MICHAEL SCOTT, JAMES DES JARDINS, MARK GRAHAM, and LORRAINE PETTIGREW, Plaintiffs-Appellants, v. THE CITY OF CHICAGO, Defendant-Appellee (Lake Park Associates, Inc., Intervenor-Defendant-Appellee).
No. 1-14-0570
Appellate Court of Illinois, First District, Fifth Division
March 13, 2015
2015 IL App (1st) 140570
Hon. Kathleen M. Pantle, Judge, presiding.
Appeal from the Circuit Court of Cook County, No. 13-CH-19928; Affirmed.
Robert T. O‘Donnell and Adam M. Kingsley, both of O‘Donnell Law Firm, Ltd., of Libertyville, for appellants.
Stephen R. Patton, Corporation Counsel, of Chicago (Benna Ruth Solomon, Myriam Zreczny Kasper, and Stephen G. Collins, Assistant Corporation Counsel, of counsel), for appellee City of Chicago.
Thomas F. Geselbracht, Jesse W. Dodson, and Eric M. Roberts, all of DLA Piper LLP, of Chicago, for appellee Lake Park Associates, Inc.
JUSTICE McBRIDE delivered the judgment of the court, with opinion
Presiding Justice Palmer concurred in the judgment and opinion.
Justice Gordon specially concurred, with opinion.
OPINION
¶ 1 Chicagoans Michael Scott, James Des Jardins, and Mark Graham, who own residential properties on South Kenwood
¶ 2
“In municipalities of 500,000 or more population [(e.g., Chicago)], when any zoning ordinance, rule or regulation is sought to be declared invalid by means of a declaratory judgment proceeding, not more than 30 days before filing suit for a declaratory judgment the person filing such suit shall serve written notice in the form and manner and to all property owners as is required of applicants for variation in Section 11-13-7, and shall furnish to the clerk of the court in which the declaratory judgment suit is filed, and at the time of filing such suit, the list of property owners, the written certificate and such other information as is required in Section 11-13-7 to be furnished to the board of appeals by an
applicant for variation. A property owner entitled to notice who shows that his property will be substantially affected by the outcome of the declaratory judgment proceeding may enter his appearance in the proceeding, and if he does so he shall have the rights of a party. The property owner shall not, however, need to prove any specific, special, or unique damages to himself or his property or any adverse effect upon his property from the declaratory judgment proceeding.” 65 ILCS 5/11-13-8 (West 2012) .
¶ 3 Thus,
“[I]n municipalities of 500,000 or more population, an applicant for variation or special use shall, not more than 30 days before filing an application for variation or special use with the board of appeals, serve written notice, either in person or by registered mail, return receipt requested, on the owners, as recorded in the office of the recorder of deeds or the registrar of titles of the county in which the property is located and as appears from the authentic tax records of such county, of all property within 250 feet in each direction of the location for which the variation or special use is requested; provided, the number of feet occupied by all public roads, streets, alleys and other public ways shall be excluded in computing the 250 feet requirement. *** If, after a bona fide effort to determine [the] address [of] the owner of the property on which the notice is served cannot be found at his or her last known address, or the mailed notice is returned because the owner cannot be found at the last known address, the notice requirements of this sub-section shall be deemed satisfied.”
65 ILCS 5/11-13-7 (West 2012) .
¶ 4 The plaintiffs mailed approximately 125 prefiling notices, but did not attempt to send notice to at least 26 other property owners whose land is within 250 feet of Lake Park‘s rezoned property, excluding public roads, streets, and alleys. The plaintiffs did not send notices to the owners of properties that are on the east side of Dorchester Avenue, of which there are 7, and they made no attempt to notify owners of any tax exempt properties, of which there are 19.
¶ 5 When the plaintiffs filed suit, they were statutorily required to also file a list of all property owners given notice of the intent to sue. See
¶ 6 The plaintiffs had compiled their list with the assistance of a Chicago firm, Property Insight, L.L.C. According to this firm, when it conducts searches for presuit notices, the “subject property is identified and provided to us by our customers.” In this instance, the plaintiffs’ attorney requested a search of all properties “within 250 feet of 1330 E. 53rd Street.” Accordingly, the search originated with the PIN for that specific street address and extended outward, 250 feet in each direction from the boundaries of that PIN, excluding public roads, streets, and alleys. The problem with using one common street address as the basis for the record search in this instance is that the subject property consists of three different parcels, and, thus, there are three different addressees and PINs. Therefore, the search did not extend far enough east, to Dorchester Avenue. The other 19 omissions occurred because the search was performed only on the computerized records of the Cook County treasurer. When a Cook County property is exempt from taxation, the treasurer‘s records
¶ 7 Lake Park argued in its motion and then amended motion to dismiss that either type of omission (the omission of the Dorchester Avenue property owners and the omission of the tax exempt property owners) was sufficient grounds for dismissal, because notice is a mandatory prerequisite to bringing suit. After full briefing and oral argument, the trial court pointed out that there was a third defect in the plaintiffs’ property search, in that there was no indication that they searched the records of the Cook County recorder of deeds.
¶ 8 The plaintiffs contend that the dismissal of their complaint for failure to comply with the notice requirement has been an undue and unnecessary sanction which the appellate court should reject. Previously, in City Suites, this court found that “the language and mandate” of
¶ 9 The phrase “bona fide” appears in the final sentence of
¶ 10 The plaintiffs’ “substantial compliance” argument is based on authority indicating
¶ 11 A
¶ 12 Applying these principles to the facts at hand, we find that the municipal statutes are not satisfied by the plaintiffs’ efforts at presuit notice. We reach this conclusion in part because the plaintiffs’ search of the “authentic tax records” in order to give notice to other property owners was incomplete and we are not persuaded that the legislature condoned less than strict compliance with the notice statutes. Precedent indicates that searching the county‘s “authentic tax records” in order to give presuit notice includes searching not only the records of the Cook County treasurer, but also the records of the Cook County clerk and the Cook County assessor. Bishop v. Pollution Control Board, 235 Ill. App. 3d 925, 932, 601 N.E.2d 310, 315 (1992). All three offices play a role in the record keeping and collection of taxes. Bishop, 235 Ill. App. 3d at 932, 601 N.E.2d at 315. Although this precedent concerned notice given in Montgomery County rather than Cook County, the decision was based on Illinois statutes that apply here as well. See Bishop, 235 Ill. App. 3d at 932, 601 N.E.2d at 315. The trial court expressly relied on this precedent in granting Lake Park‘s motion
¶ 13 The plaintiffs misconstrue the statute when they argue
¶ 14 Moreover, we are not persuaded that their failure to send notice to the Dorchester Avenue owners is insignificant or attributable to City of Chicago or Lake Park. The plaintiffs erred by using only the common address, 1330 East 53rd Street, as the basis for their search of nearby properties, excluding the Dorchester Avenue properties. They cannot blame their inadequate search parameters on the municipality or Lake Park. The legislature did not use the term “common address” or the term “common street address” in
¶ 15 Furthermore, in the municipal zoning context, a common address alone is not sufficient identification of a property. The Chicago Zoning Ordinance defines zoning boundaries in terms of streets, alleys, boundary lines, and property lines instead of by common addresses.
“[The ordinance amends] Title 17 of the Chicago Municipal Code by changing all of the B1-2 Neighborhood Shopping District symbols and B3-2 Community Shopping District symbols as shown on Map Number 12-D in the area generally bounded by: the alley next north of and parallel to East 53rd Street; a line extending south beginning at a point 53 feet west of South Kenwood Avenue and ending at a point 101.8 feet west of South Kenwood Avenue; East 53rd Street; and a line beginning at a point 422.72 feet west of South Kenwood Avenue extending north to the alley next north of and parallel to East 53rd Street, to those of a B3-5 Community Shopping District. Section 2 Title 17 of the Municipal Code of Chicago, the Chicago Zoning Ordinance, is hereby amended by changing all of the B3-5 Community Shopping District symbols as shown on Map Number 12-D in the area described in Section 1 of this ordinance to the designation of a Planned Development, subject to the use and bulk regulations set forth in the Plan of Development attached hereto and made a part thereof.”
(This language can be found in the ordinance pamphlet printed and distributed by the city clerk on June 5, 2013.) The city council‘s records not only recite the boundaries of the subject property for zoning purposes, but also include an “Existing Land-Use Map” that graphically depicts the subject property and its neighboring parcels which are specified to be in use as residential, commercial/office, institutional, parking garage, or surface parking. Following that there is a “Planned Development Boundary and Property Line Map” which graphically depicts the precise measurements of the boundaries of the area being rezoned and the square footage of the rezoned area. In addition to these specific descriptions and depictions, the city council‘s materials include the common address that the plaintiffs claim to have relied on when conducting their 250-foot boundary search.
¶ 16 There are similar details in the application for rezoning which the plaintiffs contend was another reason they were justified in limiting their property search to the single PIN for 1330 East 53rd Street.
¶ 17 For these reasons, we find (1) that the point for determining the properties to be given presuit notice was the “location” of the subject property to be rezoned, not its common address or addresses, and (2) that the plaintiffs’ use of the common address, 1330 East 53rd Street, as the basis for their search cannot be attributed to the municipality or the owner of the rezoned property. The plaintiffs did not follow the Municipal Code. The plaintiffs’ search parameters were wrong, through no fault of the other litigants.
¶ 18 Moreover, the suggestion that we should let the suit go forward for two of the three rezoned PINs because the plaintiffs “achieved full compliance” with the notice statute for those PINs is contrary to the record and the plainly worded statute requiring notice “within 250 feet in each direction of the [rezoned] location.” (Emphasis added.)
¶ 19 Our next consideration is whether “substantial compliance” with the presuit notice requirements is acceptable in this instance. Both of the municipal statutes use the word “shall” in defining the plaintiffs’ presuit obligations. See
¶ 20 As we outlined earlier, when determining whether substantial compliance or strict compliance is expected, we are to take a two-step analysis. Behl, 396 Ill. App. 3d at 1086, 920 N.E.2d at 671. First, we are to consider whether the purpose of the statute is achieved without strict compliance. Behl, 396 Ill. App. 3d at 1086, 920 N.E.2d at 671. Second, we are to determine “whether defendant suffered any prejudice from plaintiff‘s failure to strictly comply.” Behl, 396 Ill. App. 3d at 1086, 920 N.E.2d at 671. The plaintiffs cannot pass the first step. The purpose of a statute is found by looking at the statutory language and giving those words their plain and ordinary meaning. Behl, 396 Ill. App. 3d at 1087, 920 N.E.2d at 671; JPMorgan, 238 Ill. 2d at 461, 939 N.E.2d at 490 (stating the general principle of statutory construction that the plain language of the statute, when it is clear and unambiguous, is applied as written). It is clear from this particular statutory language that the legislature intended for all property owners within 250 feet of the location at issue to be notified of a challenge to the zoning ordinance. The statute itself explains the reason for this requirement-a property owner entitled to notice may appear in the suit with all the rights of a party.
¶ 21 Furthermore, the plaintiffs disregarded a significant number of relevant owners when they mailed notices to approximately 125 property owners and ignored at least 26 others. Plaintiffs contrast their efforts to send some notices with the fact that no notices were sent in two other cases interpreting
¶ 22 After the appellate briefs were filed, we granted the plaintiffs’ motion for leave to cite additional authority. The plaintiffs contend Andrews indicates that a statute requiring notice to a set of property owners can be met by substantial, rather than strict, compliance with the terms of the statute. Andrews v. County of Madison, 54 Ill. App. 3d 343, 369 N.E.2d 532 (1977).
¶ 23 The plaintiffs fail to explain how the operative facts in Andrews are analogous to this case. There is no similarity. The controversy in Andrews was whether adequate notice had been given of a public hearing in 1976 at which citizens could voice their opinions on whether Madison County should install sanitary sewers to serve more than 7,000 registered voters and improve portions of three different townships. Andrews, 54 Ill. App. 3d at 355, 369 N.E.2d at 541. The proposed project was not only massive, it was costly, and would require the issuance of $5 million in general obligation bonds. Andrews, 54 Ill. App. 3d at 346, 369 N.E.2d at 535. Many people at the public hearing expressed support for the project while many others objected. Andrews, 54 Ill. App. 3d at 346, 369 N.E.2d at 535. The most frequent objection was to the additional tax levy. Andrews, 54 Ill. App. 3d at 346, 369 N.E.2d at 535. After the public hearing, members of the Madison County board voted to approve the project and to levy additional taxes to pay for its construction and maintenance. Andrews, 54 Ill. App. 3d at 346, 369 N.E.2d at 535.
¶ 24 The appellate court characterized the public hearing as an in rem taxation proceeding and remarked on the well-settled proposition that taxation does not require
¶ 25 Pursuant to the statute at issue there, Madison County officials had published notice of the hearing in a local newspaper. Andrews, 54 Ill. App. 3d at 346, 369 N.E.2d at 535. The editors of the various local newspapers also printed numerous articles about the proposed sewer project. Andrews, 54 Ill. App. 3d at 356, 369 N.E.2d at 542. In addition, the statute required Madison County to mail individual notices to property owners of record, which the county officials had done. Andrews, 54 Ill. App. 3d at 346, 369 N.E.2d at 535. However, a subsequent search showed that the county‘s mailing list was incomplete and a group of property owners sought to enjoin the project and the resulting tax burden in part because of the deficient mailing. Andrews, 54 Ill. App. 3d at 355, 369 N.E.2d at 542.
¶ 26 The appellate court found, however, that the notice required by statute and actually given by county officials was “much more thorough” than the due process standard for in rem taxation. Andrews, 54 Ill. App. 3d at 356, 369 N.E.2d at 542. The court was confident that, in combination, the published notice and published stories meant that “substantially all affected persons were aware of this opportunity to be heard in objection to the [proposed sewer project and tax increase].” Andrews, 54 Ill. App. 3d at 357, 369 N.E.2d at 542. Therefore, although the county‘s efforts were imperfect, the notice given “was sufficient to pass due process muster.” Andrews, 54 Ill. App. 3d at 356, 369 N.E.2d at 542.
¶ 27 We are not reviewing a tax case and thus Andrews’ analysis and the taxation precedent that was so helpful in that case is not applicable here. Furthermore, the circumstances that occurred in Andrews were not repeated here. Mailing was the only method of presuit notice utilized by the current plaintiffs, rather than the combination of public notice, media coverage, and individual letters which publicized the Madison County board meeting. It was the combination of the published notice and the “numerous news articles about the project” which led the Andrews court to find that “substantially all affected persons were aware of this opportunity to be heard.” Andrews, 54 Ill. App. 3d at 357, 369 N.E.2d at 542. Plaintiffs do not suggest that they published notice in a local newspaper of their intent to file this suit. Moreover, the media coverage that occurred, if any occurred, when a private property owner sought approval to demolish a Chicago gas station and parking lot to make way for one large, mixed-use building was undoubtedly less than the extensive news coverage that occurred while Madison County officials were contemplating digging up the streets and increasing property taxes for 6,920 property owners. The plaintiffs’ reliance on Andrews is not persuasive.
¶ 28 The plaintiffs emphasize that none of the Chicago property owners who were notified by mail chose to intervene in this proceeding and the plaintiffs suggest this lack of participation is a practical indication that substantial compliance with the notice requirement was sufficient. We disagree. There is no way to determine whether the excluded property owners would have decided to participate in the suit if they had known about it.
¶ 30 For these reasons, we find that strict compliance with the presuit notice provision is required and that this is not an instance when substantial compliance is adequate.
¶ 31 Finally, the plaintiffs have not addressed the additional notice requirement the trial court pointed out had been overlooked by all the litigants.
¶ 32 In short, the record shows that the plaintiffs made multiple errors as they tried to comply with the presuit notice requirement and that their failures cannot be excused or attributed to the actions of the City of Chicago or Lake Park. The plaintiffs’ failure to strictly comply with the presuit notice requirement warranted the dismissal of their complaint with prejudice.
¶ 33 In their reply brief and during oral arguments, the plaintiffs contended their “sincere but imperfect efforts” to provide presuit notice should not result in the “ultimate penalty” of the dismissal of their suit. They cite Hanna v. City of Chicago, 331 Ill. App. 3d 295, 308-10, 771 N.E.2d 13, 24-25 (2002), for the proposition that Illinois courts are lenient with notice failures and allow for “make-up notice.” We reject this argument for any one of the following three reasons.
¶ 34 First, the plaintiffs fail to cite any portion of the record that indicates they presented this argument in the trial court and are now seeking our review of the judge‘s ruling. Arguments presented for the first time on appeal are waived. Robidoux v. Oliphant, 201 Ill. 2d 324, 344, 775 N.E.2d 987, 998-99 (2002) (issues not raised in the circuit court cannot be raised for the first time on appeal).
¶ 35 Second, this argument was not presented in the plaintiffs’ opening brief. Arguments which are omitted from an opening brief are waived.
¶ 37 Lake Park also sought dismissal of the complaint pursuant to
¶ 38 Finally, the City of Chicago filed a separate brief in support of the trial court‘s ruling and argues, as an alternative ground for affirmance, that the plaintiffs did not adequately plead a due process claim. The City of Chicago contends the plaintiffs did not allege injury to any protectable interest, in that there is no legal right to the free flow of light or air from adjoining land, no entitlement to street parking, and no guarantee of increasing property values. The City of Chicago also contends the plaintiffs’ facial challenge to the rezoning did not state a claim because the decision withstands a rational basis review. The trial court did not reach these arguments, but a reviewing court may uphold the decision of the trial court on any grounds which are supported by the record. Ultsch v. Illinois Municipal Retirement Fund, 226 Ill. 2d 169, 192, 874 N.E.2d 1, 14-15 (2007). However, we find it unnecessary to reach these additional arguments because of our conclusions above that the complaint was properly dismissed based on the plaintiffs’ failure to strictly comply with the presuit notice requirements.
¶ 39 The dismissal of the plaintiffs’ lawsuit is affirmed.
¶ 40 Affirmed.
¶ 41 JUSTICE GORDON, specially concurring.