2023 IL App (1st) 211513-U 

 

No. 1-21-1513

Order filed February 14, 2023. 

First Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the 

limited circumstances allowed under Rule 23(e)(1).

______________________________________________________________________________

 

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________ 

LEILA MENDEZ and ALONSO ZARAGOZA, ) Appeal from the 

 ) Circuit Court of 

Plaintiffs-Appellants, ) Cook County. 

 ) 

 v. ) 

 ) 

CITY OF CHICAGO, a municipal corporation; ) No. 16 CH 15489

and KENNETH J. MEYER, in his official capacity ) 

as Commissioner of the City of Chicago Department ) 

of Business Affairs and Consumer Protection, ) The Honorable 

 ) Cecilia A. Horan, 

Defendants-Appellees. ) Judge Presiding. 

______________________________________________________________________________

 

PRESIDING JUSTICE LAVIN delivered the judgment of the court. 

Justices Hyman and Coghlan concurred in the judgment. 

 ORDER

¶ 1 Held: This court affirmed the judgment of the circuit court dismissing plaintiffs’ lawsuit

challenging the City’s shared-housing ordinance due to lack of standing, ripeness, and on the 

merits. 
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¶ 2 Plaintiffs Leila Mendez and Alonso Zaragoza, both Chicago homeowners, sued the City

of Chicago and the Commissioner of the Department of Business Affairs and Consumer 

Protection (collectively, the City) claiming the shared housing ordinance, which was enacted in

2016, violated the Illinois Constitution. Specifically, they challenged the provisions relating to

home inspections, the primary-residence rule, excessive noise, and banning single night rentals.

The circuit court granted the City’s motion to dismiss these claims, and plaintiffs now appeal.

We affirm.

¶ 3 BACKGROUND

¶ 4 We set forth only those facts pertinent to this appeal. The shared housing ordinance of the 

Chicago Municipal Code (Code) (Chicago Municipal Code § 4-14-010 et seq. (amended Sept. 9,

2020)) regulates the rental of homes in Chicago through websites like Airbnb and requires hosts 

to register and pay an annual fee to the Department of Business Affairs and Consumer 

Protection.1 Id. § 4-14-020. A “shared housing unit” is “a dwelling unit containing 6 or fewer

sleeping rooms that is rented, or any portion therein is rented, for transient occupancy by guests.”

Id. § 4-14-010. The ordinance regulates everything from what’s required on the advertised

website listing to ensuring that guests have clean towels and utensils, while also mandating that

hosts notify the police of any criminal activity, egregious condition, or nuisance taking place in

the shared housing unit. Id. § 4-14-040. It also prohibits guests from making excessively loud 

1

In the general factual background, we have cited the 2020 ordinance, as it is more up-to-date and

was passed during the litigation in this case. Where relevant in the analysis, we cite earlier iterations of 

the ordinance. Further, we note that a shared housing unit is one of three kinds of properties (along with

vacation rentals and bed and breakfasts) classified as a “short term residential rental.” Chicago Municipal

Code § 4-13-100 (Sept. 9, 2020). Plaintiffs also have challenged the vacation rental provisions of the 

Municipal Code, which in many respects mirror the shared housing unit provisions. See Chicago

Municipal Code § 4-6-300 et seq. (Sept. 9, 2020). Plaintiffs’ complaint nonetheless focuses on the injury 

resulting from the inability to utilize shared housing. Consequently, our facts and analysis focus on those 

provisions. 
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noise during the evening and early morning hours or committing illegal acts like drug trafficking

and prostitution. Id. § 4-14-010; § 4-14-050. Registered homes are subject to inspection every

two years; however, the building commissioner has not yet issued such rules and regulations. Id. 

§ 4-16-230. Further, relevant to this appeal, the ordinance generally requires that single family

homes and duplexes or row houses be the host’s “primary residence,” meaning the place where

the host lives most of the year (hereinafter, the primary residence rule).2 Id. § 4-14-010; § 4-14-

060(d), (e). The Commissioner, however, may grant adjustments to the primary residence rule 

where it’s an extraordinary burden to the host and the adjustment does not adversely impact the 

surrounding property owners or public. Id. § 4-14-060(d), (e); § 4-14-100(a). Finally, the shared

housing rules ban single-night rentals. Id. § 4-14-050(e) (amended Sept. 9, 2020); see also 4-14-

050(f) (amended Sept. 9, 2020). 

¶ 5 On November 29, 2016, plaintiffs filed a complaint against the City, raising various state

constitutional claims as to the shared housing ordinance. Among them, plaintiffs alleged the 

inspection provision violated their right to be free from unreasonable searches and seizures and

their right to privacy because they authorized the warrantless searches of their homes (Count 1).

They also alleged the primary residence rule violated substantive due process because it was not 

rationally related to a legitimate governmental interest and the adjustment exception to the rule 

was impermissibly vague (Count 3). Finally, they alleged the noise rule violated substantive due 

process (Count 6) insofar as it was vague and equal protection insofar as it arbitrarily

2 “‘ Single family home’ means a building that: (i) contains one dwelling unit only; and (ii) is not

attached to any other dwelling unit.” Chicago Municipal Code § 4-14-010 (amended Sept. 9, 2020). A “ 

‘[b]uilding containing two to four dwelling units’ includes, but is not limited to, a duplex or row house 

consisting of two to four connected individual dwelling units.” Id. “ ‘Primary residence’ means the 

dwelling unit where a person lives on a daily basis at least 245 days in the applicable calendar year.” Id.
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discriminated against shared housing units by subjecting them to harsher restrictions than hotels 

and bed-and-breakfasts (Count 7). 

¶ 6 Plaintiff Mendez alleged that she was injured because the ordinance basically precluded

her from using the Airbnb platform to rent out her home, as she was avoiding being “subject to

warrantless searches and other restrictions the Ordinance places on shared housing units.” 

Plaintiff Zaragoza alleged that he owns a home and a three-unit residential building in Chicago. 

Plaintiff Zaragoza would be injured because he rents out a room in his home as a shared housing 

unit that could be subjected to warrantless searches, as well as the excessive noise rules. He

further alleged that the ordinance precluded him from using the Airbnb platform to rent out the 

unit in his three-unit building because it is not his primary residence. The two plaintiffs finally

alleged they suffered injury as Chicago taxpayers. They asked for declaratory and injunctive 

relief, and the award of attorney fees.

¶ 7 Pursuant to the City’s motion (see 735 ILCS 5/2-619.1 (West 2016)), the circuit court 

dismissed with prejudice Counts 1, 6, and 7.3 The court also dismissed with prejudice plaintiffs’

due process and equal protection challenges in Count 3, but denied the motion as to the primary

residence rule adjustment provision in that same count. 

¶ 8 Plaintiffs filed an amended complaint, again challenging the primary residence rule and

its exception as violating the Illinois Constitution (Count 2). That also was dismissed pursuant to

the City’s motion. Plaintiffs’ second-amended complaint resulted in cross-motions for summary

judgment. The City prevailed after the court determined that plaintiffs lacked an injury-in-fact

and, contrary to the court’s earlier finding, taxpayer standing; their claim also failed on the 

3

We note that the trial court dismissed Count 1 as unripe, which we consider a dismissal with

prejudice. See Pekin Insurance Company v. St Paul Lutheran Church, 2016 IL App (4th) 150966, ¶ 85 (a

dismissal on the grounds of ripeness is a dismissal with prejudice).
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merits. Last, plaintiffs filed a third-amended complaint adding that the single-night ban violated

separation of powers (Count 8) by unlawfully delegating legislative authority to administrative

officials. Plaintiffs maintained they previously rented out their shared housing units for single 

nights and would do so but for the ban. The circuit court granted the City’s motion to dismiss the 

third-amended complaint, finding that plaintiffs lacked standing based on severability principles. 

¶ 9 This appeal followed. 

¶ 10 ANALYSIS

¶ 11 This appeal arises from an order granting defendants’ combined motion to dismiss filed

under section 2-619.1 of the Code of Civil Procedure. 735 ILCS 5/2-619.1 (West 2016). Section

2-619.1 of the Code allows a party to file a combined section 2-615 and section 2-619 motion to

dismiss. Henderson Square Condominium Association v. LAB Townhomes, LLC, 2015 IL

118139, ¶ 32. A section 2-615 motion to dismiss attacks the legal sufficiency of the 

complaint. Carr v. Koch, 2012 IL 113414, ¶ 27. In other words, a section 2-615 motion to

dismiss tests the legal sufficiency of the complaint based on defects apparent on the face of the 

pleading. Veazey v. Board of Education of Rich Township High School District 227, 2016 IL

App (1st) 151795, ¶ 32. The relevant inquiry is whether the allegations of the complaint, 

construed in the light most favorable to the plaintiff, set forth sufficient facts to establish a cause

of action upon which relief may be granted. Id. In making this determination, all well-pleaded

facts must be taken as true. LAB Townhomes, LLC, 2015 IL 118139, ¶ 61. A section 2-619 

motion to dismiss, on the other hand, admits as true all well-pleaded facts, along with all

reasonable inferences that can be gleaned from those facts, but asserts an affirmative defense or 

other matter that avoids or defeats the claim. LAB Townhomes, LLC, 2015 IL 118139, ¶ 34; 

Carr, 2012 IL 113414, ¶ 27; see also Veazey v. Board of Education of Rich Township High
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School District 227, 2016 IL App (1st) 151795, ¶ 23 (noting, this encompasses standing, which

is an affirmative defense). We interpret the pleadings and supporting documents in the light most

favorable to the nonmoving party. LAB Townhomes, LLC, 2015 IL 118139, ¶ 34. We review the 

trial court’s granting of a motion to dismiss under sections 2-615 and 2-619, as well as its

determination on standing, de novo. Illinois Association of Realtors v. Stermer, 2014 IL App

(4th) 130079, ¶ 16. 

¶ 12 Here, plaintiffs have moved for declaratory judgment, and thus, are bound to establish the 

elements of the cause of action: (1) a plaintiff with a legally tangible interest; (2) a defendant 

with an opposing interest; and (3) an actual controversy between the parties as to those interests.

Beahringer v. Page, 204 Ill. 2d 363, 372 (2003). These same elements must be proven to

establish standing in this context. Harris Bank of Roselle v. Village of Mettawa, 243 Ill. App. 3d 

103, 109 (1993); see also Village of Chatham, 216 Ill. 2d 402, 419 (2005) (“Standing is a 

preliminary question in all declaratory judgment actions.”). An “actual controversy,” requires a 

showing that the underlying facts and issues of the case are not moot or premature, such that a 

court must pass judgment on mere abstract propositions of law, render an advisory opinion, or 

give legal advice on future events. Beahringer, 204 Ill. 2d at 374-75. Likewise, “interested

parties” must possess a personal claim, status, or right which is capable of being affected, as

opposed to a mere curiosity or concern for the controversy’s outcome. Harris Bank of Roselle, 

243 Ill. App. 3d at 109. Therefore, a plaintiff seeking to challenge the constitutionality of a 

municipal ordinance must have sustained, or be in immediate danger of sustaining, a direct injury

as a result of the enforcement of the challenged ordinance. Carr, 2012 IL 113414, ¶ 28. 

¶ 13 We further observe that municipal ordinances are presumed constitutional. Fedanzo v.

City of Chicago, 333 Ill. App. 3d 339, 346 (2002). The party challenging the constitutionality of 
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an ordinance has the burden of rebutting the presumption of validity and establishing a 

constitutional violation by clear and convincing evidence. Village of Chatham v. County of 

Sangamon, 216 Ill. 2d 402, 417 (2005); O'Donnell v. City of Chicago, 363 Ill. App. 3d 98, 105 

(2005); see also Village of Chatham, 216 Ill. 2d at 417 (a court should uphold an ordinance’s

validity if reasonably possible). Further, where, as here, plaintiffs challenge an ordinance as

facially invalid, they must establish there are no set of circumstances where the ordinance would 

be valid. In re M.A., 2015 IL 118049, ¶ 39. The fact that a statute could be found unconstitutional 

under some circumstances does not establish its facial invalidity. Id. Consequently, a facial

challenge to the constitutionality of a legislative enactment is the most difficult challenge to

mount successfully. Id. We note that municipal ordinances are construed using the same rules

that apply to statutes.4

 Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 306 (2008). 

¶ 14 At the outset, the City contends plaintiffs lack standing to pursue their claims, some of 

which are not ripe. The City additionally maintains plaintiffs’ constitutional claims fail on the 

merits. In other words, the City contends that the facts as pled in the complaints supplied rational

bases for the ordinance provisions. We address these arguments regarding the dismissed counts 

each in turn.

¶ 15 Inspection Provisions (Count 1, Original Complaint)

¶ 16 Plaintiffs first contend the inspection provisions of the ordinance violate the Illinois

Constitution’s prohibition against unlawful search and seizure and are thus facially invalid.

Article 1, section 6, provides people “the right to be secure in their persons, houses, papers and

other possessions against unreasonable searches, seizures, invasions of privacy or interceptions 

of communications by eavesdropping devices or other means. No warrant shall issue without 

4

Given this rule and where relevant, we substitute the word ordinance for statute in the various 

legal citations.
No. 1-21-1513

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probable cause, supported by affidavit particularly describing the place to be searched and the 

persons or things to be seized.” Ill. Const. 1970, art. I, § 6. Plaintiffs note that courts largely

construe this section consistent with the Supreme Court’s fourth amendment jurisprudence. Fink 

v. Ryan, 174 Ill. 2d 302, 314 (1996). Yet, the City maintains we need not reach the merits of this

claim because under the ordinance plaintiffs lack standing to raise Count 1. We agree.

¶ 17 Under the ordinance, the building commissioner can mandate inspection of any “shared

housing unit operated by a shared housing unit operator *** at a time and in [a] manner,

including through third-party reviews, as provided for in rules and regulations promulgated by 

the building commissioner.”5

 (Emphasis added.) Chicago Municipal Code § 4-16-230 (June 22, 

2016). The ordinance defines a “Shared housing unit operator” as a “person who has registered,

or who is required to register, as the shared housing host of more than one shared housing unit.”

(Emphasis added.) Id. § 4-16-100. The City points out that neither plaintiffs Mendez nor 

Zaragoza has alleged they operate more than one shared housing unit. Rather, plaintiff Zaragoza

rents out only one unit as a shared housing unit; plaintiff Mendez has ceased doing so due to the 

ordinance provisions. In short, plaintiffs are simply not currently subject to any inspection 

provisions. They thus lack standing to challenge the inspection provision of the ordinance 

because they are not interested parties, as required. They do not have a personal claim, right or 

status that is capable of being affected. See Harris Bank of Roselle, 243 Ill. App. 3d at 109. They

also have not sustained, and are not in immediate danger of sustaining, a direct injury as a result

of the enforcement of the challenged ordinance. See Carr, 2012 IL 113414, ¶ 28; cf. City of Los 

Angeles, California v. Patel, 576 U.S. 409, 413-14 (2015) (noting that in challenging a city code 

as facially invalid under the Fourth Amendment, the respondents-plaintiffs stipulated they had

5

The time frame is at least once every two years for this. 
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been subjected to mandatory record inspections under the ordinance without consent or a 

warrant).

¶ 18 We also agree with the City that this claim is not ripe. To determine if an action is

premature or unripe, courts evaluate the fitness of the issue for judicial decision during that point 

in time. Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217, 252 (2010). Here, the ordinance 

states the building commissioner can mandate inspection of a shared housing unit “as provided 

for in rules and regulations promulgated by the building commissioner.” Chicago Municipal 

Code § 4-16-230 (June 22, 2016). Yet, the building commissioner has not promulgated any rules

in connection with the inspections, making plaintiffs’ claim premature. See Beahringer, 204 Ill.

2d at 372, 374-75; see also Drayson v. Wolff, 277 Ill. App. 3d 975, 979 (1996) (“Where a matter

is contingent or uncertain, a court will not declare the rights of the parties to that matter.”).

Contrary to plaintiffs’ contention otherwise, and as the City concedes, this clearly means there

can be no inspections until there are implementing rules. The ordinance as written has no effect.

As such, there is no actual controversy regarding the inspections, and also we decline to render

an advisory opinion. Cf. Miles Kimball Co. v. Anderson, 128 Ill. App. 3d 805, 807 (1984) 

(finding an actual controversy where the defendant sought $150,000 from the plaintiff and

referred to their contractual business dispute as a controversy). 

¶ 19 We further observe that the fourth amendment permits “administrative searches” of hotel 

records, provided there are appropriate safeguards in place. See Patel, 576 U.S. 409, 420 (“The

Court has held that absent consent, exigent circumstances, or the like, in order for an

administrative search to be constitutional, the subject of the search must be afforded an

opportunity to obtain precompliance review before a neutral decisionmaker.”). Yet, whether the 
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administrative search exception to the fourth amendment applies in the shared housing context or 

whether the ordinance is facially valid must be left for another day.

¶ 20 In reaching this conclusion, we reject plaintiffs’ contention that the absence of 

implementing rules for the ordinance warrants an injunction. Notably, after filing their complaint 

plaintiffs withdrew their motion for a preliminary injunction as to Count 1 because the City

represented that it would not conduct the complained-of inspections absent the aforementioned 

rules. On appeal, the City concedes that the ordinance as written precludes inspections, and

plaintiffs have not pointed to any violations in that regard by city officials, thereby obviating any

need for an injunction. Plaintiffs also insist their claim is ripe, citing Rush v. Obledo, 756 F. 2d 

713, 721-22 (9th Cir. 1985). That case did not address ripeness, but rather, whether a California 

statute providing for warrantless administrative searches of family day care homes at any time

was over broad for fourth amendment purposes. Rush is inapposite because the statute itself

provided some guidance, whereas the ordinance at issue here does not yet do so. And, as the City

notes, plaintiffs do not dispute that an agency’s rules can properly limit the scope of a broadly 

worded ordinance. 

¶ 21 The Primary Residence Rule Exception (Count 2, Amended Complaint)

¶ 22 Plaintiffs next contend the adjustment exception to the primary residence rule violates

substantive due process, which provides that “[n]o person shall be deprived of life, liberty or

property without due process of law nor be denied the equal protection of the laws.” See Ill.

Const. 1970, art. I, § 2. Here, sections 4-14-060(d) and (e) generally prohibit shared housing 

hosts of single family homes and duplexes or row houses from utilizing airbnb unless it is their

primary residence. The ordinance lists several exceptions, such as for individuals on active

military duty, and those that qualify for the commissioner’s adjustment under section 4-14-
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100(a). Chicago Municipal Code § 4-14-010; § 4-14-060(d), (e) (amended November 9, 2016). 

Section 4-14-100(a), in turn, states “[s]uch an adjustment may be approved only if, based on a 

review of relevant factors, the commissioner concludes that such an adjustment would eliminate

an extraordinary burden on the applicant in light of unique or unusual circumstances and would 

not detrimentally impact the health, safety, or general welfare of surrounding property owners or

the general public.” Id. § 4-14-100(a). It then lists the factors as including “by way of example

and not limitation” geography, population density, and the legal nature and history of the 

applicant, etc. Id. 

¶ 23 Plaintiffs now argue the ordinance provides the commissioner with unconstrained 

authority to make exceptions to the primary residence rule without providing any objective 

guidance. They thus maintain the criteria is vague and contend the ordinance is facially invalid.

The City responds that plaintiffs have no standing to challenge this exception because it is

severable from the remainder of the ordinance. In other words, even if we struck the exception as

unconstitutional, the rule requiring that single family homes and duplexes or row houses be the 

host’s “primary residence” would still stand. Chicago Municipal Code §§ 4-14-010; 4-14-060(d), 

(e) (June 22, 2016). Plaintiffs counter that the City failed to raise this particular standing 

challenge in the court below (although they cite no legal authority in support of this

counterargument). See Lebron, 237 Ill. 2d at 252-53 (a lack of standing is an affirmative defense,

which the defendant forfeits if he does not timely plead it); see also Ill. S. Ct. R. 341(h)(7) (eff.

Oct. 1, 2020) (an appellant’s argument must contain the contentions of the appellant and reasons

therefor with citation to the authorities relied on). 

¶ 24 We observe that the City challenged standing on other grounds in its motion to dismiss

the complaint. However, as the City notes, plaintiff Mendez does not allege that the primary
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residence rule or the commissioner’s adjustment precludes her from renting her home. She thus 

has no injury at all. While plaintiff Zaragoza alleged the primary residence rule precluded him 

from renting out a unit, on appeal he abandons that argument and challenges only the 

commissioner’s adjustment exception. The fact that plaintiff Zaragoza challenged both 

provisions together before the circuit court arguably explains why the City did not raise

severability at that time. 

¶ 25 Regardless, we emphasize that forfeiture is a limitation on the parties, not on the court, 

and we may exercise our discretion to review an otherwise forfeited issue. Deutsche Bank 

National Trust for Argent Securities Inc., 2017 IL App (1st) 161466, ¶ 12; In re Estate of Henry, 

396 Ill. App. 3d 88, 94 (2009) (same). Likewise, we will not consider a constitutional question 

unless it is essential to the disposition of a case, i.e., where the case cannot be determined on 

other grounds. Given the record before us, we proceed in our review of plaintiff Zaragoza’s

standing. See Henry, 396 Ill. App. 3d at 94. 

¶ 26 We first observe that the Code has a general severability clause: “If any part, section,

sentence, clause or application of this Code shall be adjudged invalid, void and of no effect for 

any reason, such decision shall not affect the validity of the remaining portions of the titles,

chapters, sections or other provisions of this Code, or their application to other circumstances.”

Chicago Municipal Code § 1-4-200 (June 27, 1990). While not conclusive, such clauses establish

a presumption that the legislature, or in this case city council, intended for an invalid ordinance 

provision to be severable. Northern Illinois Home Builders Association, Inc. v. County of Du

Page, 165 Ill. 2d 25, 48 (1995). This presumption will be overcome and the entire ordinance held

unconstitutional if the legislative body would not have passed the ordinance with the invalid

portion eliminated. Id. We consider whether the legislative purpose or object in passing the 
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ordinance is significantly undercut or altered by the elimination of the invalid provisions. Rivera

v. Bank of New York Mellon, 2021 IL App (1st) 192188, ¶ 28. The issue of severability thus 

involves a question of ordinance construction, in that we must ascertain and give effect to the 

legislative body’s intent. See People ex rel. Chicago Bar Association v. State Board of Elections,

136 Ill. 2d 513, 534 (1990). 

¶ 27 In this case, the legislative intent is clear from the plain language of the ordinance, when

read in context, and legislative commentary. First, the primary residence rule and details of the 

narrow exception appear in separate sections of the ordinance, thus supporting severability.

Second, plaintiffs do not challenge the court’s findings below that the City has a legitimate

interest in local neighborhood preservation, continuity and stability (see Nordlinger v. Hahn, 505 

U.S. 1, 12 (1992)), and that the primary residence rule is rationally related to protecting that

interest, including safeguarding residential neighborhoods in particular. As noted during the city

council’s committee meeting prior to the September 2020 ordinance amendment, the primary

residence rule was intended to curb investor rentals in residential neighborhoods with singlefamily homes and townhouse walk-ups; as a matter of common sense, those residing in and more

closely watching their homes a majority of the year have a greater stake in renting them to wellbehaved and legally-compliant guests. Virtual Committee on License and Consumer Protection

(August 25, 2020). As one alderman observed, it’s rare to hear about out-of-control parties at bed

and breakfasts. Id. All this leads us to conclude that the primary residence rule takes primacy

over its narrow, discretionary exception that plaintiffs now attack on appeal. See Village of 

Chatham, 216 Ill. 2d at 417 (we must uphold an ordinance’s validity if reasonably possible); cf.

Commercial National Bank of Chicago v. City of Chicago, 89 Ill. 2d 45, 75-76 (1982) 
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(severability will not be found if it broadens the scope of the ordinance or alters it in a manner

contrary to the legislative intent). 

¶ 28 Therefore, the primary residence rule and its narrow exception are not so mutually

connected or interdependent on each other that the city wouldn’t have passed the former without 

the latter. See Northern Illinois Home Builders Association, Inc. v. County of Du Page, 165 Ill.

2d 25, 48-49 (1995); Rivera, 2021 IL App (1st) 192188, ¶ 28. In short, they are severable. Thus,

even if plaintiff Zaragoza established the exception as invalid, the primary residence rule — 

which he does not challenge on appeal — remains valid and still prevents him from obtaining 

relief. Village of Chatham, 216 Ill. 2d at 423 (fundamentally, a court will not determine the 

constitutionality of an ordinance provision that does not affect the parties to the cause under 

consideration). 

¶ 29 Even severability aside, we note that it is plaintiff Zaragoza’s burden as the appellant to

affirmatively establish the errors on review. See Healy v. Bearco Management, Inc., 216 Ill.

App. 3d 945, 958 (1991); see also First Capitol Mortgage Corp. v. Talandis Construction Corp., 

63 Ill. 2d 128, 131-33 (1976) (the burden of persuasion remains with the appellant despite the 

appellee’s failure to file a brief). Likewise, he must establish a direct injury as a result of 

enforcing the challenged ordinance. Carr, 2012 IL 113414, ¶ 28. Yet, in his opening brief

plaintiff Zaragoza failed to argue that invalidating the exception to the rule also invalidates the 

rule. Therefore, he has not sustained his burden on appeal or established an injury leading to

recovery. See LAB Townhomes, LLC, 2015 IL 118139, ¶ 61; see also In re M.I., 2013 IL 113776, 

¶ 32 (a party must be directly affected by the attacked provision and in danger of sustaining an

injury as a result of the enforced provision); Morr-Fitz, Inc. v. Blagojevich, 231 Ill. 2d 474, 493 
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(2008) (noting, we must affirm the circuit court’s order where it appears that plaintiffs can prove 

no set of facts that would entitle them to recovery). For that reason, alone, his claim fails. 

¶ 30 Additionally, regarding plaintiff Zaragoza’s vagueness challenge to the ordinance, our

supreme court has made clear that a plaintiff has standing to challenge the constitutionality of an

ordinance on its face only if the challenged language implicates first amendment rights. Owens v.

Department of Human Rights, 403 Ill. App. 3d 899, 927 (2010), citing People v. Jihan, 127 Ill.

2d 379, 385-86 (1989); see also People v. Izzo, 195 Ill. 2d 109, 112 (2001) (same). This 

ordinance section does not implicate first amendment rights. As such, plaintiff Zaragoza can only 

argue the ordinance is vague as applied to himself. See id.; O'Donnell v. City of Chicago, 363 Ill.

App. 3d at 105. Yet, he has not done so, and nor can he since he has not exhausted the relevant

administrative remedies. The City noted this much in its motion to dismiss the complaint.

¶ 31 “Where an agency is vested by the legislature with the authority to administer the statute,

declaratory relief is not available; judicial interference must be withheld until the administrative

process has run its course.” Beahringer, 204 Ill. 2d at 375. Courts apply the exhaustion doctrine 

to declaratory judgment actions, and moreover, this doctrine applies even when the grievance

involves a constitutional violation. Id. at 374-75. In this case, the City via its home-sharing 

ordinance vested the Department of Business Affairs and Consumer Protection and its

commissioner with the authority of determining whether an applicant qualifies for the adjustment 

exception to the primary residence rule. Chicago Municipal Code § 4-14-100 (amended Sept. 9,

2020); see also Chicago Municipal Code § 2-14-010 (February 15, 2012) (establishing the City’s

department of administrative hearings). If the commissioner denies the adjustment application,

the applicant can request an evidentiary hearing that is then subject to judicial review. Id. § 4-14-

100(c). Yet, there is no evidence that plaintiff Zaragoza has fully availed himself of that
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administrative remedy, and he has not adequately pled the exhaustion of administrative

remedies.6 Thus, plaintiff Zaragoza’s claim is not legally cognizable.

¶ 32 The Single-Night Rental Ban (Count 8, Third-Amended Complaint)

¶ 33 Plaintiffs next contend that the ban against single-night rentals violates separation of 

powers, thereby violating the Illinois Constitution (Ill. Const. 1970, art. IV, § 1), because the 

ordinance improperly delegates to the commissioner and police superintendent the public-policy 

decision of whether, when and under what conditions the single-night rental of shared housing 

units will be lawful in Chicago. Plaintiffs maintain that this gives the commissioner and police 

superintendent arbitrary authority and unguided discretion. Plaintiffs argue they previously 

rented out shared housing units for single nights and would do so now but for the ban.

¶ 34 The City maintains, as it did below, that plaintiffs lack standing based on severability

principles. The single-night rental ban specifically provides: 

 “It shall be unlawful for any shared housing host to rent any shared housing unit, or any 

portion thereof, for any period of less than two consecutive nights until such time that the 

 commissioner and superintendent of police determine that such rentals can be conducted 

safely under conditions set forth in rules jointly and duly promulgated by the commissioner and 

superintendent.” § 4-14-050(e) (amended Sept. 9, 2020); see also 4-14-050(f) (amended Sept. 9,

2020). 

6

The record shows that several years after filing his initial complaint, plaintiff Zaragoza requested

the commissioner’s adjustment to allow the operation of a shared housing unit in his otherwise ineligible

building, and the commissioner denied his application for adjustment. Plaintiff Zaragoza noted these facts

in the third-amended complaint. Yet, on appeal, plaintiff has not demonstrated that he further pursued the 

exhaustion of remedies, and regardless, his claim involving the adjustment exception was dismissed with

prejudice long before his third-amended complaint. We acknowledge that while “[a]n aggrieved party

may seek judicial review of an administrative decision without complying with the exhaustion of 

remedies doctrine where a statute, ordinance or rule is attacked as unconstitutional on its face” (MorrFitz, 231 Ill. 2d at 498) — it’s clear that in this case plaintiff cannot really bring a facial challenge to the

ordinance provision. See supra, ¶ 30.
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¶ 35 While plaintiffs take issue with the latter portion of the ordinance, the City maintains it’s

of no matter given the single-night ban clause. The City argues that the text of the ordinance, its

purpose, and legislative history strongly support severability. The circuit court agreed,

concluding that even if the italicized clause identified above were invalidated, the ordinance still

would preclude single night rentals, and thus, plaintiffs’ injury would not be redressed. The 

circuit court thus held the single-night ban was severable. We agree.

¶ 36 The City’s legislative history reveals that this ban passed in 2020 during the pandemic 

due to the proliferation of party houses. See Virtual Committee on License and Consumer 

Protection (August 25, 2020). It was intended to be a public health safety measurement. The 

aldermanic committee meeting reported that even before then, single-night rentals had a history 

of presenting problems for neighbors and police, as they also attracted parties and disturbances.

See id. Given those facts, it’s clear the City would have passed the first clause even absent the 

allegedly invalid second clause of the sentence. See People ex rel. Chicago Bar Association, 136 

Ill. 2d at 533 (noting, an entire act will be held unconstitutional if legislature would not have 

passed the statute absent the invalid portion). Plaintiffs challenge this determination, claiming

that the mayor originally presented a text containing only the single-night ban. This fact does not 

weaken our conclusion, but strengthens it. The single-night ban was evidently the first and

foremost important part of the provision. Also, plaintiffs have not pointed to evidence

demonstrating why the second clause was added or showing the ban would not have passed.

Plus, passing the ban alone (absent the second clause) would not have precluded the city council 

itself from later reconsidering the ban and amending the ordinance, itself, as it has done multiple

times since passing the original in 2016. Plaintiffs, in arguing that that the second clause was

integral, mostly rely on newspaper articles, which are inapposite and do not support their claims.
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See Morel v. Coronet Insurance Co., 117 Ill. 2d 18, 24-25 (1987) (noting, the statements of 

legislators outside of legislative debates are not meaningful evidence of legislative intent).

¶ 37 For the stated reasons, we conclude that the single-night rental ban and administrative

exception are not so mutually connected or interdependent on each other city wouldn’t have 

passed the former clause without the latter. See Northern Illinois Home Builders Association, 

Inc., 165 Ill. 2d 25, 48-49 (1995); Rivera, 2021 IL App (1st) 192188, ¶ 28. This is also consistent 

with the presumption stemming from the City’s severability clause. See Chicago Municipal Code 

§ 1-4-200 (amended June 27, 1990). Further, when construing an ordinance, we must uphold its

validity if reasonably possible. Village of Chatham, 216 Ill. 2d at 417. 

¶ 38 The Noise Rule (Counts 6 and 7, Original Complaint)

¶ 39 Last, plaintiffs contend the noise rule violates substantive due process (Count 6), insofar 

as it is vague, and equal protection, insofar as it arbitrarily discriminates against shared housing 

units by subjecting them to harsher restrictions than hotels, bed-and-breakfasts, and other rental

entities (Count 7). They thus raise a facial challenge, arguing there are no set of circumstances

under which the ordinance would be valid. See Patel, 576 U.S. at 417. The City responds that

this challenge fails on the merits because the noise rule is not vague in all applications, nor does 

it arbitrarily discriminate against shared housing units.

¶ 40 An ordinance satisfies due process if it bears a rational relationship to a legitimate

governmental interest and conveys a sufficiently definite warning and fair notice as to what 

conduct is proscribed. Fedanzo, 333 Ill. App. 3d at 347; O'Donnell, 363 Ill. App. 3d at 106. 

Whether notice is adequate is measured by common understanding and practices. Id. Similarly,

as to an equal protection claim, a legislative body may differentiate between similarly situated

people if there is a rational basis for doing so. Jenkins v. Wu, 102 Ill. 2d 468, 477 (1984). 
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¶ 41 The ordinance prohibits “excessive loud noise,” meaning “any noise, generated from

within or having a nexus to the rental of the shared housing unit, between 8:00 P.M. and 8:00 

A.M., that is louder than average conversational level at a distance of 100 feet or more, measured

from the property line of the shared housing unit.”7 Chicago Municipal Code § 4-14-080(c)(2) 

(June 22, 2016); see also § 4-14-010 (amended Sept. 9, 2020) (amending “excessive loud 

noise”). The 2016 ordinance provided that should the shared housing unit be the site of 

excessively loud noise violations on three or more occasions, the host’s registration could be 

suspended or revoked; with the 2020 amendment, it is now two separate incidents. Id. § 4-14-

080(c)(2) (June 22, 2016); § 4-14-080(c)(2) (amended Sept. 9, 2020). 

¶ 42 We conclude the ordinary everyday meaning of the words “louder than average

conversational level,” together with the time limits and distance measurements, provide adequate

notice to a reasonable person of average intelligence as to what the ordinance prohibits. See

Grayned v. City of Rockford, 408 U.S. 104, 110-12 (1972). It ensures people will act accordingly 

and authorities will not arbitrarily enforce the ordinance. See Wilson v. County of Cook, 2012 IL

112026, ¶ 21. Contrary to plaintiffs’ contention otherwise, the ordinance thus provides sufficient

notice and standards to comport with due process. As the circuit court observed, even a child

7

We rely on the 2016 version of “excessive loud noise,” as plaintiffs challenged that provision, 

and the relevant count was dismissed with prejudice prior to the 2020 amendments. The ordinance was

amended to state: “ ‘Excessive loud noise’ means: (1) any sound generated between the hours of 8:00

p.m. and 8:00 a.m. from within the shared housing unit or on any private open space having a nexus to the 

shared housing unit that is louder than average conversational level at a distance of 100 feet or more,

measured vertically or horizontally from the property line of the shared housing unit or private open 

space, as applicable; or (2) any sound generated on the public way immediately adjacent to the shared

housing unit, measured vertically or horizontally from its source, by any person having a nexus to the 

shared housing unit in violation of Section 8-32-070(a); or (3) any sound generated between the hours of 

8:00 p.m. and 8:00 a.m. that causes a vibration, whether recurrent, intermittent or constant, that is felt or 

experienced on or in any neighboring property, other than a vibration: (i) caused by a warning device

necessary for the protection of the public health, safety or welfare; or (ii) caused in connection with the 

performance of emergency work within the shared housing unit by the shared housing host or such host's 

agent; or (iii) subject to an exception or exclusion under Section 8-32-170.” Chicago Municipal Code § 4-

14-010 (amended Sept. 9, 2020).
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understands the difference between inside and outside voices. The ordinance clearly aims to

proscribe the yelling, screaming, and loud laughter that often accompanies a party and wafts over 

to neighboring properties. It also reasonably proscribes this conduct during the evening hours 

when, due to such excessively loud noise, the average Chicagoan in a residential high rise or 

neighborhood might be precluded from sleeping and getting up the next morning to go about 

their day. Notably, the ordinance does not proscribe just any noise, such as a baby crying or 

garage door opening, as plaintiffs would have us believe. Rather, it proscribes “excessive loud 

noise,” and with the limiting language and parameters, it adequately delineates a nuisance. See

Mister Softee of Illinois, Inc. v. City of Chicago, 42 Ill. App. 2d 414, 420 (1963) (noting, it’s well

established that an ordinance should be given the most reasonable interpretation which will

remove it farthest from constitutional infirmity); cf. City of Aurora v. Navar, 210 Ill. App. 3d 

126, 131, 134 (1991) (concluding the ordinance, proscribing “[a]ny commercial activity audible 

from adjacent premises” a nuisance, was impermissibly vague and thus unconstitutional). It is

eminently reasonable.

¶ 43 Regardless, an act is not unconstitutionally vague merely because one can conjure up a 

hypothetical which brings the meaning of some terms into question. Gem Electrics of Monmouth 

Inc. v. Department of Revenue, 183 Ill. 2d 470, 481 (1998). Likewise, due process does not 

mandate absolute standards or mathematical precision. People v. Izzo, 195 Ill. 2d 109, 114 

(2001). As the City notes, other noise ordinances providing much less distinct definitions have 

been upheld as constitutional. See Kovacs v. Cooper, 336 U.S. 77, 79 (1949) (“loud and raucous 

noises”); Dube v. City of Chicago, 7 Ill. 2d 313, 322-25 (1955) (“noises disturbing the peace and

comfort of occupants of adjacent premises”); City of Chicago v. Reuter Brothers Iron Works,

Inc., 398 Ill. 202, 206-07 (1947) (noises of “disagreeable or annoying nature”); Mister Softee of 
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Illinois, 42 Ill. App. 2d at 420 (any noise which was “distinctly and loudly audible” on a public 

street).

¶ 44 Plaintiffs also complain that the restrictions imposed on shared housing are unreasonably 

harsher than those related to hotels, bed-and-breakfasts, and other rental entities. Plaintiffs do not 

support their claim on appeal with appropriate citation to legal authority. See Ill. S. Ct. R.

341(h)(7) (eff. Oct. 1, 2020) (an appellant’s argument must contain the contentions of the 

appellant and reasons therefor with citation to the authorities relied on). Moreover, as a threshold 

matter, plaintiffs have failed plead sufficient facts to establish that shared housing entities are

similarly situated to hotels, bed and breakfasts, or long-term rentals. See M.A., 2015 IL 118049, ¶ 

26 (noting, that “[w]hen a party bringing an equal protection claim fails to show that he is

similarly situated to the comparison group, his equal protection challenge fails.”). Their

conclusory allegations are insufficient.

¶ 45 Even taking them as true, however, we can conceive of a rational basis for the different

treatment of the entities. The ordinance thus passes constitutional muster even though in practice

it might result in some inequality. See Strauss v. City of Chicago, 2021 IL App (1st) 191977, ¶ 

46, affirmed on other grounds, 2022 IL 127149. The parties do not dispute the findings of the 

circuit court in its judgment disposing of the parties’ cross-motions for summary judgment. 

There, the court noted that hotels and bed-and-breakfasts have personnel on-site to address noise 

disturbances, unlike in shared housing situations where some owners aren’t even present at all.

See Chicago Municipal Code § 4-14-010 ((amended Sept. 9, 2020)). The court further noted that

while hotels are typically zoned only in business or commercial districts, shared housing units 

are zoned in business or commercial districts, as well as residential districts. Shared housing and

its business model can clearly affect the peace and character of residential neighborhoods, and
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also the City’s enforcement resources, thus requiring reasonable regulation of any potential 

excessive noises issuing from those units. Plaintiffs also assert that home-sharing users are

subject to a more stringent noise proscription than long-term renters in the same residential zone.

An easy way to explain this is that short-term home-sharing users are likely to be on vacation

and vacation often begets parties and parties often beget noise. So, that too is a reasonable

differential treatment. For all these reasons, plaintiffs constitutional challenges to the noise 

ordinance must fail.

¶ 46 Taxpayer Standing (Original Complaint and Second-Amended Complaint)

¶ 47 Alternatively, plaintiffs contend that they, as taxpayers in the City of Chicago, have 

standing to pursue their claims challenging the allegedly unconstitutional home sharing 

ordinance. In Illinois, a party’s status as a taxpayer may provide a basis for his or her standing. 

Barber v. City of Springfield, 406 Ill. App. 3d 1099, 1102 (2011). Taxpayer standing is a narrow 

doctrine that provides taxpayers the ability to challenge the misappropriation of public funds. 

Marshall v. County of Cook, 2016 IL App (1st) 142864, ¶ 15. “The key to taxpayer spending is

the plaintiff[s’] liability to replenish public revenues depleted by an alleged unlawful government 

action.” Barber, 406 Ill. App. 3d at 1102. While taxpayers possess an equitable right to bring suit

to protect these funds, a simple allegation of taxpayer status is insufficient to assert a taxpayer

suit. See Village of Leland v. Leland Community School District No. 1, 183 Ill. App. 3d 876, 879 

(1989) (noting that “[t]he taxpayer must further allege an illegal appropriation and that he or the 

taxpayers as a whole will suffer some financial injury as a result of the misappropriation”). 

¶ 48 In other words, taxpayer standing requires a specific showing that the plaintiffs will be 

liable to replenish public revenues depleted by the alleged misuse of those funds. Marshall v.

County of Cook, 2016 IL App (1st) 142864, ¶ 16; see also Illinois Association of Realtors v.
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Stermer, 2014 IL App (4th) 130079, ¶ 29 (noting that “[a] plaintiff whose claims rest on his or

her standing as a taxpayer must allege [an] equitable ownership of funds depleted by 

misappropriation and his or her liability to replenish them in the complaint; otherwise, the 

complaint is fatally defective” (Internal quotation marks omitted.)). Plaintiffs did not meet that

burden in this case.

¶ 49 Here, the crux of plaintiffs’ argument is that because plaintiffs pay sales and property 

taxes in Chicago, they have standing to sue over the supposedly unconstitutional home sharing 

ordinance. Plaintiffs, however, presented no evidence showing that they, as taxpayers, have been

or will be liable for increased sales or property taxes due to the ordinance. Instead, they simply

alleged, in a conclusory fashion, that “the City is using general revenue fund – i.e., Plaintiffs’ tax

dollars, which Plaintiffs are liable to replenish – to implement the Ordinance.” This does not 

show that there has been or will be an increase in plaintiffs’ sales or property taxes as a result of 

the ordinance, let alone that plaintiffs have been or would be liable for such an increase. As

noted above, taxpayer standing requires a specific showing that plaintiffs will be liable to

replenish public funds depleted by the ordinance, and as set forth, plaintiffs have not made such a 

showing. See, e.g., Schacht v. Brown, 2015 IL App (1st) 133035, ¶¶ 20, 28-29 (affirming the 

section 2-619.1 dismissal of the plaintiffs’ complaint because the plaintiffs failed to establish

standing where they did not provide any evidence that they were or would be responsible for 

replenishing public revenues depleted by the clerk’s alleged retention or misuse of said funds); 

Marshall, 2016 IL App (1st) 142864, ¶ 16 (similar); Barber, 406 Ill. App. 3d at 1106 (similar). 

¶ 50 Finally, plaintiffs have not provided any relevant legal authority showing that such bare

allegations are sufficient to establish taxpayer standing. Cf. Snow v. Dixon, 66 Ill. 2d 443, 450-53 

(1977) (holding the plaintiff had taxpayer standing to sue over an allegedly unlawful tax that
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collected over $5.6 million per year, $41,400 of which was expended in the auditor’s salary for

its collection of the tax); Krebs v. Thompson, 387 Ill. 471, 473-76 (1944) (holding the plaintiff

had taxpayer standing to sue over an allegedly unconstitutional act that collected fees totaling

about $100,000, an amount that exceeded the $11,000 cost of administering the act). While

plaintiffs claim they were not required to provide more specific evidence of tax increases at the 

2-619.1 stage, they have not directed us to any legal authority that supports their claim.

Accordingly, we affirm the circuit court’s judgment. 

¶ 51 CONCLUSION

¶ 52 We affirm the judgment of the circuit court of Cook County dismissing the various 

counts in plaintiffs’ complaint and amended complaints. 

¶ 53 Affirmed.