Napleton v. Village of Hinsdale ( 2007 )

No. 2--06--0390 Filed: 6-16-07
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
KATHERINE R. NAPLETON, as Trustee ) Appeal from the Circuit Court
under the Katherine R. Napleton Revocable
) of Du Page County.
Self-Declaration of Trust )
Dated October 1, 1992, )
)
Plaintiff-Appellant, ) No. 05--CH--1058
)
v. )
)
THE VILLAGE OF HINSDALE, ) Honorable
) Kenneth L. Popejoy,
Defendant-Appellee. ) Judge, Presiding.
_________________________________________________________________________________
JUSTICE O'MALLEY delivered the opinion of the court:
Plaintiff, Katherine R. Napleton, appeals the judgment of the circuit court of Du Page County,
dismissing her first amended verified complaint (complaint) pursuant to section 2--615 of the Code
of Civil Procedure (Code) (735 ILCS 5/2--615 (West 2004)). In her complaint, plaintiff sought to
invalidate certain amendments to the zoning code of defendant, the Village of Hinsdale, which
changed the permitted uses available to her property. The trial court dismissed plaintiff's complaint
by applying a rational basis test to determine the validity of the amendments to defendant's zoning
code. On appeal, plaintiff contends that the trial court erred because it did not consider the
amendments to defendant's zoning code under a substantial relationship test. We affirm.
We summarize the pertinent allegations from plaintiff's complaint. Plaintiff owns a group of
contiguous parcels on Ogden Avenue in the Village of Hinsdale (the subject property). The subject
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property is improved with a structure that is currently leased to General Motors, which uses the
subject property as a training facility. The subject property is zoned B-3 under defendant's zoning
code.
Defendant's zoning code provides for three business zoning districts, B-1, B-2, and B-3.
Section 5--101 of the Hinsdale zoning code provides that the "B-1 Community Business District"
zoning classification "is intended to serve the every day shopping needs of Village residents as well
as to provide opportunities for specialty shops attractive to [the] wider suburban residential
community around the Village. It permits uses that are necessary to satisfy most basic, frequently
occurring shopping needs." Hinsdale Zoning Code §5--101 (2007). The "B-2 Central Business
District" zoning classification "is intended to serve the entire Hinsdale suburban community with a
wide variety of retail and service uses. It is intended to serve as the primary shopping area of the
Village." Hinsdale Zoning Code §5--101 (2007). The "B-3 General Business District" zoning
classification "is intended to serve the Hinsdale suburban community with a full range of locally
oriented business uses commonly located along established traffic routes." Hinsdale Zoning Code
§5--101 (2007).
Before the passage of the amendments to the zoning code of which plaintiff complains, the
zoning code allowed depository and nondepository credit institutions to be permitted uses in
properties under the B-1 and B-3 zoning classifications. The zoning code, however, did not allow
depository and nondepository credit institutions to be permitted uses on the ground floors of
properties under the B-2 zoning classification.
The area in which the subject property is located (on Ogden Avenue between York and
County Line Roads) is commonly known as the Ogden/York Corridor. Properties located in the
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Ogden/York Corridor are mainly zoned B-3. By contrast, properties primarily zoned B-1 and B-2
are located in the "downtown commercial core" area of Hinsdale and not in the Ogden/York
Corridor.
In March 2004, the Hinsdale Board of Trustees instituted a temporary moratorium related to
beauty salons and financial institutions in the B-1 and the B-3 zoning districts, because the board was
concerned with whether the businesses in the Village's business districts struck an appropriate balance
between businesses that provide sales tax revenue and businesses that do not. The board of trustees
instituted the moratorium even though the Hinsdale Plan Commission unanimously had voted against
it. The effect of the temporary moratorium was to prevent beauty salons and financial institutions
from being located on the ground floors of properties located in the B-1 and B-3 zoning districts.
While the temporary moratorium was in effect, defendant retained Gruen Gruen + Associates
(GGA) to conduct a study including, among other things, the impact of beauty salons and financial
institutions on taxable retail sales in the B-1 and B-3 zoning districts. GGA's study reported that
beauty salons and barber shop businesses did not have a negative impact on the business districts
within the Village. The GGA study also noted that additional credit institutions would likely impose
an opportunity cost in the core part of downtown Hinsdale (which was zoned primarily B-1 and B-2).
The study made no similar finding for the Ogden/York Corridor, where the subject property is
located.
GGA recommended that the Village allow no additional credit institutions to be located on
the ground floors of properties in the "B-2 Central Business District" zoning districts. GGA did not
make that same recommendation for properties in the B-1 and B-3 zoning districts.
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On January 18, 2005, defendant passed amendments to the Hinsdale Zoning Code that were
designed to maintain an appropriate mix of sales-tax-revenue-generating and non-sales-tax-revenue-
generating business uses in the Village and effectively made permanent the March 2004 temporary
moratorium regarding depository and nondepository credit institutions. Specifically, defendant
amended its zoning code to remove depository and nondepository credit institutions as permitted uses
in the B-1 and B-3 zoning districts. Hinsdale Zoning Code §5--102D (amended January 18, 2005).
Instead, depository and nondepository credit institutions were made special uses for the B-1 and B-3
zoning districts. Hinsdale Zoning Code §5--105B (amended January 18, 2005). Additionally, the
zoning code was amended to prohibit any new depository or nondepository credit institution from
being located on the first floor of any building in the B-1 or B-3 zoning district. Hinsdale Zoning
Code §5--109G (amended January 18, 2005). Further, depository and nondepository credit
institutions were limited to two drive-through lanes. Hinsdale Zoning Code §5--109H (amended
January 18, 2005).
Plaintiff alleged that the result of the January 2005 amendments was to effectively prevent all
properties located in the B-1 and B-3 zoning districts from having financial institutions located on the
ground floors. Plaintiff alleged that this would prevent her from ever being able to sell or lease the
subject property to a financial institution. Plaintiff further alleged that the amendments caused seven
structures containing financial institutions in the B-1 and B-3 zoning districts to become
nonconforming.
Following the amendment to defendant's zoning code, on July 28, 2005, plaintiff filed a
complaint challenging the validity of the amendments as applied to the subject property. Pursuant
to section 2--615 of the Code, defendant filed a motion to dismiss plaintiff's complaint. Plaintiff
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withdrew her complaint and, subsequently, filed the first amended complaint, challenging the validity
of the amendments on their face.
Defendant, pursuant to section 2--615 of the Code, moved to dismiss the first amended
complaint. On February 15, 2006, the trial court granted the motion without prejudice. Plaintiff
elected to stand on her pleading and, on March 13, 2006, obtained a final order of dismissal of her
complaint. From this final order, plaintiff timely appeals.
On appeal, plaintiff contends that the trial court erred in dismissing her complaint pursuant
to defendant's section 2--615 motion to dismiss. A section 2--615 motion to dismiss attacks the legal
sufficiency of a complaint, asserting the presence of defects on the face of the complaint. Marshall
v. Burger King Corp., 222 Ill. 2d 422, 429 (2006). When reviewing the dismissal of a complaint
pursuant to section 2--615, we accept as true the well-pleaded facts of the complaint along with all
reasonable inferences that may be drawn from those facts. Marshall, 222 Ill. 2d at 429. We also
construe the allegations of the complaint in the light most favorable to the plaintiff. Marshall, 222
Ill. 2d at 429. The plaintiff is required to allege facts, and not simply conclusions, sufficient to bring
its claim within a legally recognized cause of action. Marshall, 222 Ill. 2d at 429-30. In light of these
principles, a cause of action should not be dismissed pursuant to a section 2--615 motion to dismiss
unless it is clearly apparent that no set of facts can be proved that would entitle the plaintiff to relief.
Marshall, 222 Ill. 2d at 429. We review de novo the grant of a section 2--615 motion to dismiss.
Marshall, 222 Ill. 2d at 429.
Plaintiff purports to state a facial challenge to the validity of the amendments, rather than a
challenge to the validity of the amendments as applied to her property. An as-applied challenge
represents a plaintiff's objection to how a particular ordinance was applied in the specific context in
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which the plaintiff found himself, while a facial challenge represents the plaintiff's claim that a specific
ordinance cannot be constitutionally applied in any context. Lamar Whiteco Outdoor Corp. v. City
of West Chicago, 355 Ill. App. 3d 352, 365 (2005). The distinction is important because the
plaintiff's specific context, or the facts specifically applicable to the plaintiff's property, are relevant
only in an as-applied challenge. Lamar Whiteco, 355 Ill. App. 3d at 365. Thus, if the plaintiff
prevails in an as-applied challenge, he may enjoin the enforcement, against him alone, of the
objectionable ordinance. Lamar Whiteco, 355 Ill. App. 3d at 365. By contrast, in order to pursue
a successful facial challenge, the plaintiff must establish that the ordinance is invalid under any set of
facts. People v. Garvin, 219 Ill. 2d 104, 117 (2006). The fact that the ordinance might operate
invalidly under some circumstances and validly under others is insufficient to establish facial invalidity.
Hill v. Cowan, 202 Ill. 2d 151, 157 (2002). If the plaintiff succeeds in the facial challenge, then the
ordinance will be invalidated in its entirety and in all applications. Lamar Whiteco, 355 Ill. App. 3d
at 365.
The test of an ordinance's constitutionality depends upon the nature of the right that is alleged
to be infringed. In re D.W., 214 Ill. 2d 289, 310 (2005). There are three tiers of constitutional
scrutiny. If an ordinance burdens a fundamental right or involves a suspect classification, it will be
subject to strict scrutiny. People v. Botruff, 212 Ill. 2d 166, 176 (2004). The fundamental rights
recognized for purposes of substantive due process and equal protection concerns are limited to
"those that lie at the heart of the relationship between the individual and a republican form of
nationally integrated government." People ex rel. Tucker v. Kotsos, 68 Ill. 2d 88, 97 (1977).
Fundamental rights include the expression of ideas (i.e., speech), participation in the political process,
interstate travel, and intimate personal privacy interests. Kotsos, 68 Ill. 2d at 97. Under strict
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scrutiny review, the challenged regulation must be narrowly tailored to serve a compelling
governmental interest, otherwise it will be held invalid. Village of Lake Villa v. Stokovich, 211 Ill.
2d 106, 122 (2004). Intermediate scrutiny applies to an ordinance that is based on a gender or
illegitimacy classification (In re Detention of Samuelson, 189 Ill. 2d 548, 561-62 (2000)) or that
causes certain incidental burdens to speech (Desnick v. Department of Professional Regulation, 171
Ill. 2d 510, 521 (1996)). Under intermediate scrutiny review, the regulation must be substantially
related to an important governmental interest. See Department of Public Aid ex rel. Cox v. Miller,
146 Ill. 2d 399, 408 (1992), quoting Pickett v. Brown, 462 U.S. 1, 8, 76 L. Ed. 2d 372, 379, 103 S.
Ct. 2199, 2204 (1983) (classification based on illegitimacy is unconstitutional unless it bears a
substantial relation to particular governmental interest). In all other instances, the court will review
the ordinance under highly deferential rational basis scrutiny. Botruff, 212 Ill. 2d at 176-77. Under
the rational basis test, the challenged regulation will be upheld if it bears a rational relationship to a
legitimate governmental purpose and is not arbitrary or unreasonable. Stokovich, 211 Ill. 2d at 122.
Our first task here, then, is to determine the nature of the right burdened by a municipality's zoning
ordinance, in order to determine the level of constitutional scrutiny to apply in evaluating the
constitutionality of the zoning amendments.
Plaintiff suggests that intermediate scrutiny is appropriate to review the challenged zoning
amendments. Plaintiff argues that, because a zoning ordinance affects private property, which
involves both liberty and property rights, it should be reviewed under a heightened level of scrutiny.
Plaintiff relies on Hanna v. City of Chicago, 331 Ill. App. 3d 295 (2002), which conducted an analysis
of a facial challenge to a zoning ordinance. In Hanna, the court used the "substantial relationship
test" to determine whether the zoning regulation at issue there bore a substantial relationship to the
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public health, safety, and welfare, or whether the ordinance was arbitrary, irrational, and capricious.
Hanna, 331 Ill. App. 3d at 306. To support the application of intermediate scrutiny, plaintiff also
cites Stokovich, 211 Ill. 2d at 123-24, which stated that Hanna held that the "more stringent
'substantial relationship' test" applied to a facial challenge to an ordinance, instead of the rational basis
test. From this statement, plaintiff concludes that the supreme court accepted both that the
substantial relationship test applies to a facial challenge to a zoning regulation and that it provides,
in fact, intermediate-level scrutiny for important, but not fundamental, rights. Defendant, by contrast,
contends that the trial court properly employed the rational basis test in resolving plaintiff's facial
challenge to the zoning amendments and points to Thornber v. Village of North Barrington, 321 Ill.
App. 3d 318, 325 (2001).
Our review of the parties' claims is hampered by their failure to consider the nature of the right
at issue, and thus, to determine the level of scrutiny required to review the amendments to the zoning
ordinance at issue. Instead, the parties appear to argue that the level of scrutiny is dependent upon
the nature of the challenge: as-applied or facial. We disagree. The nature of the challenge determines
the evidence needed to sustain the claim. A facial challenge requires a plaintiff to prove the invalidity
of the challenged ordinance under all circumstances; an as-applied challenge requires the plaintiff to
prove the invalidity of the challenged ordinance as it relates to the plaintiff's particular circumstances.
Lamar Whiteco, 355 Ill. App. 3d at 365. The nature of the challenge does not--indeed, it cannot--
affect the right at issue. See People ex rel. Foreman v. Soujourners Motorcycle Club, Ltd., 134 Ill.
App. 3d 448, 453-54 (1985) (zoning ordinance alleged to infringe on first amendment right of
peaceable assembly considered under strict scrutiny standard of whether challenged ordinance is
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narrowly drawn and advances a substantial governmental interest). As noted above, our analysis must
begin, therefore, with a determination of the nature of the right at issue here.
We begin by noting that a municipality may utilize its police power to promote and regulate
the public welfare. Village of Glenview v. Ramaker, 282 Ill. App. 3d 368, 371 (1996). Zoning is
such an exercise of a municipality's police power and is targeted at the public welfare. City of Galena
v. Dunn, 222 Ill. App. 3d 112, 120 (1991), quoting S. Connor, Zoning, in Illinois Municipal Law,
§10.2 (Ill. Inst. for Cont. Legal Educ. 1987) ("[z]oning has been defined as 'an exercise of the police
power that governs where and how land may be used and developed' "). Further, zoning has been
immemorially held to be a legislative function exercised by a municipality. Village of Euclid v. Amber
Realty Co., 272 U.S. 365, 388, 71 L. Ed. 303, 311, 47 S. Ct. 114, 118 (1926); La Salle National
Bank v. City of Evanston, 57 Ill. 2d 415, 428 (1974); Lapp v. Village of Winnetka, 359 Ill. App. 3d
152, 170 (2005). Additionally, it is similarly well established that, where there is room for a
difference of opinion concerning the reasonableness of a zoning ordinance, the determination of the
legislative body of the municipality is conclusive. La Salle National Bank, 57 Ill. 2d at 428; Lapp,
359 Ill. App. 3d at 170. In other words, rational basis scrutiny will be applied to challenges to
legislative enactments to which extreme deference is owed. People ex rel. Skinner v. Hellmuth, Obata
& Kassabaum, Inc., 135 Ill. App. 3d 765, 769 (1985), rev'd on other grounds, 114 Ill. 2d 252 (1986).
Zoning enactments (at least those that do not infringe fundamental rights or engage in discrimination
based on race or national origin) are precisely the type of legislative enactments to which this level
of deference is owed; therefore, when a zoning ordinance (not affecting a fundamental right) is
subjected to a facial challenge to its validity, it should be scrutinized under the rational basis level of
scrutiny.
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Plaintiff maintains that a facial challenge to a zoning ordinance is subjected to a higher level
of scrutiny, namely, intermediate scrutiny, and that this is embodied in the holding in Hanna. In
Hanna, the plaintiff owned a 5-story, 26-unit brick building in Chicago. Hanna, 331 Ill. App. 3d at
299. The city enacted an ordinance that imposed height restrictions, increased square footage
requirements, and lowered the density for new construction in the area in which the plaintiff's
property was located. Hanna, 331 Ill. App. 3d at 299. The plaintiff complained that, as a result of
the ordinance, if his building were to be destroyed, upon replacement it could not be used as a
multifamily dwelling and that, as it currently stood, his property had been rendered a nonconforming
use. Hanna, 331 Ill. App. 3d at 299. The plaintiff further contended that the ordinance deprived him
of the highest and best use of his property and diminished the value of his property. Hanna, 331 Ill.
App. 3d at 299-300.
The plaintiff filed a complaint, making a facial challenge to the validity of the ordinance.
Hanna, 331 Ill. App. 3d at 301. In resolving the city's motion to dismiss, the trial court held, among
other things, that a reasonable relationship existed between the ordinance and a legitimate
governmental interest. Hanna, 331 Ill. App. 3d at 302. The appellate court reversed. It held that,
because of the importance of the rights of property ownership, evidenced in cases like Northern Trust
Co. v. City of Chicago, 4 Ill. 2d 432, 437 (1954) (a property owner has the right to use his property
as he sees fit subject only to such regulation as is necessary to secure the common welfare; this
constitutes "both a liberty and a property right"), and Cosmopolitan National Bank of Chicago v. City
of Chicago, 27 Ill. 2d 578, 584 (1963) (it is a "well-established principle" that a real property
purchaser has a right to rely upon the zoning classification of the property that existed at the time of
purchase; zoning will not be changed unless "the change is required for the public good"), the proper
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measure of the validity of a zoning ordinance was "whether the legislation bears a substantial
relationship to the public health, safety and welfare or whether it is arbitrary, irrational and
capricious." Hanna, 331 Ill. App. 3d at 305-06. In order to effect the substantial relationship
standard of scrutiny applicable to a facial challenge, the appellate court held that the court passing
upon the validity of the ordinance must consider the factors first articulated in La Salle National Bank
of Chicago v. County of Cook, 12 Ill. 2d 40, 46-47 (1957), including:
"(1) the existing uses and zoning of nearby property; (2) the extent to which property
values are diminished by the particular zoning restrictions; (3) the extent to which the
destruction of property values of the plaintiff promotes the health, safety, morals or general
welfare of the public; (4) the relative gain to the public as compared to the hardship imposed
upon the individual property owner; (5) the suitability of the subject property for the zoned
purposes; and (6) the length of time the property has been vacant as zoned considered in the
context of land development in the area in the vicinity of the subject property." Hanna, 331
Ill. App. 3d at 306.
(We note that in Sinclair Pipe Line Co. v. Village of Richton Park, 19 Ill. 2d 370, 378 (1960), the
court identified additional factors to consider along with the LaSalle factors, including (7) whether
there exists a comprehensive zoning plan; (8) whether the challenged ordinance is in harmony with
the comprehensive zoning plan (if it exists); and (9) whether the community needs the use. We will
refer to all of these factors as LaSalle factors, notwithstanding the supplementation provided by
Sinclair.) Plaintiff thus urges that this court explicitly adopt the substantial relationship level of
scrutiny along with the use of the La Salle factors as embodied in the holding in Hanna in resolving
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her facial challenge to the validity of the amendments to defendant's zoning code. We decline to do
so.
We note, initially, that plaintiff is correct in observing that Hanna employed the La Salle
factors in resolving a facial challenge to the validity of a zoning ordinance. We also note that Hanna
is not readily factually distinguishable from this case. Nevertheless, we adhere to the rational basis
review described above, for the following reasons.
In the first place, the development of the La Salle factors and the substantial relationship test
arose in the context of as-applied challenges to the validity of zoning ordinances, and not facial
challenges. The distinction between a facial challenge and an as-applied challenge is important in the
zoning context, as a zoning ordinance may be valid in its general aspects but may be invalid as to a
particular piece of property because the balance of hardships (the gain to the public in general versus
the detriment to the individual owner) overwhelmingly burdens the individual owner. Northern Trust
Co., 4 Ill. 2d at 438. To account for this possibility, the La Salle factors were developed as a way
to explicitly balance the gain to the public against the burden on the individual property owner. See
La Salle, 12 Ill. 2d at 46-47. The difference between a facial challenge and an as-applied challenge
to a zoning ordinance also implies that different evidentiary standards will govern the review. This,
then, accounts for the differing focuses of facial (a universal validity or invalidity) and as-applied (the
balance between public good and individual detriment) challenges. In other words, if the same
evidentiary standard were used in each type of challenge, then there would be no difference between
a facial challenge and an as-applied challenge. In turn, this would mean that a zoning ordinance could
never be generally valid but invalid as to a particular piece of property; instead it would be either valid
as to all or invalid as to all. In order to preserve the possibility that a zoning ordinance may be
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generally valid even as it is arbitrary and irrational in its application to a particular piece of property,
there must be differing requirements of proof for a facial challenge and an as-applied challenge. Thus,
the La Salle factors, contrary to plaintiff's argument, do not implicate the level of scrutiny but, rather,
the evidence needed to sustain the claim of invalidity. See Lamar Whiteco, 355 Ill. App. 3d at 365
(explaining the differing evidentiary burdens applicable to facial and as-applied challenges).
Additionally, the substantial relationship test appears to be an historical formulation that has
been consistently retained even though, at the time it was originally enunciated, the concept of
intermediate scrutiny had not yet arisen. Plaintiff notes that the substantial relationship formulation
used in zoning cases can be traced back at least to Euclid, 272 U.S. at 395, 71 L. Ed. at 314, 47 S.
Ct. at 121. In Euclid, the Supreme Court was confronted with an as-applied challenge to a village's
zoning scheme. Euclid, 272 U.S. at 384, 71 L. Ed. at 309, 47 S. Ct. at 117. In holding that the
village's zoning ordinance was valid, the Court held that, in order to establish unconstitutionality, the
challenger would have to show that the ordinance was "clearly arbitrary and unreasonable, having no
substantial relation to the public health, safety, morals, or general welfare." Euclid, 272 U.S. at 395,
71 L. Ed. at 314, 47 S. Ct. at 121.
Euclid and its "substantial relation" formulation quickly was adopted into the Illinois legal
lexicon. 1 In Minkus v. Pond, 326 Ill. 467, 480 (1927), the court upheld a zoning ordinance (as
applied) under Euclid's substantial relationship test. Shortly before Minkus, the supreme court, while
1
We note that Euclid as well as the Illinois cases referencing it may not be the earliest cases
to announce the "substantial relation" requirement. See, e.g., East Side Levee & Sanitary District v.
East St. Louis & Carondelet Ry., 279 Ill. 123, 130 (1917), citing Minnesota v. Barber, 136 U.S. 313,
34 L. Ed. 455, 10 S. Ct. 862 (1890).
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citing Euclid, nevertheless considered the validity of a zoning ordinance under a rational basis test.
Village of Western Springs v. Bernhagen, 326 Ill. 100, 103 (1927) ("When the reasonableness of the
[zoning] ordinance is challenged the question for the court is not whether it thinks the ordinance wise,
but whether the ordinance has a rational relation to the public health, morals, safety or general
welfare"). The "substantial relation" formulation has persisted in Illinois law. See, e.g., La Salle, 12
Ill. 2d at 46 ("if the restrictions [of the zoning ordinance] imposed bear no real and substantial relation
to the public health, safety, morals, comfort and general welfare, the ordinance is void"); Hanna, 331
Ill. App. 3d at 306 ("the applicable level of scrutiny [for a challenge to the constitutionality of a
zoning ordinance] is whether the legislation bears a substantial relationship to the public health, safety
and welfare or whether it is arbitrary, irrational and capricious").
Over time, "substantial relation" has evolved into a term of art signifying intermediate
scrutiny. Nevertheless, "substantial relation" has unreflectingly persisted in Illinois law, in spite of
its evolution into a term of art that should have prompted a reevaluation of the meaning of the phrase
in relation to the level of scrutiny to employ in determining the constitutional validity of a challenged
zoning ordinance.
In 1976, in Craig v. Boren, 429 U.S. 190, 50 L. Ed. 2d 397, 97 S. Ct. 451 (1976), the
Supreme Court explicitly adopted an intermediate level of scrutiny for gender classifications. In
Craig, the Supreme Court held that, under intermediate scrutiny, a gender classification will withstand
a constitutional challenge if it serves an important governmental objective and is substantially related
to the achievement of that purpose. Craig, 429 U.S. at 197, 50 L. Ed. 2d at 407, 97 S. Ct. at 457.
Likewise, in 1988, the Supreme Court explicitly extended the coverage of intermediate scrutiny to
classifications based on illegitimacy. See Clark v. Jeter, 486 U.S. 456, 461, 100 L. Ed. 2d 465, 472,
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108 S. Ct. 1910, 1914 (1988) ("[t]o withstand intermediate scrutiny, a statutory classification must
be substantially related to an important governmental objective"). Intermediate scrutiny has also been
applied where governmental actions burden a party's first amendment rights. See City of Los Angeles
v. Alameda Books, Inc., 535 U.S. 425, 152 L. Ed. 2d 670, 122 S. Ct. 1728 (2002) (validity of zoning
provision directed at reducing crime accruing to adult entertainment establishments and incidentally
limiting dissemination of adult expression considered under intermediate scrutiny). The rise of
intermediate scrutiny imparted a different meaning to "substantially related" and turned the phrase
into a term of art. Because Euclid and the Illinois cases adopting the Euclid formulation of
"substantial relation" predated the inception of the term of art signifying intermediate scrutiny, it
would be erroneous to consider those cases to advocate intermediate scrutiny for zoning ordinances
as that concept has since developed.
This is seen, too, by examining the underpinnings of Euclid and the various Illinois cases
adopting it. Euclid relied extensively upon City of Aurora v. Burns, 319 Ill. 84 (1925), in reaching
its substantial relation holding. See Euclid, 272 U.S. at 390-93, 71 L. Ed. at 311-13, 47 S. Ct. at
119-20. Burns, however, held that the zoning ordinance at issue there was subject to rational basis
scrutiny, requiring the ordinance to bear a reasonable relationship to the purposes for which the
ordinance was enacted. Burns, 319 Ill. at 93. Bernhagen, which adopted Euclid, nevertheless held
that the zoning ordinance (as applied to the property at issue) was subject to rational basis review,
stating that the test was "whether the [zoning] ordinance has a rational relation to the public health,
morals, safety or general welfare." Bernhagen, 326 Ill. at 103. Two months later, in Minkus, the
court cited both Burns and Euclid and held: "We are unable to say that the ordinance as it affects the
property involved herein discloses an unreasonable or arbitrary conclusion and exercise of power on
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the part of the zoning authorities and that it has no substantial relation to the public health, safety,
morals or general welfare." Minkus, 326 Ill. at 480. This examination of the underpinnings and initial
development of the "substantial relation" language suggests that, at first, it was no more than an
alternate statement of the rational basis test, explicitly tailored to cover the interests advanced by a
zoning ordinance, namely, the promotion of the public health, morals, or safety or general welfare.
As we have noted, these preliminary cases involved as-applied challenges to zoning ordinances. Over
time, the analysis of an as-applied challenge to a zoning ordinance developed into the La Salle factors
to allow a more explicit and painstaking balancing of the public good versus the individual harm. We
therefore conclude that, despite the retention of the longstanding "substantial relation" formulation
in the context of constitutional challenges to zoning ordinances, it does not signify a deliberately
heightened scrutiny apart from the application of the La Salle factors in an as-applied challenge.
Indeed, the utilization of the La Salle factors in an as-applied challenge prevents the irrational,
unreasonable, and arbitrary application of a zoning ordinance to a particular property--the flip side
of the rational basis test. See Village of Chatham v. County of Sangamon, 351 Ill. App. 3d 889, 899
(2004), aff'd, 216 Ill. 2d 402 (2005) (where provision is subject to rational basis scrutiny, the party
challenging the provision must demonstrate that it is arbitrary and unreasonable in order to prevail).
We note that Hanna, 331 Ill. App. 3d at 306 ("[T]he applicable level of scrutiny [for a challenge to
the constitutionality of a zoning ordinance] is whether the legislation bears a substantial relationship
to the public health, safety and welfare or whether it is arbitrary, irrational and capricious"), actually
refers to both the substantial relation test and rational basis scrutiny, because the point of the latter
part of the quoted passage is to make sure that the zoning ordinance is rational. Thus, the
"substantial relation" discussed in zoning challenges is compatible with the traditional rational basis
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scrutiny to which the local exercise of police power has generally been subjected. We discern neither
a need nor a reason to disturb this deferential level of scrutiny in a facial challenge to the
municipality's exercise of its police power.
In a last attempt to achieve heightened scrutiny, plaintiff alleges that the amendments to the
zoning ordinance infringe on her property rights to use her property in any manner she sees fit. She
is right, of course, but the rights infringed do not belong to the category of fundamental rights, which
we identified above and which include speech, participation in the political process, interstate travel,
and intimate personal privacy interests. Likewise, the rights alleged to be infringed do not involve
a suspect classification or implicate plaintiff's first amendment rights. We also note that plaintiff does
not claim that her fundamental rights have been infringed.2 Accordingly, plaintiff's challenge to the
constitutionality of the amendments to defendant's zoning code will be considered under the rational
basis level of scrutiny. See Ramaker, 282 Ill. App. 3d at 371-72 (ordinance prohibiting swine in
village limits upheld under rational basis scrutiny); People v. Avery, 277 Ill. App. 3d 824, 831 (1995)
(statute prohibiting driving under the influence of alcohol held to be a proper exercise of police power
under rational basis scrutiny). To determine whether defendant's amendments to its zoning code pass
constitutional muster on their face, then, requires them to be subjected to rational basis scrutiny. In
turn, this inquiry proceeds in the following stepwise fashion: we (1) identify the public interest the
amendments are concerned with; (2) examine whether they bear a reasonable relationship to the
2
As noted above, plaintiff contends that zoning provisions should be subject to intermediate
scrutiny because a zoning provision implicates both liberty and property rights. See Northern Trust
Co., 4 Ill. 2d at 437.
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interest; and (3) determine whether the method employed in the amendments to further or to protect
the interest is reasonable. Alamo Rent A Car, Inc. v. Ryan, 268 Ill. App. 3d 268, 272 (1994).
Defendant contends, and the record supports, that the public interest served by the zoning
amendments was the protection of the public fisc through maintaining a balance in the business
districts between businesses that generate sales tax revenue and businesses that do not. In
undertaking this purpose, defendant conducted public meetings and hearings and procured expert
studies of the issue.3 Based on all of its inquiries, defendant concluded that allowing banks and other
non-tax-revenue-generating businesses to move into the business districts eroded the Village's tax
base and imposed an opportunity cost upon the Village. Based on our review of the record, we
cannot say that defendant's conclusion on this point was arbitrary, irrational, capricious, or
unsupported by the evidence it had developed. Defendant's interest in protecting its tax and financial
bases is reasonably related to the final form of the amendments to the zoning ordinance. Moreover,
the method chosen, precluding banks and other financial institutions from operating in the ground
floors of the various buildings, and limiting the size of drive-through operations, is a reasonable
method to achieve defendant's goal. We note that defendant did not preclude banks and financial
institutions altogether, but only from the first floors of structures in the affected zoning districts.
Plaintiff does not indicate that it is wholly unfeasible to locate a bank or financial institution on the
second or higher floors of the buildings in the affected zoning districts. Accordingly, we hold that
defendant's zoning amendments at issue here satisfy the rational basis scrutiny of their
constitutionality--the zoning amendments are reasonably related to a legitimate governmental interest
3
We acknowledge that defendant's expert, GGA, commented only on the effect of banks and
other financial institutions in the downtown areas.
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and their implementation is a reasonable method to achieve their purpose. Further, for the reasons
stated above, we hold that the trial court appropriately reviewed the zoning amendments at issue here
for a rational relationship to a legitimate governmental purpose. Also, in spite of the factual
similarity, we decline to follow Hanna, because it is unnecessary and unwarranted to apply a property-
specific (and possibly heightened constitutional scrutiny) balancing test to plaintiff's facial challenge
to the validity of a zoning provision.
We now address in turn plaintiff's specific contentions on appeal. Initially, plaintiff's
arguments are directed at determining the proper level of scrutiny to apply to a facial challenge to the
constitutionality of a zoning provision. As we have noted, this misstates the issue and the manner in
which the issue should be resolved. The issue is not what scrutiny is universally applicable to a facial
challenge but, rather, what right is violated and what level of scrutiny pertains to the right that is
violated. As we have already explained our thinking in regard to this issue, we will not further
address plaintiff's arguments that seek to establish that the nature of the challenge dictates the level
of scrutiny.
Next, plaintiff notes that, generally, most plaintiffs who challenge zoning ordinances do so by
first attempting to secure a zoning change, being rejected by the local zoning authority, and then
attempting to have the ordinance declared unconstitutional as applied to them. Plaintiff notes that
she did not follow this general course, but that defendant amended its zoning ordinance and "foisted"
it upon her "without valid justification." Plaintiff contends that, because of this, she deserves to have
her challenge reviewed under the purported greater protection of the heightened scrutiny of the
substantial relationship test. Plaintiff fails to cite any authority in support of her argument.
Accordingly, we deem it forfeited. 210 Ill. 2d R. 341(h)(7).
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Next, plaintiff raises a number of arguments challenging the analysis in Thornber and the trial
court's reliance on that case resulting in its application of rational basis scrutiny to the challenged
zoning amendments. Our analysis above demonstrates that rational basis scrutiny is appropriate for
plaintiff's claims in this case. If the trial court erroneously reasoned that result from Thornber, then
any error in its reasoning is of no moment; it is the trial court's judgment, and not its reasoning, that
is being appealed. Medical Alliances, LLC v. Health Care Service Corp., 371 Ill. App. 3d 755, 759
(2007). Additionally, imperfections in the reasoning in Thornber and its applicability to the case at
bar are likewise irrelevant in light of our analysis above. We need not address plaintiff's Thornber-
based arguments further. Relatedly, plaintiff urges that the trial court should have followed Hanna.
As revealed above, we have found Hanna to be unpersuasive and have declined to follow it. We need
not further address plaintiff's arguments relating to Hanna.
Before addressing plaintiff's final argument, we note that defendant argues that there is a
"critical distinction between as-applied and facial constitutional challenges." Defendant is caught up
in the erroneous conception that the nature of the challenge, and not the nature of the right infringed,
determines the level of scrutiny to apply. Nevertheless, defendant rightly notes that an as-applied
challenge is specific to the circumstances of the subject property, while the facial challenge attempts
to demonstrate the invalidity of the ordinance under any set of circumstances. Lamar Whiteco, 355
Ill. App. 3d at 365.
Plaintiff essentially concedes the truth of the distinction in terms very like those employed by
defendant. Plaintiff then, erroneously, argues that Cosmopolitan and Harris Trust & Savings Bank
v. Duggan, 105 Ill. App. 3d 839 (1982), aff'd, 95 Ill. 2d 516 (1983), involved facial challenges to the
validity of zoning ordinances. Both cases analyzed zoning issues only as they applied to the subject
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properties therein. Duggan, 95 Ill. 2d at 531-32; Cosmopolitan, 27 Ill. 2d at 584-85; Duggan, 105
Ill. App. 3d at 850. This fact undercuts plaintiff's next contention, that the fact that they involved
single parcels could not transmute the challenges from facial to as-applied. Simply put, the zoning
challenges in those cases were as applied to the subject properties. Duggan, 95 Ill. 2d at 527 ("we
therefore address the issue of whether the down-zoning from R-8 to R-5 was unconstitutional and
void as applied to the property"); Cosmopolitan, 27 Ill. 2d at 579 (the defendant appealed from the
order of the trial court finding that "the zoning classification sought to be imposed by the amendatory
ordinance was unconstitutional as applied to [the] plaintiffs' property"). Plaintiff, therefore,
misconstrues Duggan and Cosmopolitan.
Further, the fact that both cases found that the exhaustion of administrative remedies did not
apply does not render them facial challenges. Rather, the exhaustion-of-administrative-remedies
exception applies where the party challenging an ordinance seeks to invalidate it in its entirety. See
Duggan, 105 Ill. App. 3d at 846 ("Although courts have generally required strict compliance with the
exhaustion rule, an exception has been recognized where, as in the present case, an ordinance is
attacked as unconstitutional in its entirety"). In Cosmopolitan, there was no need to exhaust the
administrative remedies, because the invalidity of the ordinance arose as a result of improper
procedures used in enacting it. Cosmopolitan, 27 Ill. 2d at 583. In Duggan, the issue of exhaustion
of remedies was not raised before the supreme court (Duggan, 95 Ill. 2d at 527-33), and the appellate
court did not explain the issue or how it arose (Duggan, 105 Ill. App. 3d at 846). Further, as
Cosmopolitan explicitly demonstrates, the fact that a plaintiff seeks to invalidate an ordinance in its
entirety (which triggers the exception to the exhaustion of remedies) does not make it a facial
challenge to the validity of the ordinance--there are other reasons to invalidate an ordinance that have
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nothing to do with the facial validity of the ordinance. Cosmopolitan, 27 Ill. 2d at 583 (ordinance
subjected to an as-applied challenge, but also invalidated in its entirety due to procedural
irregularities). Plaintiff's argument is unavailing.
We also note that defendant argues that the substantial relationship test proposed by plaintiff
would be virtually unworkable in the present context of reviewing the grant of a section 2--615
motion to dismiss. We agree that the La Salle factors would not easily lend themselves to
consideration in a facial challenge to the validity of an ordinance, because they balance the action of
a generally valid ordinance with its specific effect on a particular property. (Of course, a plaintiff in
a facial challenge conceivably could include allegations encompassing each of the properties affected
by the challenged ordinance. Plaintiff here, however, did not attempt to do this, but made allegations
regarding how the challenged zoning amendments affected only her property.) We need not consider
the matter further, however, because we have determined that the appropriate level of scrutiny here
is rational basis.
Turning to plaintiff's final issue, she contends that the trial court erred in dismissing her
complaint for failure to state a claim on which relief could be granted. We disagree. We initially note
that plaintiff's complaint contains conclusory allegations regarding: that the amendments were passed
to satisfy the individual desires of a few people; that they bestow no benefit upon and are not
substantially related to the public welfare; that there was no community need for the amendments;
and that defendant took no or insufficient care in planning the amendments. We will not consider the
conclusory allegations of plaintiff's complaint.4 Having reviewed the well-pleaded allegations and the
4
We note that, given the conclusory nature of many of the allegations that plaintiff contends
satisfy the application of the La Salle factors, we would still find plaintiff's complaint to be insufficient
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exhibits attached to the complaint, we find that they reveal that defendant exercised its legislative
judgment only after months of gathering and developing information, holding meetings and public
hearings, and receiving input from its Plan Commission. 5 Based on this background, defendant
reasonably concluded that the continuing vitality of its business districts required a balance between
businesses that do and that do not generate sales taxes. Defendant concluded that this meant
precluding new banks and financial institutions from locating in the ground floors of properties in its
business districts, because they impose an opportunity cost upon its financial and tax bases. We hold
that this conclusion is rationally related to the legitimate purpose of protecting defendant's financial
and tax bases. The amendments to the zoning code, therefore, are not invalid. Accordingly, we hold
that plaintiff has failed to state a claim on which relief can be granted and that the trial court properly
dismissed her first amended verified complaint.
For the foregoing reasons, we affirm the judgment of the circuit court of Du Page County.
Affirmed.
BYRNE and CALLUM, JJ., concur.
even if we were to review it under the heightened scrutiny she proposes.
5
The Plan Commission initially recommended against imposing the temporary moratorium.
Later, after full review, the Plan Commission recommended that the amendments to the zoning
ordinance be adopted.
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