Opinion and Order (3!11!19)
Opinion and Order (3!11!19)
Opinion and Order (3!11!19)
Before the Court are defendants’ motions to dismiss Counts III and IV of plaintiff’s first
amended complaint [26] and [31] pursuant to Federal Rule of Civil Procedure 12(b)(6) 1. For the
reasons set forth below, defendants’ motions are granted in part and denied in part. Count III is
BACKGROUND
The Court takes as true the allegations in plaintiff’s first amended complaint. The Court
also takes into consideration the documents attached to plaintiff’s first amended complaint and the
documents that defendant City of Aurora (the “City”) attaches to its motion to dismiss. See Cohen
v. Am. Sec. Ins. Co., 735 F.3d 601, 604 (7th Cir. 2013) (citing Geinosky v. City of Chicago, 675
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The Court previously granted in part and denied in part defendants’ motions to dismiss plaintiff’s
first amended complaint and gave plaintiff leave to file a second amended complaint. (See dkt.
101.) In particular, the Court dismissed Count I (violation of 47 U.S.C. § 253(a)) without prejudice
and dismissed Count II (violation of 47 U.S.C. § 332(c)(7)(B)(iii)) with prejudice. (Id.) The Court
did not consider the remaining state law claims (Counts III and IV), stating that it declined to
exercise supplemental jurisdiction over the state law claims and that it was unable to establish
diversity jurisdiction. (Id.) Plaintiff subsequently filed a supplemental jurisdictional statement
and established diversity jurisdiction. The Court now considers defendants’ motions to dismiss
the remaining state law claims (Counts III and IV).
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F.3d 743, 745-46 n. 1 (7th Cir. 2012)); see also Wright v. Associated Ins. Companies Inc., 29 F.3d
1244, 1248 (7th Cir. 1994) (“[Documents attached to a motion to dismiss are considered part of
the pleadings if they are referred to in the plaintiff’s complaint and are central to his claim. Such
The Court assumes familiarity with its previous opinion dismissing Counts I and II of the
first amended complaint. (See dkt. 101.) In sum, this case involves a dispute over the construction
of two telecommunication towers. As alleged in plaintiff’s first amended complaint, the first
telecommunications tower belongs to plaintiff CyrusOne. On March 14, 2017, the City granted
CyrusOne a special use permit, approved a variance for the CyrusOne tower, and amended its
telecommunications ordinance to require any entity proposing a new tower to demonstrate that it
does not have the ability to utilize an existing tower. CyrusOne says that its 350-foot
telecommunications tower was “meant to be a co-location tower that would resolve the frequency
congestion issues in the area and equalize wireless access to the [Chicago Mercantile Exchange].”
The second tower belongs to defendant Scientel. On June 7, 2017, defendant Scientel
applied to the City for permission to construct a 195-foot telecommunications tower and develop
property that is adjacent to and directly east of the CyrusOne property. Scientel made three
proposals in its application: (1) revising the development plan; (2) revising the City of Aurora’s
Comprehensive Plan; and (2) enacting an ordinance granting a special use permit and separation
On September 20, 2017, the Aurora Planning Commission held a public hearing on
Scientel’s application. At the hearing, CyrusOne was able to present testimony but did not have
the opportunity to cross-examine Scientel’s witnesses. Following the hearing, the Aurora Planning
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Commission recommended approval of Scientel’s application. The Aurora City Council Planning
and Development Committee subsequently approved the application. The City Council
Committee of the Whole considered the application but referred the matter to the full City Council
as unfinished business. The matter was then tabled by the City Council for 2 weeks.
On November 14, 2017, the City Council voted against granting Scientel’s request for a
variance and special use permit. On November 28, 2017, the City Council voted to reconsider its
decision so that it could make the required findings of fact as required by statute and case law.
On January 9, 2018, the City Council reconsidered Scientel’s application. During this
session, Scientel presented new information—information that was not before the City Council at
the time of its prior decision and was not part of the public record. CyrusOne once again did not
have the opportunity to cross-examine Scientel’s witnesses. CyrusOne also did not have the
opportunity to provide rebuttal testimony. Following the hearing, the City Council granted
LEGAL STANDARD
The purpose of a Rule 12(b)(6) motion to dismiss is to test the sufficiency of the complaint.
Derfus v. City of Chi., 42 F. Supp. 3d 888, 893 (7th Cir. 2014). To survive a motion to dismiss
pursuant to Rule 12(b)(6), a pleading that purports to state a claim for relief must “state a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim satisfies this standard when its factual
allegations “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555-56; see
also Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010) (“[P]laintiff must give enough
details about the subject-matter of the case to present a story that holds together.”). For purposes
of a motion to dismiss, the Court accepts “as true all of the well-pleaded facts in the complaint and
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draws all reasonable inferences in favor of the plaintiff.” Platt v. Brown, 872 F.3d 848, 851 (7th
Cir. 2017).
DISCUSSION
CyrusOne alleges that the City violated the standards set forth in the City of Aurora zoning
and telecommunications ordinances when it issued the special use permit to Scientel.
First, CyrusOne alleges that the City violated Section 19-71 of the City of Aurora Code of
Ordinances and Section 10-6.5 of the City of Aurora Zoning Ordinances when the Planning
Commission recommended approval of the Scientel tower even though construction the Scientel
tower in that location would violate an existing setback ordinance and would needlessly proliferate
communications towers in the immediate vicinity. (Dkt. 17, ¶ 51.) Section 19-71(a)(2) generally
provides that applications for special use permits are subject to the procedures and requirements
of Section 10-6 of the Zoning Ordinance. Aurora, Ill. Code of Ordinances, Sec. 19-71 (1969).
Section 10.6-5 of the City of Aurora Zoning Ordinance states that no special use shall be
recommended unless the plan commission makes findings based upon Section 11.5-6. Aurora, Ill.
Zoning Ordinance, Sec. 10.6-5 (2015). Section 11.5-6 provides, in pertinent part, that the plan
commission shall make findings of fact based upon the evidence presented to it and that the
commission shall recommend no amendment for approval unless it finds that the proposed
amendment:
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CyrusOne also alleges that the City violated Section 19-77 of the City of Aurora Code of
Ordinances because it approved Scientel’s application without substantial evidence upon a written
record. (Dkt. 17, ¶ 53.) Section 19-77 states that any decision “shall include findings of fact
supported by substantial evidence in a written record.” Aurora, Ill. Code of Ordinances, Sec. 19-
77 (1969).
Defendants move to dismiss, arguing that CyrusOne has not stated a claim under Illinois
Zoning Law. Defendants say that courts cannot overrule a municipality’s zoning decision that is
standards. They say that, even assuming that the City Council’s decision ran afoul of local
ordinance requirements, any such failure does not give rise to a cause of action. Defendants further
argue that Count III is an “ipso facto” zoning claim because it does not support a claim of
“[Z]oning variances are classified as legislative acts for purposes of judicial review under
section 11-13-25(a), which means that they will be upheld as long as they represent a rational
means to accomplish a legitimate purpose.” Dunlap v. Vill. of Schaumburg, 915 N.E.2d 890, 904
(Ill. App. Ct. 2009) (internal citations omitted). “To state a cause of action for a violation of
substantive due process, a plaintiff must allege that the deprivation of his or her property interest
is arbitrary, unreasonable, or capricious, and that the legislation at issue bears no rational
relationship to the public welfare.” Whipple v. Vill. of North Utica, 79 N.E.3d 667, 674 (Ill. App.
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Ct. 2017). Courts use the six-factor test outlined in La Salle when examining the ordinance for
arbitrariness:
(1) The existing uses and zoning of nearby property, (2) the extent to which
property values are diminished by the particular zoning restrictions, (3) the extent
to which the destruction of property values of plaintiff promotes the health, safety,
morals or general welfare of the public, (4) the relative gain to the public as
compared to the hardship imposed upon the individual property owner, (5) the
suitability of the subject property for the zoned purposes, and (6) the length of time
the property has been vacant as zoned.
Id. (citations omitted). The Illinois Supreme Court identified two additional factors to consider:
(1) whether a comprehensive zoning plan for land use and development exists, and whether the
ordinance is in harmony with it, and (2) whether the community needs the proposed use. Id. at
675, (citing Sinclair Pipe Line Co. v. Vill. of Richton Park, 167 N.E.2d 406, 411 (1960)).
Here, CyrusOne alleges that the City violated its own ordinances (Sections 19-71 and 19-
77 of the City of Aurora Ordinances as well as Section 10.6-5 of the City of Aurora Zoning
Ordinance) when it issued the special use permit to Scientel. These allegations, alone, do not give
rise to a cause of action. See Landmarks Pres. Council of Ill. v. City of Chi., 125 Ill. 2d 164, 179-
80 (1988); see also Condo. Ass’n of Commonwealth Plaza v. City of Chi., 924 N.E. 2d 596, 602
(Ill. App. Ct. 2010) (an ordinance enacted by a home rule municipality is not deemed
unconstitutional simply because the municipality violated its own self-imposed ordinances). To
state a valid claim, CyrusOne must adequately allege that the deprivation of its property interest is
arbitrary, unreasonable, or capricious. See Whipple v. Vill. of North Utica, 79 N.E.3d at 674.
CyrusOne has not done so. Accordingly, the Court finds that CyrusOne has failed to allege a
plausible zoning violation claim here, and defendants’ motion to dismiss Count III of plaintiff’s
first amended complaint is granted. Count III of the first amended complaint is dismissed without
prejudice.
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CyrusOne next claims several due process violations. Section 11-13-25(b) of the
Municipal Code provides, “[t]he principles of substantive and procedural due process apply at all
stages of the decision-making and review of all zoning decisions.” 65 ILCS 5/11-13-25(b).
“Procedural due process is founded upon the notion that prior to a deprivation of life, liberty or
property, a party is entitled to ‘notice and opportunity for [a] hearing appropriate to the nature of
the case.’” Passalino v. City of Zion, 928 N.E.2d 814, 818 (Ill. 2010) (quoting Jones v. Flowers,
547 U.S. 220, 223 (2006). “[D]ue process is a flexible concept, and the specific procedural
requirements vary, depending upon the nature of the rights affected and the context in which the
deprivation occurs.” Peacock v. Bd. of Trs. of Police Pension Fund, 918 N.E. 2d 243, 251 (Ill.
CyrusOne first alleges that it was denied due process when the City reconsidered the denial
of Scientel’s application. On November 14, 2017, the City Council voted against granting
Scientel’s request for a variance and special use permit. At the following meeting, on November
28, 2017, the City Council voted to suspend its rules of procedure and voted to reconsider
Scientel’s application. CyrusOne says that the November 14th vote was final, that the City Council
could only have made a motion to reconsider at the November 14th meeting, and that any motion
made at a later meeting would have no effect. In support of this argument, CyrusOne points to
Section 2-105(c) of the City of Aurora Code of Ordinances, which states that “[n]o motion to
required to hold public hearings shall be entertained except at the same meeting at which the
original action was taken.” Aurora, Ill. Code of Ordinances, Sec. 2-105(c) (1969). CyrusOne
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contends that the City does not have unlimited authority to violate its own procedures and that it
Defendants dispute this and say that the November 14th vote did not constitute a final order
and, if even it did, the City Council acted properly under the rules. Defendants first say that the
City Council’s November 14th vote could not have been a final vote because it did not conform
with Section 332(c)(7)(B)(iii) of the Telecommunications Act, which requires the denial of any
evidence. See 47 U.S.C. § 332(c)(7)(B)(iii). Defendants further say that the City Council properly
reconsidered the Scientel application under the rules. During the November 28, 2017 meeting, the
City Council voted, pursuant to Section 2-96, to suspend Section 2-105(c) of the City Code in
order to entertain motions to reconsider. See Aurora, Ill. Code of Ordinances, Sec. 2-96 (1969);
Aurora, Ill. Code of Ordinances, Sec. 2-105(c) (1969); see also dkt. 28-2.
CyrusOne also says that it was denied due process because it is an interested party that did
not have the opportunity to cross-examine witnesses and because the City allowed Scientel to
present new evidence during the January 9, 2018 City Council meeting. It says that, as an
interested party, it was entitled to notice and a meaningful opportunity to be heard, including the
opportunity to test evidence presented through cross-examination and respond to new information
presented by Scientel at the January 9, 2018 hearing. Defendants respond that zoning decisions
are legislative in nature, and, therefore de novo review provides challengers with all the process
that is due.
While the City has the ability to suspend its rules, the City Code is silent as to whether this
rule is absolute. The Code is also silent as to when a decision becomes final such that it can no
longer be reconsidered. Likewise, it is unclear whether CyrusOne was entitled to traditional forms
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of cross-examination during the proceedings. The cases cited by CyrusOne are not directly on
point. And, given the legislative nature of these proceedings, the Court is skeptical of this claim.
As explained in the Court’s order on plaintiff’s motion for preliminary injunction, it appears as
though the City, as a home rule unit, did not arbitrarily suspend its rules and that the City provided
CyrusOne with adequate notice and an opportunity to be heard throughout the proceedings.
However, at this stage, the Court only considers “the complaint itself, documents attached to the
complaint, documents that are critical to the complaint and referred to in it, and information that
is subject to proper judicial notice.” Geinosky, 675 F.3d at 745 n.1. Considering these documents
only, and accepting CyrusOne’s allegations as true and drawing all reasonable inferences in the
light most favorable to CyrusOne as it must at this stage, the Court finds that CyrusOne has
plausibly stated a claim here. Accordingly, defendants’ motions to dismiss Count IV of plaintiff’s
CONCLUSION
For the reasons as set forth above, defendants’ motions to dismiss [26] and [31] as they
relate to Counts III and IV are granted in part and denied in part.
Date: 3/11/2019
Jorge L. Alonso
United States District Judge