scrutiny what we call our what justice o'malley called deliberately heightened scrutiny this appeal presents the opportunity for the supreme court to affirm over fifty years of jurisprudence in the state it has afforded private property owners such heightened judicial scrutiny these are just way to think about this is simply that the lasalle factors announced by the supreme court in one nine hundred fifty seven and followed ever since then represent such deliberately heightened scrutiny when private property rights are diminished when property you value is lost because  our courts are not unfed in reviewing such actions to determine their constitutionality the as applied challenges that this court usually sees which represent a vast majority of cases in deliberately heightened scrutiny and justice so meli recognizes that as something of an exception to the otherwise rational basis test which really looks for any conceivable reason for municipalities to justify  actions the second district opinion errors not in assigning deliberately heightened scrutiny to join cases or as applied cases but by failing to follow its own logic and wh it says deliberately heightened scrutiny applies and as applied cases not providing such deliberately heightened scrutiny in facial challenges because it's just so mentally stated as his deliveries and as our case law makes clear it is the nature of the right to be protected that determines the level of scrutiny in the zone in case i mean any cost to tional challenge and the nature of the right is the same in that as applied case an official case so the deliberately heightened scrutiny as represented by the south clearly applies and as applied where the second opinion the second district erred is in not giving applying that same deliberately heightened scrutiny to a facial challenge the test the standard can be called rational basis but the test itself the level of scrutiny should not be a minimum rationality you see the state can't control legislation does affect land use prohibited it so that person didn't buy part of the bundle of rights and then therefore inherit the right to will abide purchase the right to rely on that did not buy the right to build the two homes in beverly back he wanted to when you purchase a piece of property represents a governmental promise not to interfere with those owning rights except unless the public welfare requires it so we think about our lock in heritage and that's what just a judge easterbrook talks about in the river park ace and we look at the luck heritage and say the zoning is not it's or zoning is a restriction on the otherwise free use of property it's a governmental promise not to interfere so when the government doesn't interfere when it does delibera what rationality does not exist in a vacuum we know some things could be rational in some circumstances that aren't rational in another and so we propose what we submit to them what we put in our briefs is it to be rational and i'm going to and the public welfare in that paradigm and that in that crazy ology we can we can bring we can call it rational we can call the rational basis test a rational basis plus but the key is not the legal the key this difference between fashion as applied is something of a red here it's the nature of the right to be protected that determines the level of scrutiny so if we want to call it a rational basis let's just understand that rationality when you're taking private property that you have a right to rely on not do what i say taking i mean diminishing now the takings case rationality me but there's got to be a substantial connection the nexus has to be higher it's a different rationality that one might control the placement of stop signs or parking you know no parking signs mobile food licenses all sorts of things that are subject to this traditional minimum rationality we know for example that it is never rational or almost never rational to discriminate on the basis of race we know that it is almost never rational to impair somebody's freedom of speech and so we call it strict scrutiny in order to subjects such legislation to a higher level but it's all a continuum of rationality and that's where the labels get confusing in our state and they have been confusing and that's what the british attempts to address now this court is free because it can afford greater protection under the due process clause than the federal constitution to provide more protection it's taken it's really said let's call it middle tier let's just put it there because we can afford greater protection in our state than the federal the federal constitution represents a floor so there's two ways to look at this in the factors for as applied cases so then the issue is what's the right test not the right level of scrutiny we know what it is deliberately hite the question then becomes what's the right test for facial challenges and this neighborhood has proposed in her in her briefs a nine part test which is derived from lasalle from sinclair and other zoning cases not flood cases snow removal cases zoning cases and the nine parts that we think are germane to this the parts of the following and i just want to make a brief comment facially invalid means to be valid or invalid all applications so we look to a situation where from its genesis a particular zoning ordinance or amendment is fought these factors attempt to get to that because if it's flawed in its genesis it may never be constitutionally a plot so we look at the extent to which all property values are diminished by the zoning restrictions which is from the south the extent to which the destruction of property values promotes the health safety morals or general welfare which is from the south the relative gain to the public compared to the hardship on property owners subject to the ordinance which is from the south whether there exists a comprehensive zoning plan and whether joining a man was passed pursuant to that plan which is from sinclair and this is critical because when zoning amendments and this is the supreme court's  in the context of it's diminished because who did the profitability is missed because of the effect of the change in the zoning rights that the property owners had come to rely upon so there again you get this concept of reliance interwoven with the cases in the rationale so why not part test looks at a comprehensive plan and we allege in this case that hinsdale doesn't have one and it wasn't passed pursuant to one whether the community needs the challenge jordan's that's a variation on the sinclair effect or the extent to which the order creates non conforming uses and we cite the cups a case for the proposition that creating on comparable muse's is a problem it's a burden on the we know from the south the courts just don't look for any conceivable basis don't employ minimum rationality it's an eight part or nine part depending on a condom weighting test and it makes it causes although the pla always maintains the burden of proof it causes the miss a power to put forth its justification and to have that justification tested in its tested because the plainest property has been diminished by nat of diminished that misses that the act of diminished those rights the decrease that property value was in derogation of that bundle of rights it really gets to the very fundamental issue of property ownership and that's why this case affects millions and millions and argument in this case as i understand it from reading the briefs it was a b three district court and it's still a v three district after the amendment right so the zoning classification for that shii graffiti was and still is the three correct so it's not a map amendment it's not there was a text amendment x that created the rights associated with b three zero by limiting banks now one other question is i understand it you can still do everything and be free that used to do except now change it was a g m training facility after the change and presumably through day it's still a g m that's correct so there's been no actual impact on the property owner in  property value has been lowered a willing buyer will pay last because the option of putting banks a bank on a major street in a major thoroughfare where the business classification which is b three is supposed to provide a full range of businesses must be assumed to be true cannot sell that property for as much as she could before because whoever buys it has lawsuit already to put a bank on it there's your diminishment in property rights which you bought the property that was part of the bundle she had that right it's now gone it's been take removed takings or somebody have a confusing time too so let's stick with removed and what is the constitutional standard this court is going to invoke now if it was as applied challenge i don't think we'd be here because it's always rational so many asides to this facial case a three part alamo test but doesn't look anything like to southwest doesn't provide the same level of scrutiny that he said needs to be provide because they should be the same and doesn't put property right now we don't know how this washes out at a trial but we suggest to you that all these problems on this heavily traveled court been similarly damaged is it not possible that the decrease in property value creat d therefore leads to a decrease in in retail sacks revenues tax revenues to could outwait whatever increase in retail sales taxes so they say we want to generate revenue so we're going to eliminate banks but they're not considering whether or not by depreciating property value they're going to lose real estate tax revenues i don't know where the experts wash but it's alleged in the complaint it should be considered true these things should be waved away just because his d l says it's going to be good doesn't make it so it's never been that way it was only zoning has always been subject since you could to this concept of a substantial relationship test and so you know in summary here are two ways to look at this again this court is free to simply state we think zoning cases should go into intermediate tier and i rap and use the exact such actually ship language it's been using for over fifty years and we're free to do that we think it should be an immediate tear and that's what we're going to call it this is the test these are the levels of scrutiny or if it if uncomfortable with that proposition because the supreme court has only recognized two or three categories called the rational basis but find that conceivable reason minimum rationality it's going to do away with the concept of reliance and probably rights you know joining as a right is gone we might not we might as well little done as for honey you know almost two hundred years since nine hundred twenty seven because so again the court has to clarify that clearly rational basis test in jurisprudence land use analysis before that drastic step would which would be against the well established person of this court is taken you must consider the facts of this case plain property is under currently under a fifty year lease has been has been discussed and she admits that there are no current plans to redevelop the property to change chips she has no plans before the village to construct a bank on the first floor application which could include a bank or a variance which is another tool to obtain relief from strict compliance with his own income instead she's filed a suit based on imagined potential theoretical plans of a potential development that would be inconsistent with villages decision when the village is not had that opportunity to review such a request this is the nature of facial challenges say that issue restricts banks from the first floor and under the rationale that the banks and first forced based take up prime retail space in the retail space generate sales tax the sales tax funds public services police fire roads sewers the village by dotting the amendments contrary to zz representations based on a detailed analysis based on expert opinions based on consensus and approval from the plane commission and public hearings approved the amendments this case does involve a facial challenge as has been discussed in that plaintiff's seek to invalidate ordinance in its entirety as it applies to dozens and dozens and dozens of parcels within these two zoning moratorium that the village instituted before took the final steps the village instituted a moratorium to see what the effect of freezing approvals of building permits for banks and beauty salons then it went through the analysis the plan commission did in fact approve the tax amendment that we are and that is at issue today was approved and subsequently obviously approved by the village board and is critical had support from the playing commission through the public hearings through the experts don't please don't be misguided by that misstatement else or are there other banks existing preexist in the three districts absolutely they are there are there are banks on first floors  as part of this ordinance does many things one of the things it does it also regulates strive through lanes locations number of drive through lanes for existing banks and remember that's critical because in her facial case ordinance must be void under any circumstance under any piece of the the legislation if it's a valid exercise of our police powers to regulate the location of the drive through lanes whether they go into traffic or not whether there's appropriate stacking the number of those then you must approve the sort and she must deny the facial challenge consulate's the focus on the first floor base issue which is also obviously a part of this but you must consider the ordinance in its entirety under any circumstance as applied to any parcel of the dozens and dozens and dozens of parcels in these two zoning districts this court heard the same argument in stoke a bit like a village of like bill restock of which we are the plaintiffs in that case rang the bell of we are fighting for property rights the right to use our property in any manner  see fit and that is a fundamental right was the argument by the plaintiffs in that case this court specifically rejected that rejected the notion that simply because you're talking about what you want to do with your real property does not elevate it to a higher scrutiny level councils alluded to too i think two possibly three levels of scrutiny i'm not sure but we need to clarify that the first year first year of scrutiny when facing new substantive due process  that category but was denied appropriately the second tier intermediate scrutiny which appears from argument seems to be the direction it naples and would like this case to head into this intermediate scrutiny under federal law in this court's laws reserved for laws affecting gender illegitimacy or incidental burdens on free speech none of which exist in this case by any remote chance or allegation the second tier uses the terminology must be substantially related to important governmental interest and then we have our third tier that applies to all other laws and regulations the rational or reasonable basis test that examines whether there is a legitimate government interest and whether the tools and methods chosen by the municipality or the legislature is reasonably related to those goals the terminology does differ in opinions we do agree on that point there are different phrases that are used all the way back to euclid which is that the heart of the seminal rational basis test uses substantial bas language so that that is has created some of the confusion but the common denominator in all of these cases is the concept of arbitrary capricious for rational basis for review for this third level of review it will only be overturned if it is arbitrary or capricious none of which which is present in this case clearly the detailed analysis the village underwent before docking this ordinance the public strongly disagree that this is a red herring this court's analysis starts with the nature of the right is does a right fall within the strict scrutiny category doesn't fall within the intermediate scrutiny scrutiny category and doesn't the next line of analysis it's now in the rational basis third category isn't a challenge a facial challenge to the ordinance in its entirety or is it as applied challenge we're talking about a global challenge of the ordinance overall as applied in any circumstances johnny parcels versus an as a plot that distinction the facial versus as applied discreditable to which levels of evidence which specific facial challenge or single property cases both of which cosmopolitan in the cases relied on counsel in doogan in this case were initially spatial challenge cases that were converted to as applied because it was a ordinance applying to one single parcel of property so when you do have a has applied cases that distinction is critical it must be one of the first questions after you've gone through the tear of analysis to figure out which tear you belong in and then you must look at it whether it's facial or whether it's as applied because it's night and day this far as you approach the evidence must be present presented in proven to overcome the burden of the constitutionality of  is pure speculation that there's been some how the value property value is changed or that debate will never be allowed there because under an as applied case the fear is now you have gone through a specific process we're going from the broad to the narrow and we now are looking at a specific request with real requests with the real application that's been denied by the municipality you've gone through the process you've said you've tried to use the other tools the variances the plane development special use permit other towing text amendment to allow your project to proceed you've gone through that process you've been denied now we're going to look at your individual case on a factual very fact intensive level we're going to compare the properties around we're going to compare the values and the properties around it we're going to balance that the overall good of of the ordinance to the village as a whole versus the harm to this individual property only when you have all in one neat package for this court and other litigants to follow but it's that's all it is it's a organize analysis of the evidence to demonstrate that it has applied case presents a constitutional challenge the second district relied on three key cases thompson in which case the plaintiffs sought the right to play night baseball really failed beverly baker the plaintiffs sought the right to build homes  challenge cases this court applied a rational basis in all three of those cases in they are compelling precedent controlling present that apply to this case at the second district and should also be followed before this court unlike those plaintiffs in those three cases sought to protect the right to do with her property what she please she can't be more specific because there are no current plans to develop a property she argues that asserting the right to do use your property as you choose brings special treatment but this again should be a special case there is no greater right than using your property as you please the court looked at the since dr bitch and expressly rejected that arguments let's be clear the village of hinsdale does not str property owner's rights the village intensely respects the property rights of individuals it's a legislative body whoever is elected by the village is a whole and it must balance the rights of those individuals with the general welfare and the needs and demands of the village as a whole basis test is appropriate test and the usual fail bill itself bankers is entirely inappropriate latest reliance on cosmopolitan and doogan for the higher scrutiny simply is misplaced and utilize the lasalle factors in this case again is misplaced and it would be dangerous precedent to create to eliminate the rational basis test in a install and insert inject the lascelle fact every zoning lane use case haters themselves do not logically legally practically lend themselves to a facial challenge again facial challenge where you are looking at the case from any perspective from the dozens of persons involved from the multiple banker drive through facility and search for the one if there is one example in this detailed analysis that is valid then the whole entire ordinance is valid again the facial cases are the global the macro view of the legislation versus is applied cases which focus on a much more fact intensive micro view specific review of how that property actually is going to be used in the actual impact the ordinance on that property not the perceived not the imagined not the theoretical impact not even come close to says frying her burden in overcoming this presumption simply stated she is not sufficiently pled allegations in her complaint few facts that there are in the complaint to demonstrate that the ordinance is void under any circumstances as applied to any property which is which is required to succeed in a facial challenge of his zoning ordinance statute or other  law as mr florey i can't recall is the dismissal of this case with prejudice with prejudice the procedural history is a little unique nipple than originally filed two counts one is a with a motion to dismiss the remaining count the facial count it was granted the court granted right to relief read i'm sorry plea which enabled and declined so mapleton could have come back and had more facts to attempt to make the case stronger but she declined to do so presumably because the facts weren't there again were to the facial case you're making up the facts as you go to try to knock out the ordinance so it is with prejudice because that was only  our ordinance and to be frank with you once you get to that point you realize there is rational basis test and you don't import all the cell factors in a facial case then you simply have to identify the right issue which in this case is preserving the revenue of the village from generating sales tax purses non self tax producing businesses balancing the business is a generate a sales tax versus not generating sales tax that that is the legitimate govern banks represent a loss in sales tax and yes there is evidence in this report that it's a lost opportunity that the the sales tax is lost by not producing and to be a service business such as this and it's not regained other businesses that may generate sales tax to offset that loss just and just go broad kind of sorting out where we are here with the breeze the appellate court disagreed you disagree with the  standard to review that they didn't agree with the result and therefore basically as you know as to affirm a different basis that if we apply rational basis we would come out with the same result and quickly get to that point is that  hears arguing that justice o'malley was right and i did go through the way and looked at the order and i think i didn't have time to review it is as carefully as i would like at this moment but he does talk about how you know i don't think he uses applied case it's still rational basis test he states that the use of the terminology substantial basis or substantial reason is that littered throughout all the decisions something we had decisions that used both terminology in the same sentence so deserted he agreed with the lower court and agreed with us that rational basis he that's the language he does use is your proper level and he soundly rejected the use of those cell factors for the practical reasons for  o'malley because he was right that it's the level it's the nature of the right protected that determines the level of scrutiny and he says apart from lasalle him as applied it's rational basis but that's on page sixteen of the order but it's that apart from the applied so therefore the level in the nature of the right determines the level of protection so that he says this is a facial but then does the animal test which is not without it doesn't provide deliberately heightened scrutiny it literally heightened scrutiny of the south  that's why it's more than an evidentiary method the deliberately heightened scrutiny in the south is the requirement that at a trial now you could plead to get there but at a trial the village has to put forth this justification and there is going to be a way here there is we  win this we're not just going to look for any conceivable reason to push to change the zoning of your land and let it fly and that has to get back gets back to reliance if i might take a second just to address some of these cases number one we all supreme court has never used the minimum rationality that is this any conceivable basis store which has never used that in his own case ever ever ever spoke of bush was a demolition case the woman let her house scrutiny we're not arguing for strict scrutiny we're not arguing the property rights are fundamental right in title to that level but stupid which has nothing to do with zoning this woman didn't lose a thing a right to rely on  florey you heard me as to go through way as applied challenges with their specific facts should be at a heightened level versus a facial challenge that like in this case i mean there isn't a bank  coming in to the first floor was named lynn's property so we don't have those factors why shouldn't it be heightened in the as applied case when those facts are there and not in the lower standard when we don't know that well i assumed to be true of this emotion for this mess but more importantly when you look at it as applied case you look at for example the south factors three two and three the property value loss that's alleged in the complaint to be lost it's not proven doesn't actually do what it says promote the public welfare the way it says it will then it's possible to predict and we've got three cases in the state that had done facial challenges and used a heightened scrutiny and they are there's trust versus duping property i want to make a couple comments on this challenge you have nothing to do there's nothing you can do but sit there and wait and have your property diminished and at some point down the road sure maybe you plan to develop maybe you won't it's your nest egg and misnaming to his message to a should we call her a passive point this is and the only way to attack that to get to to redress those constitutional or alleged constitutional violations is to file official challenge there is no other way because for as applied you got to exhaust and if you don't have a proposed plan you can exhaust your remedies and and number two they didn't require exhaustion to require exhaustion means as applied they did requires russian they stated they wanted to invalidate the ordinance in their entirety and they treated them as facial hair the bigger your multiple parcels affirmed and this court denied petition this court denied petition on both cases both official both heightened scrutiny substantially ship both victories both of them denied petition in this something that this court has said you have a legal right to rely on down zoning decreases value and i want to say suggest as for the procedural questions that were raised we stood on the complaint because judge popejoy adopted what we think is the wrong test we went out on to panna the head of decision appeared to be you know there was no second district authority at that time  judge pro choice simply refused to follow it and rather than try to replete under this minimum rationality test using using nuns only cases we stood on our complaint to get the proper test invoked and we've asked if that should not be held against ms mapleton conserve