerich, 396 Ill. App. 3d 1078, 1086, 920 N.E.2d 665, 671 (2009). According to the
plaintiffs, the municipality and Lake Park have the "most at stake" in upholding the planned
development and are committing "substantial resources" in defense of the city council's decision to
rezone, which means that "the practical need for any other property owner to intervene in the
litigation is negligible, if not zero."
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¶ 11 A section 2–619 motion to dismiss admits the legal sufficiency of the complaint and raises
defects, defenses, or other matters that act to defeat the claim. Krilich v. American National Bank
& Trust Co. of Chicago, 334 Ill. App. 3d 563, 569-70, 778 N.E.2d 1153, 1160 (2002). Municipal
ordinances, such as the zoning ordinance at issue here, are interpreted under the general rules of
statutory construction and interpretation. LeCompte v. Zoning Board of Appeals, 2011 IL App
(1st) 100423, ¶ 22, 958 N.E.2d 1065; Puss N Boots, Inc. v. Mayor's License Comm'n of the City of
Chicago, 232 Ill. App. 3d 984, 986, 597 N.E.2d 650, 652 (1992).We address questions of statutory
interpretation and rulings on section 2-619 motions de novo. JPMorgan Chase Bank, N.A. v. Earth
Foods, Inc., 238 Ill. 2d 455, 461, 939 N.E.2d 487, 490 (2010) (regarding statutory interpretation);
Krilich, 334 Ill. App. 3d at 569, 778 N.E.2d at 1160 (regarding section 2-619). Our task is to
ascertain and give effect to the intent of the legislature. JPMorgan, 238 Ill. 2d at 461, 939 N.E.2d
at 490. We do this by considering the plain language of the statute, and when it is clear and
unambiguous, we apply it as written without resorting to other rules of statutory construction.
JPMorgan, 238 Ill. 2d at 461, 939 N.E.2d at 490. We do not read in exceptions, conditions, or
limitations that were not expressed by the legislature. Martin v. Office of State's Attorney, 2011 IL
App (1st) 102718, ¶ 10, 959 N.E.2d 1264. We give each word, clause, and sentence reasonable
meaning and, to the extent possible, we do not render any statutory language superfluous. Gallaher
v. Hasbrouk, 2013 IL App (1st) 122969, ¶ 31, 3 N.E.3d 913.
¶ 12 Applying these principles to the facts at hand, we find that the municipal statutes are not
satisfied by the plaintiffs' efforts at pre-suit notice. We reach this conclusion in part because the
plaintiffs' search of the "authentic tax records" in order to give notice to other property owners was
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incomplete and we are not persuaded that the legislature condoned less than strict compliance with
the notice statutes. Precedent indicates that searching the county's "authentic tax records" in order
to give pre-suit notice includes searching not only the records of the Cook County Treasurer, but
also the records of the Cook County Clerk and the Cook County Assessor. Bishop v. Pollution
Control Board, 235 Ill. App. 3d 925, 932, 601 N.E.2d 310, 315 (1992). All three offices play a role
in the record keeping and collection of taxes. Bishop, 235 Ill. App. 3d at 932, 601 N.E.2d at 315.
Although this precedent concerned notice given in Montgomery County rather than Cook County,
the decision was based on Illinois statutes that apply here as well. See Bishop, 235 Ill. App. 3d at
932, 601 N.E.2d at 315. The trial court expressly relied on this precedent in granting Lake Park's
motion to dismiss and the court's order uses similar wording. Nonetheless, on appeal the plaintiffs
do not attempt to distinguish Bishop or cite contrary authority and they do not dispute the fact that
they made no attempt to search the records of the county clerk or the county assessor in order to
compile their pre-suit mailing list.
¶ 13 The plaintiffs misconstrue the statute when they argue section 11-13-7 recognizes "that
compliance with the statute may be difficult" and thus, "a bona fide effort to comply with the
statute may be sufficient." These are terms proposed by the plaintiffs. These are not the words of
the legislature. What the legislature said was that when a plaintiff makes a bona fide attempt to
serve a property owner "at his or her last known address," but the owner "cannot be found" at that
address or when "the mailed notice is returned because the owner cannot be found" at that address,
then "the notice requirements of this sub-section shall be deemed satisfied." 65 ILCS 5/11-13-7
(West 2012). That limited provision might apply when notice is addressed and mailed to a property
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owner who has relocated without updating his or her current mailing information and thus cannot
be found at the expected location. That limited provision does not apply here and it does not excuse
the plaintiffs' failure to serve the owners of tax exempt properties.
¶ 14 Moreover, we are not persuaded that their failure to send notice to the Dorchester Avenue
owners is insignificant or attributable to City of Chicago or Lake Park. The plaintiffs erred by
using only the common address, 1330 East 53rd Street, as the basis for their search of nearby
properties, excluding the Dorchester Avenue properties. They cannot blame their inadequate
search parameters on the municipality or Lake Park. The legislature did not use the term "common
address" or the term "common street address" in section 11-13-7 to define the plaintiffs' notice
obligation. Instead, section 11-13-7 specifies that notice is to be given to the owners of properties
"within 250 feet in each direction of the location for which the variation or special use is
requested." (Emphasis added). 65 ILCS 5/11-13-7 (West 2012). The statute also gives a second
indication that the use of a common address is insufficient in this context. The statute requires that
notices include both "(i) the common street address or addresses and (ii) the property index
number ('PIN') or numbers of all the parcels of real property contained in the area for which the
variation or special use is requested." (Emphasis added.) 65 ILCS 5/11-13-7 (West 2012). In other
words, the use of the term "location" coupled with the fact that the plaintiffs are required to set out
(1) the "common street address or addresses" and (2) the "property index number (PIN) or
numbers" for the property that has been rezoned confirms that the legislature intended for the 250
foot notice parameter to be measured with more care than from just a common address.
¶ 15 Furthermore, in the municipal zoning context, a common address alone is not sufficient
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identification of a property. The Chicago Zoning Ordinance defines zoning boundaries in terms of
streets, alleys, boundary lines, and property lines instead of by common addresses. Chicago
Zoning Ordinance §17-1-0800 (2012). See also Chicago Zoning Ordinance § 17-1-0602 (stating
that "[t]he language of the Zoning Ordinance must be read literally" and "regulations are no more
or less strict than stated"). Consistent with that standard, the ordinance that was adopted by the city
council in this instance describes the boundaries of the subject property in terms of streets and
alleys:
"[The ordinance amends] Title 17 of the Chicago Municipal Code by changing all
of the B1-2 Neighborhood Shopping District symbols and B3-2 Community
Shopping District symbols as shown on Map Number 12-D in the area generally
bounded by: the alley next north of and parallel to East 53rd Street; a line extending
south beginning at a point 53 feet west of South Kenwood Avenue and ending at a
point 101.8 feet west of South Kenwood Avenue; East 53rd Street; and a line
beginning at a point 422.72 feet west of South Kenwood Avenue extending north to
the alley next north of and parallel to East 53rd Street, to those of a B3-5
Community Shopping District. Section 2 Title 17 of the Municipal Code of
Chicago, the Chicago Zoning Ordinance, is hereby amended by changing all of the
B3-5 Community Shopping District symbols as shown on Map Number 12-D in the
area described in Section 1 of this ordinance to the designation of a Planned
Development, subject to the use and bulk regulations set forth in the Plan of
Development attached hereto and made a part thereof."
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The city council's records not only recite the boundaries of the subject property for zoning
purposes, but also include an "Existing Land-Use Map" that graphically depicts the subject
property and its neighboring parcels which are specified to be in use as residential,
commercial/office, institutional, parking garage, or surface parking. Following that there is a
"Planned Development Boundary and Property Line Map" which graphically depicts the precise
measurements of the boundaries of the area being rezoned and the square footage of the rezoned
area. In addition to these specific descriptions and depictions, the city council's materials include
the common address that the plaintiffs claim to have relied on when conducting their 250'
boundary search.
¶ 16 There are similar details in the application for rezoning which the plaintiffs contend was
another reason they were justified in limiting their property search to the single PIN for 1330 East
53rd Street.
¶ 17 For these reasons, we find (1) that the point for determining the properties to be given
pre-suit notice was the "location" of the subject property to be rezoned, not its common address or
addresses, and (2) that the plaintiffs' use of the common address, 1330 East 53rd Street, as the basis
for their search cannot be attributed to the municipality or the owner of the rezoned property. The
plaintiffs did not follow the Municipal Code. The plaintiffs' search parameters were wrong,
through no fault of the other litigants.
¶ 18 Moreover, the suggestion that we should let the suit go forward for two of the three rezoned
PINs because the plaintiffs "achieved full compliance" with the notice statute for those PINs is
contrary to the record and the plainly worded statute requiring notice "within 250 feet in each
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direction of the [rezoned] location." (Emphasis added.) 65 ILCS 5/11-13-7 (West 2012).
¶ 19 Our next consideration is whether "substantial compliance" with the pre-suit notice
requirements is acceptable in this instance. Both of the municipal statutes use the word "shall" in
defining the plaintiffs' pre-suit obligations. See 65 ILCS 5/11-13-8 (West 2012) (emphasis
supplied) ("not more than 30 days before filing suit for declaratory judgment the person filing such
suit shall serve written notice in the form and manner and to all property owners as is required of
applicants for variation in Section 11-13-7"); 65 ILCS 5/11-13-8 (emphasis supplied) ("an
applicant for variation *** shall, not more than 30 days before filing *** serve written notice).
"Typically, use of the word 'shall' in a statutory provision indicates that the legislature intended a
mandatory, rather than directory, provision." Behl, 396 Ill. App. 3d at 1086, 920 N.E.2d at 671;
Puss N Boots, 232 Ill. App. 3d at 986-87, 597 N.E.2d at 652-53 (stating that the use of "shall"
generally indicates a legislative intent to make a provision or a law mandatory). The plaintiffs cite
Behl for the proposition that, in some instances, "shall" in a mandatory statute means only
"substantial compliance."
¶ 20 As we outlined earlier, when determining whether substantial compliance or strict
compliance is expected, we are to take a two-step analysis. Behl, 396 Ill. App 3d at 1086, 920
N.E.2d at 671. First, we are to consider whether the purpose of the statute is achieved without strict
compliance. Behl, 396 Ill. App. 3d at 1086, 920 N.E.2d at 671. Second, we are to determine
"whether defendant suffered any prejudice from plaintiff's failure to strictly comply." Behl, 396 Ill.
App. 3d at 1086, 920 N.E.2d at 671. The plaintiffs cannot pass the first step. The purpose of a
statute is found by looking at the statutory language and giving those words their plain and
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ordinary meaning. Behl, 396 Ill. App. 3d at 1087, 920 N.E.2d at 671; JPMorgan, 238 Ill. 2d at 461,
939 N.E.2d at 490 (stating the general principle of statutory construction that the plain language of
the statute, when it is clear and unambiguous, is applied as written). It is clear from this particular
statutory language that the legislature intended for all property owners within 250 of the location at
issue to be notified of a challenge to the zoning ordinance. The statute itself explains the reason for
this requirement–a property owner entitled to notice may appear in the suit with all the rights of a
party. 65 ILCS 5/11-13-8 (West 2012). Thus, every property owner that is potentially interested in
taking part in the litigation must be made aware of the suit's existence. Even the plaintiffs here
concede that "the purpose of the pre-filing notice required for would-be zoning challengers is to
alert neighbors to their challenge and to allow neighboring owners the ability to defend the zoning
classification if they so desire." To that we add that some neighboring owners may indeed want to
intervene to defend the zoning classification while others will want to assist the plaintiff in
defeating it. Accordingly, unless all nearby property owners are given notice, the purpose of the
statute cannot be achieved.
¶ 21 Furthermore, the plaintiffs disregarded a significant number of relevant owners when they
mailed notices to approximately 125 property owners and ignored at least 26 others. Plaintiffs
contrast their efforts to send some notices with the fact that no notices were sent in two other cases
interpreting sections 11-13-7 and 11-13-8 of the Municipal Code. 65 ILCS 5/11-13-7, 11-13-8
(West 2012). In City Suites, neighboring property owners challenged the rezoning of residential
property into an off-site parking lot for a hotel, but the trial court dismissed their complaint. City
Suites, 325 Ill. App. 3d 780, 758 N.E.2d 382. Although the plaintiffs' failure to give pre-suit notice
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was just one of many issues on appeal, the appellate court found that plaintiffs must comply with
the pre-suit notice requirement, "without exception." City Suites, 325 Ill. App. 3d 780, 758 N.E.2d
382. This case was subsequently cited with approval in Figiel, where the property at issue was a
corner of a public park that was rezoned to allow for the construction of a children's museum and a
field house. Figiel v. Chicago Plan Commission, 408 Ill. App. 3d 22, 945 N.E.2d 71 (2011). The
Figiel plaintiffs tried to excuse their failure to give pre-suit notice to the fact that their amended
complaint was not styled as a "declaratory judgment" action and that instead of asking the court to
" ' declare' " the zoning amendment to be unconstitutional, the pleading asked the court to " 'enter a
finding' " that the rezoning was " 'arbitrary, capricious, unconstitutional, unreasonable and without
justification in law or in fact.' " Figiel, 408 Ill. App. 3d at 227, 945 N.E.2d at 75. They hoped to
avoid the scope of section 11-3-8 of the Municipal Code, which states, "when any zoning
ordinance *** is sought to be declared invalid by means of a declaratory judgment proceeding,
[the plaintiffs shall give notice] not more than 30 days before filing suit." 65 ILCS 5/11-13-8 (West
2012). Nevertheless, the trial and appellate courts determined the claim was properly characterized
as a declaratory judgment action and was governed by the pre-suit notice requirement. Figiel, 408
Ill. App. 3d 223, 945 N.E.2d 71. The distinction the current plaintiffs draw between themselves
and the plaintiffs in City Suites and Figiel is not persuasive. The property owners who were not
sent notice have been deprived of what the legislature intended–notice of the suit and opportunity
to show that their property "will be substantially affected by the outcome of the declaratory
judgment proceeding" (whether they oppose or support the rezoning) and that they should be
allowed to appear and participate in the proceeding with the "rights of a party." 65 ILCS 5/11-13-8
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(West 2012). The rights of these other property owners who were entitled to notice have been
prejudiced by the plaintiffs' insufficient efforts to provide pre-suit notice.
¶ 22 After the appellate briefs were filed, we granted the plaintiffs' motion for leave to cite
additional authority. The plaintiffs contend Andrews indicates that a statute requiring notice to a
set of property owners can be met by substantial, rather than strict, compliance with the terms of
the statute. Andews v. County of Madison, 54 Ill. App. 3d 343, 369 N.E.2d 543 (1977).
¶ 23 The plaintiffs fail to explain how the operative facts in Andrews are analogous to this case.
There is no similarity. The controversy in Andrews was whether adequate notice had been given of
a public hearing in 1976 at which citizens could voice their opinions on whether Madison County
should install sanitary sewers to serve more than 7,000 registered voters and improve portions of
three different townships. Andrews, 54 Ill. App. 3d at 355, 369 N.E.2d at 541. The proposed
project was not only massive, it was costly, and would require the issuance of $5 million in general
obligation bonds. Andrews, 54 Ill. App. 3d at 346, 369 N.E.2d at 535. Many people at the public
hearing expressed support for the project while many others objected. Andrews, 54 Ill. App. 3d at
346, 369 N.E.2d at 535.The most frequent objection was to the additional tax levy. Andrews, 54 Ill.
App. 3d at 346, 369 N.E.2d at 535. After the public hearing, members of the Madison County
board voted to approve the project and to levy additional taxes to pay for its construction and
maintenance. Andrews, 54 Ill. App. 3d at 346, 369 N.E.2d at 535.
¶ 24 The appellate court characterized the public hearing as an in rem taxation proceeding and
remarked on the well-settled proposition that taxation does not require personal notification to
satisfy due process. Andrews, 54 Ill. App. 3d at 356, 369 N.E.2d at 542. Instead, publication notice
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alone may be sufficient to satisfy due process concerns in the context of in rem taxation. Andrews,
54 Ill. App. 3d at 356, 369 N.E.2d at 542.
¶ 25 Pursuant to the statute at issue there, Montgomery County officials had published notice of
the hearing in a local newspaper. Andrews, 54 Ill. App. 3d at 346, 369 N.E.2d at 535. The editors of
the various local newspapers also printed numerous articles about the proposed sewer project.
Andrews, 54 Ill. App. 3d at 356, 369 N.E.2d at 542. In addition, the statute required Madison
County to mail individual notices to property owners of record, which the county officials had
done. Andrews, 54 Ill. App. 3d at 346, 369 N.E.2d at 535. However, a subsequent search showed
that the county's mailing list was incomplete and a group of property owners sought to enjoin the
project and the resulting tax burden in part because of the deficient mailing. Andrews, 54 Ill. App.
3d at 355, 369 N.E.2d at 542.
¶ 26 The appellate court found, however, that the notice required by statute and actually given
by county officials was "much more thorough" than the due process standard for in rem taxation.
Andrews, 54 Ill. App. 3d at 356, 369 N.E.2d at 542. The court was confident that, in combination,
the published notice and published stories meant that "substantially all affected persons were
aware of this opportunity to be heard in objection to the [proposed sewer project and tax
increase]." Andrews, 54 Ill. App. 3d at 356, 369 N.E.2d at 542. Therefore, although the county's
efforts were imperfect, the notice given "was sufficient to pass due process muster." Andrews, 54
Ill. App. 3d at 356, 369 N.E.2d at 542.
¶ 27 We are not reviewing a tax case and thus Andrews' analysis and the taxation precedent that
was so helpful in that case is not applicable here. Furthermore, the circumstances that occurred in
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Andrews were not repeated here. Mailing was the only method of pre-suit notice utilized by the
current plaintiffs, rather than the combination of public notice, media coverage, and individual
letters which publicized the Madison County board meeting. It was the combination of the
published notice and the "numerous news articles about the project" which lead the Andrews court
to find that "substantially all affected persons were aware of this opportunity to be heard."
Andrews, 54 Ill. App. 3d at 356, 369 N.E.2d at 542. Plaintiffs do not suggest that they published
notice in a local newspaper of their intent to file this suit. Moreover, the media coverage that
occurred, if any occurred, when a private property owner sought approval to demolish a Chicago
gas station and parking lot to make way for one large, mixed-use building, was undoubtedly less
than the extensive news coverage that occurred while Madison County officials were
contemplating digging up the streets and increasing property taxes for 6,920 property owners. The
plaintiffs' reliance on Andrews is not persuasive.
¶ 28 The plaintiffs emphasize that none of the Chicago property owners who were notified by
mail chose to intervene in this proceeding and the plaintiffs suggest this lack of participation is a
practical indication that substantial compliance with the notice requirement was sufficient. We
disagree. There is no way to determine whether the excluded property owners would have decided
to participate in the suit if they had known about it.
¶ 29 We also reject the contention that the plaintiffs are excused from strict compliance with the
notice requirement because The City of Chicago and Lake Park will vigorously defend the
rezoning. If the legislature intended that the municipality and the owner of the subject property
were the only truly interested defendants, then the legislature would have written the notice
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provision accordingly. The degree of opposition to the plaintiffs' suit by the municipality and the
property owner has no bearing on this statute. We cannot disregard any of the legislature's
wording. Gallaher, 2013 IL App (1st) 122969, ¶ 31, 3 N.E.3d 913.
¶ 30 For these reasons, we find that strict compliance with the pre-suit notice provision is
required and that this is not an instance when substantial compliance is adequate.
¶ 31 Finally, the plaintiffs have not addressed the additional notice requirement the trial court
pointed out had been overlooked by all the litigants. Section 11-13-7 requires that written notice be
given to property owners "as recorded by the office of the recorder of deeds *** and as appears
from the authentic tax records of such county." (Emphasis added.) 65 ILCS 5/11-13-7 (West
2012). This is a clear and unambiguous requirement that all plaintiffs inquire with both the office
of the recorder of deeds and the authentic tax records of the county. The recorded deeds ordinarily
should be searched so that plaintiffs capture the names and addresses of new property owners who
are not yet included in the county tax rolls. Regardless of why the legislature imposed this
requirement, it is undisputed that the current plaintiffs made no attempt to search the records of the
recorder of deeds. The total failure to comply with this notice requirement is reason alone to find
that the plaintiffs' suit was defective. Furthermore, the failure to address this fact on appeal is a
concession that the trial judge's ruling was correct.
¶ 32 In short, the record shows that the plaintiffs made multiple errors as they tried to comply
with the pre-suit notice requirement and that their failures cannot be excused or attributed to the
actions of the City of Chicago or Lake Park. The plaintiffs' failure to strictly comply with the
pre-suit notice requirement warranted the dismissal of their complaint with prejudice.
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¶ 33 In their reply brief and during oral arguments, the plaintiffs contended their "sincere but
imperfect efforts" to provide pre-suit notice should not result in the "ultimate penalty" of the
dismissal of their suit. They cite Hanna v. City of Chicago, 331 Ill. App. 3d 295, 308-10, 771
N.E.2d 2d 13, 24-25 (2002), for the proposition that Illinois courts are lenient with notice failures
and allow for "make-up notice." We reject this argument for any one of the following three
reasons.
¶ 34 First, the plaintiffs fail to cite any portion of the record that indicates they presented this
argument in the trial court and are now seeking our review of the judge's ruling. Arguments
presented for the first time on appeal are waived. Robidoux v. Oliphant, 201 Ill. 2d 324, 344, 775
N.E.2d 987, 998-99 (2002) (issues not raised in the circuit court cannot be raised for the first time
on appeal).
¶ 35 Second, this argument was not presented in the plaintiffs' opening brief. Arguments which
are omitted from an opening brief are waived. Ill. S Ct. R. 341(h)(7) (eff. Feb 6, 2013) (points not
argued in an appellant's opening brief "are waived and shall not be raised [for the first time] in the
reply brief, in oral argument, or on petition for rehearing").
¶ 36 Third, Hanna is distinguishable on the facts and the opinion does not suggest in any way
that the notice requirement should be relaxed. That case involved the rezoning of an entire
40-block neighborhood. Hanna, 331 Ill. App. 3d at 302, 771 N.E.2d at 19. The plaintiff challenged
the rezoning of his own property, unlike the current plaintiffs who challenged the rezoning of a
nearby property. The plaintiff's pre-suit notice was apparently perfect as to all property owners
within 250 feet of his own property. Hanna, 331 Ill. App. 3d at 302, 771 N.E.2d at 19. However, in
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a case of first impression, we determined that he would be required to also give notice to all
property owners within 250 feet of the rezoned neighborhood, despite his contention that this was
a burden that could not have been intended by the legislature. Hanna, 331 Ill. App. 3d at 310, 771
N.E.2d at 25. In contrast, here, we have plaintiffs who failed to attempt to notify numerous
property owners who were plainly entitled to notice because they were within 250 feet of the
affected property. Hanna does not excuse their noncompliance with the statute at issue. The
opinion does not state or imply that plaintiffs may be lax in giving pre-suit notice and that Illinois
courts will be "lenient" in enforcing the notice standard. The plaintiffs' failure to strictly comply
with the plainly worded notice requirement is fatal to their lawsuit concerning the Lake Park
development.
¶ 37 Lake Park also sought dismissal of the complaint pursuant to section 2-619(a)(1) of the
Civil Code, contending that the failure to strictly comply with the statute deprived the circuit court
of subject matter jurisdiction. 735 ILCS 5/2-619(a)(1) (West 2012). This argument was incorrect.
It was based on an election board case which has limited application and expressly states, "Illinois
courts do not have inherent authority to hear election cases, but may only exercise jurisdiction over
such cases when provided by statute." (Emphasis added.) Hough v. Will County Board of
Elections, 338 Ill. App. 3d 1092, 1093-94, 789 N.E.2d 795, 796 (2003). In Belleville Toyota, our
supreme court provided an in-depth analysis of subject matter jurisdiction in Illinois. Belleville
Toyota, Inc. v. Toyota Motor Sales U.S.A., Inc., 199 Ill.2d 325, 335, 770 N.E.2d 177, 184 (2002).
¶ 38 Finally, the City of Chicago filed a separate brief in support of the trial court's ruling and
argues, as an alternative ground for affirmance, that the plaintiffs did not adequately plead a due
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process claim. The City of Chicago contends the plaintiffs did not allege injury to any protectable
interest, in that there is no legal right to the free flow of light or air from adjoining land, no
entitlement to street parking, and no guarantee of increasing property values. The City of Chicago
also contends the plaintiffs' facial challenge to the rezoning did not state a claim because the
decision withstands a rational basis review. The trial court did not reach these arguments, but a
reviewing court may uphold the decision of the trial court on any grounds which are supported by
the record. Ultsch v. Illinois Municipal Retirement Fund, 226 Ill. 2d 169, 192, 874 N.E.2d 1
(2007). However, we find it unnecessary to reach these additional arguments because of our
conclusions above that the complaint was properly dismissed based on the plaintiffs' failure to
strictly comply with the pre-suit notice requirements.
¶ 39 The dismissal of the plaintiffs' lawsuit is affirmed.
¶ 40 Affirmed.
¶ 41 JUSTICE GORDON, specially concurring.
¶ 42 I am specially concurring in this case only because I have something to add to the
well-written opinion of the majority concerning legislative intent. In the rezoning world, the
developer of a property is required by statute or ordinance to notify all property owners normally
within 250 feet of the subject property of the rezoning request. The intent of the legislature or city
council is to make sure that every property owner within a certain distance of the subject property
that is to be rezoned has an opportunity to be heard at a public hearing so that the municipality can
hear how the rezoning is going to affect the rights of its citizens in close proximity of property that
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is subject to a rezoning application. After the property is rezoned, or after the rezoning request is
denied, the grieving party is required in Chicago to give the same type of notice to all property
owners within 250 feet of the subject property "not more than 30 days before filing suit for a
declaratory judgment" to invalidate the rezoning or to overturn the city's decision to deny the
rezoning. 65 ILCS 5/11-13-8 (West 2012). For decades, developers have had to resend notices
whenever any property owner within a required area was not served on rezoning applications as
the courts have interpreted the statute or ordinance to be mandatory. Figiel v. Chicago Plan
Comm'n, 408 Ill. App. 3d 223, 229-30 (2011). In 1961, section 11-13-8 of the municipal code was
enacted with basically the same language requiring a notice before instituting a declaratory
judgment proceeding in the courts whenever developers or property owners seek to overturn the
decision of the city of Chicago. Whoever files the suit, whether it be the developer or the property
owner, the language requires all property owners within 250 feet of the subject property to be
given a written notice. It cannot be relaxed for the developer and it cannot be relaxed for the
property owner because the legislature has intended for it to be mandatory so that those property
owners most affected will be given appropriate notice so that they can be heard. Anything less
could cut off the rights of those people who are the most vocal about the rezoning of the subject
property.