Scott v. City of Chi.

29 N.E.3d 592

Michael SCOTT, James Des Jardins, Mark Graham, and Lorraine Pettigrew, Plaintiffs–Appellants

v.The CITY OF CHICAGO, Defendant–Appellee (Lake Park Associates, Inc., Intervenor–Defendant–Appellee).

No. 1–14–0570.

Appellate Court of Illinois, First District, Fifth Division.

March 13, 2015.

Robert T. O'Donnell and Adam M. Kingsley, both of O'Donnell Law Firm, Ltd., of Libertyville, for appellants.

Stephen R. Patton, Corporation Counsel, of Chicago (Benna Ruth Solomon, Myriam Zreczny Kasper, and Stephen G. Collins, Assistant Corporation Counsel, of counsel), for appellee City of Chicago.

Thomas F. Geselbracht, Jesse W. Dodson, and Eric M. Roberts, all of DLA Piper LLP, of Chicago, for appellee Lake Park Associates, Inc.

OPINION

Justice McBRIDE delivered the judgment of the court, with 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 the 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 multifamily 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 3 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 (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 (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 presuit notice and did not reach the other motion. The plaintiffs appeal. For the reasons that follow, we affirm.

¶ 2 Section 11–13–8 of the Municipal Code requires the plaintiffs to provide presuit 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 11–13–8 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).

¶ 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 prefiling 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 7, and they made no attempt to notify owners of any tax exempt properties, of which there are 19.

¶ 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 presuit 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 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 in 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-sui...