The opinion of the court was delivered by: Judge Joan B. Gottschall
MEMORANDUM OPINION & ORDER
Plaintiffs Chicago Joe's Tea Room LLC and Pervis Conway brought a civil action under 42 U.S.C. § 1983 (collectively "Chicago Joe's") against Defendants Village of Broadview (the "Village") and the individual members of the Village of Broadview Board of Trustees (Henry Vicenik, Robert Payne, Michael Tyl, John Ferguson, Sam D'Anza, Beverly Keehm, Judy Abraham, Billy Davis, Juanita Hinton Johnson, Minnie Reese, Ray Donato, Fitzgerald Mullins, and James Johnson, Jr. (collectively the "Trustees")) alleging that the Village's Zoning Code violates the First and Fourteenth Amendments to the U.S. Constitution, and that the Trustees ran afoul of those same amendments when they voted to deny Chicago Joe's' request for a special use permit. The Trustees argue that they enjoy absolute immunity from personal liability and move on that basis for judgment on the pleadings. See Fed. R. Civ. P. 12(c).*fn1
On December 22, 2006, Chicago Joe's submitted an application "to operate an adult use facility in all adult use categories as defined in the Code of Ordinances of the Village of Broadview." Compl. ¶ 11. On February 28,, 2007 a public hearing was held before the Village of Broadview Planning and Zoning Commission regarding Plaintiffs' application. Id. ¶ 12. Based on that hearing, the Planning and Zoning Commission recommended that the Trustees reject Chicago Joe's' application for a special use permit. Id. ¶ 13. The Trustees followed the Planning and Zoning Commission's recommendation and voted to deny Chicago Joe's' application. Id.
The Village of Broadview zoning ordinance (the "Zoning Code") specifies that "no special use shall be authorized by the Village Board of Trustees unless the special use":
(1) is deemed necessary for the public convenience at that location;
(2) is so designed, located and proposed to be operated that the public health, safety and welfare will be protected; [and] (3) would not cause substantial injury to the value of other property in the neighborhood in which it is located.
Vill. of Broadview Code § 10-7-4(D).
On a motion for judgment on the pleadings, the court construes all well-plead facts in favor of the non-moving party and limits its analysis to the content of the pleadings. Alexander v. City of Chi., 994 F.2d 333, 336 (7th Cir. 1993). Whether absolute immunity applies to the Trustees is a question of law for the court to decide. Biblia Abierta v. Banks, 129 F.3d 899, 905 (7th Cir. 1997).
Relying on an Illinois statute mandating that Illinois courts review special use decisions according to the same deferential standard applicable to legislative acts, the Trustees contend that they are entitled to absolute legislative immunity. See 65 Ill. Comp. Stat. 5/11-13-25 (2006). In opposition Chicago Joe's urges that legislative immunity is inapplicable because Illinois law characterizes the Trustees' actions as "quasi-judicial." See, e.g., Millennium Maint. Mgmt., Inc. v. Cty. of Lake, 894 N.E.2d 845 (Ill. App. Ct. 2008) (affirming that the special use permitting process is quasi-judicial in character). The court agrees with Chicago Joe's that the Trustees' denial of Chicago Joe's' special use permit was not a legislative act.
Illinois courts have historically interpreted 65 Ill. Comp. Stat. 5/11-13-25 (2006) to provide that the approval of a special use permit is subject to deferential review as a legislative decision, but a denial requires the more searching appellate scrutiny generally applicable to quasi-judicial (or administrative) decisions. See Millennium,894 N.E.2dat 856. However, the Illinois legislature amended the statute to specify that any special use decision -- favorable or unfavorable -- is subject to judicial review as if it were a legislative decision. See 65 Ill. Comp. Stat. 5/11-13-25 (West 2009). Despite the "legislative" standard of review, though, the legislative history of the amendment to § 5/11-13-25 explicitly states that the amendment is not meant to question the Illinois Supreme Court's conclusion that special use decisions have a quasi-judicial character. See Millennium,894 N.E.2dat 856. Indeed, the Millennium court found that the legislature had the legal authority (under Illinois' separation of powers doctrine) to dictate the appropriate standard of review to the courts only because the decision to grant or deny a special use permit is an administrative -- not legislative -- decision. See id. at 860.
Additionally, a review of the Zoning Code confirms that the special use process requires Trustees to apply pre-existing land use standards and policies to a particular parcel of land; a procedure that is quasi-judicial, not classically legislative. See id. at 851. Zoning Code § ...