Sullivan v. Village of Glenview , 2020 IL App (1st) 200142 ( 2020 )

2020 IL App (1st) 200142THIRD DIVISION
November 4, 2020
No. 1-20-0142
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
CAROL SULLIVAN, AIHONG YU, OLEG ) Appeal from the Circuit Court of
REGIRER, DINESH GHANDO, NICHOLAS ) Cook County.
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. ) No. 19 CH 11017
)
VILLAGE OF GLENVIEW, a Municipal Corporation, ) Honorable Michael T. Mullen
JIM PATTERSON, in his capacity as President of the ) and Pamela McClean Meyerson,
Village of Glenview, VILLAGE OF GLENVIEW ) Judges Presiding
BOARD OF TRUSTEES, VILLAGE OF GLENVIEW )
PLAN COMMISSION, and VILLAGE OF )
GLENVIEW APPEARANCE COMMISSION, )
)
Defendants-Appellees. )
JUSTICE ELLIS delivered the judgment of the court, with opinion.
Presiding Justice Howse and Justice Cobbs concurred in the judgment and opinion.
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
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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 instructions.
¶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. 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 (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(1989). (As the mere existence of this lawsuit would suggest, Glenview won the inter-village
battle and annexed these properties, at least the ones relevant to our discussion. See id. at 568.)
¶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
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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. 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.
¶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 addresses (Ordinances 2849 and 2850), the northwest corner of Willow and
Pfingsten Roads (Ordinance 2851) and our subject property at 2660 Pfingsten Road, which we
are calling the Hart property (Ordinance 2852).
¶9 A week after it annexed these four properties, on March 8, 1988 at 7:30 PM, 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 from of residential district.
¶ 10 Relevant here is Ordinance 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 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
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adopted on the same day, Ordinance 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 2856’s purported rezoning language did not take
effect immediately. In other words, the day after Ordinance 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 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 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 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
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property. Count II alleged that Ordinance 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 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 (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 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. 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.
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¶ 23 We construe statutes and municipal ordinances under the same principles. Ruisard v.
Village of Glen Ellyn, 406 Ill. App. 3d 644, 661 (2010). We must “ascertain and give effect to
the intent” of the legislative body. Raab, 2019 IL 124641, ¶ 18. 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 intent. Id.¶ 24 A
¶ 25 We start with the Municipal Code’s limitations provision on challenges to municipal
zoning action. The current version of section 11-13-25, on which the Village relies, reads in
relevant part as follows:
“(a) Any decision by the corporate authorities of any municipality, home rule or
non-home rule, in regard to any petition or application for a special use, variance,
rezoning, or other amendment to a zoning ordinance 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. Any action seeking the judicial review of
such a decision shall be commenced not later than 90 days after the date of the decision.”
(Emphases added.) 65 ILCS 5/11-13-25(a) (West 2018).
¶ 26 The key word here is “decision.” The Municipal Code provides no definition of
“decision,” so we look to its plain and ordinary meaning. Horsehead Corp. v. Department of
Revenue, 2019 IL 124155, ¶ 37. We often think of the word “decision” in the context of final
administrative action. See, e.g., Merritt v. Department of State Police, 2016 IL App (4th)
150661, ¶ 27 (interpreting 735 ILCS 5/3-101 (West 2014)). Here, it is used in the context of
municipal legislative action, and we have routinely applied the provisions of section 11-13-25 to
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the adoption of municipal zoning ordinances like Ordinance 2856. See, e.g., Dunlap v. Village of
Schaumburg, 394 Ill. App. 3d 629, 648 (2009).
¶ 27 But that only gets us so far, because the question is not whether Glenview passed an
ordinance—it obviously did—but whether that ordinance actually “decided” anything concrete
on the subject of the Hart property’s zoning classification. Usually, that part is a no-brainer—the
municipality adopts an ordinance granting a zoning request in whole or in part, or it votes that
request down on a record vote. The municipal body, in other words, affirmatively acts to either
grant or deny a zoning request, which would unquestionably constitute a zoning “decision.”
¶ 28 But here, the question of whether Ordinance 2856 actually “decided” anything regarding
the Hart property’s zoning classification is the subject of heated dispute and an issue this court
flagged after the first round of briefing. In the supplemental briefs we ordered, plaintiffs argue
that Ordinance 2856 did not, in fact, effect any change whatsoever to the zoning classification of
the Hart property. Instead, say plaintiffs, Ordinance 2856 merely kicked the can down the road
for future legislative consideration of the Hart property’s rezoning.
¶ 29 So while a “decision” to rezone the Hart property must obviously include the adoption of
an ordinance, we must explicitly add to that something that would normally go left unsaid: that
ordinance must actually make some sort of change to the zoning of the Hart property. That, in
our view, is the plain, ordinary, and frankly inescapable meaning of the word “decision.” To
divine a term’s ordinary meaning, “it is entirely appropriate to employ a dictionary,” which
provides a reasonable proxy for how an ordinary person would interpret the law’s various words
and phrases. People v. McChriston, 2014 IL 115310, ¶ 15. Webster’s defines “decision” in
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relevant part as “a determination arrived at after consideration,” including “conclusion” as a
synonym. 1
¶ 30 Here, that means that the municipal ordinance must reach some sort of determination or
conclusion on the question of the Hart property’s zoning to constitute a zoning “decision.” Thus,
for example, if Ordinance 2856 changed the Hart property’s zoning classification, immediately
or even conditionally, it would qualify as a “decision” regarding rezoning. Likewise, if the
Village definitively rejected a request to rezone the Hart Property by a record vote, that, too,
would qualify as a “decision” and thus implicate section 11-13-25(a). But if, as plaintiffs claim,
Ordinance 2856 effected no change whatsoever to the Hart property’s zoning classification and
merely delayed resolution for future legislative action by the Village, then by no means could we
say that Ordinance 2856 was a zoning “decision” of any kind.
¶ 31 B
¶ 32 So that is where our focus turns, on the language of Ordinance 2856 and a determination
of what effect, if any, that ordinance had on the zoning classification of the Hart property.
¶ 33 1
¶ 34 Ordinance 2856 begins, like most municipal ordinances, with a preamble consisting of
several “wherefore” clauses. In short form, the preamble explained that (1) “notice of a public
hearing” was duly published; (2) this public hearing was held by the Plan Commission of the
Village of Glenview, pursuant to the “Glenview Zoning Ordinance;” and (3) after that hearing,
the Plain Commission “made a certain recommendation” to the Board of Trustees, on which the
Board of Trustees was now prepared to act by adopting Ordinance 2856.
1
Merriam-Webster Dictionary, “Decision,” https://www.merriam-webster.com/dictionary/decision (site last visited
October 6, 2020).
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¶ 35 We mention this at the outset not to comment on the merits of the preamble; we realize
that count 1 of the Complaint alleges that the notice of the public hearing was defective, and we
make no comment on that claim either way. We note the contents of the preamble simply to
demonstrate that Glenview, then as now, provides for a specific formal process for changes to
the zoning status of any property, which are found in Chapter 98 of the Glenview Municipal
Code, known today as the “Zoning Ordinance,” just as the preamble referenced it in 1988.
¶ 36 In Glenview, the process for changing a property’s zoning status begins with an
“application for amendment” to the zoning laws, which is filed with the office of the director of
community development. Glenview Municipal Code, § 98-49(c) (eff. June 15, 2010). Once that
application for a zoning amendment is filed, the plan commission holds a public hearing on the
application after giving “notice of such hearing *** not more than 30, nor less than 15 days
before the hearing ***.” Id., § 98-49(c). After that hearing, the plan commission submits a
report with its findings and recommendations to the Board of Trustees. Id., § 98-49(d).
Ultimately, the Board of Trustees may “enact the amendment by adoption of an ordinance with
or without change, reject the amendment or refer it back to the plan commission for further
consideration.” Id., § 98-49(e).
¶ 37 So the preamble to Ordinance 2856 was reciting its compliance with the formal process
called for in the Glenview Municipal Code, the substance of which remains today. That will be
important to keep in mind as we consider the substantive language of Ordinance 2856.
¶ 38 Sections 2 and 3 of the ordinance, the rezoning provisions, provide in pertinent part as
follows:
“NOW THEREFORE, BE IT ORDAINED by the President and Board of
Trustees of the Village of Glenview, Cook County, Illinois that
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***
Section 2: That property commonly known as [the Hart property] *** be rezoned
as follows:
The north portion of the subject parcel, not to exceed 6.2 acres, be rezoned from
R-1 Residential District to B-1 General Business District provided that the remaining
portion of the subject parcel be rezoned from R-1 Residential District to R-4 Residential
District to create a buffer zone along the entire southern boundary of the subject parcel
and that the rezoning from R-1 Residential District to B-1 General Business District and
R-4 Residential District take effect upon notice and application given by the title
holder(s) of the subject property to the Board of Trustees, but in no event shall said
application for rezoning be accepted by the Board of Trustees until the first to happen of
the following events:
a. the demise of either Max A. Hart or Florene S. Hart; or
b. the expiration of five (5) years from March 1, 1988.”
Section 3: That the zoning map of the Village of Glenview shall be amended to
incorporate the changes set forth herein at the time that application for said rezoning is
accepted by the Board of Trustees as hereinabove provided.” (Emphases added.)
¶ 39 The next provision of the ordinance, Section 4, bestowed benefits on the Hart family.
Specifically, “in addition to the rezoning as herein contemplated,” the Village would, among
other things, run a water service line to the Hart property, without charge to the current owner;
allow the current owner to continue using the well water system on the Hart property “until
rezoning provided;” allow the current owner to use the driveways on the property “until rezoning
as aforedescribed;” and allow the current owner to install a sewer system on the property.
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¶ 40 But now our question: When, if ever, is the rezoning “contemplated” by the ordinance to
take effect? Since that question was not squarely addressed when the case was first briefed, we
invited the parties to file supplemental briefs explaining “when the rezoning language of section
2 is to take effect and when it did take effect, if it has already done so.”
¶ 41 Some answers are apparent, others not so much. First, the parties agree—as do we—that
the Hart Property was not rezoned immediately upon Ordinance 2856 taking effect. Second, the
parties agree—as do we—that when Ordinance 2856 speaks of an “application *** to the Board
of Trustees,” it is referring to an application for rezoning, as indicated by the language that
follows the first use of the term “application,” once in section 2 (referring to it as “said
application for rezoning”) and again in section 3 (“application for said rezoning”).
¶ 42 And third, the parties agree—as do we—that Ordinance 2856 requires not only that the
owner of the Hart Property provide an “application” for rezoning to the Village’s Board of
Trustees, but also that the Board accept that application. That, too, is clear in two portions of the
ordinance, section 2 (“in no event shall said application for rezoning be accepted by the Board of
Trustees until the first to happen of the following events ***”) and section 3 (stating that the
Village’s zoning map will not be amended to reflect this rezoning until “the time that application
for said rezoning is accepted by the Board of Trustees”).
¶ 43 To put it together, we agree with the parties that the ordinance says this: The rezoning of
the Hart property would not immediately take effect but, rather, would take effect upon the
following conditions: (1) the landowner’s “notice and application [for rezoning] *** to the Board
of Trustees” and (2) that application for rezoning being “accepted by the Board of Trustees.”
¶ 44 At first blush, that might seem inconsequential. After all, zoning ordinances often contain
conditions that must be satisfied before a zoning change takes effect—for example, the
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landowner’s compliance with local, state, and federal pollution standards. See Goffinet v.
Christian County, 65 Ill. 2d 40, 47-48 (1976). But Section 2 of Ordinance 2856 is no ordinary
conditional zoning provision. The only way we can reasonably construe the “conditions” in
Ordinance 2856 is that, before such rezoning can take effect, the landowner must submit to the
municipal zoning process all over again and get final approval from the only body that can give
such approval, the Board of Trustees. That is so, in our view, because the operative phrases
Ordinance 2856 uses to describe the “conditions” on rezoning—“notice” of an “application for
rezoning” that must be “accepted by the board of trustees”—all appear either verbatim or nearly
so in the Glenview Municipal Code’s provisions for the formal rezoning process.
¶ 45 To begin, the “application for rezoning” in Ordinance 2856 bears an uncanny
resemblance to the “application for an amendment” to zoning that starts the entire rezoning
process in Glenview. See Glenview Municipal Code, § 98-49(c) (eff. June 15, 2010). In the
same vein, Section 2 of Ordinance 2856 requires “notice,” just as the Illinois and Glenview
Municipal Codes require notice of a public hearing on applications for rezoning. See id.; 65
ILCS 5/11-13-14 (West 2018).
¶ 46 Likewise, the Glenview Municipal Code specifies that the Board of Trustees may
“reject” an application for a zoning amendment or “enact the amendment by adoption of an
ordinance.” Glenview Municipal Code, § 98-49(e) (eff. June 15, 2010). “Reject” is an antonym
of “accept,” and in this context, there is little difference between saying “the Board enacted the
amendment” to rezone the Hart property, using the Glenview Municipal Code terminology, and
“the Board accepted the application for rezoning” the Hart Property, using Ordinance 2856’s
phraseology. True, the former statement has greater clarity because it explicitly refers to the legal
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mechanism of acceptance—enactment of an ordinance—but in our view, that is not enough to
alter the meaning of “accept” as used in Sections 2 and 3 of Ordinance 2856.
¶ 47 Simply put, it cannot be an accident that the language in Ordinance 2856 so closely
tracks the Village’s zoning process from start (application) to finish (legislative approval). It
can only mean that the Village wanted to reserve the right to reconsider the idea of rezoning the
Hart property at whatever time in the future—ten years, a hundred years, or as it turned out, 31
years later—that the landowner decided to seek a change in the zoning classification.
¶ 48 All of which is to say that the rezoning language in Ordinance 2856 lacked any force or
effect. It punted the question of rezoning. It left the landowner in precisely the same position
as any other landowner in Glenview—if you want to “rezone” your property, “apply” for it,
we’ll give the public “notice” and hold a hearing on your “application for rezoning,” and the
board of trustees may or may not adopt an ordinance “accepting” your application.
¶ 49 2
¶ 50 The Village says we are reading the ordinance incorrectly. It insists that Ordinance
2856 “decided” to rezone back in 1988, and all the landowner had to do to effectuate this
rezoning was file an application for rezoning, as GW Property Group did on May 24, 2019.
And voilá, says the Village—at that moment, the rezoning became effective. We cannot agree.
¶ 51 To begin, to accept the Village’s argument, we would have to accept that the Village
accomplished by indirect and convoluted means something that it could have done simply. If
the Village truly intended to resolve the rezoning question in 1988 and leave the rezoning to be
triggered at the landowner’s whim upon the mere filing of a document, it could have drafted an
ordinance requiring the owner of the Hart Property to file a statement of intent to rezone, or
something of that nature, indicating as much. There would be no reason for the Village to use a
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loaded term like “application,” which carries a fixed meaning under its municipal zoning laws.
Indeed, if the zoning were pre-approved, for what exactly would the landowner be “applying?”
By definition, applications can be accepted or rejected. Why apply for something already
approved?
¶ 52 And beyond that, why require that the “application” be filed with the “Board of
Trustees?” The Board of Trustees is a legislative body. It doesn’t perform ministerial tasks like
accepting documents from the public for filing—certainly not in the context of zoning, at least.
Legislative bodies routinely delegate ministerial functions, like accepting filings, to
administrators, with or without giving that administrator discretion. But they do not perform that
function themselves. Legislative bodies (particularly in the context of zoning) act only by
adopting ordinances. See Hawthorne v. Village of Olympia Fields, 204 Ill. 2d 243, 253 (2003)
(“When corporate authorities elect to retain the power to determine and approve zoning
variances, *** that power can only be exercised through adoption of ordinances.”); Ashley
Libertyville, LLC v. Village of Libertyville, 378 Ill. App. 3d 661, 664–65 (2008) (same).
¶ 53 The Village would have us believe that Ordinance 2856’s reference to the Board of
Trustees “accept[ing]” the application for rezoning was tantamount to the Board of Trustees
conducting the pro forma, ministerial task of receiving a piece of paper over the counter. That
is no kind of function we have ever heard a legislative body perform. We find no such
provision in the Glenview Municipal Code, nor have we been directed to one. And look no
further than what happened in this case: When GW Property Group filed its application for
rezoning on May 24, 2019, it didn’t file it with the Board of Trustees; it filed it with the
director of community development, per the Glenview Municipal Code. See Glenview
Municipal Code, § 98-49(c) (eff. June 15, 2010).
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¶ 54 And we say again: If, in 1988, the Board of Trustees had wanted to transform itself
from a deliberative body, which only acts through the adoption of ordinances passed after a
public hearing, into the equivalent of a file clerk whose sole duty was to stamp “received” on a
document, the Board could have said so with breathtaking ease. That result could have been
achieved had Ordinance 2856 contained language making clear that the normal zoning
procedures would not apply to the Hart Property—something like a provision stating that the
Board of Trustees “shall” accept the application for rezoning, or that the application for
rezoning “shall be deemed approved upon filing.” Anything of that nature would have easily
done the trick.
¶ 55 And last but certainly not least, there is the issue of Ordinance 2856’s “notice”
precondition. Recall that the rezoning was to take effect upon “notice” as well as an
application for rezoning. In advancing its favored interpretation of Ordinance 2856, the Village
has no credible answer for what “notice” was contemplated by the ordinance. It offers two
attempts. First, it says that the filing of the application for rezoning was, itself, “notice.” And
second, it posits that “notice” was effected when, a week after GW Property Group filed its
application for rezoning, the village clerk sent a mailer to the individual trustees on the board
of trustees that gave a “weekly update” on goings-on in the village, including a snippet about
the “Hart property.”
¶ 56 We emphatically reject both suggestions. The filing of an application for rezoning was
not notice to anyone. And a piece of paper handed over a desk from an applicant to a clerk
does not magically waft out to the public at large, nor does some mailer put in the mailboxes of
individual trustees. The Village is trying to argue here that “notice” only had to go to the body
receiving the application—the Board of Trustees—and not the public at large.
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¶ 57 But “notice” is no casual word in the context of zoning matters. It refers to the
constitutional due process rights of property owners to have a say in governmental decisions
made about their own or neighboring properties. See Passalino v. City of Zion, 237 Ill. 2d 118,
124 (2010). Zoning laws tell citizens what they can and cannot do with their property. The idea
that the government can change those rules without first giving notice to the interested public
is antithetical to a free society and incompatible with the principles of due process, as well as
the Illinois and Glenview Municipal Codes. Against that backdrop, and in the absence of a
clear and unambiguous legislative intent to the contrary, we cannot fathom that the
precondition of “notice” in Ordinance 2856, before the application for rezoning could be
accepted by the Board of Trustees, was merely a casual, empty word tossed in by the Board of
Trustees, robbed of its ordinary, constitutional significance.
¶ 58 We thus reject the Village’s interpretation of Ordinance 2856, as we find it to be an
unreasonable, implausible alternative construction.
¶ 59 3
¶ 60 Having said all of that, we do not arrive easily at an interpretation of this ordinance that
robs its rezoning language of any force or effect. It is the odd ordinance, indeed, that provides
for specific rezoning language but then turns around and says, “you can have this rezoning only
if you ask for it later, go through the process, and we say yes.” We are aware of our duty to
avoid interpreting an ordinance in a way that leads to absurd results or that renders blocks of
legislative language superfluous. People v. Hanna, 207 Ill. 2d 486, 498 (2003); Palm v.
Holocker, 2018 IL 123152, ¶ 21.
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¶ 61 But as we have explained, there is no other reasonable way to read this ordinance. The
Village’s alternative interpretation falls far short of reasonable. And in any event, we are not so
sure how “absurd” the result of our interpretation really is.
¶ 62 As explained above, the village of Glenview was competing for the Hart property (and
neighboring property) with the village of Northbrook. In mid-February 1988, the owners of the
disputed property chose Glenview over Northbrook and filed petitions for annexation with
Glenview (it was only because they did so, and did so before Northbrook completed its
involuntary annexation process, that Glenview prevailed). Counsel for the plaintiffs referred to
this as a “rush to annexation,” and plaintiffs have alleged all along that Glenview cut an
improper, quid pro quo deal with the Hart family to coax them into agreeing to annexation.
¶ 63 We have no idea if any such deal was cut, but it is part of the Complaint below, which we
must accept as true at this stage. And it is not beyond the pale to imagine that Glenview was
rushing to put together rezoning language to accommodate the Hart family while, at the same
time, protecting the Village’s interests by reserving the right to weigh in on the rezoning when
and if the owners of the Hart property decided to rezone. After all, villages change all the time.
The idea of rezoning the Hart property might look very different in 1988 than in 2019 or, for that
matter, 2088. Far from absurd, it would have been prudent for the Board of Trustees, in 1988, to
reserve for the appropriate day in the future the question of rezoning the Hart property.
¶ 64 We do not claim to know any of these things as fact. There is little doubt that the Village
worked out that language with the Hart family, but we do not know who demanded what or
exactly how this rezoning language came to be written as it was—poorly drafted, because it was
rushed, or strategically drafted by the Village to signal a receptiveness to rezoning while, at the
same time, maintaining the Village’s ultimate right to reconsider rezoning if and when the
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landowner decided to seek it. Whether by design or the result of poor, clumsy draftsmanship,
Ordinance 2856 unambiguously left the rezoning decision for later, in the hands of the Board of
Trustees, should the landowner choose to apply for it.
¶ 65 These canons of statutory construction, such as avoiding superfluity and absurdity, are
not unlimited. We will avoid an absurd result if a reasonable alternative interpretation exists. We
will try not to interpret an ordinance in a way that renders ineffective a block of language if it
can be done reasonably. But we can think of no reasonable way to interpret this ordinance that
could make the rezoning language legally enforceable, short of literally deleting provisions and
re-writing others and doing great violence to the plain, unambiguous language. There is a limit to
the judicial surgery we will perform, lest this ordinance cease to be the Village’s and become our
own. It is not our job to rescue a circular, contradictory ordinance at all costs, or to give legal
effect to rezoning language that may never have been intended to have legal effect.
¶ 66 To say nothing of the fact that doing so would be terribly unfair to the citizens of
Glenview. Ordinance 2856 has been on the books for 31 years, with language indicating that the
only way a rezoning will occur is if the owner of the Hart property applies for a rezoning, and the
Village approves it—which is the state of affairs for everyone in Glenview at all times. These
residents would justifiably expect that they would have the right to object to any “application for
rezoning” if and when it was ever filed, after the promised public “notice,” to try to stop the
Board of Trustees from “accepting” the application.
¶ 67 Imagine the residents’ surprise if an appellate court suddenly swooped in and announced
that, yes, the citizens of Glenview were reading the ordinance correctly for the last three decades,
but the result seems odd, so the court will try its own hand at legislative draftsmanship, and stay
tuned for a new and improved ordinance with a “better” ending. The bad news is you’ve just lost
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your legal right to object to a shopping center being built next door to your house, but there’s
good news, too: the ordinance now makes sense to three people in black robes.
¶ 68 If there were a reasonable interpretation of Ordinance 2856 that gave effect to its
rezoning language, we would adopt it. There is not. The rezoning language in Ordinance 2856
had no legal force or effect. It reserved the question for another day, pursuant to the formal
process of municipal zoning, from start to finish, prescribed in the Glenview Municipal Code.
¶ 69 C
¶ 70 Having reviewed the ordinance, we have little difficulty concluding that, whatever we
can say of Ordinance 2856, it was no by no means a “decision” regarding rezoning. The
ordinance, at least in terms of rezoning, had no legal force or effect. The ordinance did not deny
a rezoning application (assuming one was even made), nor did it approve a zoning request.
¶ 71 We will not stretch the meaning of the phrase “[a]ny decision *** in regard to any
petition or application for *** rezoning” (65 ILCS 5/11-13-25(a) (West 2018)) to include the
adoption of an ordinance that makes no substantive, even conditional, change to the zoning laws
of the municipality, simply because the word “rezoning” appears in the ordinance.
¶ 72 There are admittedly important reasons for a short limitations period to challenge
municipal zoning decisions. Municipalities need finality, so that they can make zoning decisions
as part of a long-term, comprehensive plan, without having to wonder whether a citizen will file
a challenge five or twenty-five years later. More importantly, landowners need to know that if
they receive a zoning change and act accordingly (building an addition on their house or
constructing a strip mall), they need not look over their shoulder in perpetuity for some lawsuit
that will render all of their time and expense for naught.
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¶ 73 None of those concerns are present here. Nobody tried to do anything of this nature with
the Hart property for 31 years. Nobody has acted in reliance on this (non-)zoning ordinance since
1988, with the possible recent exception of GW Property Group, who apparently purchased the
Hart property with the intention of commercial development. And as we have said, anyone
paying attention to the zoning map and to the zoning ordinances, particularly Ordinance 2856,
would understand that nothing would happen unless the owner of the Hart property submitted to
the ordinary legislative municipal zoning process—a process in which they could play a part by
objecting and presenting evidence and argument at the various hearings before the various
boards and commissions that make up the process.
¶ 74 An ordinance that requires a new application for rezoning before it can take effect, and
which first requires the approval of that new application by the board of trustees, is not a
“decision” to rezone under section 11-13-25 of the Municipal Code. Ordinance 2856 does not
fall within that limitations provision. Whatever else may be true of this lawsuit in our light of our
ruling, we can safely say it is not time-barred. The judgment of the circuit court is reversed.
¶ 75 II
¶ 76 At plaintiffs’ request, we entered an injunction while this case was pending on appeal.
We exercised our broad authority under Illinois Supreme Court 366(a)(5) (eff. Feb. 1, 1994),
which provides that “[i]n all appeals the reviewing court may, in its discretion, and on such terms
as it deems just, *** enter any judgment and make any order that ought to have been given or
made, and make any other and further orders and grant any relief *** that the case may require.”
¶ 77 We balanced all the applicable factors, particularly our initial skepticism of the
applicability of section 11-13-25 to this lawsuit and, perhaps more significantly, the fact that GW
Property Group had begun demolition and construction on the Hart property, including cutting
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down trees, that would irreversibly alter the nature of the property before this appeal could be
decided. We thus issued the following order:
“The permits issued by the Village for demolition, tree removal, and
construction at 2660 Pfingsten Road, Glenview, Illinois 60026 (also known as the
“Hart Property”) are temporarily invalidated and suspended, and of no force and
effect until further order of this Court;
The Village shall take all necessary steps to advise the grantee of these
permits that the permits are temporarily invalidated and suspended, and of no
force and effect until further order of this Court ***.”
¶ 78 In light of our disposition of this appeal, in particular our determination that Ordinance
2856 had no legal effect insofar as a rezoning of the Hart property is concerned, we find
ourselves with far more questions than answers about the validity of the Village’s actions
regarding that property. And it remains true that continued construction and demolition of that
property, before the circuit court can get to the bottom of this, will irreversibly transform the
character of that property.
¶ 79 So our injunction will remain in place for as long as this Court retains jurisdiction over
this cause. Upon issuance of the mandate and remand to the trial court, the trial court shall
impose the same or similar order, invalidating and suspending the permits issued by the Village
until a final judgment is entered.
¶ 80 CONCLUSION
¶ 81 The judgment of the circuit court is reversed. This matter is remanded for further
proceedings. This court’s injunction will remain in effect until the matter is remanded. Upon
remand, the trial court is instructed to impose injunctive relief temporarily invalidating and
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suspending the permits for demolition, tree removal, and construction on the Hart property until
the court enters its final judgment.
¶ 82 Reversed and remanded with instructions.
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No. 1-20-0142
Cite as: Sullivan v. Village of Glenview, 2020 IL App (1st) 200142Decision Under Review: Appeal from the Circuit Court of Cook County, No. 19-CH-
11017; the Hon. Michael T. Mullen and the Hon. Pamela
McClean Meyerson, Judges, presiding.
Attorneys Brendan R. Appel and Selwyn M. Skevin, of Law Offices of
for Brendan R. Appel, LLC, of Northfield, for appellant Nicholas
Appellant: Black.
No brief filed for other appellants.
Attorneys Julie A. Tappendorf, Scott A. Puma, and Kurt S. Asprooth, of
for Ancel Glink, P.C., of Chicago, for appellees.
Appellee:
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