Hanna v. City of Chicago

Citation887 N.E.2d 856
Decision Date25 April 2008
Docket NumberNo. 1-06-3348.,1-06-3348.
PartiesAlbert C. HANNA, Plaintiff-Appellant, v. The CITY OF CHICAGO, a Municipal Corporation, Defendant-Appellee.
CourtUnited States Appellate Court of Illinois

Presiding Justice McBRIDE delivered the opinion of the court:

In 1999, Albert C. Hanna sued the City of Chicago, complaining that real property he owned in the Lincoln Central neighborhood was unconstitutionally downzoned from R5 to SD-19 by the city council's amendment of the municipal zoning ordinance. Although the circuit court dismissed Hanna's first amended complaint for failure to state a claim and failure to give notice to all property owners within 250 feet of the property, we reversed the ruling in part and remanded the cause in mid 2002 for further proceedings. Hanna v. City of Chicago, 331 Ill.App.3d 295, 264 Ill.Dec. 609, 771 N.E.2d 13 (2002), appeal denied, 201 Ill.2d 566, 271 Ill.Dec. 925, 786 N.E.2d 183 (2002). On remand, Hanna twice stated in written opposition to motions filed by the City that the "ultimate" and "effective" relief he was seeking was reversion to the R5 category, or its current equivalent, RM5. In 2006, the city council rezoned Hanna's neighborhood to RM5 and the circuit court dismissed his action as moot. Hanna argues his action is not moot or should be addressed under the public interest exception to the mootness doctrine.

The following facts come from our prior opinion and the record currently on appeal. The Lincoln Central neighborhood is north of downtown Chicago in the 43rd aldermanic ward, and is generally bounded on the west by Halstead Street, on the northeast by Lincoln Avenue, on the southeast by the former Ogden Avenue, and on the south by North Avenue. There are at least 3,500 dwelling units within its boundaries. Hanna's property consists of four lots located at 1742-50 North Mohawk Street. He purchased the lots in 1971 and erected a five-story brick apartment building containing 26 units. At the time, the neighborhood was zoned R5, with no building height restrictions, and the minimum lot area (MLA) per dwelling was 400 square feet with a maximum floor area ratio (FAR) of 2.2 (allowing construction of buildings roughly 2.2 times the size of the lot).

The zoning remained R5 until 1998, when the city council amended the municipal zoning ordinance with an "overlay district" applicable to Lincoln Central called the "Lincoln Central Special District" or SD-19, which enhanced the restrictions on new construction in the neighborhood. Under SD-19, the building height was limited to 43 feet, the MLA was increased to 1,000 feet, and the FAR was reduced to 1.7. In practical terms, the rezoning reduced the size and bulk of new buildings and decreased the density of new dwelling units. According to Hanna, the 1998 rezoning was done at the urging of various property owners who formed a neighborhood association known as the Lincoln Central Association.1 On June 4, 1999 Hanna began the current lawsuit, alleging that the rezoning to SD-19 violated his rights under the Illinois Constitution. Hanna indicated he did not intend to redevelop his property, but the rezoning rendered his Mohawk Street apartment building a nonconforming structure and deprived him of the highest and best possible use of his property. Hanna's lawsuit had been pending for five years when the City did away with SD-19, first by adopting on May 27, 2004, a new Chicago Zoning Ordinance which abolished all "R" zoning categories in Chicago in favor of new categories (Chicago Municipal Code § 17-1-1406-A (eff. August 1, 2004)), and later that year, on November 3, 2004, by recategorizing the neighborhood as RM4.5. Hanna, however, amended his complaint, for the seventh time, in order to add claims against the 2004 rezoning to RM4.5. As we stated earlier, when the City filed motions for partial summary judgment and dismissal of Hanna's seventh amended complaint, he responded that the "effective" and "ultimate" relief he had been seeking was reversion to R5 or its current equivalent RM5. More specifically, in a response brief filed January 28, 2005, to the City's motion for partial summary judgment, Hanna stated:

"[I]f the Court finds both [RM4.5] and SD19 invalid, the zoning will revert back to its preSD19 zoning of R5 (or its current equivalent of RM5), by operation of law.

This is the ultimate relief Hanna has been seeking all along, and is thus `effective' for him." (Emphasis in original.)

Hanna repeated these statements in the response brief he filed May 27, 2005, to the City's motion to dismiss and strike certain counts in Hanna's then-current pleading.

In late 2005, the alderman of the 43rd Ward sought to change the neighborhood's zoning from RM4.5 to RM5, which would increase the maximum building height to 45 feet and the FAR to 2.0. After notification letters had been sent out by the City and a community meeting was convened and attended by approximately 80 residents, the alderman sent property owners a second notification, which included more detail and a request for further community input regarding the rezoning. The alderman indicated the Lincoln Central neighborhood association "worked very hard" to help establish the SD-19 zoning and that the City was spending considerable public resources defending the classification in litigation with an unnamed plaintiff. Six years of litigation had been "protracted and expensive" and a trial would add to those costs and possibly result in "an unwelcome decision if the plaintiff were to prevail." The City's Department of Planning and Development and Department of Law were recommending that the litigation be resolved expeditiously by rezoning to RM5, and the alderman had begrudgingly agreed, even though "[m]any people in the neighborhood would like to see more restrictive not less restrictive zoning regulations." According to notes from the December 13, 2005, meeting of the zoning committee of the Lincoln Central Association, the neighborhood organization supported the proposed rezoning, with the caveat that if "the lawsuit continue[d] in spite of this upzoning, [the group] would request that zoning be returned to RM4.5." On January 11, 2006, the city council passed the RM5 zoning amendment, which became effective on February 8, 2006.

Hanna, nevertheless, filed an eighth amended complaint, adding claims against the 2006 rezoning and restating his claims against the 1998 and 2004 changes. In 3 of the 11 counts, he sought judicial declarations that one or all of the rezonings violated his constitutional rights to substantive and procedural due process and equal protection under the law and constituted impermissible spot zoning, and in the remaining eight counts, he sought to permanently enjoin enforcement of the rezonings. The City responded with a motion to dismiss the action, arguing Hanna's claims had been mooted by the latest rezoning and that the courts were unable to grant him any further relief. The City cited Hanna's statements regarding his "ultimate" and "effective" relief, characterized these statements as judicial admissions, and argued that Hanna had obtained what he had been seeking. The City further argued that in any event, the court could not grant Hanna any additional relief because the original R5 zoning category had been abolished by the City's adoption of the new Chicago Zoning Ordinance, which Hanna was not challenging,2 and no existing zoning category would grant rights equivalent to the old R5 classification. In response, Hanna conceded, "The City has, technically, `mooted' Hanna's personal claim for a rezoning to R-5, or RM-5," but he contended his statements identifying RM5 as his "ultimate relief" were mere legal conclusions instead of judicial admissions, and that his action was not moot because the City had not met its burden of "an absolute clear showing that the wrongful conduct alleged [could] not be expected to recur." Hanna also contended the 2006 rezoning amounted to "legislative sl[e]ight of hand" aimed solely at ending his lawsuit, which he argued was an improper, unconstitutional motivation. In the alternative, Hanna argued his action should be addressed under the public interest exception to mootness, in order to give future guidance to City officials regarding the constitutionality of the municipality's zoning policies and practices. The circuit court granted the City's motion to dismiss on October 17, 2006, ruling that the statements regarding Hanna's relief were binding judicial admissions, that the 2006 rezoning effectively granted Hanna all his requested relief and was not done for an improper purpose, that the 2006 rezoning mooted the action because the City was not asserting the constitutionality of the 1998 and 2004 rezoning or its right to enforce those rezonings in the future, and that the action did not warrant application of the public interest exception to the mootness doctrine.

The granting of a motion to dismiss pursuant to section 2-619(a)(9) of the Code of Civil Procedure is reviewed de novo. Sadler v. Creekmur, 354 Ill.App.3d 1029, 1039, 290 Ill.Dec. 289, 821 N.E.2d 340 (2004); 735 ILCS 5/2-619(a)(9) (West 2006). Dismissal pursuant to section 2-619(a)(9) should be entered when the plaintiff's claim is barred by "affirmative matter avoiding the legal effect of or defeating the claim" (735 ILCS 5/2-619(a)(9) (West 2006)), such as when a defense is presented that "negates an alleged cause of action completely." ChiCorp, Inc. v. Bower, 336 Ill.App.3d 132, 136, 270 Ill.Dec. 209, 782 N.E.2d 768 (2002). When the issues have ceased to exist...

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