IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL DISTRICT

DU PAGE COUNTY, STATE OF ILLINOIS

Candice Adams
e-filed in the 18th Judicial Circuit Court
RSCK HOLDINGS LLC, an Illinois limited ) DuPage County
liability company, ) ENVELOPE: 24148643
2023MR000371
) FILEDATE: 8/28/2023 4:24 PM
Plaintiff, ) Date Submitted: 8/28/2023 4:24 PM
Date Accepted: 8/29/2023 11:55 AM
) KS
vs. ) No. 2023MR000371
)
CITY OF ELMHURST, an Illinois home rule )
municipal corporation, )
)
Defendant. )

MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO 735 ILCS 5/2-619.1

AND TO STRIKE CERTAIN PARAGRAPHS AND EXHIBITS
PURSUANT TO 735 ILCS 5/2-615

NOW COMES the Defendant, the City of Elmhurst (the “City”), by and through its attorneys Storino,

Ramello & Durkin, and moves to strike and dismiss Plaintiff’s Complaint pursuant to 735 ILCS 5/2-615

and 735 ILCS 5/2-619 of the Illinois Code of Civil Procedure, and to strike certain paragraphs and

exhibits of the Complaint pursuant to 735 ILCS 2/615, and for its Motion, states the following:

I. The Complaint is Improperly Pled and Numerous Paragraphs are Properly Stricken
Pursuant to 735 ILCS 5/2-615

Section 2-615 of the Illinois Code of Civil Procedure (735 ILCS 5/2-615) authorizes the striking of

pleadings or parts thereof because they are “substantially insufficient at law.” 735 ILCS 5/2-615.

Various paragraphs of the Complaint are substantially insufficient at law and must therefore be stricken.

A. Legal Conclusions are Improperly Pled and Insufficient at Law.

Allegations of law or conclusions contained in a complaint are improper. Chandler v. Illinois Central

Railroad Company, 207 Ill. 2d 331 (2003); Chatham Suricore, Ltd. v. Health Care Service Corporation,

356 Ill. App. 3d 795 (1st Dist, 4th Div., 2005); Harris v. Johnson, 218 Ill.App.3d 588 (2d Dist. 1991)

(complaint must contain facts and not mere conclusions; action will be dismissed if complaint contains

conclusions unsupported by facts).

1160319.1
 Paragraphs 2, 4, 8, 9, 11, 12, 13, 33, 34, 41, 42, 43, 44, 45, 46, 51, 60, 61, 63, 67, 71, 81, 82, 83, 87, 89,

90, 91, 92, 93, 94, 96, 97, 98, 99, 105, 107, 108, 112, 113, 114, 115, 125, 126, 127, 128, 129, 130, 131,

132, 133, 134, 139, 140, 141, 153, and 155 all assert legal conclusions and are properly stricken.

By means of example, Paragraph 97 reads as follows:

“97. The Illinois Supreme Court made it unequivocally clear that “in the absence of some
contractual or statutory obligation, no land owned in the State of Illinois has a legal right to the
free flow of light or air across the adjoining land of his neighbor.” People ex rel. Hoogasia v.
Sears, Roebuck & Co., 52 Ill. 2d 301 (1972).”

Paragraph 97 is a legal argument, complete with citation, introduced as a legal conclusion. Nor is it the

only legal argument and citation inappropriately contained in the Complaint. Paragraphs 2, 8, 9, 41, 42,

44, 45, 87, 92, 97, 98, 99, 105, 107, 128, 129, and 130 contain inappropriate citations and legal arguments.

For the foregoing reasons, the City moves that this Court strike Paragraphs 2, 4, 8, 9, 11, 12, 13, 33,

34, 41, 42, 43, 44, 45, 46, 51, 60, 61, 63, 67, 71, 81, 82, 83, 87, 89, 90, 91, 92, 93, 94, 96, 97, 98, 99, 105,

107, 108, 112, 113, 114, 115, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 139, 140, 141, 153, and

155, as they are legal conclusions and substantially insufficient at law.

B. Allegations of the Proceedings, Recommendations and Findings of the Zoning and

Planning Commission and Proceedings of the City Council are Immaterial and Must be
Stricken Pursuant to 735 ILCS 5/2-615

The City moves the Court to strike the immaterial and irrelevant portions of the Complaint,

specifically, Paragraphs 72, 73, 75, 76, 77, 78, 79, 146, 147, 148, 149, 150, 152, and Exhibits 5, 8, 10

and 11 of the Plaintiff’s Complaint pursuant to Section 2-615 of the Illinois Code of Civil Procedure,

because the matters alleged are immaterial and irrelevant to the Plaintiff’s cause of action. These

Paragraphs and Exhibits contain references to the findings and recommendations of the City’s Zoning

and Planning Commission (the “Commission”). Any references to the findings and recommendations of

the Commission are immaterial and irrelevant to the Plaintiff’s cause of action.

Section 11-13-25 of the Illinois Municipal Code states, in relevant part, as follows:

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 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. (65 ILCS 5/11-13-
25).

The City Council is authorized to approve or deny conditional use permits and zoning variances. The

denial of the Plaintiff’s Conditional Use Application was a legislative act of the City Council. (Complaint

¶1). Therefore, this Court’s review of the denial of the Conditional Use Application is de novo. A

legislative act is never subject to administrative review. Ashley Libertyville, LLC. v. Vill. of Libertyville,

378 Ill. App. 3d 661, 666 (2d Dist. 2008).

Section 2-615 of the Illinois Code of Civil Procedure (735 ILCS 5/2-615) expressly authorizes the

striking of immaterial matter from the Plaintiff’s Complaint. See Barber-Colman Co. v. A and K West

Insul. Co., 236 Ill. App. 3d 1065 (5th Dist. 1992). The proceedings, recommendations and findings of

the Commission are immaterial to the Plaintiff’s alleged cause of action. The Commission’s

recommendations were not binding on the City Council and cannot be considered by the Court.

The proceedings of the City Council, other than the fact that the City Council denied the Plaintiff’s

Conditional Use Application, are similarly immaterial to the Plaintiff’s alleged cause of action, and

cannot be considered by the Court. For the Court to consider either the proceedings, recommendations

and findings of the Commission, or the proceedings before the City Council, other than the fact that the

City Council denied the Plaintiff’s Conditional Use Application, considers whether the City Council’s

decision was correct or incorrect and is, therefore, in error.

Consequently, this court is required to strike Paragraphs 72, 73, 75, 76, 77, 78, 79, 146, 147, 148,

149, 150, 152, and Exhibits 5, 8, 10 and 11 of the Plaintiff’s Complaint that make reference to the

proceedings, recommendations and findings of the Commission and the proceedings of the City Council,

other than the fact that the City Council denied the Plaintiff’s Conditional Use Application, because they

are immaterial allegations.

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 C. References to the City’s Planning Documents are Immaterial and are Properly Stricken.

Plaintiff is asking this Court to offer an advisory opinion based in part on the land use policies stated

in the City’s Comprehensive Plan and the 2018 TIF Redevelopment Plan (collectively referred to as the

“Planning Documents”), even though a “court has no right to question legislative policy.” Napleton v.

Village of Hinsdale, 229 Ill. 2d 296, 314 (2008) (quoting Hannifin Corp. v. City of Berwyn, 1 Ill. 2d 28,

35 (1953)). Plaintiff repeatedly refers to the City’s Planning Documents, as “legislative proclamations,”

“legislative declarations,” and “legislative land use policy decisions.” (Complaint ¶¶’s 2, 10, 11, 12, 13,

20, 22, 23, 24, et al.)

However, the Planning Documents are not laws, do not directly regulate or control the use of private

property, and are advisory only. Living Word, 196 Ill. 2d at 25 (a “zoning ordinance is law; the

comprehensive plan is not”); 65 ILCS 5/11-12-6 (a municipal comprehensive plan “shall be advisory and

in and of itself shall not be construed to regulate or control the use of private property in any way, except

as to such part thereof as has been implemented by ordinances duly enacted by the corporate authorities”).

Accordingly, the Planning Documents set forth only recommendations or advice and do not bind the City

or any property owner. See Cedarhurst of Bethalto Real Estate, LLC v. Village of Bethalto, 2018 IL App

(5th) 170309, ¶ 33, (“comprehensive plan is an advisory document and is not mandatory” and imposes

no enforcement “duties” on public officials).

The allegations of the Complaint related to the City’s Planning Documents are irrelevant and

immaterial to the subject of the litigation, as the documents are advisory only and non-binding on any

action taken by the City Council. For this reason, the City moves to strike Paragraphs 2, 10, 11, 12, 13,

20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 52, 53, 54, 55, 56, 57, 58, 59, 61, 69 and Exhibits

3 and 6 pursuant to 735 ILCS 5/2-615.

II. Plaintiff’s Complaint is Inadequately Pled and Must be Dismissed Pursuant to Section
2-615 of the Illinois Code of Civil Procedure.

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 The Plaintiff’s Complaint fails to allege sufficient facts to state a claim upon which relief may be

granted and should be dismissed with prejudice. A Section 2–615 motion to dismiss challenges the legal

sufficiency of a complaint based on defects apparent on its face. Pooh-Bah Enterprises, Inc. v. County of

Cook, 232 Ill. 2d 463, 473 (2009). A motion to dismiss, under Section 2-615 of the Illinois Code of Civil

Procedure, raises the question of whether the Complaint’s allegations, viewed in the light most favorable

to the Plaintiff, are sufficient to state a cause of action upon which relief can be granted. Accordingly, if

the Plaintiff cannot prove a set of facts that would entitle it to relief, then the Complaint should be

dismissed. McCaffrey v. Vill. of Hoffman Estates, 2021 IL App (1st) 200395, ¶ 16.

Plaintiff is required to meet pleading requirements of the Illinois Code of Civil Procedure. This Court

should, therefore, apply the strict fact pleading requirements of the Illinois Code of Civil Procedure in

ruling upon this motion to dismiss. For the purposes of this motion, this Court should not accept

conclusions of fact or law that appear in the Complaint. Jamaica Inn, Inc. v. Daley, 29 Ill.App.3d 770,

776, (1st Dist. 1975). After properly disregarding the legal and factual conclusions, this Court must grant

Defendant’s motion to dismiss pursuant to 735 ILCS 6/2-615.

A. Count I of the Complaint Fails to State a Cause of Action for Declaratory Relief Based
on an “As Applied” Substantive Due Process Challenge to the Denial of a Conditional
Use Permit in City of Elmhurst Ordinance ZO-03-2023 and Must Be Dismissed
Pursuant to 735 ILCS 5/2-615.

The court, in Our Savior Evangelical Lutheran v. Saville, 397 Ill. App. 3d 1003, (2d Dist. 2009)

explained “de novo judicial review as a legislative decision”, does not consider whether the agency

decision was correct or incorrect: it considers the entirely new question of whether the zoning decision

should be upheld under the same standards applied when legislative decisions are challenged. The

appropriate test under this standard is the deferential "rational basis" test, under which a court must

consider whether the challenged enactment is reasonable and not arbitrary. Napleton v. Village of

Hinsdale, 229 Ill. 2d 296 (2008). “[T]he test for determining whether it complies with substantive due

process requirements is the rational basis test, which asks ‘whether the legislation represents a rational
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means to accomplish a proper purpose.” Millennium Maintenance Management, Inc., 384 Ill. App. 3d at

645 (2d Dist. 2008) citing Messenger v. Edgar, 157 Ill.2d 162, 176 (1993).

To demonstrate a viable equal protection claim in the land use context where there is no fundamental

right or suspect class, the Plaintiff must demonstrate governmental action wholly impossible to relate to

legitimate governmental objectives. LaSalle National Bank v. City of Highland Park, 344 Ill. App. 3d

259, 281, (2nd Dist. 2003). Under the rational basis test, the court may hypothesize reasons for

legislation, even if the reasoning advanced did not motivate the legislative action. People ex rel. Lumpkin

v. Cassidy, 184 Ill. 2d 117, 124 (1998). A law will be upheld if there is "any conceivable basis for

finding a rational relationship." Id. (emphasis added.)

Plaintiff has alleviated the need for speculation in this regard. As stated in Plaintiff’s Complaint,

reasoning behind the City Council’s denial of the Conditional Use Permit Application is spelled out in

the Ordinance. (Complaint ¶ 95). In Paragraph 95 of the Complaint, Plaintiff states in pertinent part:

95. The following five reasons were contained within the text of the Ordinance denying the
requested conditional use for height…

a. The negative impact on light, air and the shadows cast by the building.
b. The insufficient residential density of the Project.
c. The need to protect the existing scale of York Street structures.
d. The failure to create public spaces as part of the Project.
e. The failure to balance the appearance of height and mass of the building.

Paragraph 95 paraphrases the findings of fact adopted by the City Council in Ordinance ZO-03-2023

(the “Ordinance”), and should be stricken, as the plain language of the Ordinance is attached as Exhibit

12 to the Complaint. An exhibit attached to a complaint becomes part of the pleading for every purpose,

including the decision on a motion to dismiss and, when the exhibit contradicts the allegations in the

complaint, the exhibit controls. Gagnon v. Schickel, 2012 IL App (1st) 120645, ¶ 18. The plain language

of the Ordinance states:

A. Findings for a Conditional Use Permit for the construction of a nine (9) story building
with a height of one hundred nine feet and ten inches (109’10”) in the CBC District,
in excess of the permitted six (6) stories or seventy-seven feet (77’), for the
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 development of the Project on the Subject Property (the “Building Height Conditional
Use”):
 That the establishment, maintenance, or operation of the Conditional Use will not be
detrimental to, or endanger the public health, safety, morals, comfort, or general
welfare. The majority of the Commission agreed that the proposal will be detrimental
to, or endanger the public health, safety, morals, comfort, or general welfare. The
Commission considered sunlight, shadows and building massing when evaluating the
impact on adjacent properties. The Commission discussed the incremental impact of
the three (3) additional stories compared to a six (6) story by-right building and the
majority of the Commission agreed that there was additional impact to nearby
residential uses as well as additional shadow cast onto York Street.
 That the Conditional Use will not be injurious to the use and enjoyment of other
property in the immediate vicinity for the purposes already permitted, nor substantially
diminish and impair property values within the neighborhood. The majority of the
Commission agreed that the Conditional Use will be injurious to the use and
enjoyment of other property in the immediate vicinity for the purposes already
permitted in the district. The Commission discussed the height and its impact on
neighboring properties and York Street with respect to sunlight and shadows. It was
noted that this structure will be the tallest building in the immediate vicinity and out
of scale compared to other structures along York Street.
 That the establishment of the Conditional Use will not impede the normal and orderly
development and improvement of the surrounding property for uses permitted in the
district. The majority of the Commission agreed that the establishment of the
Conditional Use will impede the normal and orderly development and improvement
of the surrounding property for uses permitted in the district. The Commission
discussed the property and its size. It was noted that the Downtown Plan identifies
the property as part of a larger catalyst site. Though it is not required that the catalyst
site be developed all as one project, being a smaller site makes it difficult to
accomplish certain design elements and spaces accessible to the public as well as
balance and height and massing along York Street.
 That adequate utilities, access roads, drainage and/or necessary facilities have been or
are being provided. The Commission agreed that the Applicant has provided evidence
that adequate utilities, access roads, drainage and/or necessary facilities have been
or are being provided. It was noted that the proposal will be required to meet all
applicable stormwater management requirements.
 That adequate measures have been or will be taken to provide ingress and egress so
designed as to minimize traffic congestion in the public streets. The Commission
agreed that the Applicant has shown that adequate measures have been or will be
taken to provide ingress and egress so designed as to minimize traffic congestion in
the public streets. The use of the alley was discussed and it was noted that the alley
is 20 feet in width. There may be circumstances where delivery and garbage trucks
are located in the alley, however, evidence was not submitted indicating that this is a
persistent issue or a public nuisance. It was also noted that the alley is serving its
purpose and these issues would be relevant for any new development on the site.
 That the proposed Conditional Use is not contrary to the objectives of the current
Comprehensive Plan for the City of Elmhurst. The majority of the Commission agreed
that the proposal is not compatible with the Comprehensive Plan because the building

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 is too tall. The Subject Property is located in the Core per the 2016 Downtown Plan.
The plan states that the tallest new developments in the City should occur in the Core
and that the City should allow six (6) story buildings by right and up to ten (10) story
buildings with a conditional use permit based upon parcel consolidation, market
conditions and context and alignment with other City objectives and regulations. The
Commission also discussed the density of the Project and did not believe that the large
unit size meets the intent of increasing residential density downtown. The Commission
did not find that the request for additional height above six (6) stories was currently
justified in enhancing the character of the Downtown.
 That the Conditional Use shall, in all other respects, conform to the applicable
regulations of the district in which it is located, except as such regulations may, in
each instance, be modified pursuant to the recommendations of the Commission. The
Commission agreed that the Conditional Use shall, in all other respects, conform to
the applicable regulations of the district in which it is located.

Even if the Plaintiff’s mischaracterizations of the findings of fact are accepted, Paragraph 95 alleges

rational bases for the denial of the Conditional Use for height. The Complaint further notes “gains to the

public welfare of the people of Elmhurst achieved by denial of the conditional use for height.” (Complaint

¶ 4). In Paragraph 98, Plaintiff acknowledges that building restrictions or bulk regulations (such as the

height limitations on the Subject Property) are imposed to protect the public welfare. (Id at ¶98). Each

or any of these identified factors would provide the necessary “rational basis” for denial of the

Conditional Use Permit.

The first alleged basis for denial of the Conditional Use Permit cited by the Plaintiff is “The negative

impact on light, air and the shadows cast by the building.” Plaintiff erroneously cites People ex rel.

Hoogasian v. Sears, Rosenuck & Co., 52 Ill. 2d 301 (1972) for the contention that the City cannot base

its zoning decision on these factors. The very first stated purpose of municipal zoning authority set forth

in the Illinois Municipal Code is “To the end that adequate light, pure air, and safety from fire and

other dangers may be secured...” 65 ILCS 5/11-13-1 (emphasis added.)

The second alleged basis for denial of the Conditional Use Permit in the Ordinance is “The

insufficient residential density of the Project.” Plaintiff’s attempt to mischaracterize this basis as

indicating that more floors and more height is equivalent to more density. A reading of the submitted

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materials and the commentary of the City Council however indicates that the issue identified primarily

dealt with the size of the individual units in the Project rather than the height of the structure.

Height is not equivalent to density. The luxury units proposed by the Plaintiff offers too few

residential units per floor. As noted at the Plan Commission meeting on January 10, 2023 by

Commissioner Snyder, “it could easily be argued that a much lower building could house more units with

a lower average square foot than the proposed development and bring greater density and, therefore,

greater benefits to our downtown.” (Complaint Exhibit 10, 69-70). Density as considered here has more

to do with total number of residential units proposed on a per floor basis, or total floor area ratio (FAR),

than limitations on the total number of units based on height. It is, therefore, a “rational basis” for denial

of the Conditional Use.

The third alleged basis for denial of the Conditional Use Permit in the Ordinance is “The need to

protect the existing scale of York Street structures.” As noted by the Plaintiff in Paragraph 120 of the

Complaint, “None of the adjacent properties along York Street exceed two stories...” (Complaint ¶120).

Specifically, the number of stories of adjacent properties is as follows:

174 N. York Street 1 Story 209 N. York Street (City Hall) 2 Stories
176 N. York Street 1 Story 206 N. York Steet 2 Stories
180 N. York Street 1 Story 210 N. York Street 1 Story
188 N. York Street 1 Story 212 N. York Street 1 Story
194 N. York Street 2 Stories 216 N. York Street 1 Story

As allowed by the Ordinance, the Project would be allowed to increase to the height of the existing

structures at the site to more than twice the number of stories of any other structure on the block. This

includes the Elmhurst City Hall, which is directly across the street from the Project. It cannot be argued

that the “existing scale of York Street structures” would not be negatively impacted by the inclusion of

an even-larger 109-foot structure in the middle of the Street.

Similarly, the fifth alleged basis for denial of the Conditional Use Permit identified in the Ordinance

is “The failure to balance the appearance of height and mass of the building.” This criterion is suggested

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in the 2016 Downtown Plan which states, “To ensure an attractive design aesthetic that is consistent with

the desired character of Downtown Elmhurst, building massing should be encouraged to be consistent

from ground up and built to the property line, where applicable.” (Complaint ¶119, Exhibit 3 at 73). The

lack of balance in the massing of the site was of the site was rationally analyzed in the Ordinance which

stated:

“It was noted that the Downtown Plan identifies the property as part of a larger catalyst
site. Though it is not required that the catalyst site be developed all as one project, being
a smaller site makes it difficult to accomplish certain design elements and spaces
accessible to the public as well as balance and height and massing along York Street.”

The Ordinance specified that it was not strictly the height of the structure, but the relative massing of

other structures on York Street which were considered.

The final alleged basis for denial of the Conditional Use Permit in the Ordinance is “The failure to

create public spaces as part of the Project.” While not an express requirement in the City Code of

Ordinance, one of the goals of the Zoning Code, as applied to Planned Unit Development, like the Project,

is to encourage developers “To preserve natural features and provide open space areas and recreation

areas in excess of that required under existing zoning regulations.” Elmhurst Municipal Code

22.31(a)(4). This does not constitute a taking, as alleged by Plaintiff in Paragraph 127, as no “exchange”

is taking place. Rather the existence of public open spaces is one of a number of factors considered by

the City Council in the context of PUD’s and Conditional Uses. Further, it is one of the stated goals in

the Planning Documents is to “Balance densities with publicly accessible open spaces and plazas to

enhance the pedestrian experience.” (Complaint ¶119, Exhibit 3 at 70) The City of Elmhurst is a

municipal corporation and is not the “public.” However, the City can rationally support the public

welfare by encouraging open spaces and plazas.

Plaintiff misinterprets the City’s Zoning Code to conflate the ideas of “permitted uses” and

“conditional uses.” The argument made by the Plaintiff appears to be that “conditional uses” are always

“permitted uses.” This is patently false. A conditional use, also referred to as a special use, is permitted
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within a zoning district by the controlling zoning ordinance so long as the use meets certain criteria or

conditions. City of Chicago Heights v. Living Word Outreach Full Gospel Church & Ministries,

Inc., 196 Ill. 2d 1, 16 (2001). The reason that building heights between 77 and 125 feet are “conditional

uses” as opposed to “permitted uses”, is that they are not appropriate for all proposed uses in the district.

Plaintiff did not have a right to a conditional use to exceed the height limitations of the Village Zoning

Code. See S. Side Move of God Church v. Zoning Bd. of Appeals of City of Chicago, 47 Ill. App. 3d 723,

727 (1st Dist. 1977) (Special use zoning ordinance does not allocate any particular zones for the

establishment of these unique uses as a matter of right, the local zoning authority is vested with broad

powers in determining the suitability of a given site for the proposed special use). See also, River Park,

Inc. v. City of Highland Park, 23 F.3d 164, 166 (7th Cir. 1994) (zoning classifications are not the measure

of a property interest, but are legal restrictions on the use of property).

Because Plaintiff has set forth in its own Complaint factors sufficient to show a “rational basis” for

the City’s denial of the Conditional Use Application, Plaintiff has failed to state a cause of action alleging

a violation of substantive due process “as applied” to the Subject Property, and the Complaint must be

dismissed pursuant to 735 ILCS 5/2-615.

B. Count II of the Complaint Fails to State a Cause of Action for Violation of Plaintiff’s
Procedural Due Process Rights and Must be Dismissed Pursuant to 735 ILCS 5/2-615

In a substantive due process claim, the Plaintiff alleges the ordinance was an arbitrary exercise of

government power that deprived it of some right. People v. Pollard, 2016 IL App (5th) 130514, ¶¶ 31-

32. In this case, Plaintiff alleges the zoning ordinances and approval procedures of the City of Elmhurst

interfered with its right to the use and enjoyment of its property during the approval process and,

therefore, presents an “as-applied” procedural due process claim.

However, nothing in the Complaint indicates an “as-applied challenge.” Plaintiff's claims of general

harm are not legally recognized injuries in an as-applied challenge, because they do not deal with the

specific circumstances of the particular Plaintiff. See Napleton v. Village of Hinsdale, 229 Ill. 2d at
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306. Rather than take issue with the PUD approval process itself, Plaintiff strictly objects to the zoning

classification requiring properties exceeding 75 feet of frontage on York Street to go through the

application process for a Conditional Use for PUD. This is a facial challenge to the classification

language in the ordinance, as opposed to the purported “as applied” challenge. An ordinance is

constitutionally invalid on its face only if there exists no set of circumstances where the ordinance has a

possible constitutionally permissible application. Tomm's Redemption Inc., v. Hamer, at ¶ 2.

For an as-applied challenge, Plaintiff must plead particular harms different than those faced by the

general public and make the constitutional inquiry relevant to their particular circumstances. See Garner,

8 Ill. 2d at 158-59, and Napleton, 229 Ill. 2d at 306. Plaintiff claimed general harms as injuries to a

legally recognized interest. However, its purported “injuries” are related solely to its compliance with

the process for PUD described in the City’s Zoning Ordinance, a conditional use application for PUD

which was subsequently granted.

No malfeasance in application of the Village Zoning Code or violation of any due process rights of

the Plaintiff during the year-long application and hearing process are alleged by the Plaintiff at any point

in the Complaint. Because Plaintiff has alleged no facts which would support an “as-applied” violation

of Plaintiff’s due process rights, the Complaint must be dismissed pursuant to 735 ILCS 5/2-615.

C. Count III of the Complaint Fails to State a Cause of Action for Regulatory Taking and
Must be Dismissed Pursuant to 735 ILCS 5/2-615.

In order to state a cause of action for a regulatory taking, Plaintiff must allege facts which indicate

that a regulation denies all economically beneficial or productive use of land. Murr v. Wisconsin, 137 S.

Ct. 1933 (2017). In the instant case, Plaintiff has not alleged any facts which indicate that it involuntarily

participated in the PUD and Conditional Use Application. Plaintiff is not entitled to a special use at the

site. S. Side Move of God Church at 727. Plaintiff was never required to apply for the Conditional Use

for height in excess of 77 feet, which was denied. It was a business decision made by Plaintiff. Further

Plaintiff’s property is composed of two separate lots (Complaint Exhibit 1), which could have been
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developed separately without any zoning relief whatsoever. The Application for Conditional Use for a

PUD on the consolidated lot was solely the decision of the Plaintiff.

The application for Conditional Use for PUD filed by the Plaintiff was approved to allow for

development of the Property at height consistent with the City Zoning Code. Complaint, Exhibit 12.

With approval of the PUD, and denial of the Conditional Use for height, Plaintiff states that the sales

value of the Project would between $8.8 million and $13 million, as allowed. Complaint ¶3. Mere

diminution in the value of property, however serious, is insufficient to demonstrate a taking. Strauss v.

City of Chicago, 2021 IL App (1st) 191977, P57, citing Home Builders Ass'n of Greater Chicago v. City

of Chicago, 213 F. Supp. 3d 1019, 1029 (N.D. Ill. 2016). Many regulations are not takings even when

they prohibit the owner from making the most value-producing use of the property. Id.

After the denial of the Conditional Use and approval of the PUD application, Plaintiff could have

developed the property and sold the units for a value in excess of $8.8 million. See Tim Thompson, Inc.

v. Village of Hinsdale, 247 Ill. App. 3d 863, 887 (1993) (claim properly dismissed where the plaintiff

failed to allege any substantial deprivation of an economically viable use, in that the plaintiff "remained

free to develop the entire parcel subject only to the newly enacted ordinance").

Further, the United States Supreme Court has found that good-faith planning activities are not a

taking. Agins v. City of Tiburon, 447 U.S. 255, 263 n.9, (1980). Mere fluctuations in value during the

process of governmental decision making, absent extraordinary delay, are incidents of ownership and do

not so burden an owner's property so as to amount to a taking. Id. There is no allegation in the Complaint

that any planning or zoning activity of the City of Elmhurst was in bad faith, nor is there any allegation

of extraordinary delay.

Because Plaintiff has alleged facts that demonstrate (1) that the City granted its Application for

Conditional Use for PUD (Complaint ¶149) (2) that the City’s action did not deprive them of all

economically beneficial or productive use of land (Complaint ¶3), and (3) because it has not alleged that

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any action of the City Council was made in bad faith, Plaintiff has failed to state a cause of action for

regulatory taking. Count III must therefore be dismissed pursuant to 735 ILCS 5/2-615.

III. Count II and Count III of the Plaintiff’s Complaint are Barred by the Statute of
Limitations and are Properly Dismissed Pursuant to 735 ILCS 5/2-619(a)(5)

The allegations of Count II are solely based on the requirement that the Plaintiff submit an application

for Conditional Use for PUD. (Complaint ¶¶137, 139, 140, 141, 142, 143, 144, 145, 152, 155.) This

requirement is triggered by the fact that the Project has frontage along York Street in excess of 75 feet,

as required by the City Zoning Code. (Complaint ¶64). The City Zoning Code was amended to include

this requirement in 2019 by passage of Ordinance No. ZO-14-2019 referred to in the Complaint as the

PUD Regulations (Complaint ¶136, Exhibit 7).

Rather than an as-applied challenge to the denial of a conditional use, Counts II and III are a “facial”

challenge to the PUD Regulations. (Complaint ¶34, referring to the City classification as a “facially

arbitrary classification”). The PUD Regulations were adopted by the City of Elmhurst as an amendment

to the Zoning Code on May 6, 2019. (Complaint Exhibit 7). The Illinois Municipal Code 65 ILCS 5/11-

13-25(a) states in pertinent part:

(a) Any decision by the corporate authorities of any municipality, home rule or non-home
rule, in regard to any … amendment to a zoning ordinance shall be subject to de novo
judicial review as a legislative decision…. Any action seeking the judicial review of
such a decision shall be commenced not later than 90 days after the date of the
decision. (65 ILCS 5/11-13-25(a), emphasis added.)

Because the PUD Regulations were adopted on May 6, 2019, the statute of limitations for filing a

“facial” challenge to the PUD Regulations expired on August 14, 2019. Plaintiff filed its Complaint on

June 15, 2023. Counts II and III of the Complaint are, therefore, barred by the statute of limitations and

must be dismissed, with prejudice, pursuant to 735 ILCS 5/2-619(a)(5).

IV. The City of Elmhurst is Immune from Prosecution Under the Plaintiff’s Complaint
Pursuant to 745 ILCS 10/2-103 and 745 ILCS 10/2-104 and the Complaint is Properly
Dismissed Pursuant to 735 ILCS 5/2-619(a)(9).

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 “A local public entity is not liable for an injury caused by adopting or failing to adopt an enactment

or by failing to enforce any law.” 745 ILCS 10/1-203. “A local public entity is not liable for an injury

caused… by the failure or refusal to issue, deny, suspend or revoke, any permit, ... approval, order or

similar authorization where the entity or its employee is authorized by enactment to determine whether

or not such authorization should be issued, denied, suspended or revoked.” 745 ILCS 10/2-104.

The corporate authorities of the City are authorized by their home rule authority to adopt and enforce

zoning regulations. Home-rule units of local government derive their power to zone for the public health,

safety, and welfare from Article VII, §6(a), of the Illinois Constitution, which provides that unless

otherwise specified in that Article, a home rule unit “may exercise any power and perform any function

pertaining to its government and affairs.” Municipalities generally are authorized under 65 ILCS 5/11-

30-1 to “provide for the classification of special uses. Such uses may include but are not limited to public

and quasi-public uses affected with the public interest, uses which may have a unique, special or unusual

impact upon the use or enjoyment of neighboring property, and planned developments.”

The City enacted zoning and building regulations under their municipal code that allow the City to

determine whether or not conditional uses, special uses, planned developments, variations, permits, or

text amendments should be allowed, issued, or approved. This Complaint is solely based upon the City’s

enforcement of its Ordinances. No procedural malfeasance or bad faith is alleged on the part of the

Defendant City. The Village is therefore immune from liability in this case under 745 ILCS 10/2-103

and 745 ILCS 10/2-104, and this Complaint is properly dismissed pursuant to 735 ILCS 5/2-619(a)(9).

V. Conclusion

WHEREFORE, the Defendant, the CITY OF ELMHURST, prays that the Court grant its motion and

enter an order dismissing the Plaintiff’s Complaint, with prejudice, pursuant to 735 ILCS 5/2-615 and

735 ILCS 5/2-619, striking certain Paragraphs and Exhibits, as described herein pursuant to 735 ILCS

5/2-615, and for such further relief as this Court deems necessary and just.

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Andrew Y. Acker By:__Andrew Y. Acker___
aacker@srd-law.com Attorney for Defendant
Matthew G. Holmes The City of Elmhurst
mholmes@srd-law.com
STORINO, RAMELLO & DURKIN
9501 West Devon Avenue, Suite 800
Rosemont, Illinois 60018
(847) 318-9500
DuPage County Attorney No. 7620

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