# LaSalle National Bank v. City of Highland Park

> Appellate Court of Illinois · October 31, 2003 · 344 Ill. App. 3d 259

URL: https://www.frixlaw.com/law-library/cases/9523038

## Case

- **Full name:** LASALLE NATIONAL BANK, as Trustee, Et Al., Plaintiffs-Appellants, v. THE CITY OF HIGHLAND PARK Et Al., Defendants-Appellees
- **Court:** Appellate Court of Illinois
- **Decided:** October 31, 2003
- **Citations:** 344 Ill. App. 3d 259; 278 Ill. Dec. 916; 799 N.E.2d 781
- **Precedential status:** Published
- **Opinion:** Dissent by O'Malley
- **Judges:** Byrne, O'Malley
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9523038

## Opinion text

JUSTICE O’MALLEY, dissenting:
I believe plaintiffs presented an overwhelming case for a variance before the Board and that its decision denying plaintiffs’ request was against the manifest weight of the evidence. What particularly persuades me of this is the economic harm that the minimum lot size restrictions have caused plaintiffs, which I believe the majority incorrectly measures. I also believe the majority is wrong to uphold the trial court’s dismissal of plaintiffs’ constitutional claims. In so doing, the majority not only again miscalculates the economic harm done to plaintiffs, but also vastly understates plaintiffs’ allegations comparing the Sherwood lot with nearby lots.
I address first the majority’s assessment of the economic harm the zoning ordinance has caused plaintiffs. I cannot join the majority in accepting Tim Thompson’s holding that a landowner’s claim of specific economic harm to a duly platted lot of land is to be diluted by weighing that harm against the value of all land held by the owner that is contiguous to the lot. Tim Thompson’s source for the “parcel as a whole” doctrine was the Supreme Court cases of Keystone and Penn Central, which held, respectively, that neither coal deposits beneath a parcel’s surface nor the air above it is a separate piece of property for takings purposes. In so holding, the Supreme Court reasoned: “ ‘ “Taking” jurisprudence does not divide a single parcel of land into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated.’ ” Keystone, 480 U.S. at 497, 94 L. Ed. 2d at 496, 107 S. Ct. at 1248, quoting Penn Central, 438 U.S. at 130-31, 57 L. Ed. 2d at 652, 98 S. Ct. at 2662. The Court reasoned further in Keystone:
“The 27 million tons of coal do not constitute a separate segment of property for takings law purposes. Many zoning ordinances place limits on the property owner’s right to make profitable use of some segments of his property. A requirement that a building occupy no more than a specified percentage of the lot on which it is located could be characterized as a taking of the vacant area as readily as the requirement that coal pillars be left in place. Similarly, under petitioners’ theory one could always argue that a setback ordinance requiring that no structure be built within a certain distance from the property line constitutes a taking because the footage represents a distinct segment of property for takings law purposes.” Keystone, 480 U.S. at 498, 94 L. Ed. 2d at 496, 107 S. Ct. at 1248-49.
The facts at hand are not analogous to any of the scenarios, hypothetical or actual, analyzed by the Supreme Court in Keystone and Penn Central. Plaintiffs are not seeking this court’s complicity in some devious “gerrymandering” of property divisions; we are not called on to give legal significance to imaginary lines so as to artificially enhance the economic harm to the Sherwood lot. The majority mechanically applies Keystone’s and Penn Central’s analysis to the facts at hand, but such disregard of the particular circumstances of this case is neither necessary nor appropriate. The Supreme Court itself has admitted that takings cases are essentially “ad hoc, factual inquiries.” Penn Central, 438 U.S. at 124, 57 L. Ed. 2d at 648, 98 S. Ct. at 2659, citing Goldblatt v. Hempstead, 369 U.S. 590, 594 , 8 L. Ed. 2d 130, 134 , 82 S. Ct. 987, 990 (1962). Moreover, the Supreme Court has expressly denied that its cases have settled on a formula for defining how economic harm should be assessed in cases where only a portion of an owner’s property is directly affected by a zoning regulation. In Lucas v. South Carolina Coastal Council, 505 U.S. 1003 , 1016 n.7, 120 L. Ed. 2d 798 , 813 n.7, 112 S. Ct. 2886 , 2894 n.7 (1992), the Supreme Court stated:
“Regrettably, the rhetorical force of our ‘deprivation of all economically feasible use’ rule is greater than its precision, since the rule does not make clear the ‘property interest’ against which the loss of value is to be measured. When, for example, a regulation requires a developer to leave 90% of a rural tract in its natural state, it is unclear whether we would analyze the situation as one in which the owner has been deprived of all economically beneficial use of the burdened portion of the tract, or as one in which the owner suffered a mere diminution in value of the tract as a whole.”
The Court went on to characterize its approach in Penn Central as “unsupportable” and noted that “the uncertainty regarding the composition of the denominator in [the] ‘deprivation’ fraction has produced inconsistent pronouncements by the Court.” Lucas, 505 U.S. at 1016 n.7, 120 L. Ed. 2d at 813 n.7, 112 S. Ct. at 2894 n.7. As an example of such inconsistency, the Court compared Keystone and Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 , 67 L. Ed. 2d 322 , 43 S. Ct. 158 (1922), which the Court viewed as reaching divergent results based on “nearly identical” regulations. Lucas, 505 U.S. at 1016 n.7, 120 L. Ed. 2d at 813 n.7, 112 S. Ct. at 2894 n.7; see also Keystone, 480 U.S. at 517 n.5, 94 L. Ed. 2d at 509 n.5, 107 S. Ct. at 1258 n.5 (Rehnquist, J., dissenting) (in announcing in Penn Central that takings jurisprudence does not divide a “single parcel” into “discrete segments,” the Court “gave no guidance on how one is to distinguish” a “single parcel” from a “discrete segment”); M. Snow, Defining the Relevant Property in Regulatory Takings Claims, 17 J. Land Resources & Envtl. L. 403 , 417 (1997) (the language in Lucas is a “clear warning[ ] *** that parties should not assume that previously settled case law has accurately established a test for determining what constitutes the relevant property in a takings claim”). I find it odd that the majority so hastily accepts as fixed and settled a particular definition of the relevant parcel for takings purposes when the Supreme Court, the originator of that definition, is not willing to admit to such rigidity, and when courts and commentators are starkly divided over the proper approach to defining the relevant parcel. 1 See 17 J. Land Resources & Envtl. L. at 411 (“The problem of whether the relevant property should be defined in broad or narrow terms remains a hotly debated issue today”). Courts in several cases have refused to view all of an owner’s contiguous land as the relevant parcel in the facts before them and instead opted for a flexible, fact-specific approach to defining the relevant parcel. See Ciampitti v. United States, 22 Cl. Ct. 310 (1991); Loveladies Harbor, Inc. v. United States, 28 F.3d 1171 (Fed. Cir. 1994); Kaiser Development Co. v. City and County of Honolulu, 649 F. Supp. 926 (D. Haw. 1986); State ex rel. R.T.G., Inc. v. State, 98 Ohio St. 3d 1 , 780 N.E.2d 998 (2002).
I find it notable that, in asking us to examine the harm to the Sherwood lot in isolation from the rest of their property, plaintiffs ask us simply to recognize the lot boundaries already recognized by the City of Highland Park. The City’s zoning ordinances attach definite legal consequences to lot lines. Witness, for instance, section 150.104(A) of the Highland Park Zoning Ordinance of 1997, which provides:
“When two or more parcels of land (which may contain a lot or lots of record), are adjacent and one or more of such parcels lack adequate area or width to qualify for a permitted use under the requirements of the zoning district in which such parcels are located, all of such parcels shall be maintained and used as one zoning lot for such use if such parcels have been held in contiguous ownership at any time after May 8, 1960 ***.” Highland Park Zoning Ordinance § 150.104(A) (1997).
In my view, this section has two effects. First, it combines two or more adjacent undersized lots into one lot for the purpose of minimum lot size requirements, thus potentially allowing development in cases where it would otherwise be prohibited. Conversely, it prohibits an owner from shifting lot lines so as to create one or more conforming lots. 2 Therefore, if any party in this case is overreaching, it is the City, for, in urging an inclusive definition of plaintiffs’ property that disregards internal lot divisions, it is downplaying the significance of the very lot line to which its zoning ordinances ascribe importance. In my view, the only proper approach is to recognize, as does the City’s zoning ordinance, the lot line dividing plaintiffs’ property and to define the relevant property for takings purposes as simply the Sherwood lot. In my view, the economic harm to the Sherwood lot is devastating, for the ordinance precludes building on the lot. Since, in my assessment, plaintiffs clearly proved their case for a variance before the Board, I beheve the Board’s decision was against the manifest weight of the evidence.
I also cannot accept the majority’s approval of the dismissal of plaintiffs constitutional challenges to the ordinance. In reviewing a section 2 — 615 motion to dismiss a complaint for failure to state a cause of action, the court must assume the truth of all well-pleaded facts and draw ah reasonable inferences therefrom in favor of the non-moving party. Jackson, 197 Ill. 2d at 44-45. Not only does the majority, in discussing this issue, repeat its mistaken calculation of the economic damage suffered by plaintiffs, it also gives short shrift to plaintiffs’ allegations concerning the zoning and uses of nearby property. The majority summarizes plaintiffs’ allegations on this point in the following statement: “Plaintiffs’ allegations set forth linear facts explaining that for a distance of 100 feet and 250 feet surrounding the Sherwood lot are adjacent lots which are the same size as or smaller than the Sherwood lot.” 344 Ill. App. 3d at 277. The majority discounts plaintiffs’ allegations as “presum[ing] that the lots are comparable without explaining how they are comparable.” 344 Ill. App. 3d at 277. The majority itself presumes, mistakenly, that lot size alone is not an adequate basis for comparison. See Gibson, 97 Ill. App. 3d at 1038 (comparing sizes of nearby lots to assess the utility of minimum size restriction); Thompson v. Cook County Zoning Board of Appeals, 96 Ill. App. 3d 561, 577-78 (1981) (same); Welch, 65 Ill. App. 3d at 254 (same). Plaintiffs alleged that the Sherwood lot (15,415 square feet in size) is “the only vacant nonconforming lot in the area.” Plaintiffs further alleged that the “majority” of lots in the vicinity of Sherwood Avenue are no larger than the Sherwood lot and that most are in fact “considerably smaller” than the Sherwood lot. Plaintiffs averred that, of the nine lots located within 100 feet of the Sherwood lot, eight are the same size as or smaller than the Sherwood lot and four are only 7,500 square feet in size. Plaintiffs also alleged that, of the 18 lots within 250 feet of the Sherwood lot, 15 are the same size as or smaller than the Sherwood lot and half are smaller than 10,000 square feet.
These allegations are critical because, if true, they would undercut the City’s rationale for demanding that plaintiffs’ lot comply with the minimum lot size restrictions. Under the federal constitution, a land use regulation does not constitute a taking if it substantially advances legitimate state interests and does not deny the owner economically viable use of his land. Northern Illinois Home Builders, 165 Ill. 2d at 32. In my view, plaintiffs have successfully alleged not only that the City’s minimum lot size restrictions deny them economically viable use of the Sherwood lot, but also that the restrictions advance no legitimate state interest because plaintiffs’ lot is the only undeveloped nonconforming lot within a significant radius and, moreover, is significantly larger than many of the surrounding lots, which are developed nonconforming lots.
Whether an ordinance effects a taking under the Illinois Constitution requires consideration of a set of factors enumerated in LaSalle. Although no single factor or subset of factors controls the analysis (LaSalle, 12 Ill. 2d at 47; Tim Thompson, 247 Ill. App. 3d at 872), the factor that is of “ ‘paramount importance’ ” in the analysis is “ ‘whether the restrictions imposed on the property are in conformity with the uses and zoning of nearby property’ ” Rodriguez, 217 Ill. App. 3d at 1028, quoting Amalgamated Trust & Savings Bank v. County of Cook, 82 Ill. App. 3d 370, 381 (1980); accord Northern Trust Bank/Lake Forest, N.A. v. County of Lake, 311 Ill. App. 3d 332, 337 (2000). If we assume, as we must at this stage, that plaintiffs hold the only undeveloped nonconforming lot in the area and many of the developed lots are either the same size as or significantly smaller than plaintiffs’ lot, then plaintiffs have, in my view, demonstrated that holding them to the minimum lot size restrictions has no utility. Although I will not address all of the remaining LaSalle factors here, I believe plaintiffs have the better argument on each of them. In particular, plaintiffs have shown that the minimum lot size restriction has caused devastating economic harm. I believe, therefore, that it was error for the trial court to dismiss plaintiffs’ state constitutional claims.
In addition to Keystone and Penn Central, the majority relies on Bevan, a Michigan case. Bevan was decided before the Supreme Court’s retreat from Penn Central and Keystone in Lucas, and therefore is of doubtful vitality.
Plaintiffs claim that section 150.104(A) has thwarted their plans to build because it prohibits the “separation” of their contiguous lots. Why plaintiffs would seek mere “separation” of their lots is not clear, however, for neither lot meets the current size requirements. Plaintiffs have, it seems, gotten the majority to subscribe to their strange notion, and so the majority writes that section 150.104(A) prevents plaintiffs from building because it “den[ies] permission for[ ] the separation of contiguous undersized lots that are held under the same ownership.” 344 Ill. App. 3d at 264. I fail to see how section 150.104(A) prevents plaintiffs from having their lots separated or what plaintiffs would gain by the separation.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9523038. Public record. Not legal advice.