Sullivan v. Vill. of Glenview

2020 IL App (1st) 200142

175 N.E.3d 236

447 Ill.Dec. 868

Carol SULLIVAN, Aihong Yu, Oleg Regirer, Dinesh Ghando, Nicholas Black, Jay Huang, Steven J. Anderson, Alex Osovsky, Peter Tien, Kishan Patel, Gita Thakkar, Sobin Kuncheria, Brian Kuncheria, Kevin Kuncheria, Joseph Vu, and Ceclia Vu, Plaintiffs-Appellants,

v.VILLAGE OF GLENVIEW, a Municipal Corporation, Jim Patterson, in his capacity as President of the Village of Glenview, Village of Glenview Board of Trustees, Village of Glenview Plan Commission, and Village of Glenview Appearance Commission, Defendants-Appellees.

No. 1-20-0142

Appellate Court of Illinois, First District, THIRD DIVISION.

November 4, 2020

Brendan R. Appel and Selwyn M. Skevin, of Law Offices of Brendan R. Appel, LLC, of Northfield, for appellant Nicholas Black.

No brief filed for other appellants.

Julie A. Tappendorf, Scott A. Puma, and Kurt S. Asprooth, of Ancel Glink, P.C., of Chicago, for appellees.

JUSTICE ELLIS delivered the judgment of the court, with opinion.

¶ 1 Plaintiffs, homeowners in the village of Glenview, Illinois, filed this action for declaratory judgment to invalidate a 1988 municipal ordinance that seemingly paved the way for the rezoning of property adjacent to their homes from residential to commercial. Plaintiffs filed suit in 2019, after a commercial developer applied for permits to rezone and construct commercial buildings on that property, per that 1988 ordinance. The trial court dismissed the complaint as time-barred, based on a 90-day limitations provision in the Municipal Code that governs challenges to municipal zoning "decisions."

¶ 2 Because the 1988 ordinance was not, in our view, a "decision" to rezone, we find the limitations provision in the Municipal Code inapplicable. This suit is not time-barred. We reverse the trial court's judgment and remand for further proceedings with directions.

¶ 3 BACKGROUND

¶ 4 I

¶ 5 As we find this matter at the pleading stage, we draw most of our underlying facts from the allegations of the complaint, which we accept as true. Restore Construction Co., Inc. v. Board of Education of Proviso Township High School District 209 , 2020 IL 125133, ¶ 4, 444 Ill.Dec. 663, 164 N.E.3d 1238. We judicially notice other information from public documents, such as municipal ordinances and file-stamped public documents. See South Stickney Park District v. Village of Bedford Park , 131 Ill. App. 3d 205, 209, 86 Ill.Dec. 402, 475 N.E.2d 616 (1985).

¶ 6 And we take background information, which involves real property located on the border of two suburban villages, Northbrook and Glenview, from a decision of this court that involved the efforts of both Northbrook and Glenview to annex the property at roughly the same time in 1988. See People ex rel. Village of Northbrook v. Village of Glenview , 194 Ill. App. 3d 560, 141 Ill.Dec. 242, 551 N.E.2d 235 (1989). (As the mere existence of this lawsuit would suggest, Glenview won the intervillage battle and annexed these properties, at least the ones relevant to our discussion. See id. at 568, 141 Ill.Dec. 242, 551 N.E.2d 235.)

¶ 7 The property in question is located at 2660 Pfingsten Road and is known as the "Hart property." The Hart property was included among other parcels of contiguous property, totaling about 60 acres, that the Village of Northbrook, Illinois, sought to annex in early February 1988 with commencement of involuntary annexation proceedings. See id. at 562, 141 Ill.Dec. 242, 551 N.E.2d 235. But before Northbrook's annexation was formally concluded, the various owners of those parcels of disputed property filed petitions with the Village of Glenview, Illinois, requesting that Glenview annex the property. Id. Undaunted, a few days later, on February 15, 1988, Northbrook's board of trustees adopted an ordinance annexing all the disputed property. Id. at 563, 141 Ill.Dec. 242, 551 N.E.2d 235.

¶ 8 Two weeks later, on March 1, 1988, Glenview did the same thing as Northbrook, as noted in our earlier opinion: "On March 1, Glenview adopted four annexation ordinances, including all of the disputed property." Id. Those properties were found at or near the intersection of Willow and Pfingsten Roads in Glenview. They included two different parcels with Willow Road addresses (Glenview Ordinance Nos. 2849, 2850 (eff. Mar. 1, 1988)), the northwest corner of Willow and Pfingsten Roads (Glenview Ordinance No. 2851 (eff. Mar. 1, 1988)) our subject property at 2660 Pfingsten Road, which we are calling the Hart property (Glenview Ordinance No. 2852 (eff. Mar. 1, 1988)).

¶ 9 A week after it annexed these four properties, on March 8, 1988, at 7:30 p.m., Glenview's plan commission held a public hearing over the question of rezoning these four newly-annexed parcels of land. The week after that hearing, on March 15, 1988, the Village of Glenview adopted four ordinances rezoning these parcels of property. Some were rezoned as a business district, some an amended form of residential district.

¶ 10 Relevant here is Ordinance No. No. 2856, which purported to rezone the Hart property from its current status of "R-1 Residential District" to "B-1 General Business District" primarily, with the southern boundary to be rezoned "R-4 Residential District."

¶ 11 The language in Ordinance No. No. 2856 will be discussed in more detail below, but for now, suffice it to mention two things. First, unlike the other three companion zoning ordinances adopted on the same day, Ordinance No. No. 2856 provided several benefits and privileges to the existing landowners, the Hart family, including: the running of a water service line to the Hart property without charge; the continued use of well water on the Hart property; the use of existing driveways on the property; and permission to install a sewer system.

¶ 12 Second and more importantly, and also unlike the other three companion zoning ordinances adopted on the same day, Ordinance No. No. 2856's purported rezoning language did not take effect immediately . In other words, the day after Ordinance No. No. 2856 was adopted, the Hart property remained zoned as R-1 Residential District. And it remained that way for a good 31 years. At no time between March 15, 1988, and May 23, 2019 did the landowner file any permits or applications to rezone the Hart property or develop commercial construction, nor was Glenview's zoning map ever amended to reflect a zoning change to the Hart property.

¶ 13 Ordinance No. 2856's rezoning language expressly conditioned rezoning of the Hart property on future action by the landowner. What, exactly, that further landowner action entailed is the subject of dispute between the parties and is the ultimate basis for our resolution of this appeal.

¶ 14 On May 24, 2019, a real estate developer named GW Property Group filed an application for rezoning of the Hart property, along with an application for commercial development of that property. In the view of defendant, the Village of Glenview (Village), this filing triggered the rezoning of the Hart property per Ordinance No. 2856.

¶ 15 II

¶ 16 Five months later, on September 24, 2019, plaintiffs, homeowners in Glenview who reside near the Hart property, filed this two-count suit for declaratory judgment. Count I alleged that Ordinance No. 2856 was void ab initio , because the Village did not provide proper, legal notice of the March 8, 1988 public meeting of the plan commission regarding the rezoning of the Hart property. Count II alleged that Ordinance No. 2856 constituted unlawful "contract zoning" or "conditional zoning," portraying the ordinance as a "quid pro quo " between the Village and the Hart family, in that it provided the Harts a free water line and hook-up to the Village's sewer system in exchange for annexation of the Hart property.

¶ 17 In December 2019, the trial court dismissed the complaint as untimely. The court ruled that section 11-13-25 of the Illinois Municipal Code imposed a 90-day limitations period to challenge a municipal rezoning ordinance and barred this action. See 65 ILCS 5/11-13-25 (West 2018).

¶ 18 Though it is not in the complaint because it occurred after the dismissal of this action, we judicially notice that, on January 7, 2020, the Village of Glenview adopted Ordinance 6325, approving GW Property Group's application for commercial construction on the Hart property. See South Stickney Park District , 131 Ill. App. 3d at 209, 86 Ill.Dec. 402, 475 N.E.2d 616 (appellate court may judicially notice municipal ordinances, even those adopted while case is pending on appeal).

¶ 19 ANALYSIS

¶ 20 I

¶ 21 The court's dismissal was on limitations grounds under section 2-619(a)(5) of the Code of Civil Procedure. 735 ILCS 5/2-619(a)(5) (West 2018). The court ruled that a 90-day limitations provision in section 11-13-25 of the Municipal Code barred plaintiffs' challenge to Ordinance No. 2856. See 65 ILCS 5/11-13-25(a) (West 2018).

¶ 22 On review of that judgment, we take all well-pleaded facts as true and draw all reasonable inferences in favor of the plaintiff. Restore Construction , 2020 IL 125133, ¶ 4, 444 Ill.Dec. 663, 164 N.E.3d 1238. Our review is de novo , both because we are reviewing the dismissal of a complaint and because we are deciding the purely legal question of a municipal ordinance's application to a statute. See Raab v. Frank , 2019 IL 124641, ¶ 18, 441 Ill.Dec. 549, 157 N.E.3d 470.

¶ 23 We construe statutes and municipal ordinances under the same principles. Ruisard v. Village of Glen Ellyn , 406 Ill. App. 3d 644, 661, 345 Ill.Dec. 868, 939 N.E.2d 1048 (2010). We must "ascertain and give effect to the intent" of the legislative body. Raab , 2019 IL 124641, ¶ 18, 441 Ill.Dec. 549, 157 N.E.3d 470. We start with the plain language of the enactment, given its ordinary meaning. Id. If the statute or ordinance is unambiguous, the judicial inquiry ends; we apply the language as written. Id. If, however, we find ambiguity in the language, we may resort to extrinsic aids to determine legislative...