A state appeals court has renewed a nearly 10-year-old movement to close a suburban abortion clinic.
The 2nd District Appellate Court ruled the city of Aurora never properly determined whether a Planned Parenthood facility complied with zoning regulations.
The justices wrote that neither the mayor’s stamp of approval for the clinic nor a development committee’s approval of plans to build a medical facility counted as “legislative” approval of the building that’s required under the Illinois Municipal Code.
Although the court denied most of the claims against Planned Parenthood and explicitly declined to determine whether the facility met zoning standards itself, it said a DuPage County judge was wrong to grant summary judgment to Planned Parenthood and limit discovery on the issue.
Both Planned Parenthood and the group challenging it claimed a victory.
“We’re glad that (the case) was narrowed and the other issues raised were deemed irrelevant by the court,” said Brigid Leahy, director of government relations for Planned Parenthood, which was represented by Christopher B. Wilson, the Chicago office managing partner of Perkins, Coie LLP.
State Rep. Peter C. Breen, an attorney for the Thomas More Society, which represented Fox Valley Families Against Planned Parenthood, said the case is now on track to get a decision on whether the facility violates Aurora’s zoning regulations.
“That is the key issue that we had put forward in this litigation from day one, and we’ve been looking for a ruling on the merits of whether this use was allowed or not under the Aurora zoning ordinance,” Breen said. “And based upon this appellate court’s decision reversing the trial court, we are now on a path to get a ruling on our primary contention.”
The 38-page unpublished order, released last week, was authored by Justice Kathryn E. Zenoff.
The case began in March 2006 when a development company owned by Planned Parenthood purchased land and applied for permits to build a medical facility.
On some papers the company, Gemini, identified itself as the prospective tenant of the building. On others, it stated the tenant was “unknown at this time.”
Despite the ambiguity, a planning committee consisting of three city council members approved the building plan in November 2006.
In July of the next year, however, news reports identified Planned Parenthood as the intended tenant, sparking protests that led the city’s mayor to organize an investigation of the permit process.
The mayor’s review ultimately cleared Gemini and Planned Parenthood of any wrongdoing and concluded there was no legal basis to keep the facility from opening. The city eventually issued occupancy certificates that allowed the facility to begin operating in October 2007.
Subsequently, a group called Fox Valley Families Against Planned Parenthood — as well as individual property owners near the building — filed suit against Planned Parenthood and the city.
They alleged, among other things, that the facility violates the Aurora zoning ordinance because the property is zoned under a standard known as a “B-B Business Boulevard District.”
That standard allows for “offices, business and professional and medical clinics,” but the plaintiffs argued that Planned Parenthood is more specific than that. They argued it’s a charitable organization and a not-for-profit health-related facility that requires a special-use permit and that Planned Parenthood never acquired such a permit.
Section 11-13-25(a) of the Municipal Code says that “[a]ny decision by the corporate authorities of any municipality … in regard to any petition or application for a special use, variance, rezoning or other amendment to a zoning ordinance shall be subject to de novo judicial review as a legislative decision.”
Planned Parenthood argued that the city’s approval of its building plans constituted a “legislative decision” that could only be overturned if the plaintiffs showed that it was “arbitrary and capricious.”
In August 2013, DuPage Circuit Judge Paul M. Fullerton decided in favor of Planned Parenthood, saying the city had indeed made a legislative decision and that it had a “rational basis” to treat the clinic as a medical facility rather than a property that would require a special-use permit.
But in its decision last week, the appeals court ruled that neither mayoral review nor the development committees approval qualified as legislative decisions.
“The city council, not the mayor, is the city’s legislative body,” Zenoff wrote, adding later that “nothing in the record indicates that the city council passed an ordinance approving of the mayor’s decision to allow the issuance of a certificate of occupancy.”
And although the city’s planning and development committee signed off on general plans for the facility, its members weren’t specifically aware of how the building would be used, the court ruled.
“In other words, because the planning and development committee did not address the identity of the tenant and the tenant’s ultimate use of the property beyond that of a medical clinic, it did not decide whether that information affected the use category applicable to the property,” Zenoff wrote.
The appellate panel declined to rule itself on whether the facility violated the ordinance.
“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,” wrote Zenoff, who was joined in the decision by Justices Susan Fayette Hutchinson and Robert B. Spence.
The case is Fox Valley Families Against Planned Parenthood v. Planned Parenthood of Illinois, 2015 IL App (2d) 131019-U.