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Margaret Figiel, John Figiel, Jane Thomas v. the Chicago Plan Commission

March 4, 2011

MARGARET FIGIEL, JOHN FIGIEL, JANE THOMAS RICHARD DAMASHEK, SUSAN GOLO, DUNCAN BOURNE, LESLIE LODGSON, NANCY KIMBLE, MARK KIMBLE, ERIC LENTING, GINA GUZMAN, LOBA EMAMI, VICTORIA CARTON, JOHN WIZGIRD, ANNA ANTHONY, GAYLY OPEM, , ROBERT OPEM, ALLAN GOLD, JUDITH GOLDMAN, , SUSAN PRICE, KIM LILLY, ARNOLD HIRSCH, ELAINE D. COTTEY, PAUL T. COTTEY, PEARL KREPES, NANCY HUNTER, CUTTIE BACON, JEFFREY J. QUACKENBUSH, GENE NOZICKA, MARK GREENBERG, HAYDEE PAMPEL, AND JEFF BADDELEY, PLAINTIFFS-APPELLANTS,
v.
THE CHICAGO PLAN COMMISSION, THE CHICAGO CHILDREN'S MUSEUM, THE CHICAGO PARK DISTRICT, A MUNICIPAL CORPORATION, THE CITY OF CHICAGO, A MUNICIPAL CORPORATION, LINDA SEARL, CHAIRMAN OF THE CHICAGO PLAN COMMISSION, MAYOR RICHARD M. DALEY, JOHN H. NELSON, NANCY A. PACHER, DAVID WEINSTEIN, LEON D. FINNEY, JR., DORIS B. HOLLEG, LYNIER RICHARDSON, CAROLE BROWN, SMITA SHAH,TOM BYRNE, ARNOLD L. RANDALL, GEORGE W.MIGALA, GARCIA M. SHIFRIN, PATRICIA SCUDIERO, ALDERMAN WILLIAM J.P. BANKS, ALDERMAN EDWARD M. BURKE, ALDERMAN PATRICK O'CONNOR, ALDERMAN MARY ANN SMITH, ALDERMAN BERNARD L. STONE, AND ALDERMAN REGNER "RAY" SUAREZ, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County Illinois, County Department Chancery Division. No. 2008 CH 32919 The Honorable Sophia Hall,Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Fitzgerald Smith

PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion.

Justices Joseph Gordon and Howse concurred in the judgment and opinion.

OPINION

The plaintiffs, Margaret Figiel, John Figiel, Jane Thomas, Richard Damashek, Susan Golo, Duncan Bourne, Leslie Lodgson, Nancy Kimble, Eric Lenting, Gina Guzman, Loba Emami, Victoria Carton, John Wizgird, Anna Anthony, Gayly Opem, Robert Opem, Allan Gold, Judith Goldman, Susan Price, Kim Lilly, Arnold Hirsch, Elaine D. Cottey, Paul T. Cottey, Pearl Krepes, Nancy Hunter, Cuttie Bacon, Jeffrey J. Quackenbush, Gene Nozicka, Mark Greenberg, Haydee Pampel, and Jeff Baddeley, all owners of property located at 340 and 360 East Randolph Street, in Chicago, brought an action against the defendants, the Chicago Plan Commission, the Chicago Children's Museum, the Chicago Park District, the City of Chicago, the chair of the Chicago Planning Commission, Linda Searl, City of Chicago Mayor Richard M. Daley, David Weinstein, Leon D. Finney Jr., Dori B. Holleg, Lynier Richardson, Carole Brown, Smita Shah, Tom Byrne, Arnold L. Randall, George W. Migala, John H. Nelson, Nancy A. Pacher, Garcia M. Shifrin and Patricia Scudiero, and aldermen William J.P. Banks, Edward M. Burke, Patrick O'Connor, Mary Ann Smith, Bernard L. Stone, and Regner "Ray" Suarez, challenging the city council's decision to approve an amendment to one of the city's planned developments pursuant to the Chicago Zoning Ordinance (Chicago Municipal Code §17-13-100 et seq. (2009)), which would allow the construction of a children's museum and a new park district field house facility in the northeast corner of Grant Park. The defendants sought a dismissal pursuant to section 2-619 of the Code of Civil Procedure (Civil Procedure Code) (see 735 ILCS 5/2-619 (West 2008)), arguing that the complaint was defective because the plaintiffs failed to comply with the notice requirements set forth in section 11-13-8 of the Illinois Municipal Code (Municipal Code) (see 65 ILCS 5/11-13-8 (West 2008)), which mandate that a party challenging a zoning ordinance give written notice of its lawsuit to all properties within 250 feet of the affected property. In the alternative, the defendants sought dismissal pursuant to section 2-615 of the Civil Procedure Code (735 ILCS 5/2-615 (West 2008)), contending that the complaint failed to plead sufficient facts demonstrating that the amendment to the zoning ordinance was arbitrary, capricious and unreasonable and did not bear a rational relationship to public health, safety or welfare. The circuit court granted defendants' motion to dismiss pursuant to section 2-619 of the Civil Procedure Code (735 ILCS 5/2-619 (West 2008)), and the plaintiffs now appeal. For the reasons that follow, we affirm the decision of the circuit court.

I. BACKGROUND

The following relevant facts are undisputed. On April 2, 2008, the Chicago Park District (hereinafter the park district) and the Chicago Children's Museum (hereinafter the museum) filed an application*fn1 (hereinafter the lakefront application), pursuant to the Lake Michigan and Chicago Lakefront Protection Ordinance (see Chicago Municipal Code §16-4-100 (2009)), to construct a new children's museum and a park district field house facility in the place of an existing underground park district field house and two levels of below-grade parking garage located in the Daley Bicentennial Plaza in the northeast corner of Grant Park (i.e., the southeast corner of Randolph Street and Columbus Drive). The site of the proposed construction is owned by the City of Chicago (hereinafter the city) and the park district.

On that same day, the museum and the park district filed a separate application (hereinafter the planned development application) to amend Institutional/Transportation Development No. 677, the planned development, which governs the relevant portions of Grant Park, to permit the construction of the new children's museum and the field house. In response to comments received from the city's planning staff and various city agencies, on May 2, 2008, the museum and the park district submitted amended lakefront and planned development applications.

On May 15, 2008, the city's zoning department, and the department of planning and development submitted a written report to the city's plan commission recommending that the plan commission approve both the amended lakefront and planned development applications. According to that report, the project proposed by the amended lakefront and planned development applications complied with the policies and purposes of the Lake Michigan and Chicago Lakefront Protection Ordinance (Chicago Municipal Code §16-4-100 (2009)). Among other things, the report specifically found that "by locating the museum and the field house below grade within Grant park proper and locating the only above ground structure on the Randolph Street right of way" the project "maintained and improved the open water vista of Grant Park."

On May 15, 2008, the plan commission convened a public hearing to consider both the lakefront and the planned development applications. At the conclusion of the public hearing, a vote was taken and the plan commission approved both applications. Specifically, the commission issued a written resolution adopting the report of the city's zoning department and the department of planning and development regarding the lakefront application and the findings of fact stated therein. The commission also recommended that the city council committee on zoning approve the amendment to Institutional/Transportation Development No. 677, contemplated by the planned development application.

After considering the proposed amendment to Institutional/Transportation Development No. 677 at a public hearing, on June 5, 2008, the city council committee on zoning voted in favor of the proposed amendment. On June 11, 2008, the city council enacted an ordinance amending Institutional/Transportation Development No. 677.

On September 5, 2008, the plaintiffs, who are owners of property located at 340 and 360 East Randolph Street, which is within 250 feet of Grant Park and the proposed plan development, filed a complaint in the circuit court challenging the ordinance approving the zoning amendment and seeking de novo review of that ordinance pursuant to section 11-13-25 of the Municipal Code (65 ILCS 5/11-13-25 (West 2008)). The plaintiffs alleged that they were unconstitutionally deprived of both their substantive and procedural due process rights at each stage of the decision-making that occurred in connection with the passage of this zoning amendment. With respect to relief, the plaintiffs specifically asked the circuit court "to enter judgment declaring" the zoning amendment unconstitutional (i.e., "void as arbitrary, capricious, unreasonable and without justification in law or in fact").*fn2

On October 27, 2008, the defendants, including the city, the city's plan commission, the park district and the museum, filed a combined motion pursuant to section 2-619.1 of the Civil Procedure Code (735 ILCS 5/2-619.1 (West 2008)) to dismiss the complaint under sections 2-615 and 2-619(a)(9) of that Code (735 ILCS 5/2-615, 2-619(a)(9), 2-619.1 (West 2008)). The defendants specifically contended that the cause should be dismissed pursuant to section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2008)) because the plaintiffs had failed to comply with the notice requirements of section 11-13-8 of the Illinois Municipal Code (65 ILCS 5/11-13-8 (West 2008)) prior to filing their complaint.*fn3

On December 31, 2008, prior to the court's ruling on the defendants' motion to dismiss, the plaintiffs filed an amended complaint again seeking de novo review of the ordinance approving the zoning amendment and arguing that the amendment violated their procedural and substantive due process rights. This time, however, the plaintiffs did not ask the court to "declare" the amendment unconstitutional but rather that the court "enter a finding" that the ...


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