concurring in part and dissenting in part:
I am in agreement with the conclusion of the majority that section 2 — 101(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act or Act) (745 ILCS 10/2 — 101(a) (West 1998)), which preserves municipal liability for claims based on “contract,” does not contemplate actions for quasi-contract. An action in quasi-contract is a theory of recovery which is “totally unrelated to traditional concepts of contract law.” 42 C.J.S. Implied Contracts § 4 (1991); see generally 1 D. Dobbs, Remedies § 4.2(3), at 580 (2d ed. 1993).
I am also in agreement with the majority’s analysis of section 2 — 106 of the Tort Immunity Act (745 ILCS 10/2 — 106 (West 1998)), which provides that “[a] local public entity is not liable for an injury caused by an oral promise or misrepresentation of its employee, whether or not such promise or misrepresentation is negligent or intentional.” (Emphasis added.) 745 ILCS 10/2 — 106 (West 1998). Because intentional conduct is explicitly immunized in this provision, I concur in the majority’s conclusion that the Village of Bloomingdale (Village) is immune from liability for any alleged injuries claimed by CDG Enterprises, Inc. (CDG), in its counterclaim as a result of the assurances made by the Village’s mayor that CDG’s development project would be approved.
I respectfully dissent, however, from the majority’s conclusion that intentional misconduct by a local public entity or employee is also shielded by the provisions contained within section 2 — 104 of the Tort Immunity Act (745 ILCS 10/2 — 104 (West 1998)). For the reasons more fully set forth in my separate opinions in Barnett v. Zion Park District, 171 Ill. 2d 378, 402-08 (1996) (McMorrow, J., dissenting), In re Chicago Flood Litigation, 176 Ill. 2d 179, 213-14 (1997) (McMorrow, J., concurring in part and dissenting in part), Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335, 354 (1998) (McMorrow, J., concurring in part and dissenting in part), and Henrich v. Libertyville High School, 186 Ill. 2d 381, 401-02 (1998) (McMorrow, J., dissenting), I continue to adhere to the view that where the Tort Immunity Act is silent on the question of whether intentional government misconduct is exempt from immunity, it should not be concluded that such silence translates into a positive intent on the part of the General Assembly to cloak local governmental entities and their employees with unconditional immunity.
The genesis of the instant appeal is the March 1995 filing by CDG of a petition with the Village’s planning commission to request the rezoning and annexation of five parcels of property located between the Glendale Golf Course on the west and Medinah Road on the east. CDG had contracted to purchase this land with the intent of developing a residential subdivision consisting of 122 townhomes. In August 1995, the Village’s planning commission voted down the project, and in October 1995, the Village’s board of trustees denied CDG’s rezoning and site plan approval request during a public hearing.
In September 1996, the Village filed a complaint for breach of contract against CDG, alleging that CDG had breached a written “application fee agreement” with the Village in which CDG had promised to pay the costs of the Village’s attorney, land planner, engineer and director of legal affairs in conjunction with CDG’s application for rezoning and site plan approval. The Village’s complaint alleged that CDG had failed to pay the costs owed to the Village pursuant to this written agreement.
CDG answered the Village’s complaint and filed a counterclaim against the Village. The circuit court granted the Village’s motion to dismiss CDG’s counterclaim pursuant to section 2 — 619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2 — 619(a)(9) (West 1998)), finding that various provisions of the Tort Immunity Act immunized the Village from CDG’s claims. Because this appeal comes before us on review of a section 2 — 619 dismissal, we must accept as true all well-pleaded facts in CDG’s counterclaim, as well as all inferences that can reasonably be drawn in CDG’s favor. See Chicago Teachers Union, Local 1 v. Board of Education of the City of Chicago, 189 Ill. 2d 200, 206 (2000).
CDG’s counterclaim alleges that the Village tortiously interfered with CDG’s business expectancy in purchasing the five parcels of land and in developing the intended residential subdivision. According to the counterclaim, prior to negotiating the contracts to acquire the land parcels, representatives of CDG met with the Village’s mayor to determine the feasibility of the subdivision project. According to the counterclaim, the mayor assured CDG that the “project would be approved” based upon the Village’s desire to encourage further residential development along the Medinah Road corridor. According to CDG, between September 1994 and October 1995, its representatives not only met with various Village officials on numerous occasions to review CDG’s development plans, but also appeared before the Village’s planning commission several times for public hearings regarding CDG’s rezoning and annexation requests. The counterclaim alleges that while the Village was ostensibly reviewing CDG’s proposals, sometime during June or July 1995 the “Village formed an internal secret ‘task force’ to pursue the acquisition and financing” of the Glendale Golf Course. The counterclaim further alleges that certain Village officials “secretly met with non-resident property owners along the Medinah Road corridor in an effort to manufacture opposition” to CDG’s development plans, with the goal of “subverting] and manipulating] the public hearing process so as to deprive [CDG] of a fair and impartial hearing so that the Village, or certain developers favored by certain of the Village’s officials, could acquire the parcels for which [CDG] was the contract purchaser.”
The counterclaim further relates that the Village retained Planning Resources, Inc., as its consultant for land planning and development. According to the counterclaim, at the same time that Planning Resources was reviewing CDG’s land plans and petition, the Village had surreptitiously commissioned Planning Resources “to prepare a redesign of the Glendale Golf Course so as to reconfigure the lay-out of various holes” onto CDG’s property. CDG alleges that at no time did any representative of Planning Resources or the Village disclose Planning Resource’s dual capacity. The counterclaim further alleges that representatives of Planning Resources “secretly met with the opposition group created by certain of the Village’s officials,” and that one representative of Planning Resources disclosed to CDG that “she was told by an individual on the Village’s board to kill [CDG’s] project.”
According to CDG’s counterclaim, during the August 15, 1996, meeting of the Village’s planning commission at which time CDG’s petition was declined, one commissioner “voiced objection over the fact that the chairman of the Village’s planning commission had contacted him at home to discuss [CDG’s] pending petition,” while a second commissioner objected to the fact that “the chairman, prior to the commencement of the hearing, had circulated a preprinted motion to deny [CDG’s] project.” According to the counterclaim, these two members of the planning commission filed a “minority report” setting forth the improper acts of the chairman of the Village’s planning commission.
CDG’s counterclaim further alleges that after the October 23, 1995, public hearing during which the Village’s board of trustees voted against CDG’s petition, “the Village made public its intention to acquire the Glendale Golf Course by public referendum.” Soon thereafter, CDG alleges, the Village successfully acquired the golf course. CDG’s counterclaim further alleges that subsequent to the denial of its proposals, at least one of the five land parcels was “purchased by individuals closely aligned with certain of the Village’s officials.”
In its counterclaim, CDG asserts that its petition met all of the Village’s requirements for rezoning and annexation; that CDG took all the action the Village required; that CDG had incurred costs in reliance on its meetings with the Village while Village officials were “secretly working to sabotage the public hearing process and [CDG’s] development efforts”; and that after the Village denied its petition, CDG was required to cancel the purchase contracts and forfeit some of the monies which had been paid.
The counterclaim filed by CDG asserts that, based upon the foregoing facts, the Village “wilfully and with a conscious disregard for the rights of [CDG], purposefully and with the intent to prevent [CDG] from obtaining its rezoning, annexation and development,” engaged in a course of conduct which “was unreasonable, arbitrary and capricious,” constituted a “deviation from the standard of usual and customary zoning authority procedures,” and was “designed to subvert the public hearing process so as to predetermine the outcome.” CDG contends in its counterclaim that this course of conduct was entered into for “improper governmental purposes” and “specifically designed to deprive [CDG] of its reasonable business expectancy.” CDG requested damages in the amount of $4.8 million, the expected amount of gross profits from its development plans.
The majority affirms the circuit court’s dismissal of CDG’s counterclaim on the basis that the Village is immunized from CDG’s claims pursuant to several provisions of the Tort Immunity Act. I disagree with the majority’s holding that CDG’s counterclaim is barred by section 2 — 104 of the Act (745 ILCS 10/2 — 104 (West 1998)). The majority arrives at this conclusion based on a rationale first employed by this court in Barnett v. Zion Park District, 171 Ill. 2d 378 (1996). In Barnett, this court held that section 3 — 108(a) of the Act (745 ILCS 10/3— 108(a) (West 1992)) cloaked the defendant park district with absolute immunity against allegations that the defendant’s swimming pool lifeguards knowingly and willfully ignored pleas to help a drowning minor, thereby causing the minor’s death. The Barnett majority reasoned that the absence of an explicit exception for willful and wanton misconduct in section 3 — 108(a) of the Act meant that “the legislature must have intended to immunize liability for both negligence and willful and wanton misconduct.” Barnett, 171 Ill. 2d at 391-92. In the course of my dissent from the majority’s holding in Barnett, I observed that there “are strong reasons why the policies underlying grants of immunity for simple negligence should not be impliedly expanded to reach willful and wanton or intentional misconduct.” Barnett, 171 Ill. 2d at 403 (McMorrow, J., dissenting).
More specifically, I explained that “[t]he general rationale for granting public entities the protection of immunities not enjoyed by private entities is the significant expense and burdens placed upon the government” when negligence on the part of local public entities or officials carrying out their government duties results in injuries to the public and such negligence lawsuits “are permitted to flourish unchecked.” Barnett, 171 Ill. 2d at 403-04 (McMorrow, J., dissenting). It was my view, however, that the “rationale underlying a grant of immunity for simple negligence is different in kind from any justification for immunizing tortious conduct that is intentionally harmful or willful and wanton,” and if the legislature actually intended to bestow absolute immunity for willful and wanton misconduct, the immunity statute should positively and unequivocally state such an intention. Barnett, 171 Ill. 2d at 404 (McMorrow, J., dissenting).
Since Barnett, I have adhered to my belief that the policies underlying grants of immunity for simple negligence are distinguishable from any justification for blanketing deliberate governmental misconduct with immunity. See In re Chicago Flood Litigation, 176 Ill. 2d 179, 213-14 (1997) (McMorrow, J., concurring in part and dissenting in part); Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335, 354 (1998) (McMorrow, J., concurring in part and dissenting in part); Henrich v. Libertyville High School, 186 Ill. 2d 381, 401-02 (McMorrow, J., dissenting). I note that my conclusion in Barnett that the legislature did not intend to immunize willful and wanton misconduct in the immunity provisions of section 3 — 108 was validated when the General Assembly passed Public Act 90 — 805 (Pub. Act 90 — 805, eff. December 2, 1998), which amended section 3 — 108 to exclude willful and wanton conduct from the immunity granted by the statute. My conviction remains strong that deliberate acts of governmental misconduct, such as those alleged by CDG in the instant cause, are not shielded under the Tort Immunity Act by provisions which remain silent with respect to an express exemption for such intentional bad acts.
In the matter at bar, the majority, based upon the Barnett rationale, interprets section 2 — 104 of the Act (745 ILCS 10/2 — 104 (West 1998)) as affording a local governmental entity absolute immunity against liability for an “injury” caused by a denial of “any permit” because this section does not contain an express exemption for willful and wanton misconduct or for corrupt and malicious motives. In order to fit CDG’s counterclaim within the purview of section 2 — 104, the majority narrowly construes CDG’s allegations as a complaint against the Village’s denial of its rezoning, annexation and site development petition. As the appellate court correctly held below, CDG’s counterclaim complains of more than the mere denial of its petition by the Village. 314 Ill. App. 3d at 214. CDG alleges that the Village deliberately, maliciously and willfully pursued a course of conduct and abused its governmental powers in an effort to deprive CDG of expected benefits and appropriate those benefits to itself and its favored developers. Specific allegations in the counterclaim, which must be taken as true, state that while the Village and its officials gave the appearance that CDG’s development and annexation requests were being validly processed, the Village secretly formed opposition groups against CDG’s plans and had commissioned the Village’s own land planning consultant to work in a dual capacity with respect to CDG. In addition, CDG alleged that the chairman of the Village’s land planning commission had attempted to improperly influence the votes of the land planning commissioners against CDG. Blanket immunity should not be afforded to acts, such as those alleged by CDG, which are performed by local governmental entities or government officials in bad faith or out of corrupt and malicious motives.
In support of its conclusion that the Village is afforded absolute immunity against the allegations of CDG, the majority asserts that “[c]learly, the legislature did not intend to grant an empty immunity to local public entities when they denied ‘permits’ such as zoning petitions,” and that construing section 2 — 104 in a contrary manner would lead to an absurd result. 196 Ill. 2d at 497. I disagree. It is evident to me that the blanket, unlimited immunity bestowed upon the Village in this case is unnecessary to protect public entities from liability arising from “the operation of government,” which is the stated purpose of the Tort Immunity Act (745 ILCS 10/1 — 101.1 (West 1998)). Construing section 2 — 104 of the Act to immunize only negligent conduct would completely fulfill this legislative objective.1
For the reasons stated, I dissent in part from the opinion of the majority.
In passing, the majority opinion also indicates that the allegations of CDG’s counterclaim are barred by section 2 — 201 of the Act (745 ILCS 10/2 — 201(West 1998)), which provides, inter alla, that a public official serving in a position involving the exercise of discretion is not liable for injuries resulting from an exercise of that discretion. However, in the instant cause, the majority never actually applies section 2 — 201 as part of its analysis, instead characterizing as “misplaced” CDG’s argument that the process of considering a zoning petition is ministerial. Nevertheless, I reiterate my view, explained in my dissent in In re Chicago Flood Litigation, 176 Ill. 2d 179, 214 (McMorrow, J., concurring in part and dissenting in part), that because “good faith is a component of discretionary immunity,” section 2 — 201 does not immunize willful and wanton misconduct.