IN THE CIRCUIT COURT OF THE 18TH JUDICIAL CIRCUIT

DU PAGE COUNTY, ILLINOIS

STACIE WHARTON, et al., )

)
Plaintiffs, )
v. ) Case No. 2023 MR 000716
)
THE CITY OF DARIEN, et al., ) Honorable Judge Bryan S. Chapman
)
Defendants. )

DEFENDANT CITY OF DARIEN’S

2-619.1 MOTION TO DISMISS

Defendant, City of Darien (“City”), by and though its attorneys John B. Murphey, Odelson,

Murphey, Frazier & McGrath, Ltd., moves to dismiss this complaint in its entirety for the reasons

set forth hereinbelow. In support of this motion, the City states:

Introductory Paragraphs

1. On November 6, 2023, the City adopted Ordinance No. O-20-23, granting a special

use permit allowing the conversion of a closed CVS store to a Gerber Collision and Glass facility

at 8325 Lemont Road, Darien (the “Subject Property”). Cmplt. ¶ 2, Ex. A.

2. Plaintiffs are 53 individuals claiming an ownership or leasehold interest in a total

of 33 properties located anywhere from 528 feet from the Subject Property to a one-half mile

distant from said Subject Property. Plaintiffs are identified in paragraphs 8-40 of the complaint.

Although distances from the Subject Property are identified, the complaint fails to identify any of

these Plaintiffs by their address.

3. The complaint is divided into three Courts:

Count I. Count I seeks a declaratory judgment that the Ordinance is arbitrary and

unreasonable under the factors described in LaSalle National Bank of Chicago v. County of Cook,
12 Ill.2d 41, 45 N.E.2d 65 (1957) and Sinclair Pipe Line Company v. Village of Richton Park, 19

Ill.2d 370, 167 N.E.2d 406 (1960).

Count II. Count II seeks a declaratory judgment that the Ordinance is “not

supported by the evidence,” because Defendant Storebuild “failed to produce sufficient evidence

for each of the special use criteria outlined” in the City’s special use zoning ordinance described

hereinbelow. Cmplt. ¶ 105.

Count III. Count III seeks a declaratory judgment invalidating the Ordinance

based on “failure to abide by Darien zoning ordinance and Illinois law.” Paragraph 109 details

instances where Plaintiffs allege the City “failed to abide by its own zoning ordinance” and certain

sections of the Illinois Municipal Code, 65 ILCS 5/11-13-1.1 and 11-13-11.

Count IV. Count IV seeks preliminary and permanent injunctive relief based

on the Count I through Count III allegations.

Basis For Motion To Dismiss

2-619(a)(9).

4. The complaint contains no allegations which would confer standing on the

Plaintiffs.

5. For ease of reference, rather than identifying all of the Plaintiffs by name, this part

of the motion will at times identify Plaintiffs by how they are identified by Paragraph number in

the complaint.

6. This aspect of the City’s motion is brought pursuant to Section 2-619(a)(9), which

allows dismissal if a claim “asserted against defendant is barred by other affirmative matter

avoiding the legal effect of or defeating the claim.”

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 7. “Lack of standing is an affirmative matter that is properly raised under Section 2-

619(a)(9). Glisson v. City of Marion, 188 Ill.2d 211, 220, 242 Ill. Dec. 79 (1999). A court “may

not decide a cause of action on the merits prior to determining whether the Plaintiff has standing

to bring the claim.” Petta v. Christie Business Holding Co., P.C., 2023 IL App. (5th) 220742 at

¶ 12, 2023 WL 8227755.

8. In the context of a zoning challenge by one party to a municipal zoning grant given

to a third party, Illinois has long followed the Garner rule. Garner v. County of DuPage, 8 Ill.2d

155, 158-159, 133 Ill.2d 303 (1956) (In order “for a party to have standing in a court of equity to

complain about the use of another’s property, he has the burden of proving that he has suffered a

special damage by reason of such use which differs from that suffered by the general public”);

Swain v. Winnebago County, 111 Ill.App.2d 458, 463-4, 250 N.E.2d 439 (2nd Dist. 1969) (“The

Plaintiffs are not the owners of the real estate which was rezoned. To have standing to sue under

the circumstances, they have the burden of alleging facts which show that they have suffered

special damage as a result of the ordinance which differs from that suffered by the general public”).

9. The subparagraphs B (i) through B(iv) of Paragraphs 106-138 appear to be

Plaintiffs’ attempts to make the requisite allegations of fact necessary to demonstrate special

damages. The allegations are virtually identical. Focusing on the Wharton Plaintiffs’ Paragraph

106(B) allegations:

A. Subparagraph (i) alleges only that Gerber “will be storing and repairing damaged

motor vehicles in close proximity to the Wharton Property.” There are no allegations of fact

relative to how this storage amounts to any sort of damage, much less the requisite special damage.

B. Subparagraph (ii) alleges that Gerber’s operations will “be emitting pollution into

the immediate vicinity in the form of noise and volatile organic compounds into the air, soil and

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water.” There are no factual allegations as to what Plaintiffs mean by “pollution.” A violation of

EPA regulations? A violation of City regulations? These are inadequate allegations of any

damages. Beyond those pleading deficiencies, any claimed issues with pollution, even if

adequately pled, are matters experienced by the public at large.

C. Subparagraph (iii) alleges that Defendant Gerber’s business operation “will result

in downhill run off in close proximity to the Wharton Property.” There are no facts alleged which

explain what “downhill run off” even means in the context of the redevelopment of a fully

developed commercial property, and, beyond that, there are no allegations of fact as to how this

alleged downhill run off (What is the definition of “run off”? Rain water? Sanitary sewage? Into

sewers? Over land? Through culverts?) amounts to special damages.

D. Subparagraph (iv) alleges vaguely that there are “safety concerns with truck traffic

used to tow disabled vehicles, haul away parts, and other scrap materials and remove hazardous

waste from the Subject Property . . .” There are no allegations of fact as to what the “concerns”

are, and, beyond that, general concerns about truck traffic are concerns shared by the general public

and cannot conceivably constitute the requisite special damage under Garner.

10. That the claimed damages are at best general in nature and not the requisite special

damages is perhaps best illustrated by an examination of complaint Paragraphs 13 and 111.

Paragraph 13 Plaintiffs Boyle live “approximately one-half mile from the Subject Property.”

Paragraph 111(B) then alleges that Boyles will suffer the same “special damages” as the other

Plaintiffs who live closer to the property. How can somebody living one-half mile from this

redevelopment site possibly be injured by “run off?” If somebody living one-half mile is claimed

to be at risk of suffering injury from “pollution” from the conversion of a drug store building into

a car repair facility, then those impacts are shared by the general public. Allegations of this nature

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demonstrate that what purports to be special damages are really general-public damages under

Garner.

11. Accordingly, the complaint should be dismissed in its entirety because these

Plaintiffs have failed to adequately allege standing under Garner to challenge the City’s decision

granting zoning relief to a third party.

Count II (2-619.1)

Count II Fails To State A Cause Of Action Because The Sole Remedy Provided By Illinois
Law Is A De Novo Challenge To The Legislative Act Embodied In The Ordinance

12. Plaintiffs’ claim that the Ordinance “is not supported by the evidence” fails as a

matter of law because (a) it ignores the governing statute; and (b) attempts to shift the burden of

proof away from Plaintiffs, contrary to the governing statute.

13. 65 ILCS 5/11-13-25 governs this action:

§ 11-13-25. Actions subject to de novo review; due process.

(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.

(b) The principles of substantive and procedural due process apply

at all stages of the decision-making and review of all zoning
decisions.

14. Because this is a de novo challenge to a legislative act, this Court may not interfere

with this exercise of municipal discretion “unless the legislative action of the municipality is

shown to be arbitrary, capricious, or unrelated to the public health, safety, and morals.” LaSalle,

12 Ill.2d at 46.

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 15. Because zoning ordinances like other legislative acts “are presumptively valid,” a

“plaintiff who challenges a municipality’s decision must rebut this presumption with clear and

convincing evidence.” Id. The Ordinance will be upheld unless Plaintiffs can prove by clear and

convincing evidence that the Ordinance does not bear “a rational relationship to a legitimate

legislative purpose.” Napleton v. Village of Hinsdale, 229 Ill.2d 296, 317, 891 N.E.2d 839 (2008).

16. Because the exclusive remedy to challenge the Ordinance is de novo judicial review

under 11-13-25, Count II’s allegations that the Ordinance was enacted “against the weight of the

evidence” presented in the legislative forum (Cmplt. ¶ 107) are irrelevant. This lawsuit proceeds

de novo with Plaintiffs’ burden as set forth above.

17. Accordingly, Count II fails to state a cause of action and should be dismissed in its

entirety.

Count III (2-615)

Count III Fails To State A Cause Of Action Because (i) A Municipality’s Failure
To Observe Its Own Ordinances In Relation To A Special Use Permit Application Does Not
Give Rise To A Cause Of Action; and (ii) As A Home Rule Unit, Darien Is Not
Subject To Any Of The Limitations Or Procedural Requirements Found In
The Illinois Municipal Code’s Zoning Enabling Act, And Instead Has Plenary Power Over
Its Zoning Decisions Subject Only To Constitutional Restraints

18. Count III seeks a declaratory judgment invalidating the Ordinance based on claimed

failures on the part of the City to comply either with provisions of the Darien zoning ordinance

relating to special uses and two sections of the Illinois zoning statute, 65 ILCS 5/11-13-1.1 and 11-

13-11. For the Court’s convenience, the applicable Ordinance and statutory provisions are set forth

on Exhibits 1-3.

19. Complaint Paragraph 109, subparagraphs A, B, C, E, F, G reference particular

subsections of Section 5A-2-2-6 of the Darien Zoning Ordinance. Subparagraph G and I also

reference 65 ILCS 5/11-13-1.1 and 11-13-11. Subparagraph D and H contain no citations.

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 20. The allegations of Paragraph 109, subparagraphs A, B, C, E, and F, fail to state a

cause of action because Illinois law is clear that allegations that a municipality “violated its own

ordinances . . . when it issued the special use permit . . . do not give rise to a cause of action.”

CyrusOne, LLC. v. City of Aurora, 2019 WL 1112199 (N.D. Ill. 2019); and Landmarks

Preservation Council of Illinois v. City of Chicago, 125 Ill.2d 164, 179-80, 125 Ill. Dec. 830 (1988)

(Rejecting the proposition that a court may “overrule decisions of a legislative body based on

alleged failure to follow requirements imposed by that body itself”). Instead, to state a valid cause

of action, a plaintiff “must adequately allege that the deprivation of its property interest is arbitrary,

unreasonable, or capricious.” Id.

21. The allegations of Paragraph 109, subparagraphs G and I, fail to state a cause of

action in light of the City’s home rule status.

22. It is undisputed that the City is a home rule unit. Cmplt. ¶ 41; Ex. A. Ordinance.

As such, the City is not bound by any of the provisions in the Zoning Enabling Act, such as the

ones cited in the Complaint. Thompson v. Cook County Zoning Board of Appeals, 96 Ill.App.3d

561, 569, 51 Ill. Dec. 777 (1st Dist. 1981). The City is not limited by the statute cited by Plaintiffs,

because it is “a home rule unit and therefore [has] plenary power over zoning decisions.” Dunlap

v. Village of Schaumburg, 394 Ill.App.3d 629, 645-6, 333 Ill. Dec. 819 (1st Dist. 2009);

Commonwealth Association of Commonwealth Plaza v. City of Chicago, 399 Ill.App.3d 32, 41,

338 Ill. Dec. 819 (1st Dist. 2010) (emphasizing that “home rule municipalities under the 1970

Constitution have full authority to zone, rather than being constrained by state statute, provided

that their zoning does not violate constitutional standards”).

23. This principle was extensively summarized by the Dunlap court. In explaining why

a home rule unit is not subject to an analogous provision of the Zoning Enabling Act (65 ILCS

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5/11-13-5 dealing with a statutory requirement of showing a “hardship” as a pre-condition to the

granting of a variance), the Court held:

Dunlap argues that under the plain language of this Section,

the Village is not authorized to grant a variance to the Wehmeiers
absent of showing of hardship. The Village, however, contends that
it is not subject to the strictures of this Section because the Village
is a home rule unit.

The zoning power of home rule units of government stems

from the broad grant of power in Article VII, Section 6(a) of the
Illinois Constitution of 1970 . . . [U]nder the grant of power
contained in the 1970 Constitution, a home rule unit rule has the
power to enact zoning ordinances of its choice as long as those
ordinances comply with constitutional requirements.

The Village, in enacting the variance at issue in an exercise of its

home rule power, is bound to conform to constitutional standards...
but, under the 1970 Constitution, it is not bound to follow the pre-
1970 provisions of the Zoning Enabling Act such as the hardship
provision of Section 11-13-5 to the extent they conflict with the
variance.

333 Ill. Dec. 831-833 [cleaned-up]. The same principle applies to those provisions of the zoning

statute dealing with special use.

24. The City’s exercise of home rule authority was made clear by Section 4 of the

Ordinance. See Ex. A., Section 4 (“It is the intent of the corporate authorities of the City of Darien

that to the extent of the terms of this Ordinance should be inconsistent with any non-preemptive

state law, that this Ordinance shall supercede state law in that regard within its jurisdiction”).

25. In simplest terms, any limitation or procedural requirement set forth in 65 ILCS

5/11-13-1.1 or 11-13-11 does not bind the City, and therefore, allegations regarding non-

compliance with any of these requirements fail to state a cause of action.

26. Finally, Paragraph 109, subparagraphs D and H, are not supported by any authority

whatsoever and fail to state a cause of action.

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 27. Accordingly, Count III should be dismissed.

Count IV

Count IV Should Be Dismissed To The Extent Counts I-III Are Dismissed

28. Count IV incorporates by reference the substantive allegations of Counts I-III and

then alleges an entitlement to preliminary and permanent injunctive relief preventing the

development from proceeding. ¶ 139-143.

29. To the extent Counts I through III are dismissed, the corresponding aspects of Count

IV should be dismissed.

Conclusion

A. The Complaint should be dismissed in its entirety under 2-619(9) with prejudice

based on Plaintiffs’ lack of standing.

B. Counts II and III should be dismissed in their entirety with prejudice pursuant to

Section 2-619.1.

The City further requests leave to submit a Memorandum of Law in support of this Motion

in accordance with a schedule agreeable with the Court and the parties.

Respectfully submitted,

CITY OF DARIEN, Defendant

By: /s/ John B. Murphey

John B. Murphey, Its Attorney
John B. Murphey
Odelson, Murphey, Frazier & McGrath, Ltd.
Atty No. 62753
3318 West 95th Street
Evergreen Park, Illinois 60805
Tel: 708-424-5678
jmurphey@omfmlaw.com

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 EXHIBIT 1

SECTION 5A-2-2-6 OF THE DARIEN CITY CODE

5A-2-2-6: SPECIAL USES:

(A) Authority: The development and execution of this Title is based upon the division of the
community into districts within which the use of land and buildings, and the bulk and location
of buildings and structures, in relation to the land are substantially uniform. It is recognized,
however, that there are certain uses which, because of their unique characteristics, cannot be
properly classified in any particular district or districts, without consideration, in each case, of
the impact of those uses upon neighboring land and of the public need for the particular use in
the particular location. Such special uses fall into three (3) categories:
1. Uses publicly operated or traditionally affected with a public interest.
2. Uses entirely private in character, but of such an unusual nature that their operation
may give rise to unique problems with respect to their impact upon neighboring property or
public facilities.
3. Planned unit developments pursuant to Chapter 3 of this Title.
An application for a special use shall be acted upon by the City Council only after a public
hearing has been held by the Plan Commission after due notice by publication, as provided by
applicable Illinois Compiled Statutes and after receiving the recommendation of the Planning
and Development Committee.
(B) Initiation: Any person being the owner, lessee, or contract purchaser of the subject
property may file an application to use such land for one or more of the special uses provided
for in this Title in the zoning district in which the land is located.
(C) Application: No application for a special use shall be submitted to the City until a
preapplication meeting has been held with the Zoning Enforcement Officer and the applicant
has addressed the concerns of the Zoning Enforcement Officer, as advised by the appropriate
staff members and other governmental agencies. An application for a special use, except for
planned unit developments as controlled by Chapter 3 of this Title, shall be filed with the
Zoning Enforcement Officer with a copy to the City Clerk, on such forms and requiring such
information as the Zoning Enforcement Officer may from time to time prescribe. The Zoning
Enforcement Officer shall review the application for completeness. No application shall be
accepted by the City for processing until all the required documentation has been submitted by
the applicant. If the application is deemed incomplete, the Zoning Enforcement Officer shall
notify the applicant in writing, with a copy to the City Clerk specifying the information and
documentation that must be submitted by the applicant to complete the application. The
Zoning Enforcement Officer shall notify the applicant that the City has accepted the application
and shall forthwith, process and forward the application to the Plan Commission for review and

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public hearing, with a copy of such application forwarded to the City Council at its next regular
meeting for their information. Any changes in the application made by the applicant, whether
initiated by the applicant or at the request of the City, shall be submitted to the Plan
Commission via the Zoning Enforcement Officer no later than two (2) weeks prior to the
scheduled date of the public hearing. Any change not submitted by that time may be accepted
by the Plan Commission at their discretion by majority vote of the Plan Commission or may be
recommended for continuance.
(D) Action By The Plan Commission:
1. The Plan Commission shall hold a public hearing within forty five (45) days from the date
the application was deemed to be completed by the Zoning Enforcement Officer. Notice of such
hearing shall be published at least once in a newspaper of general circulation in the City, not
more than thirty (30) nor less than fifteen (15) days before the date of such hearing. A public
hearing once commenced may be continued from time to time with the approval of the
applicant. Where the date, place, and time of the next hearing is announced at the close of the
last hearing, no further notice of the next hearing need be made; otherwise, notice of the date,
place and time of the new hearing must be made in the manner provided by law. Where the
applicant objects to a continuance, only one further continuance of not more than fourteen
(14) days shall be allowed. The Plan Commission shall, within sixty (60) days after the close of
the public hearing, transmit a written report giving its findings and recommendations to the
Planning and Development Committee and City Council. If no report is filed within this time
period, and no time extension is granted by the City Council, the application shall be deemed to
have received a recommendation of denial. Provided, however, that if at any time after the
commencement of the public hearing the City Council has required by motion that the Plan
Commission close the public hearing and present a written report containing findings and
recommendations no later than sixty (60) days from the date of the motion, the Plan
Commission shall be so required, and failure to file such report within the sixty (60) days shall
be deemed a recommendation to deny the application. The Plan Commission may recommend
that the City Council impose such conditions and restrictions upon the premises as may be
necessary to comply with the standards established in this Section and the objectives of this
Title and other ordinances of the City.
2. The Plan Commission may request that the Zoning Enforcement Officer prepare an
evaluation of the proposed special use in regard to its impact on official planning policies as
they exist from time to time, and on existing conditions of neighboring properties or districts.
Said evaluation shall be submitted by the Zoning Enforcement Officer within thirty (30) days of
Plan Commission request.
(E) Action By The Planning And Development Committee: Upon receipt of the
recommendation of the Plan Commission, the Planning and Development Committee may
recommend that the City Council impose such conditions and restrictions upon the premises as
may be necessary to comply with the standards established in this Section and the objectives of
this Title, and other ordinances of the City.

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 (F) Action By City Council:
1. The City Council, by motion, may require the close of the public hearing and the
presentation of a report containing findings and recommendations no later than forty five (45)
days after the date of the motion. In the event that no report is filed with the City Council
within that forty five (45) days, the application shall be considered as having received a
recommendation of denial.
2. The City Council, after receipt of the report of the Plan Commission and Planning and
Development Committee or, if no report is received, after the time period allowed for filing
such report has elapsed, and without any further public hearing, may approve or deny the
special use, or resubmit the application to the Plan Commission for further consideration. The
Plan Commission shall, within the time period stipulated by the City Council in its
communication or, if no time period is so stipulated, no later than forty five (45) days from the
date of the referral by the City Council, transmit a written report to the Planning and
Development Committee and City Council. If no report is received by the City Council within the
stipulated time period and no further time extension is granted, the application shall be
deemed to have received a recommendation of denial.
3. If an application for a special use is not acted upon finally within ninety (90) days of the
date upon which such application is initially returned to the City Council from the Plan
Commission, it shall be deemed to have been denied. However, if the applicant requests the
City Council that the ninety (90) day time period be extended, the City Council may postpone its
final action until the expiration of the time extension requested. If the application is not acted
upon within the time extension period and no further extensions are requested by the
applicant and used by the City Council, the application shall be deemed to have been denied.
4. Prior to granting any special use, the City Council may stipulate certain conditions and
restrictions, including, but not limited to, those upon the establishment, location, construction,
maintenance, and operation of the special use as deemed necessary for the protection of the
public interest and to secure compliance with the standards and requirements specified herein,
or as may be from time to time required. In all cases in which special uses are granted, the City
Council shall require such evidence and guarantees as it may deem necessary as proof that the
conditions stipulated in connection therewith are being, and will be complied with, including,
but not limited to, the acceptance in writing of the owner of the property involved and other
interested parties of the conditions and guarantees set forth within the ordinance granting the
special use. A copy of the ordinance bearing the acceptance may be recorded in the office of
the County Recorder of DuPage County. The acceptance shall be in approximately the following
form:
The undersigned being the (owner, tenant, contract purchaser, etc.) of the property legally
described in this ordinance (number) do/does hereby accept and agree to abide by the
requirements and guarantees contained and required within this ordinance, and does hereby
acknowledge that the fulfillment of such conditions and guarantees are essential to the
granting and continuation of the special use allowed herein, and that but for the imposition of
these requirements and guarantees the special use would not have been granted. The

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undersigned do/does further certify and agree that such conditions and guarantees shall
equally bind and be effective against any/all successor/successors to the interest of the
undersigned. The commitment herein made shall run with the land and shall be enforceable by
the City of Darien in a court of law or equity in addition to any and all other remedies available
to the City to secure compliance with the conditions and guarantees agreed to herein.
5. No application for a special use which has been denied wholly or in part by the City
Council shall be resubmitted for a period of one year from the date of said order of denial,
except on the grounds of substantial new evidence or proof of changed conditions found to be
valid by the City Council who shall in such case refer the application to the Plan Commission for
a new hearing pursuant to proper legal notice.
(G) Standards: No special use shall be recommended to the City Council by the Plan
Commission, nor approved by the City Council, unless findings of fact have been made on those
of the following factors which relate to the special use being sought:
1. That the special use is deemed necessary for the public convenience at the location
specified;
2. That the establishment, maintenance, or operation of the special use will not be
detrimental to, or endanger the public health, safety, or general welfare;
3. That the special 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;
4. That the establishment of the special use will not impede the normal and orderly
development and improvement of the surrounding property for uses permitted in the district;
5. That the exterior architectural design, landscape treatment, and functional plan of any
proposed structure will not be at variation with either the exterior architectural design,
landscape treatment, and functional plan of the structures already constructed or in the course
of construction in the immediate neighborhood or the character of the applicable district, as to
cause a substantial depreciation in the property values within the neighborhood;
6. That adequate utilities, access roads, drainage, and/or necessary facilities have been or
are being provided;
7. 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; and
8. That the special 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
by the City Council pursuant to the recommendations of the Plan Commission and Planning and
Development Committee.

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 (H) Effect Of Granting A Special Use:
1. When a special use is granted for a particular lot, in conjunction with a change in zoning
district classification, such lot shall be developed only for the granted special use, and in
accordance with all the conditions imposed by the ordinance granting the special use unless the
special use is revoked by the City Council in accordance with the procedures for revocation of
subsection (I) of this Section. When a special use is granted, however, with no change in zoning
district classification, the owner can abandon the special use and introduce any use which was
or is then a permitted use in the underlying zoning district. Such special use may only be
revoked using the procedures of subsection (I) of this Section, except that the special use shall
automatically lapse where another use is introduced and continues uninterruptedly for a one
year period.
(I) Revocation Of Special Use Permit:
1. A special use permit granted by the City Council shall be subject to revocation in part or
in whole in the manner provided hereinbelow under any of the following circumstances:
(a) Failure to commence construction of the proposed use within one year from and after
the date of the granting of said permit. Construction shall not be deemed to have commenced
unless and until: 1) all necessary permits have been obtained; 2) the site has been properly
graded; 3) all foundations and footings are in place; and 4) all utilities have been provided for.
(b) Failure to carry the construction work forward expeditiously with adequate forces for
a period of twelve (12) months out of any eighteen (18) month period.
(c) Following the issuance of occupancy permits, abandonment, or other failure to utilize
the property for the purposes permitted by the special use for a period of two (2) months out
of any consecutive six (6) month period.
(d) Where changed circumstances or experience derived from the exercise of the special
use previously granted indicates that the continuation of the special use no longer carries out
the goals of this Zoning Title. Provided, however, that any special use so withdrawn may
continue to exist to the extent that it has been utilized and developed subject to the provisions
of Chapter 4 of this Title.
(e) Upon written application, the City Council may authorize extensions of any time
period specified hereinabove, at any time prior to the expiration of such time period but each
such extension shall not exceed one year at a time.
2. Upon written application by any person, the Plan Commission or the City Council,
following the happening of any of the conditions specified in subsection (I)1 of this Section, the
Plan Commission shall hold a public hearing with regard to whether any of the conditions
described in subsection (I)1 of this Section exist and whether on account of such conditions and
other circumstances the special use permit shall be revoked or whether the property shall be
rezoned to another use. Public notice of such hearing shall be given by newspaper publication
and the legal owner of record of the subject property shall be notified by certified mail, return

14
receipt requested. The hearing shall otherwise be conducted in accordance with the procedures
required by statute and by Sections 5A-2-2-6 and 5A-2-3 of this Chapter.
3. Following such hearing, the Plan Commission shall prepare written findings of fact and
its recommendations: a) regarding the continuation or revocation of the special use; and b)
regarding the rezoning of the property to another classification. Such findings and
recommendations shall be transmitted forthwith to the Planning and Development Committee
for a recommendation, then to the City Council for final action. The City Council, after receiving
such findings and recommendations, may grant a further extension of the special use permit,
may allow the property to be developed and utilized for the permitted uses of the underlying
zoning classification or may rezone the property.
4. In making their determination, the Plan Commission, the Planning and Development
Committee, and the City Council shall consider the effect of changed conditions, if any, upon the
property. Where the property in question was granted a change in zoning category
contemporaneously with its special use or achieved such a use as part of an annexation
agreement, the Plan Commission, Planning and Development Committee and City Council shall
consider whether the property would have been granted the zoning classification underlying its
special use if it were not for the conditions which were imposed by the special use or by an
annexation agreement, as the case may be. It is the intent of this provision of this Title to
prevent the abandonment of a special use which was granted contemporaneously with a
rezoning of land to a less restrictive category based upon the promise of development of a well-
planned special use subject to various conditions; and the attempted development of the
property without proper planning controls under a zoning category which would not have been
granted, but for the planning requirements imposed under the special use. (Ord. 0-03-00, 4-3-
2000).

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 EXHIBIT 2

65 ILCS 5/11-13-1.1

§ 11-13-1.1. The corporate authorities of any municipality may in its ordinances passed under the
authority of this Division 13 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. A use may be a permitted use in one or more zoning districts, and a
special use in one or more other zoning districts. A special use shall be permitted only after a
public hearing before some commission or committee designated by the corporate authorities, with
prior notice thereof given in the manner as provided in Section 11-13-6 and 11-13-7. Any notice
required by this Section need not include a metes and bounds legal description of the area classified
for special uses, provided that the notice includes: (i) the common street address or addresses and
(ii) the property index number (“PIN”) or numbers of all the parcels of real property contained in
the area classified for special uses. A special use shall be permitted only upon evidence that such
use meets standards established for such classification in the ordinances, and the granting of
permission therefor may be subject to conditions reasonably necessary to meet such standards. In
addition, any proposed special use which fails to receive the approval of the commission or
committee designated by the corporate authorities to hold the public hearing shall not be approved
by the corporate authorities except by a favorable majority vote of all alderpersons, commissioners
or trustees of the municipality then holding office; however, the corporate authorities may by
ordinance increase the vote requirement to two-thirds of all alderpersons, commissioners or
trustees of the municipality then holding office.

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 EXHIBIT 3

65 ILCS 5/11-13-11

§ 11-13-11. Every variation or special use, whether made by the board of appeals directly, or by
an ordinance after a hearing before the board of appeals, shall be accompanied by findings of facts
and shall refer to any exhibits containing plans and specifications for the proposed use or variation,
which shall remain a part of the permanent records of the board of appeals. The findings of facts
shall specify the reason or reasons for making the variation.

The terms of the relief granted shall be specifically set forth in a conclusion or statement separate
from the findings of fact of the board of appeals or ordinance. Property for which relief has been
granted shall not be used in violation of the specific terms of the board of appeals' findings of fact
or ordinance, as the case may be, unless its usage is changed by further findings of fact of a board
of appeals or additional ordinances.

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 PROOF OF SERVICE

Under penalties as provided by law pursuant to Section 1-109 of the Code of Civil
Procedure, the undersigned certifies as true that she served the foregoing Defendant City of
Darien’s 2-619.1 Motion to Dismiss upon the following by electronic mail, before 5:00 p.m. on
January 8, 2024:

Elizabeth R. Uribe, Esq.

20W471 Havens Court
Downers Grove, Illinois 60516
Tel: 312-459-1094
Elizabeth.R.Uribe@gmail.com

Richard L. Miller II
Matt Brotschul
Brotschul Potts LLC
One Tower Lane
Suite 1704
Oakbrook Terrace, Illinois 60181
Tel: 312-551-9003
rmiller@brotschulpotts.com
matt@brotschulpotts.com
litigation@brotschulpotts.com

By: /s/ John B. Murphey

John B. Murphey, Its Attorney

John B. Murphey
Odelson, Murphey, Frazier & McGrath, Ltd.
Atty No. 62753
3318 West 95th Street
Evergreen Park, Illinois 60805
Tel: 708-424-5678
jmurphey@omfmlaw.com

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