2018 IL App (2d) 170137
No. 2-17-0137
Opinion filed March 6, 2018
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
FOX VALLEY FAMILIES AGAINST ) Appeal from the Circuit Court
PLANNED PARENTHOOD, SOCORRO ) of Du Page County.
NIETO, and CHARLES AMANING, )
)
Plaintiffs-Appellants, )
)
v. ) No. 08-MR-261
)
PLANNED PARENTHOOD OF ILLINOIS, )
as Successor in Interest to Planned )
Parenthood/Chicago, GEMINI OFFICE )
DEVELOPMENT, LLC, and 21ST CENTURY )
OFFICE DEVELOPMENT, LLC, ) Honorable
) Paul M. Fullerton,
Defendants-Appellees. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE ZENOFF delivered the judgment of the court, with opinion.
Justices McLaren and Hutchinson concurred in the judgment and opinion.
OPINION
¶1 Defendant Gemini Office Development, LLC (Gemini), owns the property located at
3051 East New York Street in Aurora, Illinois. The tenant of that property, defendant Planned
Parenthood of Illinois, operates a facility where it provides abortions and other healthcare
services. Planned Parenthood of Illinois is the sole and controlling member and owner of
defendant 21st Century Office Development, LLC, which, in turn, is the sole and controlling
member and owner of Gemini. Plaintiffs—Fox Valley Families Against Planned Parenthood,
2018 IL App (2d) 170137
Socorro Nieto, and Charles Amaning—filed the instant action to challenge defendants’ use of the
property. Specifically, plaintiffs alleged in their fourth amended complaint that such use
constitutes an ongoing violation of the Aurora Zoning Ordinance (Aurora Code of Ordinances,
Appendix A, as amended by Ordinance No. O15-062 (approved Oct. 13, 2015)). The trial court
dismissed the action pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS
5/2-615 (West 2016)). Plaintiffs appeal. For the reasons that follow, we affirm.
¶2 I. BACKGROUND
¶3 This is the second time that this case has been before us. In Fox Valley Families Against
Planned Parenthood v. Planned Parenthood of Illinois, 2015 IL App (2d) 131019-U (Fox Valley
Families I), we remanded the matter for further proceedings on the issue of whether defendants’
ongoing use of the subject property violates the zoning ordinance. We made it clear that we
expressed no opinion on the merits of that particular issue. Fox Valley Families I, 2015 IL App
(2d) 131019-U, ¶ 107 (“We emphasize that we express no opinion on the merits of plaintiffs’
claim that Planned Parenthood’s ongoing use of the property violates the [zoning ordinance],
even though plaintiffs maintain that this court should make that determination. Given the
procedural posture of this case, it would be premature for this court to do so.”).
¶4 On remand, plaintiffs filed a fourth amended complaint seeking a declaratory judgment
and an injunction pursuant to section 11-13-15 of the Illinois Municipal Code (65 ILCS 5/11-13
15 (West 2016)). That statute provides a mechanism for property owners to seek redress for
ordinance violations on neighboring properties.
¶5 The parties agree that the subject property is located in Aurora’s Business-Boulevard
District (B-B District). They disagree as to whether the present use of the property is permitted
in that district. According to defendants, the Planned Parenthood facility is indeed a permitted
-2
2018 IL App (2d) 170137
use, because it falls under the category of “Offices, business and professional, including medical
clinics.” See Aurora Code of Ordinances, Appendix A, § 8.6-4.1(LLL), as amended by
Ordinance No. O15-062 (approved Oct. 13, 2015). Plaintiffs, on the other hand, maintain that
the use of the property more accurately comes under the umbrella of “Social Service Agencies,
Charitable Organizations, Health Related Facilities, and similar uses when not operated for
pecuniary profit.” See Aurora Code of Ordinances, Appendix A, § 20, Table One, as amended
by Ordinance No. O15-062 (approved Oct. 13, 2015). Plaintiffs submit that this so-called
“nonprofit use category” or “not-for-profit use category” is prohibited in the B-B District.
¶6 The parties outlined their respective interpretations of the zoning ordinance in the context
of briefing defendants’ motion to dismiss the fourth amended complaint pursuant to section 2
615 of the Code. The trial court granted that motion, concluding that plaintiffs failed to allege an
ongoing violation of the zoning ordinance. Plaintiffs timely appealed.
¶7 II. ANALYSIS
¶8 Plaintiffs preliminarily contend that the law-of-the-case doctrine bars defendants’
arguments. Plaintiffs also submit that it was improper for the trial court to dismiss the fourth
amended complaint, because we determined in the prior appeal that it would be premature for us
to address the merits of their claim and “the case was in effectively the same posture” on remand.
Plaintiffs further assert that defendants forfeited their statutory-interpretation argument by failing
to raise it in the first appeal.
¶9 “[T]he law-of-the-case doctrine generally bars relitigation of an issue previously decided
in the same case.” People ex rel. Madigan v. Illinois Commerce Comm’n, 2012 IL App (2d)
100024, ¶ 31. When an appellate court decides a question of law, that decision ordinarily binds
both the trial court on remand and the appellate court in a subsequent appeal. Madigan, 2012 IL
-3
2018 IL App (2d) 170137
App (2d) 100024, ¶ 31. But “matters concerning the merits of a controversy that were not
decided by a first appellate opinion do not become the law of the case.” Filipetto v. Village of
Wilmette, 254 Ill. App. 3d 461, 466 (1993). That is true even if such issues were “presented but
not decided in the prior appeal.” Filipetto, 254 Ill. App. 3d at 466.
¶ 10 The law-of-the-case doctrine does not bar defendants’ arguments. In Fox Valley Families
I, we recounted that the trial court had granted summary judgment in defendants’ favor on
plaintiffs’ “ongoing use” claim, based on its erroneous finding that “a legislative decision had
been made approving of Planned Parenthood’s use of the property and that plaintiffs could not
establish that the decision was arbitrary and capricious.” Fox Valley Families I, 2015 IL App
(2d) 131019-U, ¶ 97. We held that defendants “were not entitled to judgment as a matter of law
on [the ongoing-use] claim on the basis that the city made a legislative decision approving of
Planned Parenthood’s use.” Fox Valley Families I, 2015 IL App (2d) 131019-U, ¶ 107.
However, we expressly declined to comment on the merits of plaintiffs’ theory that the ongoing
use of the subject property violates the zoning ordinance. Fox Valley Families I, 2015 IL App
(2d) 131019-U, ¶ 107. Plaintiffs’ suggestion that we nevertheless made certain “preliminary
finding[s]” on that issue is simply wrong.
¶ 11 For similar reasons, we decline to hold that defendants have waived, forfeited, or
otherwise defaulted their arguments. Throughout much of the history of this case, defendants’
position with respect to plaintiffs’ claim of an ongoing ordinance violation was colored by an
erroneous assumption that the City of Aurora had made a legislative decision approving of
defendants’ particular use of the property. In Fox Valley Families I, we certainly contemplated
that the parties would have a chance on remand to present their respective interpretations of the
-4
2018 IL App (2d) 170137
zoning ordinance without the effect of that erroneous assumption. Contrary to what plaintiffs
propose, the case was not in the same procedural posture on remand as it had been on appeal.
¶ 12 The trial court dismissed plaintiffs’ fourth amended complaint pursuant to section 2-615
of the Code. “A section 2-615 motion to dismiss challenges the legal sufficiency of a complaint
based on defects apparent on its face.” Bueker v. Madison County, 2016 IL 120024, ¶ 7. In
reviewing the trial court’s ruling, we accept as true the well-pleaded facts in the complaint as
well as the reasonable inferences that can be drawn from such facts. Bueker, 2016 IL
120024, ¶ 7. “The critical inquiry is whether the allegations of the complaint, when construed in
the light most favorable to the plaintiff, are sufficient to establish a cause of action upon which
relief may be granted.” Ferris, Thompson & Zweig, Ltd. v. Esposito, 2017 IL 121297, ¶ 5.
Dismissal of a complaint is appropriate only where it is clearly apparent that the plaintiff can
prove no set of facts that would entitle him or her to recovery. Ferris, 2017 IL 121297, ¶ 5. Our
review is de novo. Ferris, 2017 IL 121297, ¶ 5.
¶ 13 The parties present competing interpretations of the zoning ordinance. We construe
municipal ordinances in the same manner as statutes. In re Application of the County Collector,
132 Ill. 2d 64, 72 (1989). Our primary objective is to ascertain and effectuate the legislative
body’s intent. Henderson Square Condominium Ass’n v. LAB Townhomes, LLC, 2015 IL
118139, ¶ 67. “Effect should be given to the intention of the drafters by concentrating on the
terminology, its goals and purposes, the natural import of the words used in common and
accepted usage, the setting in which they are employed, and the general structure of the
ordinance.” Monahan v. Village of Hinsdale, 210 Ill. App. 3d 985, 993 (1991).
¶ 14 The zoning ordinance divides Aurora into 23 zoning districts. See Aurora Code of
Ordinances, Appendix A, § 4.1, as amended by Ordinance No. O15-062 (approved Oct. 13,
-5
2018 IL App (2d) 170137
2015). The parties agree that the subject property is part of the B-B District. Section 8.6 of the
zoning ordinance governs the use of property in that district. Aurora Code of Ordinances,
Appendix A, § 8.6, as amended by Ordinance No. O15-062 (approved Oct. 13, 2015).
Specifically, section 8.6-4.1 identifies 99 categories of permitted uses, one of which is “Offices,
business and professional, including medical clinics.” Aurora Code of Ordinances, Appendix A,
§ 8.6-4.1(LLL), as amended by Ordinance No. O15-062 (approved Oct. 13, 2015). Section 8.6
4.2 then lists certain uses that are allowed in the B-B District with a special-use permit. Aurora
Code of Ordinances, Appendix A, § 8.6-4.2, as amended by Ordinance No. O15-062 (approved
Oct. 13, 2015). Section 8.6-4.4 provides that all uses that are not “expressly permitted” in the B
B District are “expressly prohibited.” Aurora Code of Ordinances, Appendix A, § 8.6-4.4, as
amended by Ordinance No. O15-062 (approved Oct. 13, 2015).
¶ 15 Defendants contend that their use of the subject property is permitted under the provision
that allows “Offices, business and professional, including medical clinics.”
¶ 16 In their fourth amended complaint, plaintiffs alleged that defendants’ use of the property
implicates a “more restrictive” zoning classification. According to plaintiffs, the property is also
being used for political lobbying, voter education, and other community-organizing and
educational activities. In plaintiffs’ view, the facility is thus “far more than any mere ‘medical
office building.’ ” Plaintiffs alleged that defendants’ use of the property most accurately falls
under a category that, under plaintiffs’ interpretation of the zoning ordinance, is banned in the B
B District: “Social Service Agencies, Charitable Organizations, Health Related Facilities, and
similar uses when not operated for pecuniary profit.” Aurora Code of Ordinances, Appendix A,
§ 20, Table One, as amended by Ordinance No. O15-062 (approved Oct. 13, 2015). Plaintiffs
-6
2018 IL App (2d) 170137
repeatedly referred to that particular use as the “nonprofit use category.” (On appeal, they call it
the “not-for-profit use category.”)
¶ 17 Plaintiffs alleged that, when defendants applied for the necessary permits in July 2006,
“the nonprofit land use could be permitted on the subject property pursuant to section 8.6-4.2 of
the [zoning ordinance], but only pursuant to a special use permit issued by the City Council, after
notice and a public hearing.” (It is undisputed that defendants never sought a special-use
permit.) According to plaintiffs, before defendants received their permits, the city council
amended the zoning ordinance in December 2006 to, in plaintiffs’ words, “ban entirely any
nonprofit land use from the subject property.” Therefore, plaintiffs concluded, defendants’ use
of the property is an ongoing prohibited use under the zoning ordinance.
¶ 18 The trial court rejected plaintiffs’ interpretation of the zoning ordinance, as do we.
Plaintiffs’ proffered distinction between for-profit uses of property in the B-B District (which
plaintiffs contend are permissible) and nonprofit uses (which plaintiffs contend are
impermissible) is not supported by the plain language of the zoning ordinance.
¶ 19 As noted, one of the permitted uses of property in the B-B District is “Offices, business
and professional, including medical clinics.” Aurora Code of Ordinances, Appendix A, § 8.6
4.1(LLL), as amended by Ordinance No. O15-062 (approved Oct. 13, 2015). The plain language
of that provision does not limit such uses to for-profit enterprises. Furthermore, the zoning
ordinance defines 1 the term “Clinic, Medical or Dental” as follows:
1
Section 8.6-3.2(A) incorporates the definitions “[a]s provided for in the Rules and
Definitions Section.” Aurora Code of Ordinances, Appendix A, § 8.6-3.2(A), as amended by
Ordinance No. O15-062 (approved Oct. 13, 2015).
-7
2018 IL App (2d) 170137
“A building containing an individual practitioner or an association or group of licensed
physicians[,] surgeons, dentists, clinical psychologists, or similar professional health care
practitioners, including assistants. The clinic may include apothecary, dental and medical
laboratories, and/or X-ray facilities, but shall not include in-patient care or operating
rooms for major surgery.” Aurora Code of Ordinances, Appendix A, § 3.3, as amended
by Ordinance No. O15-062 (approved Oct. 13, 2015).
The zoning ordinance similarly defines the term “Clinic or Medical Center” as follows:
“A ‘medical center’ or ‘medical clinic’ is an establishment where three (3) or more
licensed physicians, surgeons or dentists engage in the practice of medicine or dentistry,
operating on a group or individual basis with pooled facilities, which need not, but may,
include coordinated laboratory, X-ray and allied departments, and the diagnosis and
treatment of humans, a drug prescription counter (not a drugstore) for the dispensing of
drugs and pharmaceutical products, orthopedic or optical devices to the patients of said
physicians, surgeons, and dentists; but not including any exterior display or advertising
sign.” Aurora Code of Ordinances, Appendix A, § 3.3, as amended by Ordinance No.
O15-062 (approved Oct. 13, 2015).
Neither of those definitions distinguishes between for-profit and nonprofit uses.
¶ 20 If the City of Aurora intended to require medical clinics in the B-B District to operate as
for-profit enterprises, it certainly knew how to make such intent explicit. For example, section
8.6-4.2(B)(ii)(a) of the zoning ordinance allows the following uses in the B-B District, with a
special-use permit: “Amusement and recreational uses including archery range, golf practicing
range, miniature golf course, swimming pools, swim clubs, roller skating rinks, dance halls,
tennis courts, tennis buildings, bowling alleys or other similar places of entertainment when
-8
2018 IL App (2d) 170137
operated for profit.” (Emphasis added.) Aurora Code of Ordinances, Appendix A, § 8.6
4.2(B)(ii)(a), as amended by Ordinance No. O15-062 (approved Oct. 13, 2015). In contrast to
section 8.6-4.2(B)(ii)(a), section 8.6-4.1(LLL) permits medical clinics in the B-B District without
expressly limiting such use to for-profit businesses. Plaintiffs nevertheless effectively ask us to
read that restriction into section 8.6-4.1(LLL). We are not free to do so. See Beggs v. Board of
Education of Murphysboro Community Unit School District No. 186, 2016 IL 120236, ¶ 52 (“It
is never proper for a court to depart from the plain language by reading into the statute
exceptions, limitations, or conditions that conflict with the clearly expressed legislative intent.”);
Gutraj v. Board of Trustees of the Police Pension Fund, 2013 IL App (2d) 121163, ¶ 14 (“ ‘[W]e
should normally assume that whenever the legislature intended a limitation, it expressed that
limitation; conversely, if the limitation is absent from the text, the legislature presumably did not
intend the limitation.’ ” (quoting Illinois Bell Telephone Co. v. Illinois Commerce Comm’n, 362
Ill. App. 3d 652, 660 (2005))).
¶ 21 Plaintiffs emphasize that section 8.6-2.1 of the zoning ordinance provides:
“The intent of the B-B business boulevard district is to combine residential, commercial,
office and industrial development in an orderly arrangement along a major street so as to
maximize the commercial service benefit it offers and to minimize its harmful affects [sic]
on (1) traffic movement and flow; (2) traffic safety; (3) the various land uses within and
in close proximity to the B-B district; and (4) the beauty of the community.” (Emphasis
added.) Aurora Code of Ordinances, Appendix A, § 8.6-2.1, as amended by Ordinance
No. O15-062 (approved Oct. 13, 2015).
In plaintiffs’ view, “[p]ermitting not-for-profit uses in the B-B Business Boulevard District
directly conflicts with that stated intent.” Plaintiffs seem to imply that nonprofit uses inherently
-9
2018 IL App (2d) 170137
provide less of a commercial-service benefit than for-profit uses. To the extent that this is what
plaintiffs mean to suggest, they fail to develop a cogent argument in support of that proposition.
Moreover, providing medical care might reasonably be considered a valuable commercial-
service benefit in and of itself. It is also not difficult to imagine that a medical clinic, though
operated not-for-profit, could provide a substantial commercial-service benefit simply by
drawing large numbers of people into the district. Plaintiffs’ argument regarding commercial-
service benefits is unpersuasive for the additional reason that some of the permitted property uses
listed in section 8.6-4.1 of the zoning ordinance would seem to apply only to nonprofit or
governmental entities. For example, religious institutions, libraries, post offices and postal
substations, public-utility collection offices, and reading rooms are all permitted uses in the B-B
District. See Aurora Code of Ordinances, Appendix A, §§ 8.6-4.1(W), (DDD), (VVV),
(WWW), (YYY), as amended by Ordinance No. O15-062 (approved Oct. 13, 2015). So are
clubs and fraternal organizations (Aurora Code of Ordinances, Appendix A, § 8.6-4.1(X), as
amended by Ordinance No. O15-062 (approved Oct. 13, 2015)), which are nonprofit entities by
definition. See Aurora Code of Ordinances, Appendix A, § 3.3, as amended by Ordinance No.
O15-062 (approved Oct. 13, 2015) (defining “Club or Lodge, Private” as “[a] structure or part
thereof used by a not-for-profit association of persons who are bona fide members paying dues
and where facilities are restricted to members and their guests” (emphasis added)).
¶ 22 Furthermore, plaintiffs’ contentions about a so-called “nonprofit use category” or “not
for-profit use category” are rooted in a version of the zoning ordinance that has not been in effect
for more than a decade. Prior to December 2006, the zoning ordinance contained a section 4.3
1.1(FFF), describing special uses, which provided as follows:
- 10
2018 IL App (2d) 170137
“The city council of the City of Aurora shall have the authority to permit by ordinance
the following uses of land or structures or both, subject to the conditions contained in the
Administrative Section.
***
FFF. Social Service agencies, charitable organizations, health-related facilities,
meeting halls and similar uses when not operated for pecuniary profit in any use district.”
Aurora Code of Ordinances, Appendix A, § 4.3-1.1(FFF), as amended by Ordinance No.
O06-64 (approved July 25, 2006).
¶ 23 The only portion of the current version of the zoning ordinance that contains language
similar to that formerly included in section 4.3-1.1(FFF) is now section 20, Table One. See
Aurora Code of Ordinances, Appendix A, § 20, Table One, as amended by Ordinance No. O15
062 (approved Oct. 13, 2015). As noted above, the zoning ordinance creates 23 zoning districts.
The respective sections of the zoning ordinance governing 17 of those districts specifically
incorporate Table One. 2 Table One, in turn, contains a chart listing a number of use categories.
That chart indicates whether and under what circumstances the myriad uses are allowed in those
17 districts. Of relevance to this appeal, one use category listed in Table One is “Social Service
2
The “R-1” One-Family Dwelling District, governed by section 7.5 of the zoning
ordinance, is one such example. See Aurora Code of Ordinances, Appendix A, § 7.5-4.1, as
amended by Ordinance No. O15-062 (approved Oct. 13, 2015) (“The Permitted Uses for this
district as identified in Table One: Use Categories shall apply.” (emphasis in original)); Aurora
Code of Ordinances, Appendix A, § 7.5-4.2, as amended by Ordinance No. O15-062 (approved
Oct. 13, 2015) (“The Special Uses for this district as identified in Table One: Use Categories
shall apply.” (emphasis in original)).
- 11
2018 IL App (2d) 170137
Agencies, Charitable Organizations, Health Related Facilities, and similar uses when not
operated for pecuniary profit.” According to Table One, a use under that category is a special
use in 16 of the 17 specified districts but is not a permitted use in the “P” Park and Recreation
District. Importantly, section 8.6 of the zoning ordinance, which relates to the B-B District, does
not specifically incorporate Table One. Nor does Table One mention the B-B District. Instead,
section 8.6-4.1 contains an extensive list of uses permitted in the B-B District, and section 8.6
4.2 identifies the applicable special uses. We also note that Table One makes no mention of
medical clinics, which are expressly permitted in the B-B District pursuant to section 8.6
4.1(LLL).
¶ 24 Plaintiffs are correct that section 8.6-4.4 of the zoning ordinance indicates that all uses
that are not expressly permitted in the B-B District are prohibited. They are also correct that the
zoning ordinance does not designate “Social Service Agencies, Charitable Organizations, Health
Related Facilities, and similar uses when not operated for pecuniary profit” as either a permitted
or a special use in the B-B District. Plaintiffs extrapolate that such use must therefore be
prohibited in the B-B District. The fault in plaintiffs’ logic, however, is that the language
regarding “Health Related Facilities, *** and similar uses when not operated for pecuniary
profit” now comes from Table One, which neither mentions the B-B District nor is incorporated
by reference in the substantive provisions regulating that district.
¶ 25 If the City of Aurora intended to restrict or prohibit nonprofit health-related facilities in
the B-B District, it certainly knew how to do so. As previously noted, in section 8.6
4.2(B)(ii)(a), the zoning ordinance explicitly states that certain amusement and recreational uses,
“when operated for profit,” are allowed in the B-B District upon the issuance of a special-use
permit. Aurora Code of Ordinances, Appendix A, § 8.6-4.2(B)(ii)(a), as amended by Ordinance
- 12
2018 IL App (2d) 170137
No. O15-062 (approved Oct. 13, 2015). Additionally, the zoning ordinance is clear that “Social
Service Agencies, Charitable Organizations, Health Related Facilities, and similar uses when not
operated for pecuniary profit” are prohibited in the “P” Park and Recreation District. See Aurora
Code of Ordinances, Appendix A, § 20, Table One, as amended by Ordinance No. O15-062
(approved Oct. 13, 2015). In contrast, as explained above, medical clinics are designated as
permitted uses in the B-B District, and there is no discernible intent to distinguish between for-
profit and nonprofit uses of such facilities.
¶ 26 We hold that plaintiffs’ theory of an ongoing ordinance violation as alleged in their fourth
amended complaint fails as a matter of law. Accordingly, the trial court properly granted
defendants’ motion to dismiss the complaint, with prejudice, for failure to state a cause of action.
¶ 27 III. CONCLUSION
¶ 28 For the foregoing reasons, we affirm the judgment of the circuit court of Du Page
County.
¶ 29 Affirmed.
- 13