Paul v. County of Ogle , 2018 IL App (2d) 170696 ( 2018 )

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Appellate Court Date: 2018.07.10
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Paul v. County of Ogle, 2018 IL App (2d) 170696
Appellate Court WALTER PAUL, LINETTE DeHAVEN, and CURTIS DeHAVEN,
Caption Plaintiffs-Appellants, v. THE COUNTY OF OGLE, MIKE
STUKENBERG, COLLEEN M. STUKENBERG, and STKE, LLC,
Defendants-Appellees.
District & No. Second District
Docket No. 2-17-0696
Filed April 20, 2018
Decision Under Appeal from the Circuit Court of Ogle County, No. 16-MR-41; the
Review Hon. John C. Redington, Judge, presiding.
Judgment Reversed and remanded.
Counsel on James R. Griffin, of Schain Banks, Ltd., of Chicago, and Dan G.
Appeal Fishburn, of Fishburn Whiton Thruman, of Freeport, for appellants.
Nicole M. Bauer and Ryan R. Stodden, of Plager, Krug, Bauer &
Rudolph, Ltd., of Freeport, for appellee Styke, LLC.
No brief filed for other appellees.
Panel JUSTICE SCHOSTOK delivered the judgment of the court, with
opinion.
Justices Zenoff and Burke concurred in the judgment and opinion.
OPINION
¶1 Plaintiffs—Walter Paul, Linette DeHaven, and Curtis DeHaven—appeal the trial court’s
order dismissing their amended complaint against defendants—the County of Ogle (county),
Mike Stukenberg, Colleen M. Stukenberg, and STKE, LLC. Plaintiffs contend that the trial
court erroneously held that they lacked standing to challenge the county’s granting of a
special-use permit on nearby property and that they did not allege a facial challenge, as
required, to the ordinance approving the special use. We reverse and remand.
¶2 Plaintiffs’ amended complaint alleged the following. The county had granted a special-use
permit to operate a “Motor Carrier Facility” to store garbage trucks and dumpsters on property
owned by the Stukenbergs and STKE, LLC. The property was located in an AG-1 agricultural
zoning district. It was surrounded by private property containing unimproved farmland and
rural home sites, farm buildings, and single-family homes. The surrounding property was
generally being used consistently with the AG-1 zoning.
¶3 Paul owned property adjacent to the Stukenberg property, and the DeHavens owned
property approximately 1250 feet away. Plaintiffs alleged that the proposed use would be
unconstitutional as applied to their properties pursuant to the factors enumerated in La Salle
National Bank of Chicago v. County of Cook, 12 Ill. 2d 40 (1957), and Sinclair Pipe Line Co. v.
Village of Richton Park, 19 Ill. 2d 370 (1960). The complaint alleged that each of the
La Salle/Sinclair factors militated against granting the proposed use.
¶4 Specifically, plaintiffs alleged that their properties would be devalued by the proposed use.
Dumpsters would be stored near Paul’s property. A staff report from the county planning and
zoning department showed that approximately 30% of the Stukenbergs’ property drained
poorly and flooded frequently. Any runoff from dumpsters and garbage trucks would drain to
the low-lying areas immediately adjacent to Paul’s property. “All further drainage” from the
Stukenbergs’ property would drain across the Paul property and there was a potential for
groundwater contamination. There would be increased noise and odors, as well as increased
traffic.
¶5 The complaint further alleged that the proposed use did not promote the health, safety, or
general welfare of the public. Moreover, the Stukenbergs’ property was not suitable for the
proposed use, as it was zoned AG-1, included a house, and was frequently flooded. According
to the staff report, the property consisted of “ ‘prime farm land.’ ”
¶6 The complaint alleged that the property had not been vacant as zoned, having been
purchased in 2016. It also alleged that there was no community need for the proposed use and
that the use was inconsistent with the comprehensive plans of both the county and the Village
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of Forreston. 1 Accordingly, count I sought a declaratory judgment that the ordinance
approving the special use was unconstitutional.
¶7 Count II alleged that the county violated its own zoning ordinance in approving the special
use. Plaintiffs alleged that a “Motor Carrier Facility,” as defined by the county’s zoning
ordinance, allowed for the storage of trucks or buses but did not allow for the storage of
dumpsters. Further, the ordinance provided that vehicle maintenance be conducted only on
vehicles owned and operated by the owner of the property, whereas the vehicles to be stored on
the property here were owned by another entity and would need to be serviced if they did not
run properly. Count III sought to enjoin defendants from developing the site pursuant to the
special-use permit.
¶8 Defendants moved to dismiss (735 ILCS 5/2-615 (West 2016)), arguing that Napleton v.
Village of Hinsdale, 229 Ill. 2d 296 (2008), required plaintiffs to mount a facial attack on the
special-use ordinance, which they had failed to do and which, in any event, they lacked
standing to do. The trial court agreed and dismissed the complaint with prejudice. Plaintiffs
timely appeal.
¶9 Plaintiffs first contend that the trial court erred in concluding that they lack standing.
Standing requires some injury to a legally cognizable interest. Village of Chatham v. County of
Sangamon, 216 Ill. 2d 402, 419 (2005). The claimed injury, whether actual or threatened, must
be distinct and palpable, fairly traceable to the defendant’s actions, and substantially likely to
be prevented or redressed by granting the relief requested. Id. at 419-20.
¶ 10 We note that the cases are unclear as to what, if anything, a plaintiff must plead to establish
standing in a case such as this one. Plaintiffs invoke the general rule that lack of standing is an
affirmative defense that may be raised in a motion pursuant to section 2-619(a)(9) of the Code
of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2016)). Winnebago County Citizens for
Controlled Growth v. County of Winnebago, 383 Ill. App. 3d 735, 739 (2008). Generally, a
plaintiff need not allege facts to establish his or her standing; rather, it is the defendant’s
burden to plead and prove a lack of standing. Id.
¶ 11 However, defendants rely on Garner v. County of Du Page, 8 Ill. 2d 155 (1956), where the
court stated that “for a party to have standing in a court of equity to complain about the use of
another’s property, he has the burden of proving that he has suffered a special damage by
reason of such use which differs from that suffered by the general public.” Id. at 158-59. In that
case, the complaint was not dismissed pretrial but, after trial, the court entered judgment for the
defendant. The supreme court affirmed, holding that the plaintiffs, who lived 1½ and 3 miles
from the proposed development, “failed to prove damage which is different from that suffered
by the public generally and therefore have no standing to maintain the action.” Id. at 159.
Defendants also cite Treadway v. City of Rockford, 28 Ill. 2d 370 (1963). There, the court held
that the plaintiffs proved a “sufficient special interest and damage to justify maintenance of
this action,” in that their property would be devalued by the construction of a proposed
shopping center. Id. at 376.
¶ 12 In People ex rel. Klaeren v. Village of Lisle, 202 Ill. 2d 164, 176 (2002), the court again
considered whether neighboring landowners had standing to complain about a proposed
development. The court cited Yusuf v. Village of Villa Park, 120 Ill. App. 3d 533, 538 (1983),
1
The subject property is within Forreston’s 1½-mile planning “buffer zone.” See 65 ILCS
5/11-12-5(1) (West 2016).
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which held that allegations of a diminution in value and a loss of quiet enjoyment of property,
caused by additional traffic and noise, were enough to confer standing on adjoining property
owners. Klaeren, 202 Ill. 2d at 176. The Klaeren court found that identical allegations in the
case before it, as well as testimony from a preliminary injunction hearing, were sufficient to
convey standing. Id.
¶ 13 It is thus unclear whether a plaintiff challenging the granting of a special-use permit for a
neighboring property has a duty to plead special damages. We need not resolve the issue here,
however, as plaintiffs have clearly done so.
¶ 14 It is true that the complaint does not contain the magic words that plaintiffs will suffer
damages different from those sustained by the general public, but defendants cite no case
holding that such language is required. Indeed, the allegations in the complaint are very similar
to those found to be sufficient to confer standing in cases such as Klaeren. See also Whipple v.
Village of North Utica, 2017 IL App (3d) 150547. Plaintiffs allege that Paul’s property is
immediately adjacent to the subject tract and that the DeHavens’ property is within 1250 feet
of it. Based on proximity alone, common sense dictates that effects such as noise and odors
will be felt more acutely on plaintiffs’ properties than on those many miles distant. Cf. Garner,
8 Ill. 2d at 159.
¶ 15 Further, the complaint does contain allegations of harm specific to plaintiffs’ properties.
For example, plaintiffs allege that “run-off from the garbage dumpsters and garbage trucks will
drain to the bottomland areas which are immediately adjacent to the Walter Paul property.”
Thus, plaintiffs, at least at this stage of the proceedings, have adequately pleaded that they will
suffer damages different from those of the public generally.
¶ 16 Plaintiffs further contend that the trial court erred by holding that they had to mount a facial
challenge to the ordinance granting the special-use permit. Defendants insist that Napleton
mandates that plaintiffs mount a facial challenge to the ordinance and that their allegations,
focused as they are on plaintiffs’ particular circumstances, are insufficient to do so. They
observe that section 5-12012.1 of the Counties Code (55 ILCS 5/5-12012.1 (West 2016))
provides that zoning decisions be reviewed de novo as legislative acts and Napleton stated that,
where the effect of a successful challenge would be to invalidate the entire ordinance, the
challenge is facial. They argue that, if plaintiffs succeed, the entire ordinance allowing the
special use on the subject property would be invalid. Thus, defendants assert, plaintiffs must
make a facial challenge. To fully understand the parties’ arguments, we must examine in some
detail the history of judicial challenges to decisions on special-use permits in Illinois.
¶ 17 By the time the supreme court decided La Salle in 1957, the right to challenge in court
municipal decisions concerning special-use permits was already well established. Thus, the
court was able to derive from the numerous earlier cases a list of considerations to apply in
such cases, which have come to be known as the La Salle factors. See La Salle, 12 Ill. 2d at
46-47.2
¶ 18 Confusion arose over whether, in ruling on special-use permits, municipal bodies acted in a
legislative or administrative capacity. As the answer to the question potentially affected the
standard of review, the supreme court considered the conflicting views in City of Chicago
Heights v. Living Word Outreach Full Gospel Church & Ministries, Inc., 196 Ill. 2d 1, 13-16
2
Sinclair, 19 Ill. 2d at 378, added two additional factors. For convenience, we refer to all the factors
as the La Salle factors.
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(2001). The court first acknowledged the “widely held” view that a legislative body acts in an
administrative, rather than a legislative, capacity when ruling on an application for a
special-use permit. Id. at 13. When a body acts administratively in ruling on a permit
application, its decision is subject to general principles of administrative review, and thus the
decision can be reversed only if it was without support in the record or was otherwise arbitrary.
Id. The court then explained that Illinois has generally followed a different approach:
“Although the clear weight of authority in the United States holds that a legislative
body acts administratively when it rules on applications for special use permits, there is
authority in this state which holds that the granting or denial of a permit application is a
legislative act. For example, a line of cases from this court holds, with respect to the
legislative bodies of counties, that the decision to grant or deny an application for a
special use permit is a legislative act. [Citation.] When a legislative body acts in a
legislative capacity in ruling on a permit application, its decision is not subject to
principles of administrative review. Instead, the legislative body’s decision is reviewed
for arbitrariness as a matter of substantive due process under the six-part test set forth in
[La Salle].” Id. at 14.
The court found “considerable force” to the view that such decisions should be considered
administrative (id. at 15), but declined to decide the issue going forward, concluding that the
result in the case before it would be the same under either test (id. at 16).
¶ 19 The court commented on the unique nature of a special-use-permit decision. It explained
that “[i]n general, a ‘special use’ is a type of property use that is expressly permitted within a
zoning district by the controlling zoning ordinance so long as the use meets certain criteria or
conditions.” Id. Thus, a special use “ ‘is a “permitted use” when allowed under a special
permit. Thus, there has been a local legislative determination that the use, as such, is neither
inconsistent with the public’s health, safety, morals or general welfare, nor out of harmony
with the town’s general zoning plan.’ ” Id. at 17 (quoting 3 Edward H. Ziegler et al.,
Rathkopf’s The Law of Zoning and Planning § 41.08, at 41-34 (4th ed. 1992)); see also 83 Am.
Jur. 2d Zoning and Planning § 974, at 814 (1992) (“Where a zoning ordinance authorizes a
business as a special use, such authorization is tantamont [sic] to a legislative conclusion that
the use is appropriate in the district.”).
¶ 20 The following year, in Klaeren, the court answered the question it had left open in Living
Word Outreach. It explicitly held that decisions on special-use permits were administrative
rather than legislative actions. Klaeren, 202 Ill. 2d at 183.
¶ 21 In response to Klaeren, the legislature enacted section 5-12012.1, which currently
provides:
“Any decision by the county board of any county, home rule or non-home rule, in
regard to any petition or application for a special use *** shall be subject to de novo
judicial review as a legislative decision, regardless of whether the process in relation
thereto is considered administrative for other purposes.” 55 ILCS 5/5-12012.1(a) (West
2016).
¶ 22 In Millineum Maintenance Management, Inc. v. County of Lake, 384 Ill. App. 3d 638
(2008), a defendant argued, inter alia, that section 5-12012.1 violated separation-of-powers
principles (Ill. Const. 1970, art. II, § 1) in that the legislature purported to direct the courts how
to decide a particular type of case. We first held that “de novo judicial review” did not mean
the type of review usually contemplated by the phrase “de novo review,” but instead merely
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permitted the introduction of new evidence that had not been considered by the legislative
body. Millineum Maintenance, 384 Ill. App. 3d at 651-52. We further held that, in order to
avoid a constitutional infirmity, we would interpret the statute to mean that “the evidence
received must bear on the court’s review ‘for arbitrariness as a matter of substantive due
process under the six-part test set forth in [La Salle].’ ” Id. at 653 (quoting Living Word
Outreach, 196 Ill. 2d at 14).3
¶ 23 In Napleton, the plaintiff challenged a text amendment to the defendant village’s zoning
code to ban financial institutions on ground-floor spaces in the B-1 and B-3 zoning districts.
Napleton, 229 Ill. 2d at 302. The plaintiff contended that the ordinance would diminish the
value of her property by limiting the pool of potential tenants. Id. at 303. The court, after noting
that the plaintiff had expressly proceeded with a facial challenge after agreeing with the village
that her as-applied challenge was premature, went on to explain the difference between facial
and as-applied challenges:
“A facial challenge to the constitutionality of a legislative enactment is the most
difficult challenge to mount successfully [citations], because an enactment is facially
invalid only if no set of circumstances exists under which it would be valid. [Citation.]
The fact that the enactment could be found unconstitutional under some set of
circumstances does not establish its facial invalidity. [Citations.] In contrast, in an
‘as-applied’ challenge a plaintiff protests against how an enactment was applied in the
particular context in which the plaintiff acted or proposed to act, and the facts
surrounding the plaintiff’s particular circumstances become relevant. [Citation.] If a
plaintiff prevails in an as-applied claim, he may enjoin the objectionable enforcement
of the enactment only against himself, while a successful facial attack voids the
enactment in its entirety and in all applications.” Id. at 305-06.
¶ 24 The court then considered the level of scrutiny to apply to the plaintiff’s constitutional
challenge, concluding that the traditional rational-basis test was appropriate. Id. at 308-09. The
plaintiff contended, however, that La Salle mandated more exacting scrutiny. The court
rejected this argument, noting that the plaintiff’s challenge was facial whereas La Salle
involved an as-applied challenge:
“The difference between a facial and an as-applied zoning challenge is significant:
a zoning ordinance that may be valid in its general aspects may nevertheless be invalid
as to a specific parcel of property because the balance of hardships—the gain to the
public in general against the detriment to the individual owner—overwhelmingly
burdens the individual owner. [Citation.] In light of this possibility, the La Salle
opinion set forth a list of factors that may be relevant in an as-applied challenge to
assist in balancing the gain to the public against the specific burdens experienced by an
individual property owner. In addition, as a result of the difference in focus of each type
of challenge, the evidence needed to sustain a claim of invalidity will be different
depending upon whether the challenge is facial—alleging a universal invalidity—or as
applied to a particular property. We agree with the appellate court below that if the
same evidentiary standard were used in each type of challenge, there would be no
3
Millineum Maintenance was decided 10 weeks after the supreme court’s opinion in Napleton, but
cited only this court’s opinion. Millineum Maintenance, 384 Ill. App. 3d at 643, 653 (citing Napleton v.
Village of Hinsdale, 374 Ill. App. 3d 1098 (2007)).
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difference between these challenges, leading to the absurd result that a zoning
ordinance ‘could never be generally valid but invalid as to a particular piece of
property; instead, it would be either valid as to all or invalid as to all.’ [Citation.] That
the La Salle factors do not lend themselves to application to a facial challenge is
evident not only from the fact that they focus upon the specific effect of the challenged
ordinance upon a particular parcel of property, but also in that plaintiff suggests that
this court modify these factors for application to a facial challenge, acknowledging that
‘some of the La Salle factors that deal with the specifics of a parcel of property may not
be relevant or applicable in a facial challenge, which *** maintain[s] that the ordinance
at issue is invalid in all applications.’ ” Id. at 318-19.
¶ 25 Finally, in Our Savior Evangelical Lutheran Church v. Saville, 397 Ill. App. 3d 1003
(2009), the plaintiff challenged the denial of a special-use permit. Quoting the above passage,
we held that the La Salle factors continued to govern as-applied challenges such as the one in
question. Id. at 1029.
¶ 26 Here, defendants seize on the statement that “a successful facial attack voids the enactment
in its entirety” (Napleton, 229 Ill. 2d at 306) and argue that, because the ordinance in question
applies only to the subject property, a successful challenge will “void[ ] the enactment in its
entirety.” They argue, in essence, that all challenges to the granting of a special-use permit are
facial because the effect of such a challenge is to void the ordinance entirely. This argument is
fatally flawed for several reasons.
¶ 27 First, defendants fail to account for the unique nature of special-use permits, which, by
design and definition, are granted on a case-by-case basis. The supreme court recognized the
unique nature of such proceedings in Living Word Outreach, where it observed that they were
functionally equivalent to administrative proceedings and noted that a majority of jurisdictions
consider them to be such. In Millineum Maintenance, we held that, despite the legislature’s
characterization of such proceedings as legislative, courts should continue to review them as
before, using the La Salle factors, and we reaffirmed that conclusion in Our Savior.
¶ 28 Second, defendants err in assigning the distinction between facial and as-applied
challenges talismanic significance. The United States Supreme Court has cautioned that “[t]he
distinction is both instructive and necessary, for it goes to the breadth of the remedy employed
by the Court, not what must be pleaded in a complaint.” Citizens United v. Federal Election
Comm’n, 558 U.S. 310, 331 (2010); see also Richard H. Fallon Jr., As-Applied and Facial
Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1327-28 (2000) (“In order to
raise a constitutional objection to a statute, a litigant must always assert that the statute’s
application to her case violates the Constitution. But when holding that a statute cannot be
enforced against a particular litigant, a court will typically apply a general norm or test and, in
doing so, may engage in reasoning that marks the statute as unenforceable in its totality.”
(Emphasis omitted.)).
¶ 29 An Illinois Supreme Court justice has observed:
“The difficulty may lie in the doctrine itself. One commentator has charged that
‘categorizing constitutional cases into “facial” and “as-applied” challenges, and relying
on these categories to shape doctrine and inform case outcomes, is an inherently flawed
and fundamentally incoherent undertaking.’ [Citation.] Another has lamented that the
‘distinction between as-applied and facial challenges may confuse more than it
illuminates’ and argued that the distinction between facial and as-applied challenges
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should be eliminated altogether.” People v. One 1998 GMC, 2011 IL 110236, ¶ 85
(Karmeier, J., specially concurring).
¶ 30 But more fundamentally, Napleton itself emphatically rejected the reading defendants
assign to it. Far from rejecting the La Salle factors as applicable to cases that—like this
one—must necessarily be decided on an as-applied basis, the court held that the La Salle
factors can be “relevant in an as-applied challenge” and labeled “absurd” the suggestion that a
zoning ordinance could never be invalid as applied to a particular piece of property. Napleton,
229 Ill. 2d at 318-19. Defendants cite the above-quoted language from Napleton in support of
their argument that the La Salle factors do not apply to a facial challenge but fail to grasp the
bigger point that La Salle itself involved a special-use permit. Defendants thus advance the
paradoxical contention that the supreme court specifically endorsed the La Salle factors as
appropriate for special-use cases, precisely because they focus on the parties’ specific
circumstances, but simultaneously forbade their use in special-use cases because all such
challenges must be facial.
¶ 31 Moreover, to agree with defendants would be to effectively leave neighboring landowners
without a remedy—something Illinois courts have said they have had for more than 60 years.4
The only way for a neighboring landowner to succeed on a facial challenge would be to argue
that the special use is not appropriate anywhere in the relevant zoning district. However, as
Living Word Outreach explained, the very existence of the special use within the zoning
district demonstrates the legislative body’s conclusion that it is appropriate in the zoning
district if certain conditions are met. Living Word Outreach, 196 Ill. 2d at 17.
¶ 32 Napleton did not purport to overrule Living Word Outreach, Klaeren, or other cases
applying the La Salle factors to cases of this type. Those cases explain that special-use permits
are, by their nature, decided on a case-by-case basis and are thus the functional equivalent of
administrative decisions regardless of how they are categorized for other purposes. It is only
because of the fact-specific nature of the decision that the “entire ordinance” will be
invalidated by a successful challenge. Cases from other districts since Napleton have
continued to apply the La Salle factors to neighbor challenges. See Whipple, 2017 IL App (3d)
150547; Robrock v. County of Piatt, 2012 IL App (4th) 110590. Thus, here, as the ordinance
itself is fact-specific, plaintiffs’ challenge to it is properly fact-specific as well.5
¶ 33 Citing Conaghan v. City of Harvard, 2016 IL App (2d) 151034, defendants further contend
that section 5-12012.1 does not create a cause of action. Conaghan considered a parallel
provision in the Illinois Municipal Code (65 ILCS 5/11-13-25 (West 2016)), holding that it did
not create a new cause of action but merely imposed standards for preexisting actions.
Conaghan, 2016 IL App (2d) 151034, ¶ 73. In Conaghan, the plaintiffs pleaded no other basis
for relief. See id. ¶ 74. Here, although the complaint states that it is brought under section
5-12012.1, it also invokes the declaratory judgment provision of the Civil Practice Law (735
4
Given that the right to challenge the granting of special-use permits for neighboring properties is
rooted in due process, it is unlikely that the remedy could be completely abolished. However, as
plaintiffs do not make the argument that due process requires any particular remedy, we do not consider
it further.
5
We do not say that there could never be a distinction between facial and as-applied challenges to
special-use permits. It is possible that an ordinance could affect different properties differently. Here, at
least at this stage of the proceedings, that is not an issue.
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ILCS 5/2-701 et seq. (West 2016)) as well as La Salle. This fact distinguishes this case from
Conaghan. In neither Our Savior nor Millineum Maintenance did we hold that section
5-12012.1 was a bar to proceeding with a traditional action for review of a special-use-permit
decision pursuant to the La Salle factors. Our Savior, 397 Ill. App. 3d at 1029; Millineum
Maintenance, 384 Ill. App. 3d at 653.
¶ 34 Defendants make some additional arguments that plaintiffs’ allegations are insufficient.
They contend that the allegations are conclusory. A pleading that merely paraphrases the
elements of a cause of action in conclusory terms is insufficient. Landers-Scelfo v. Corporate
Office Systems, Inc., 356 Ill. App. 3d 1060, 1065 (2005). On the other hand, a plaintiff need not
set out his or her evidence in the complaint. A fact is well pleaded if a plaintiff has clearly set
out the ultimate fact he or she intends to prove. Id. A motion to dismiss under section 2-615
raises issues of law; we therefore review the dismissal de novo. Id.
¶ 35 Here, plaintiffs’ allegations include ultimate facts. For example, the complaint alleges that
the value of Paul’s property will be diminished by the proposed use and lists five specific ways
in which that will occur. It alleges that “run-off from the garbage dumpsters and garbage trucks
will drain to the bottomland areas which are immediately adjacent to the Walter Paul Property.
All further drainage from the Subject Property drains over and across the Walter Paul Property.
There is a potential for ground water contamination on the Walter Paul Property.” This seems
to be reasonably specific, and defendants do not specify what additional information they
require.
¶ 36 Plaintiffs’ allegations are similar to those found sufficient in similar cases. In Whipple, for
example, the plaintiffs challenged the granting of a permit to operate a mine on a nearby
property. Their complaint closely tracked the La Salle factors, much like the complaint here.
The reviewing court held that the lower court erred in dismissing it. Whipple, 2017 IL App (3d)
150547, ¶ 53.
¶ 37 Defendants further contend that plaintiffs’ allegations are “speculative.” In a case of this
type, allegations will always be speculative in the sense that the proposed use has not
commenced, so it would be impossible to calculate with mathematical precision the damages
to the plaintiffs’ properties. As the First District has observed, “Defendants call plaintiffs’
allegations of harm speculative, but plaintiffs respond that any zoning case involves expert
projections that an opponent will wish to term speculative. Plaintiffs correctly add that, at the
pleading stage, they have not yet had a chance to prove what defendants contend is
speculative.” Rodriguez v. Henderson, 217 Ill. App. 3d 1024, 1035 (1991).
¶ 38 Defendants argue that, even if the trial court erred in dismissing the entire complaint, its
dismissal of count II should nevertheless be affirmed because the count fails to state a claim.
See Ultsch v. Illinois Municipal Retirement Fund, 226 Ill. 2d 169, 192 (2007) (reviewing court
may affirm on any basis supported by the record). In count II, plaintiffs allege that the county
failed to follow its own zoning ordinance in granting the special-use permit. Defendants’
argument on this point consists only of a brief general assertion that this count improperly
seeks administrative review of a legislative decision. We disagree. A municipality must follow
its own valid ordinances. People ex rel. J.C. Penney Properties, Inc. v. Village of Oak Lawn,
38 Ill. App. 3d 1016, 1019 (1976). If a municipality violates its own valid ordinance, its action
is illegal, and the courts may enjoin it. Tierney v. Village of Schaumburg, 182 Ill. App. 3d
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1055, 1059 (1989).6 As we reject defendants’ alternative basis for affirming it, we reverse the
dismissal of count II.
¶ 39 Plaintiffs assert that count III, seeking to enjoin the proposed use, likewise was improperly
dismissed. A party seeking a permanent injunction must allege that he or she has a clear and
ascertainable right that needs protection, there is no adequate remedy at law, and he or she will
suffer irreparable harm if such relief is not granted. Helping Others Maintain Environmental
Standards v. Bos, 406 Ill. App. 3d 669, 688 (2010). Injunctive relief can be appropriate to
prevent a prospective use of neighboring property, at least where that use would constitute a
nuisance. See Whipple, 2017 IL App (3d) 150547, ¶ 45; Helping Others Maintain
Environmental Standards, 406 Ill. App. 3d at 689.
¶ 40 As with count II, the trial court did not specifically rule on the sufficiency of this count.
Defendants’ argument that it is insufficient largely restates their previous arguments about the
complaint in general. Thus, we do not consider whether plaintiffs’ specific allegations are
sufficient to state a cause of action for injunctive relief. We reverse the dismissal of this count
as well.
¶ 41 The judgment of the circuit court of Ogle County is reversed and the cause is remanded.
¶ 42 Reversed and remanded.
6
There is some authority that the rule that municipalities must follow their own ordinances does not
apply to home-rule units, which many counties are. However, the parties do not raise this argument, and
the record contains no information on whether the county here is a home-rule unit. Thus, we do not
consider the issue further.
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