Cedarhurst of Bethalto Real Estate, LLC v. Village of Bethalto

2018 IL App (5th) 170309
NOTICE
Decision filed 10/12/18. The
text of this decision may be NO. 5-17-0309
changed or corrected prior to
the filing of a Peti ion for
Rehearing or the disposition of
IN THE
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
CEDARHURST OF BETHALTO REAL ) Appeal from the
ESTATE, LLC, ) Circuit Court of
) Madison County.
Plaintiff-Appellant, )
)
v. ) No. 17-MR-118
)
THE VILLAGE OF BETHALTO, ILLINOIS; )
ALAN WINSLOW, in His Official Capacity )
as Mayor of the Village of Bethalto; )
GERALD BOURLAND, in His Official Capacity )
as Trustee of the Village of Bethalto; )
PERRY WITHERS, in His Official Capacity )
as Trustee of the Village of Bethalto; )
JEFF MULL, in His Official Capacity )
as Trustee of the Village of Bethalto; )
GARY BOST, in His Official Capacity )
as Trustee of the Village of Bethalto; )
BRADY DUGGER, in His Official Capacity )
as Trustee of the Village of Bethalto; )
and DAN McRAE, in His Official Capacity )
as Trustee of the Village of Bethalto, ) Honorable
) Philip B. Alfeld,
Defendants-Appellees. ) Judge, presiding.
______________________________________________________________________________
JUSTICE CHAPMAN delivered the judgment of the court, with opinion.
Justices Cates and Moore concurred in the judgment and opinion.
OPINION
¶1 Cedarhurst of Bethalto Real Estate, LLC (Cedarhurst), is a corporate entity located in the
Village of Bethalto (Village) that operates a local residential nursing home. Unique Homes
1
Properties, Inc. (Unique Homes), had plans to develop a new senior citizen residential, nursing,
and memory care facility in Bethalto. Cedarhurst filed suit against the Village and its mayor and
trustees (collectively referred to as defendants in this opinion), alleging that the defendants must
regulate development near the St. Louis Regional Airport and that the permission defendants
granted Unique Homes violates the Village’s 2000 comprehensive plan because the tract of land
is too geographically close to the airport. Defendants filed a motion to dismiss Cedarhurst’s
complaint, alleging that Cedarhurst had no standing. On July 20, 2017, the trial court granted
defendants’ motion. In its detailed order, the court found that because Cedarhurst was
complaining about a third party’s planned land usage, it was required to plead direct personal
special injury or damages. Cedarhurst was not able to plead personal damages connected to
Unique Homes’ planned development, and so the court held that it lacked standing. For the
reasons that follow in this opinion, we affirm the trial court’s order dismissing Cedarhurst’s
complaint.
¶2 FACTS
¶3 Cedarhurst alleges that Unique Homes is constructing a senior citizen residential and
memory care facility in the Village and claims that the proposed site is in the flight path of the
main runway of the St. Louis Regional Airport. The tract allegedly abuts the airport’s runway
protection zone. Cedarhurst cites to the Village’s 2000 comprehensive plan, which Cedarhurst
alleges required the Village to create an airport overlay district. The 2000 comprehensive plan
serves as “a general plan to guide the future development and redevelopment of [Bethalto]” and
is to be utilized by the Village trustees in reviewing all applications for development.
Specifically, the 2000 comprehensive plan contains the following statement:
2
“The creation of an airport overlay zoning district is perhaps the best technique to
encourage compatible land uses around the airport. *** The FAA guidelines for land use
compatibility are used to determine the permitted land uses and related development
standards within the overlay district. Land uses that are sensitive to certain noise levels
are not permitted within the overlay district, or portions thereof, in order to protect the
public health, safety and welfare.”
The defendants adopted a comprehensive plan in 2014 that no longer contains the quoted
provision.
¶4 Cedarhurst asked for a meeting with the Village mayor in February 2017 to express its
concerns that the planned location for the Unique Homes retirement facility “would be putting
seniors’ health and safety at risk.” In addition, Cedarhurst complained that Unique Homes “was
unfairly manipulating the development approval process—through political clout or otherwise.”
¶5 Ultimately, on March 31, 2017, Cedarhurst filed its complaint seeking declaratory,
mandamus, and injunctive relief. In its declaratory judgment and mandamus counts, Cedarhurst
asked the trial court, in part, to order the Village to comply with its 2000 comprehensive plan,
mandate that the Village create an airport overlay district, and prohibit the Village from taking
any action on Unique Homes’ development applications. Cedarhurst also sought injunctive
relief, asking the court to enjoin the defendants from allowing Unique Homes to proceed with its
proposed senior living facility development.
¶6 The defendants filed a motion to dismiss, arguing that Cedarhurst lacked standing to
bring any claim because it did not plead special injury or individualized harm and, alternatively,
that there was no actual controversy between the parties in this case. More specifically, the
defendants asserted that the Village had no obligation to create the airport overlay district. The
3
defendants explained that the 2000 comprehensive plan was replaced by the 2014 plan, and thus
Cedarhurst could not allege an actual controversy regarding the 2000 plan. Furthermore, the
defendants stated that the plan was advisory in nature and did not constitute law, and thus the
Village was under no obligation to implement any part of the plan. Finally, the defendants
claimed that Cedarhurst had no interest in the alleged controversy because it had no personal
claim, status, or right capable of being impacted by the development planned by Unique Homes.
¶7 The trial court granted the motion to dismiss on July 20, 2017. The court concluded that
Cedarhurst lacked standing to complain about the use of someone else’s property, as it did not
and could not allege a special personal damage different from any potential damage that the
general public might suffer. Garner v. County of Du Page, 8 Ill. 2d 155, 158-60, 133 N.E.2d 303,
304-05 (1956); Bullock v. City of Evanston, 5 Ill. 2d 22, 33-34, 123 N.E.2d 840, 846 (1954). In
addition, the trial court found that even if Cedarhurst had standing to maintain this suit, the
Village did not violate any ordinance that could result in a legitimate claim.
¶8 Cedarhurst timely filed its appeal from the trial court’s order.
¶9 LAW AND ANALYSIS
¶ 10 Our review of this issue is de novo. The underlying motion denied by the trial court was
based upon sections 2-615 and 2-619 of the Code of Civil Procedure, both of which mandate
de novo review. 735 ILCS 5/2-615, 2-619 (West 2016); Paul v. County of Ogle, 2018 IL App
(2d) 170696, ¶ 34, 103 N.E.3d 585 (review of ruling on section 2-615 motion to dismiss is
de novo); Glasgow v. Associated Banc-Corp, 2012 IL App (2d) 111303, ¶ 11, 980 N.E.2d 785
(review of ruling on section 2-619 motion to dismiss is de novo). When ruling upon either a
section 2-615 or section 2-619 motion to dismiss, the court should accept all well-pleaded facts
in the complaint as true and make reasonable inferences from those facts in favor of the
4
nonmoving party. Edelman, Combs & Latturner v. Hinshaw & Culbertson, 338 Ill. App. 3d 156,
164, 788 N.E.2d 740, 747 (2003).
¶ 11 Combined motions may be filed together but must be in separate parts pursuant to the
two different sections of the Code of Civil Procedure utilized. 735 ILCS 5/2-619.1 (West 2016).
Each section must contain the points or grounds upon which the argument to dismiss is based. Id.
In a properly filed combined motion to dismiss, the court must first look to dismissal under
section 2-619, which requires courts to view the complaint for its legal sufficiency in light of the
raised defects, defenses, or other affirmative matters that may defeat or bar the claim. Edelman,
Combs & Latturner, 338 Ill. App. 3d at 164.
¶ 12 Here, Cedarhurst and Unique Homes are in a similar line of business—senior residential
homes. Cedarhurst claims that it filed this suit, in part, to protect the future residents of the
Unique Homes development, as the planned development is located geographically close to a
local regional airport. It alleges that the defendants have a nondiscretionary common law duty to
protect community health and safety; that they must enforce all laws and ordinances prescribed
by law; and that the 2000 comprehensive plan obligates the Village to regulate land use to ensure
the health, public safety, and welfare of the community.
¶ 13 We first review the issue of Cedarhurst’s standing to file its action against the defendants
because the issue would be dispositive.
¶ 14 Cedarhurst was not obligated to establish its standing in its complaint. However, once the
defendants raised standing as an affirmative defense in their motion to dismiss, the burden
shifted to Cedarhurst to establish that it has standing. Village of Willow Springs v. Village of
Lemont, 2016 IL App (1st) 152670, ¶ 29, 70 N.E.3d 210.
5
¶ 15 Standing in General
¶ 16 The doctrine of standing serves to bar persons who have no interest in a controversy from
filing suit. Glisson v. City of Marion, 188 Ill. 2d 211, 221, 720 N.E.2d 1034, 1039 (1999). Lack
of standing is an “affirmative matter” that can be raised under section 2-619(a)(9) of the Code of
Civil Procedure. 735 ILCS 5/2-619(a)(9) (West 2016); Greer v. Illinois Housing Development
Authority, 122 Ill. 2d 462, 494, 524 N.E.2d 561, 575 (1988).
¶ 17 This case is distinctive in that Cedarhurst is complaining about actions and/or inactions
by the defendants about property being developed by a third party, Unique Homes. The supreme
court addressed the issue of standing in Garner v. County of Du Page, 8 Ill. 2d 155, a case
structurally similar to this one and cited by the trial court as authoritative. In Garner, a taxpayer
filed a suit against the county, seeking a declaration about the constitutionality of the county’s
amendment to a zoning ordinance and also seeking injunctive relief. Id. at 157. The Du Page
County Board had unanimously voted to amend an ordinance that reclassified a 120-acre tract of
land from farming to industrial. Id. Taxpayers, who were residents of Du Page County and
owners of real estate in and around Naperville, filed suit. Id. The taxpayers alleged that their real
estate was contiguous and in the general vicinity of the rezoned tract. Id. They argued that the
rezoning was unreasonable, arbitrary, and capricious; that the rezoning would result in decreased
property values; and that the rezoning was detrimental to the welfare of Naperville because there
would likely be an increase in population due to the planned industrial use and the increase
would overtax Naperville’s facilities for housing, education, water, sewage disposal, and traffic.
Id. at 157-58. The facts included in the complaint revealed that none of the concerned taxpayers’
properties were contiguous to or in proximity of the rezoned tract. Id. at 158. The only evidence
about property values was provided by a realtor who concluded that the rezoned tract was too
6
distant from the taxpayers’ properties to affect a value change. Id. To establish standing in a case
where the complaining party alleges that corporate authorities have wrongfully allowed a use on
someone else’s property, one “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.” Id. at 158-59. The
supreme court concluded that if the rezoning posed some sort of threat to the complaining
taxpayers, the threat would be no different than that posed to the general public. Id. at 159-60. In
support, the court quoted a New York court’s opinion as follows:
“ ‘As one may not assume the role of champion of a community to challenge public
officers to meet him in courts of justice to defend their official acts, *** so one having
only a general interest may not adopt the part of an advocate of municipal welfare *** to
promote a judicial enforcement or interpretation of zoning regulations.’ ” Id. at 160
(quoting Blumberg v. Hill, 119 N.Y.S.2d 855, 857 (N.Y. Sup. Ct. 1953)).
See also Swain v. County of Winnebago, 111 Ill. App. 2d 458, 250 N.E.2d 439 (1969) (holding
that Swain, individually as owner of a shoe store in downtown Rockford, and Central City
Council, a downtown business council, were unable to establish that they would personally
suffer special damage (alleged increase of vehicular traffic and overtaxed area services) as a
result of Winnebago County’s planned rezoning of property to permit development of a regional
shopping center, and therefore they lacked standing to proceed with the declaratory judgment
suit); Bullock, 5 Ill. 2d at 33-34 (holding that city residents failed to prove that they suffered a
special damage by the city’s granted variation of use for a tract of land from single-family
residential to commercial in an area with no development in the past 40 years); Koehler v. A
Century of Progress, 354 Ill. 347, 349-50, 188 N.E. 445, 446 (1933) (holding that the
7
complaining party lacked standing to seek injunctive relief to stop the use of public funds for a
Chicago exposition because she had no special injury).
¶ 18 Our supreme court provided additional guidance on the requirements of standing in the
case of Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462. In Greer, a complaint
was filed by neighborhood residents who owned property near a planned rehabilitation
development housing project for low income tenants in Chicago. Id. at 470. At issue was the
legitimacy of mortgage funding by the Illinois Housing Development Authority (IHDA). Id. The
IHDA alleged that the plaintiffs lacked standing. Id. at 487. The court held that, provided that the
complaining parties could establish “some injury in fact [whether actual or threatened] to a
legally cognizable interest,” then the parties established standing. Id. at 492 (citing Glazewski v.
Coronet Insurance Co., 108 Ill. 2d 243, 254, 483 N.E.2d 1263, 1268 (1985), and Warth v. Seldin,
422 U.S. 490, 500 (1975)). The actual or threatened injury needs to be “ ‘distinct and palpable,’ ”
“ ‘fairly traceable’ ” to the defendant’s actions, and “substantially likely to be prevented or
redressed by the grant of the requested relief.” Id. at 492-93 (quoting Havens Realty Corp. v.
Coleman, 455 U.S. 363, 376 (1982) (“distinct and palpable”) and Village of Arlington Heights v.
Metropolitan Housing Development Corp., 429 U.S. 252, 261 (1977) (“fairly traceable”) and
citing Immigration & Naturalization Service v. Chadha, 462 U.S. 919, 936 (1983) (substantial
likelihood that if the relief is provided, the injury will be prevented or remedied)).
¶ 19 In deciding Greer, the supreme court did not mention or specifically overrule the Garner
court’s “special damages” requirement to establish standing. The court began with the principle
that standing in Illinois requires “some injury in fact to a legally cognizable interest.” Id. at 492
(citing Glazewski, 108 Ill. 2d at 254). The court then cited to several Illinois and United States
Supreme Court cases to outline the precise meaning of “injury in fact to a legally cognizable
8
interest.” Id. Based upon this careful analysis, we conclude that Greer explained and outlined
what is required to establish standing and should be the standard used by courts.
¶ 20 While Garner and other similar cases required “special injuries” that are unique to the
complaining party and different from what the general public would experience, we find
common ground between those “special injuries” and the “injury in fact to a legally cognizable
interest.” In Glazewski v. Coronet Insurance Co., 108 Ill. 2d at 254, the court did not rule on the
standing issue but found that the plaintiffs, who alleged fraud against an insurance company, had
no dealings with and had not purchased insurance from the defendant insurance company and,
“therefore, have not alleged any actual injury in reliance on their conduct.” Essentially, the court
found that the plaintiffs had no personal injuries resulting from the alleged frauds committed by
the insurance company. Like the “special injuries” in Garner, the Glazewski plaintiffs were
faulted for not having any direct relationship and injuries with the defendant. Similarly, in
Glisson v. City of Marion, 188 Ill. 2d at 222, a taxpayer filed suit against the municipality that
constructed a dam and reservoir that allegedly violated the Illinois Endangered Species
Protection Act (520 ILCS 10/1 et seq. (West 1998)) and resulted in the elimination of two
species from the area. At issue was whether the taxpayer had standing to file a complaint for
declaratory judgment and injunctive relief. Glisson, 188 Ill. 2d at 223. The supreme court
concluded that the taxpayer did not have standing, as he did not have a legally cognizable
interest based upon the constitution’s right to a “ ‘healthful environment’ ” as that term was used
in the Illinois Constitution. Id. at 231 (quoting Ill. Const. 1970, art. XI, § 2). The taxpayer also
argued that he had standing as a naturalist who used the creek at issue for “food gathering,
recreation, spiritual and educational activities, and on his lifestyle which he claim[ed] [was]
‘dependant on’ ” the creek. Id. The court disagreed, stating “that a party cannot gain standing
9
merely through a self-proclaimed interest or concern about an issue, no matter how sincere.” Id.
(citing Landmarks Preservation Council v. City of Chicago, 125 Ill. 2d 164, 175, 531 N.E.2d 9,
13 (1988)). We conclude that the terms “legally cognizable interest” and “injury in fact to a
legally cognizable interest” require a distinct injury to the complaining party, even though the
use of the term “special injury” is no longer commonplace. The injury must be either actual or
threatened and must be distinct and palpable. Greer, 122 Ill. 2d at 492-93. To establish standing,
there needs to be a connection between the complaining party and the defendant involving an
injury to a legally cognizable interest.
¶ 21 Cedarhurst filed its complaint seeking three different forms of relief: declaratory,
injunctive, and mandamus. As the rules regarding each type of relief vary somewhat, we will
address each separately.
¶ 22 Declaratory Relief
¶ 23 To establish standing in a declaratory judgment suit, there must be an actual controversy
between the parties. Underground Contractors Ass’n v. City of Chicago, 66 Ill. 2d 371, 375, 362
N.E.2d 298, 300 (1977); Greer, 122 Ill. 2d at 493. An actual controversy is defined as being “a
concrete dispute admitting of an immediate and definitive determination of the parties’ rights, the
resolution of which will aid in the termination of the controversy or some part thereof.” Adkins
Energy, LLC v. Delta-T Corp., 347 Ill. App. 3d 373, 376, 806 N.E.2d 1273, 1276 (2004); Greer,
122 Ill. 2d at 493. In addition, the party seeking declaratory relief must possess a personal claim,
status, or right that could be affected if relief would be granted. Greer, 122 Ill. 2d at 493 (citing
Underground Contractors Ass’n, 66 Ill. 2d at 375-76).
¶ 24 In this case, Cedarhurst cites to two supreme court cases as authority for all three forms
of relief sought—People ex rel. Faulkner v. Harris, 203 Ill. 272, 67 N.E. 785 (1903), and County
10
Commissioners of Pike County v. People ex rel. Metz, 11 Ill. 202 (1849). The plaintiffs in both of
these cases sought writs of mandamus to compel a public officer to take action on matters of
public concern. Faulkner, 203 Ill. 272 (citizen allowed to proceed against the mayor and
alderman of the city of Champaign who were allegedly shirking official duties mandated by
ordinances to keep and maintain all streets, alleys, and sidewalks clear and free from
encroachments and obstructions); County Commissioners, 11 Ill. 202 (Pike County received
funds appropriated for public works but then diverted some of the money to the general fund,
and although relator had no individual interest in mandating compliance with the specified
appropriation, the court found that he could do so because the matter was of public concern in
having the public works improvements completed). Essentially, both mandamus cases did not
require the complaining party to have any personal interest in the case and held that it was
enough that the subject matter of the claims was of public concern. Faulkner, 203 Ill. at 277;
County Commissioners, 11 Ill. at 208. Although these two cases allow the complaining party to
bring a claim about a public matter, the plaintiffs in both cases were pursuing a writ of
mandamus requiring a public official to act. Even though the cases could have some application
to Cedarhurst’s mandamus count, nothing in these cases suggests application to declaratory
judgment cases, and thus both cases are distinguishable.
¶ 25 Cedarhurst also cites to one case involving a declaratory judgment suit as authority. In
the cited case, Tanner v. Solomon, 58 Ill. App. 2d 134, 135, 206 N.E.2d 528, 529 (1965), one
member of a local fire and police board sought a declaratory judgment against the other members
of the same board. The issue involved appointment of allegedly ineligible applicants to the police
force. Id. The court ultimately concluded that the plaintiff did not have standing but stated in
dicta that it had no problem in concluding that it was unnecessary for the plaintiff to have been
11
directly impacted by the appointments. Id. at 138. As the citation to this aspect of the case was
not part of the court’s holding, we do not find Tanner persuasive.
¶ 26 Cedarhurst makes no attempt to claim that it would be directly injured from the planned
development of a competing residential facility, i.e., it raises no actual or threatened injury that is
distinct. Instead Cedarhurst raises safety concerns for the prospective new tenants of the planned
development. Furthermore, Cedarhurst has no actual controversy with the defendants in that it
does not allege that it possesses a personal claim, status, or right capable of being rectified if
declaratory judgment was granted. Greer, 122 Ill. 2d at 493. The three cases Cedarhurst cites do
not support its claim of standing. We find that the analysis in Garner, coupled with the specific
definition of the injury required for standing in Greer, establishes that Cedarhurst does not have
standing. As the supreme court in Garner stated, “[t]his case is not the normal one where an
owner of land is complaining of restrictions placed upon its use, but is the comparatively rare
case in which it is claimed that corporate authorities have wrongfully permitted a use on the
property of someone else.” Garner, 8 Ill. 2d at 158. Because the plaintiffs in Garner had no
direct, personal injuries resulting from the rezoning of someone else’s property, the court held
that they did not have standing to complain. Id. at 159. Similarly, Cedarhurst has no direct
personal injuries, i.e., no injury in fact. Id. at 158-59; Greer, 122 Ill. 2d at 492. Cedarhurst’s
property is not located near the tract of land at issue, and any claimed violations cause no direct
impact to Cedarhurst. Although Cedarhurst is a citizen of the Village, none of the problems
and/or violations it claims would occur if the development is allowed to proceed have any direct
link to or impact upon Cedarhurst. We affirm the trial court court’s conclusion that Cedarhurst
did not have standing to seek declaratory judgment against the defendants.
12
¶ 27 Injunctive Relief
¶ 28 To establish standing in a suit seeking injunctive relief, the complaining party must
establish that he has a “clearly ascertainable right or interest which needs protection.” Village of
Lake in the Hills v. Laidlaw Waste Systems, Inc., 143 Ill. App. 3d 285, 292, 492 N.E.2d 969, 974
(1986). The party must claim injury to a “substantive interest he possesses which is recognized
by statute or common law.” Id. (citing Glazewski, 108 Ill. 2d at 254). The injury must directly
impact his property or rights and cannot be abstract. Id. “The doctrine is designed to insure that
the courts are accessible to resolve actual controversies between parties and not address abstract
questions, moot issues, or cases brought on behalf of others who may not desire judicial aid.” Id.
(citing Illinois Municipal League v. Illinois State Labor Relations Board, 140 Ill. App. 3d 592,
598, 488 N.E.2d 1040, 1044 (1986)).
¶ 29 Cedarhurst only cites to Faulkner and County Commissioners as authority for its claim
that it has standing to seek an injunction against the defendants. Again, as both cases involved
writs of mandamus, they are not authoritative on the issue of standing to seek injunctive relief.
Here, Cedarhurst has not established a personally substantive interest recognized by statute or
common law that must be protected. Glazewski, 108 Ill. 2d at 254; Garner, 8 Ill. 2d at 159. We
affirm the trial court court’s conclusion that Cedarhurst did not have standing to seek injunctive
relief against the defendants.
¶ 30 Mandamus
¶ 31 To establish standing in a suit seeking a writ of mandamus, the complaining party must
establish that there is a “sufficiently protectable interest pursuant to statute or common law
which is alleged to be injured.” Hill v. Butler, 107 Ill. App. 3d 721, 725, 437 N.E.2d 1307, 1311
(1982) (citing Retail Liquor Dealers Protective Ass’n of Illinois v. Schreiber, 382 Ill. 454, 459,
13
47 N.E.2d 462, 464 (1943)); see also People ex rel. Cermak v. Emmerson, 323 Ill. 561, 566, 154
N.E. 474, 476 (1926) (stating that a Cook County resident who was not affected by legislation
regarding judicial nomination by party conventions in counties with fewer than 300,000
inhabitants “has no right to complain,” but that he did have standing with respect to legislation
regarding Cook County judicial nominations). The claim must be specific and cannot be abstract.
Hill, 107 Ill. App. 3d at 725. More recently, in McCann v. Dart, 2015 IL App (1st) 141291, ¶ 16,
30 N.E.3d 468, the complaining citizen claimed that, as a lifelong Illinois resident, he had
standing to bring his mandamus suit. In response, the court stated that the right of a citizen to
bring a mandamus action against a public official does not exist in a vacuum. Id. “ ‘Mandamus is
an extraordinary remedy traditionally used to compel a public official to perform a purely
ministerial duty.’ ” Id. (quoting Bremen Community High School District No. 228 v. Cook
County Comm’n on Human Rights, 2012 IL App (1st) 112177, ¶ 14, 981 N.E.2d 369). To
establish the right to a writ of mandamus, the complaining party must establish the following:
“(1) a clear, affirmative right to relief; (2) a clear duty of the public officer to act; and (3) clear
authority in the public officer to comply.” Id. The court concluded that the plaintiff’s brief on
appeal did not contain allegations supportive of standing because he did not allege a personal
injury or legally cognizable interest. Id. ¶¶ 17-18.
¶ 32 Although there are situations where a complaining party is able to act for the public at
large in seeking a writ of mandamus to compel some action by a public official or body as
detailed in the two cases Cedarhurst cites, the facts in this case do not support Cedarhurst’s
request. Faulkner, 203 Ill. at 277; County Commissioners, 11 Ill. at 208. Both cases stand for the
theory that a concerned citizen can seek a writ of mandamus to compel a public official to
perform a ministerial act. But, that potential ability to obtain a writ is only possible if the
14
concerned citizen can also establish: “(1) a clear, affirmative right to relief; (2) a clear duty of the
public officer to act; and (3) clear authority in the public officer to comply.” McCann, 2015 IL
App (1st) 141291, ¶ 16.
¶ 33 Cedarhurst is not able to establish that there is a sufficiently protectable interest pursuant
to statute or common law that would be damaged because the defendants were not in violation of
any zoning ordinance or comprehensive plan then in effect. The Illinois Municipal Code
provides that an official comprehensive plan and any amendment or addition to the plan is only
effective if it is formally adopted by the municipality’s corporate authorities. 65 ILCS 5/11-12-6
(West 2016). Without the municipality’s formal adoption, the plan is advisory only and “shall
not be construed to regulate or control the use of private property in any way” unless a part of the
comprehensive plan was implemented by a duly-enacted ordinance. Id. Cedarhurst contends that
the mayor is in violation of his obligations to follow and enforce all laws and ordinances and to
perform duties prescribed by law. 1 Specifically, Cedarhurst argues that the mayor did not enforce
and follow the 2000 comprehensive plan, which obligated the evaluation of developments near
the regional airport. However, the 2000 comprehensive plan is no longer valid, as a revised
version was adopted in 2014. Although Cedarhurst acknowledges these facts, it still argues that
the mayor should have complied with his “duties” pursuant to the 2000 version. Cedarhurst’s
argument lacks sound reasoning. The comprehensive plan is an advisory document and is not
mandatory. Further, the 2000 comprehensive plan at issue is no longer in effect. We affirm the
trial court’s conclusion that Cedarhurst did not have standing to seek a writ of mandamus against
the defendants.
1
Cedarhurst does not appear to claim that the Village or any of the trustees is/are in violation of
the cited ordinances and statutes.
15
¶ 34 CONCLUSION
¶ 35 Cedarhurst did not have standing to pursue its claims against the defendants. As this issue
is dispositive, we do not reach the question of whether or not the defendants had a duty to act or
whether Cedarhurst’s pleadings set forth potential viable causes of action. To the extent that our
analysis varies from that of the trial court, as our review is de novo, a reviewing court may affirm
the trial court’s decision on other grounds. Estate of Johnson v. Condell Memorial Hospital, 119
Ill. 2d 496, 502, 520 N.E.2d 37, 39 (1988).
¶ 36 For the reasons stated in this opinion, we affirm the trial court’s order dismissing
Cedarhurst’s complaint.
¶ 37 Affirmed.
16
2018 IL App (5th) 170309
NO. 5-17-0309
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
CEDARHURST OF BETHALTO REAL ) Appeal from the
ESTATE, LLC, ) Circuit Court of
) Madison County.
Plaintiff-Appellant, )
)
v. ) No. 17-MR-118
)
THE VILLAGE OF BETHALTO, ILLINOIS; )
ALAN WINSLOW, in His Official Capacity )
as Mayor of the Village of Bethalto; )
GERALD BOURLAND, in His Official Capacity )
as Trustee of the Village of Bethalto; )
PERRY WITHERS, in His Official Capacity )
as Trustee of the Village of Bethalto; )
JEFF MULL, in His Official Capacity )
as Trustee of the Village of Bethalto; )
GARY BOST, in His Official Capacity )
as Trustee of the Village of Bethalto; )
BRADY DUGGER, in His Official Capacity )
as Trustee of the Village of Bethalto; )
and DAN McRAE, in His Official Capacity )
as Trustee of the Village of Bethalto, ) Honorable
) Philip B. Alfeld,
Defendants-Appellees. ) Judge, presiding.
_____________________________________________________________________________________________
Opinion Filed: October 12, 2018
_____________________________________________________________________________________________
Justices: Honorable Melissa A. Chapman, J.
Honorable Judy L. Cates, J., and
Honorable James R. Moore, J.,
Concur
_____________________________________________________________________________________________
Attorneys Gregory C. Mollett, Clark W. Hedger, Tali L. Katz, Greensfelder, Hemker & Gale, P.C.,
for 10 South Broadway, Suite 2000, St. Louis, MO 63102
Appellant
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Attorneys Robert L. Jackstadt, Charles P. Watkins, Tueth, Keeney, Cooper, Mohan & Jackstadt, P.C.,
for 101 West Vandalia, Suite 210, Edwardsville, IL 62025
Appellees
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