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Commonwealth Plaza Condominium Association, An Illinois Not-For-Profit Corporation v. City of Chicago

November 17, 2011


The opinion of the court was delivered by: Marvin E. Aspen, District Judge:


Presently before us are each defendant's motion to dismiss, for a variety of jurisdictional and procedural reasons, an action brought under the Fourteenth Amendment of the Constitution of the United States and the Federal Civil Rights Act of 1871, 42 U.S.C. § 1983. For the reasons set forth below, we grant the motions.


Resurrection Health Care Corporation ("Resurrection") and Saint Joseph Hospital ("Saint Joseph") own and/or control property on West Diversey Parkway, Chicago. Upon the request of Resurrection and Saint Joseph, the City of Chicago rezoned the property to Institutional Planned Development 1019 ("IPD 1019"). Suhail al Chalabi, as Vice President of Commonwealth Plaza, Virginia M. Harding, and Darren Moss (collectively "Plaintiffs") are owners of separate property on West Diversey Parkway within 250 feet of the rezoned property. (Am. Compl. ¶¶ 3, 4.) Plaintiffs filed this action against the City of Chicago and served Resurrection and Saint Joseph with notice of the filing of the complaint. (Id. ¶¶ 5, 6.) Saint Joseph's subsequent motion to intervene was granted on July 14, 2004. (Dkt. No. 27.)

The complaint contains three counts. Count I challenges the Cook County, Illinois law that allows a home rule municipality to violate its own laws when adopting a zoning ordinance. Plaintiffs request this Court to enter a declaratory judgment ruling that this practice constitutes a deprivation of constitutional due process. (Am. Compl. ¶ 1.) Counts II and III argue that the Chicago Zoning Ordinance amendment establishing IPD 1019-which was found by the Circuit Court of Cook County to be inconsistent with the Chicago Zoning Code-is a per se violation of Plaintiffs' substantive and procedural due process rights under the Fourteenth Amendment, and is therefore void. (Id.)

Defendants filed separate motions to dismiss all counts based on F.R.C.P 12(b)(1) and 12(b)(6). For the reasons set out below, the motions to dismiss are granted.*fn1


After extensive meetings and public hearings, the City of Chicago City Council revised the Chicago Zoning Ordinance on November 1, 2004. (Am. Compl. ¶ 7.) In May 2006, Resurrection filed for an Institutional Planned Development ("IPD") amendment to the Chicago Zoning Ordinance to rezone its property. (Id. ¶ 10.) The Chicago Plan Commission and the Zoning Committee of the City Council of Chicago recommended approving the change after public hearings at which Plaintiffs were noticed, appeared, and filed objections. (Id. ¶ 11.) The City Council approved the amendment, establishing IPD 1019, on July 28, 2006. (Id.)

In October 2006, Plaintiffs filed suit in the Circuit Court of Cook County alleging that the rezoning violated Plaintiffs' constitutional rights under the Due Process Clause of the United States and Illinois Constitutions. (Id. ¶ 12.) The Circuit Court of Cook County initially ruled that IPD 1019 violated the Chicago Zoning Ordinance and was thus void. (Id. ¶ 13.) However, on reconsideration, the court confirmed that IPD 1019 was inconsistent with the Chicago Zoning Code, but held that such violation did not make IPD 1019 void. (Id. ¶ 14.) On August 20, 2008, the Circuit Court of Cook County granted Defendants' motion for partial summary judgment indicating that the noncompliance did not support invalidating the IPD. (Compl. Ex. 9 (Order Granting Mot. for Partial Summ. J. Aug. 20, 2008).) The order included a finding under Illinois Supreme Court Rule 304(a) that the issue could be immediately appealed. (Id.) Plaintiffs timely appealed. (Am. Compl. ¶ 15.) The Illinois Appellate Court confirmed that "the IPD ordinance enacted by the city council in this case is not rendered unconstitutional simply because this municipality, a home rule unit, violated its own self-imposed ordinance in enacting the IPD ordinance." Condo. Assoc. of Commonwealth Plaza v. City of Chicago, 399 Ill. App. 3d 32, 38, 924 N.E.2d 596, 602 (1st Dist. 2010).

The Illinois Supreme Court denied Plaintiffs' Petition for Leave to Appeal. (Compl. Ex. 12 (Sup. Ct. Denial).) On January 12, 2011, the parties agreed to dismiss the action remaining in the circuit court. (Id. Ex. 13 (Agreed Order).) Plaintiffs filed this law suit in federal court on May 2, 2011. (Dkt. No. 1.)Defendants, in turn, moved to dismiss all counts.


Motions to dismiss under Rule 12(b)(1) and (b)(6) are meant to test the sufficiency of the complaint, not to decide the merits of the case. Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). A court may grant a motion to dismiss under Rule 12(b)(6) only if a complaint lacks "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, ---, 129 S. Ct. 1937, 1949--50 (2009) (extending Twombly from antitrust to litigation generally and stating that a court's determination "whether a complaint states a plausible claim for relief will . . . be a context-specific task"); Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d 614, 618--19 (7th Cir. 2007); EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 776--77 (7th Cir. 2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949. In evaluating a motion to dismiss, we must accept all well-pled allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Id. at 1949--50.

Rule 12(b)(1) requires dismissal of claims over which the federal court lacks subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Jurisdiction is the "power to decide" and must be conferred upon the federal court. In re Chicago, Rock Island & Pacific R.R. Co., 794 F.2d 1182, 1188 (7th Cir. 1986). In reviewing a Rule 12(b)(1) motion, we may look beyond the complaint to other evidence submitted by the parties to determine whether subject matter jurisdiction exists. See United Transp. Union v. Gateway W. Ry. Co., 78 F.3d 1208, 1210 (7th Cir. 1996). A plaintiff faced with a 12(b)(1) motion to ...

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