2015 IL App (1st) 140570
Ill. App. Ct.2015Background
- Plaintiffs challenged Chicago's rezoning of 53rd Street between Kenwood and Kimbark from retail to a Planned Development, arguing it would create an oversized, sun-blocking, low-sun neighborhood impact.
- Lake Park Associates, owner of the rezoned parcel, intervened and moved to dismiss for presuit-notice defects under 65 ILCS 5/11-13-7, 11-13-8.
- Trial court dismissed for lack of presuit notice and did not reach additional due-process arguments; the appellate court reviews de novo.
- Municipal Code presuit notice requires sending written notice to all property owners within 250 feet of the rezoning location, with PINs and addresses, and within 30 days before filing suit.
- Plaintiffs mailed about 125 notices but omitted 26 nearby owners, 19 tax-exempt properties, and failed to search records of the recorder of deeds (and thus omitted other essential owner information); relied on a single common address rather than the location for notice.
- Court held strict compliance with presuit-notice provisions required; substantial compliance or “bona fide effort” do not apply here; omissions prejudiced unseen property owners and the suit was properly dismissed with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mandatory presuit notice must be strict? | Scott argues substantial compliance suffices. | City/Lake Park contend strict compliance required. | Strict compliance required. |
| Can substantial compliance excuse notice failures? | Behl-type substantial-compliance may apply. | No, substantial compliance not adequate here. | No substantial compliance; strict notice required. |
| Was failure to notify Dorchester Ave owners and to search recorder of deeds fatal? | Omissions were bona fide or not fully controllable. | Omissions violated 11-13-7/8. | Yes, fatal omissions warrant dismissal. |
| Must notices include recorder of deeds search and authentic tax records? | Only tax records viewed sufficient. | Both recorder of deeds and authentic tax records required. | Yes, both searches required; not done. |
Key Cases Cited
- City Suites, Inc. v. La Salle National Bank, 325 Ill. App. 3d 780 (2001) (presuit notice mandatory without exception; no partial compliance allowed)
- Figiel v. Chicago Plan Comm’n, 408 Ill. App. 3d 223 (2011) (notice requirements strict; declaratory-judgment framing matters)
- Behl v. Gingerich, 396 Ill. App. 3d 1078 (2009) (two-step test for substantial vs. strict compliance; purpose and prejudice)
- Puss N Boots, Inc. v. Mayor’s License Comm’n, 232 Ill. App. 3d 984 (1992) (shall generally indicates mandatory compliance)
- JPMorgan Chase Bank, N.A. v. Earth Foods, Inc., 238 Ill. 2d 455 (2010) (statutory interpretation; plain language controls)
- Bishop v. Pollution Control Bd., 235 Ill. App. 3d 925 (1992) (searching authentic tax records includes clerk/assessor records)
- Andrews v. County of Madison, 54 Ill. App. 3d 343 (1977) (notice for public proceedings not equivalent to presuit zoning notice; substantial-notice analysis fails here)
- Hanna v. City of Chicago, 331 Ill. App. 3d 295 (2002) (distinguishable; not relaxing presuit-notice requirement)
- Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325 (2002) (subject-matter jurisdiction; proper grounds for dismissal when notice fails)
- Ultsch v. Illinois Municipal Retirement Fund, 226 Ill. 2d 169 (2007) (jurisdiction and standard of review clarified)
- Krilich v. American National Bank & Trust Co. of Chicago, 334 Ill. App. 3d 563 (2002) (statutory interpretation and de novo review on 2-619 motions)