SECOND DIVISION

									May 14, 2002

No. 1-00-2181

ALBERT C. HANNA,

		Plaintiff-Appellant,

	v.

THE CITY OF CHICAGO, a Municipal

Corporation,

		Defendant-Appellee.

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Appeal from the

Circuit Court of

Cook County.

No. 99 CH 8311

Honorable

Lester D. Foreman,

Judge Presiding.

	JUSTICE McBRIDE delivered the opinion of the court:

	Plaintiff, Albert C. Hanna (Hanna), filed a four-count first

amended complaint against defendant, the City of Chicago (the

City), seeking a declaratory judgment, and injunctive and other

relief.  The complaint involved the downzoning of Hanna's property

located at 1742-50 North Mohawk Street in Chicago, which resulted

from the city council's enactment of SD-19, Lincoln Central Special

District (LCSD or Overlay District), an amendment to the City's

zoning ordinance.  Pursuant to section 2-619.1 of the Illinois Code

of Civil Procedure (Civil Code) (735 ILCS 5/2-619.1 (West 1998)),

the City moved for dismissal of Hanna's complaint.  The trial court

granted the City's motion and denied Hanna's motion to reconsider. 

Hanna appeals those orders, contending: (1) that the trial court

erred in applying the rational basis test, rather than substantial

relationship test, when ruling that the LCSD was not

unconstitutional; (2) that his complaint properly pleaded the LCSD was unconstitutional as violative of the due process and equal

protection rights as guaranteed by the Illinois Constitution

(Illinois Const. 1970, Art. I,§2); and (3) that the trial court

erred in dismissing his claim alleging the LCSD does not conform to

the requirements necessary for the enactment of a special district

amendment.  For the reasons set forth below, we affirm in part and

reverse in part the judgment of the trial court and remand this

cause for further proceedings.  

BACKGROUND

	Hanna's property at 1742-50 North Mohawk Street is located in

the Lincoln Central neighborhood of Chicago.  In general, this area

is bounded on the west by North Halsted Street, on the northeast by

Lincoln Avenue, on the southeast by the former Ogden Avenue and on

the south by West North Avenue.  In 1971, Hanna built a five-story

brick building on his Mohawk Street property, which covered four

lots and contained 26 units.  At the time, the property was zoned

R-5 and the minimum lot area per dwelling unit was 400 square feet

with a maximum floor area ratio of 2.2.  The property was zoned R-5

until the LCSD took effect on December 22, 1998.  According to

Hanna's complaint, the LCSD was passed at the behest of various

property owners in Lincoln Park, who had formed an association

known as the Lincoln Central Association. 

	The LCSD is composed of two subareas, subarea A and subarea B,

which are divided by Larrabee Street.  Halsted Street bounds the

LCSD on the west, while portions of Lincoln Avenue bounds it on the east.  The northern end of the LCSD consists of various streets

between Lincoln Avenue and Halsted Street, while its southern

border "jots along in a haphazard manner."  Prior to the LCSD,

subarea A, in which Hanna's property is located, had been zoned R-

5, which allowed multi family apartments.  Subarea B had

historically been zoned R-4, which meant, in general, only

buildings of up to three stories were allowed.  Hanna stated that

the properties comprising subareas A and B were similar.

	The preamble to the LCSD stated that it 

		"intended to conserve the existing low-density

residential character of the Central Lincoln

neighborhood. The existing pattern of

development is single-family, two-family, and

three-family dwellings within two and three-

story structures. The District seeks to

maintain the neighborhood's existing scale and

density by limiting construction of taller and

bulkier multi-story buildings.  In addition,

the District seeks to maintain the street-

front orientation of existing homes by

requiring this orientation for new

construction." 

	The LCSD provided that new residential construction shall not

exceed 42 feet in height, where prior to the LCSD, no height

limitations existed in areas zoned R-4 or R-5.  The minimum lot area was to be not less than 1,000 square feet in the Overlay

District. 

	Regarding the effect the LSCD had on his property, Hanna

alleged that it constituted a nonconforming use, in that in the

event of destruction of the property, it could no longer be used as

a multi family dwelling.  Hanna claimed that because of the new

height limitations, the change in the floor area ratio, which was

decreased from 2.2 to 1.7, and the increase in the square foot

dwelling from 400 to 1,000 square feet, he had been and would

continue to be deprived of the highest and best use of his

property.  

	Hanna claimed that prior to passage of the LSCD, lots zoned R-

5 were worth in excess of $500,000 per lot and that his property,

which consisted of four lots, was valued at approximately

$2,300,000.  He further claimed that lots adjacent to his, which

were in subarea B, were worth about $400,000 per lot prior to the

LSCD.  In his complaint, Hanna noted the increase in the minimum

lot area per dwelling unit and the decrease in the maximum floor

area ratio in subarea A, and the concurrent increase in the maximum

floor area in subarea B.  Based upon these changes, Hanna alleged

that the amount of land value transferred from R-5 unit owners in

subarea A to R-4 unit owners in subarea B exceeded $300 million.1  Personally, Hanna claimed that these changes had decreased the

value of his property over $500,000.

	Hanna stated that pursuant to section 11-13-8 of the Illinois

Municipal Code (Municipal Code) (65 ILCS 5/11-13-8 (West 1998)), he

had served notice of the declaratory judgment proceeding upon all

property owners within 250 feet of his property.    

	In count I, Hanna alleged that when enacting the LCSD as a

purported "Special District Amendment," the city council had

violated section 17-20-330 of the Chicago Municipal Code (Chicago

Municipal Code §17-20-330 (amended July 8, 1998)) because the city

council committee on zoning had failed to give consideration to the

required factors when reviewing the application for the LCSD. 

Hanna also listed each factor and alleged that the LCSD did not

satisfy the factors.  Included were Hanna's allegations that the

boundaries of the LCSD were arbitrary and gerrymandered.  He

alleged that no unique land characteristics predominated throughout

the LCSD in that the Overlay District contained a hodgepodge of

multi family uses, consisting of one- , two- , and three-story

homes and apartments, all of which had various ages,

characteristics and architecture.  He also claimed that the LCSD

was surrounded by numerous commercial properties.  In count I,

Hanna further claimed that the City had failed to advertise the

hearings regarding the LCSD as required by section 17-44-340 of the

Chicago Municipal Code (Chicago Municipal Code §17-44-340 (2000)). 

He alleged further that he had invested substantial sums of money in the property and would be irreparably harmed if he were not

allowed to enjoy the benefit of his property as zoned R-5.  Hanna

stated that he was without an adequate remedy at law.

	In count II, Hanna claimed that creation of the Overlay

District constituted "invidious spot zoning."  He alleged that the

ordinance in question deprived him of private property rights and

privileges secured by the due process clause of article I, section

2, of the Illinois Constitution in that he had suffered a

substantial reduction in the value and permissible use of his

property.  He alleged that the destruction of his property value

did not promote the health, safety or general welfare of the

public.  Hanna's complaint stated that the LCSD had not been passed

pursuant to a comprehensive zoning plan, but rather the provisions

of the LCSD represented the desires of a few residents who sought

to preserve and increase their own property values.  Hanna alleged

that any gain to the public resulting from the enactment of the

LCSD was either minimal or nonexistent.  He claimed the hardship

imposed upon him was extreme, in that an uncompensated taking of

his property had occurred based upon the lowering of his property

value. 

	In count III, Hanna claimed that enactment of the LCSD

violated his due process rights and was "classic arbitrary,

irrational, discriminatory" downzoning, which ignored the general

welfare of the City as a whole and benefitted a vocal minority of

residents in the LCSD.  He alleged that he and other property owners in the downzoned areas had been adversely impacted by, inter alia, the decreased housing supply, decreased population, decreased taxable income, decreased use of public transportation and reduced

property values.

	In count IV, Hanna claimed that the Overlay District deprived

him of equal protection of the law as guaranteed by article I,

section 2, of the Illinois Constitution.  Hanna alleged that he and

his property were being treated differently from other similarly

situated persons and property in that the LCSD discriminated

against him and others in subarea A in favor of landowners in

subarea B.  On information and belief, Hanna alleged that 40% of

the property in subarea A was now nonconforming and, thus, he and

other property owners in subarea A could not use their property for

the "highest and best use."  

	After each count, in his prayer for relief, Hanna sought a

declaration of the court that the LCSD be declared null and void. 

He also prayed that the City be enjoined from enforcing any

provisions of the Overlay District. 

	In its combined motion to dismiss Hanna's complaint, the City

argued pursuant to section 2-615 of the Civil Code that count I of

Hanna's complaint was insufficient to state a claim for which

relief could be granted because the trial court lacked authority to

invalidate an ordinance enacted by a home rule municipality on the

ground that the municipality failed to follow procedures as

required by its own ordinances.  The City further claimed that count II of Hanna's complaint must be dismissed because the

allegations contained in his complaint were insufficient to state

a claim for spot zoning.  Regarding counts II, III and IV, the City

argued that dismissal of those counts was proper where Hanna's

allegations were factually insufficient to establish that the

Overlay District was not rationally related to its purpose of

conserving the existing scale and low-density character of the

Lincoln Central neighborhood.

	The City moved for dismissal of Hanna's complaint under

section 2-619 of the Civil Code on the ground that he had failed to

comply with the notice requirements of section 11-13-8 of the

Municipal Code.  (65 ILCS 5/11-13-8 (West 1998)).  The City claimed

Hanna was required to give notice to all property owners within 250

feet of the entire Overlay District, rather than only property

owners within 250 feet of his property.

	Following arguments on the motion, the trial court ruled that

it was without authority to rule on count I of Hanna's complaint

wherein he alleged that the city council failed to follow

requirements it had imposed upon itself when enacting the LCSD. 

The trial court dismissed count II of Hanna's complaint because, in

the trial court's opinion, the size of the Overlay District, which

included 40 blocks, was too large an area to constitute spot

zoning.  Finding that Hanna's due process and equal protections

challenges, counts III and IV, respectively, did not involve a

fundamental right or a suspect class, the trial court dismissed those counts because a reasonable relationship existed between the

ordinance and a legitimate government interest.  After denial of

his motion for reconsideration, Hanna now appeals.                

ANALYSIS

	Hanna first contends that the trial court erred in applying

the rational basis test when ruling on the City's motion to

dismiss.  Hanna urges that the proper test in determining the

constitutionality of the LCSD is whether the zoning ordinance at

issue bears a substantial relationship to the public health, safety

and welfare or whether it is arbitrary, irrational and capricious. 

See Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 395, 71 L. Ed. 303, 314, 47 S. Ct. 114, 121 (1926).  In connection with the

substantial relationship test, Hanna argues that the trial court

should have taken into consideration the factors as set forth in  La Salle National Bank of Chicago v. County of Cook, 12 Ill. 2d 40, 145 N.E.2d 65 (1957), when ruling on the City's motion to dismiss. 

In support of his claim, Hanna relies upon a series of cases in

which this court and the Illinois Supreme Court have applied the

substantial relationship test when considering a constitutional

challenge to a zoning ordinance.  See, e.g., Cosmopolitan National Bank of Chicago v. City of Chicago, 27 Ill. 2d 578, 190 N.E.2d 352 (1963); Harris Trust & Savings Bank v. Duggan, 105 Ill. App. 3d 839, 435 N.E.2d 130 (1982), aff'd, 95 Ill. 2d 516, 449 N.E. 2d 69 (1983).

	The City claims the rational basis test is applicable here

because a suspect classification or a fundamental right is not

implicated.  See Brown's Furniture, Inc. v. Wagner, 171 Ill. 2d 410, 665 N.E.2d 795 (1996); DeWoskin v. Loew's Chicago Cinema, Inc., 306 Ill. App. 3d 504, 714 N.E.2d 1047 (1999) (rational basis test applied when movie theater ticket purchaser made equal

protection challenge to constitutionality of county amusement tax). 

Under the rational basis test:

		"One who challenges an ordinance as failing

thjis test of minimum rationality bears the

burden of proving by clear and affirmative

evidence that the ordinance constitutes

arbitrary, capricious and unreasonable

municipal action; that there is no permissible

interpretation which justifies its adoption,

or that it will not promote the safety and

general welfare of the public.'"  Triple A Services, Inc. v. Rice, 131 Ill. 2d 217, 226, 545 N.E.2d 706 (1989), quoting City of Decatur v. Chasteen, 19 Ill. 2d 204, 210, 166 N.E. 2d 29 (1960).  

			Section 2-619.1 of the Civil Code permits a party to combine

a section 2-615 motion to dismiss based upon a plaintiff's

substantially insufficient pleadings with a section 2-619 motion to

dismiss based upon certain defects or defenses.  735 ILCS 5/2-619.1 (West 1998).  It is proper for a court when ruling on a motion to dismiss under either section 2-615 or section 2-619 to accept all

well-pleaded facts in the complaint as true and to draw all

reasonable inferences from those facts in favor of the nonmoving

party.  Storm & Associates, Ltd. v. Cuculich, 298 Ill. App. 3d 1040, 1047, 700 N.E.2d 202 (1998).  Our review is de novo for motions to dismiss brought under both sections 2-615 and 2-619.

Stephen L. Winternitz, Inc. v. National Bank of Monmouth, 289 Ill. App. 3d 753, 755, 683 N.E.2d 492 (1997). 

	In support of his contention that the substantial relationship

test is applicable in the instant case, Hanna relies upon the

Duggan case.  In that case, Harris Bank, as the trustee of the Helen L. Kellogg Trust and owner of the relevant property,

challenged the constitutionality of a zoning ordinance as applied

to the relevant property.  The zoning amendment in question

downzoned only the subject property and affected no other property. 

In determining that the ordinance was unconstitutional, this court applied the substantial relationship test and relied upon the factors also used by the supreme court in La Salle.  Duggan, 105 Ill. App. 3d at 849-50.  

	The supreme court affirmed this court's decision in Duggan.  Harris Trust & Savings Bank v. Duggan, 95 Ill. 2d 516, 449 N.E.2d 69 (1983).  The supreme court held that the ordinance was

unconstitutional as applied to the bank's property, stating that

"zoning ordinances must bear a substantial relationship to the public health, safety and welfare." (Emphasis in original.) 

Duggan, 95 Ill. 2d at 532-33.  The substantial relationship test was applied by the supreme court despite the defendant's contention

that the ordinance was valid provided there was any rational basis

upon which it could be sustained.  Duggan, 95 Ill. 2d at 531. 

	Hanna also relies upon Cosmopolitan National Bank of Chicago v. City of Chicago, 27 Ill. 2d 578, 190 N.E.2d 352 (1963).  In that case, the plaintiffs were landowners who challenged the

constitutionality of an entire amendatory ordinance that rezoned

the plaintiffs' property so as to preclude its use as a funeral

parlor.  In affirming the circuit court, the supreme court applied

the substantial relationship standard and found that the zoning

change was unreasonable and discriminatory as applied to the

plaintiffs' property.  Cosmopolitan National Bank, 27 Ill. 2d at 585. 

	The City distinguishes these cases on the basis that in each

case, the challenge to the zoning ordinance was as applied to the

plaintiffs' property and was not a facial challenge as is Hanna's

attack.  The City argues that where a facial challenge to

legislation restricting a landowner’s use of his property has been

at issue, our supreme court has applied the rational basis test. 

The City directs this court to Beverly Bank v. Illinois Department of Transportation, 144 Ill. 2d 210, 579 N.E.2d 815 (1991), where the plaintiff challenged the constitutionality of a piece of flood

control legislation, which prohibited all new residential construction in an area encompassing a 100-year floodway.  The

plaintiff argued that the flood legislation was unconstitutional as

it applied to any piece of property in the floodway.  The plaintiff

further argued that the supreme court must apply the substantial

relationship test by analyzing the factors as set forth in LaSalle.  The defendant characterized the plaintiff's challenge as facial and

the supreme court agreed.  The defendant argued that because the

plaintiff's wish to build in the floodway implicated neither a

fundamental right nor a suspect class, the proper level of scrutiny

was the rational basis test.  In its analysis, the court stated, 

" 'It is *** well established that reasonable restraints on the use

of property in the interest of the common good and bearing a real

and substantial relation to the public health, safety, morals and

general welfare constitute a valid exercise of the police   

power.' "  Beverly Bank, 144 Ill. 2d at 226, quoting Midland Electric Coal Corp. v. County of Knox, 1 Ill. 2d 200, 208 (1953).  Quoting City of Aurora v. Burns, 319 Ill. 84, 92-93, 149 N.E. 784 (1925), the court further stated:

		"'The authority of the States to enact such

laws as they deem reasonably necessary to

promote the public health, morals, safety and

general welfare comprehends a wide range of

judgment and discretion in determining the

matters which are of sufficiently general

importance to be subjected to State regulation and administration. *** The police power,

however, has constitutional limits, and any

measure enacted or adopted in its exercise, to

be sustained, must bear some reasonable

relation to the purposes for which the power

may be exercised.'" Beverly Bank, 144 Ill. 2d at 226, quoting City of Aurora, 319 Ill. at 92-93.

	After considering the State interests served by the

legislation, the court concluded the legislation was constitutional

because it was "rationally related to several legitimate State

interests."  Beverly Bank, 144 Ill. 2d at 228.  For the same reasons, it found that the flood legislation bore "a substantial

relation to the public health, safety and welfare."  Beverly Bank, 144 Ill. 2d at 228.

	We are unpersuaded by the City's argument that the cases Hanna

relies upon are inapplicable to our determination because in each

case, the challenge to the constitutionality of the zoning

ordinance was as applied to the plaintiffs' property.  We agree

that in the two Duggan cases and Cosmopolitan National Bank the plaintiffs sought invalidation of the zoning ordinances as applied

to their property.  However, in all of these cases, the plaintiffs

also sought invalidation of the legislation in its entirety.  In

the Duggan cases, the zoning ordinance at issue applied only to the bank's property.  In Cosmopolitan National Bank, the supreme court expressly characterized the plaintiffs' action as "fundamentally

one to have the entire amendatory ordinance *** declared void." 

Cosmopolitan National Bank, 27 Ill. 2d at 582.  In essence, the parties challenging the legislation in Duggan and Cosmopolitan National Bank sought invalidation of the entire ordinances at issue, just as Hanna is attempting to do here.  In both of those

cases, the supreme court applied the substantial relationship test. 

 	Our supreme court has stated that "[e]very owner has a right to use his property in his own way and for his own purposes,

subject only to the restraint necessary to secure the common

welfare.  This is both a liberty and a property right."  Northern Trust Co. v. City of Chicago, 4 Ill. 2d 432, 437, 123 N.E.2d 330 (1954), citing Village of La Grange v. Leitch, 377 Ill. 99, 35 N.E.2d 346 (1941).  Furthermore, "it is a well-established

principle that one who buys land has a right to rely upon the

classification which existed at the time the purchase was made, and

upon the rule of law that the classification will not be changed

unless the change is required for the public good."  Cosmopolitan National Bank, 27 Ill. 2d at 584.  Given the importance placed upon the rights associated with the ownership of property, and the

supreme court's previous application of the substantial

relationship test in zoning cases, we hold that in a facial

challenge to the constitutionality of a zoning ordinance the

applicable level of scrutiny is whether the legislation bears a

substantial relationship to the public health, safety and welfare or whether it is arbitrary, irrational and capricious.  

	We do not find the supreme court's decision in Beverly Bank at odds with our holding here.  Initially, the legislation at issue in

that case, though limiting the property owner's ability to construct a new residence on the affected property, was not zoning

legislation.  Rather, it was flood control legislation.  That

aside, in Beverly Bank, while the supreme court did hold that the challenged legislation was rationally related to several legitimate

State interests, it further stated that the legislation bore a

substantial relationship to the public health, safety and welfare. 

Thus, in finding that the legislation was constitutional, it

applied the substantial relationship test.

	Having ruled that the substantial relationship test is

applicable, the following factors must be taken into account when

deciding Hanna's facial constitutional challenge of the LCSD: (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 the 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 considered in the context of land development in the area

in the vicinity of the subject property.  La Salle National Bank, 12 Ill. 2d at 46-47.  

	In Counts III and IV of his complaint, Hanna alleged that the

properties in the Overlay District consisted of a hodgepodge of

homes and apartments having various numbers of floors and differing

designs and architectures.  He also alleged that the LCSD was

surrounded by numerous commercial structures.  Regarding diminished

property values, Hanna alleged in his complaint that his property

was worth substantially less as a result of the zoning change and

that $300 million of property value had been transferred from

property owners in subarea A to property owners in subarea B. 

Hanna further alleged that the destruction of his property values

did not promote the health, safety or general welfare of the

public.  Instead, it benefitted the desires of a few residents. 

Hanna also claimed the LCSD had adversely impacted the City as a

whole by decreasing housing supply, population and property values. 

He alleged the gain to the public was either minimal or nonexistent

and that the hardship imposed upon him was extreme in that an

uncompensated taking of his property had occurred due to the

reduced property values.  It was further alleged by Hanna that his

property and the property in the Overlay District had been zoned

"as is" for over 40 years and no reason existed to change the

zoning.  While mindful of the difficulties involved in pleading

facts relating to the La Salle factors, we find that the facts as alleged in Hanna's complaint were sufficient to support his alleged

constitutional violations. See Rodriguez v. Henderson, 217 Ill. App. 3d 1024, 1029-30, 578 N.E.2d 57 (1991).   	

	In count II of his amended complaint, Hanna alleged a separate violation of his constitutional right to due process on the ground

that the Overlay District represented "invidious spot zoning."   

" 'Spot zoning' is a change in zoning applied only to a small area,

which is out of harmony with comprehensive planning for the good of

the community; zoning that would violate a zoning pattern that is

homogenous, compact and uniform."  Bossman v. Village of Riverton, 291 Ill. App. 3d 769, 774, 684 N.E.2d 427 (1997).  In determining

whether a rezoned area constitutes spot zoning it must be decided

if a change is in harmony with a comprehensive plan for use of

property in the locality.  Goffinet v. County of Christian, 65 Ill. 2d 40, 54, 357 N.E.2d 442 (1976). 

	The City argues that the two districts comprising the LCSD

cover more than 40 blocks, and therefore, the area at issue is not

small.  It also argues that Hanna failed to plead any facts showing

that the LCSD violates a homogenous, compact and uniform zoning

pattern. 

    	As for the City's argument that the size of the LCSD is too large to constitute spot zoning, the size of the rezoned area is

only one factor to be considered.  See Fifteen Fifty North State Building Corp. v. City of Chicago, 15 Ill. 2d 408, 419, 155 N.E.2d 97 (1958).  Hanna alleged in his complaint that the LCSD had not

been passed pursuant to a comprehensive zoning plan.  Instead,

Hanna alleges that the LCSD was passed to cater to the wishes of a vocal minority.  He alleged further that numerous commercial

properties surround the LCSD and that the structures within the

LCSD are of differing architecture, size and design.  Given these

allegations, which must be taken as true for purposes of a motion

to dismiss, we find that the trial court erred in dismissing

Hanna's constitutional claim premised upon improper spot zoning.  

    Regarding count I, which did not involve a constitutional challenge to the ordinance, Hanna contends the trial court erred in

dismissing this count wherein he alleged the LCSD is void because

it fails to substantively comply with the special district

amendment.  Relevant factors to be considered include: (1) the

classification of the property within the proposed special

district; (2) whether the proposed boundaries of the special

district delineate a reasonably compact and contiguous area of at

least four acres; (3) whether unique land use characteristics

predominate throughout the proposed district, including, inter alia, unique uses, floor area ratios, number of dwelling units, exterior building materials and design, layout of public ways and

platting or development features; (4) whether the existing zoning

of the property would allow new development in a manner

inconsistent with the unique characteristics within the proposed

district; and (5) whether supplemental special district regulations

are needed to maintain the unique character of the area.  Chicago

Municipal Code §17-20-330 (amended July 8, 1998).

	The City argues and we agree that dismissal of this count was proper.  In Illinois Gasoline Dealers Ass'n v. City of Chicago, 119 Ill. 2d 391, 404, 519 N.E.2d 447 (1988), the supreme court, quoting

Chirikos v. Yellow Cab Co., 87 Ill. App. 3d 569, 574, 410 N.E.2d 61 (1980), stated:

		" 'This court cannot handle matters which in

effect are attempts to overrule decisions of a

legislative body based upon alleged failure to

follow requirements imposed by that body

itself. *** We have authority to invalidate

legislation adopted by the city council only

upon grounds that the enactment violates a

provision of the Federal or State

constitutions or violates the mandate of a

State or Federal statute.' "  

	In count I of his amended complaint, Hanna alleged the LCSD

was void based upon the city council failing to consider the above

listed substantive factors.  What he is asking this court to do is

invalidate the ordinance on the ground that the city council failed

to follow its self-imposed requirements, i.e., to give proper weight to the relevant factors, when enacting the LCSD.  In count

I of his complaint, Hanna has not alleged the ordinance is void on

the grounds that it violates the state or federal constitution or

that it violated the mandate of a state or federal statute.  Thus,

it is improper for a court to declare the LCSD void because of the

city council's failure to properly consider the relevant factors.  See Landmarks Preservation Council of Illinois v. City of Chicago, 125 Ill. 2d 164, 179-80, 531 N.E.2d 9 (1988).  	

	The City further argues that dismissal of Hanna's complaint is

proper because he failed to give the requisite notice as required

by the Municipal Code.

	Section 11-13-8 of the Municipal Code (65 ILCS 5/11-13-8 (West

1998)) provides:

			"In municipalities of 500,000 or more

population, when any zoning ordinance, rule or

regulation is sought to be declared invalid by

means of a declaratory judgment proceeding,

not more than 30 days before filing suit for a

declaratory judgment the person filing such

suit shall serve written notice in the form

and manner and to all property owners as is

required of applicants for variation in

Section 11-13-7 ***." 

	Section 11-13-7 (65 ILCS 5/11-13-7 (West 1998)) of the

Municipal Code states in relevant part:

		"[I]n municipalities of 500,000 or more

population, an applicant for variation or

special use shall, not more than 30 days

before filing an application for variation or

special use with the board of appeals, serve

written notice, either in person or by registered mail, return receipt requested, on

the owners *** of all property within 250 feet

in each direction of the location for which

the variation or special use is requested

***." 

	In reliance upon these provisions of the Municipal Code, the

City argues that because Hanna is seeking declaratory relief, he is

required to give notice to not only the property owners within 250

feet of his Mohawk property, but to all property owners within 250

feet of the Overlay District.  Hanna argues that to require him to

give the type of notice advanced by the City would operate a burden

upon him that could not have been intended by the legislature.  

	When construing a statute, a court must look primarily to the

words of the statute as evidence of the legislature's intent. 

Stone v. Department of Employment Security Board of Review, 151 Ill. 2d 257, 261, 602 N.E.2d 808 (1992).  "[A] court must construe

a statute as it is written and may not, under the guise of

construction, supply omissions, remedy defects, annex new

provisions, substitute different provisions, add exceptions,

limitations, or conditions, or otherwise change the law so as to

depart from the plain meaning of language employed in the statute." 

Shaw Industries, Inc. v. Community College District No. 515, 318 Ill. App. 3d 661, 665-66, 741 N.E.2d 642 (2000).  Courts are to

construe statutes so as to give effect to each section and it is

presumed the legislature did not intend absurd, unjust or unreasonable consequences.  Lemont-Bromberek Combined School District No. 113(a) v. Walter, 279 Ill. App. 3d 847, 850, 665 N.E. 2d 548 (1996).  

	The Municipal Code is clear in its pronouncement that when a

party seeks to have a zoning ordinance invalidated by means of a

declaratory judgment, the party seeking such relief shall serve

written notice to owners of all property "within 250 feet in each

direction of the location" which are affected by the alleged

invalid ordinance.  We do not find it an absurd, unjust or

unreasonable consequence that landowners, whose property rights

could be affected by a declaratory judgment, are given notice of

such proceedings.  Moreover, to the extent that such notice may be

deemed burdensome, the 250-foot notice requirement only applies to

declaratory relief.  If other relief, such as when only injunctive

relief is prayed for, the notice requirement at issue here is

inapplicable.  Thus, on remand, in the event Hanna wishes to pursue

declaratory relief, he should be afforded the opportunity to give

appropriate notice to all property owners within 250 feet of the

Overlay District.        

	The City also argues that dismissal of Hanna's entire

complaint is appropriate because he challenges the LCSD as applied

to his property and has failed to exhaust his local remedies.  To

the extent that Hanna challenges the LCSD as applied to his

property, he is required to exhaust his local remedies.  See

Brodner v. City of Elgin, 96 Ill. App. 3d 224, 227, 420 N.E.2d 1176 (1981).  However, the City concedes in its brief on appeal Hanna

"seeks to invalidate the entire special district."  Thus, because

Hanna seeks to invalidate the LCSD in its entirety, he is not

required to exhaust his local remedies.  See Cosmopolitan National Bank, 27 Ill. 2d at 582. 

	The City further argues that the trial court properly

dismissed Hanna's complaint because he has failed to allege the

threat of immediate and irreparable injury, which is necessary in

a prayer for injunctive relief.  See Chicago Title & Trust Co. v. Weiss, 238 Ill. App. 3d 921, 928, 605 N.E.2d 1092 (1992).

	In his complaint, Hanna alleged that his land value had

decreased by over $500,000 because of the LCSD.  He also alleged

that the amount of land value transferred from R-5 unit holders to

R-4 unit holders exceeded $300 million.  He claims these

allegations are properly pleaded facts, sufficient to establish an

immediate and irreparable injury.  In support, he relies upon

Western Theological Seminary v. City of Evanston, 325 Ill. 511, 156 N.E. 778 (1927), where a seminary filed an amended bill for an

injunction against the City of Evanston, praying that a zoning

ordinance be decreed invalid and that the city be retrained from

either enforcing, or threatening to enforce, the provisions of the

ordinance.  The city argued that equity would not enjoin

enforcement of the allegedly invalid ordinance on the ground of its

invalidity unless the party seeking relief had done some act to

bring himself within the operation of the ordinance or where the party had an adequate remedy at law.  Western Theological Seminary, 325 Ill. at 525.  Our supreme court agreed with the general

proposition that equity would not enjoin the enforcement of a void

ordinance on the ground of apprehension with respect to what could

be done under the ordinance.  However, the court further stated:

			"The amendatory ordinance, according to

the allegations of the bill, was an arbitrary

and unreasonable exercise of power in respect

to the property of the [seminary].  It is void

as to such property, but its existence is a

cloud upon the [seminary's] title, is

immediately destructive of its value, and

therefore constitutes a present invasion of

the [seminary's] rights and a threat to

continue such invasion."  Western Theological Seminary, 325 Ill. at 528.

	In reaching its decision, the supreme court cited with

approval the Supreme Court's opinion in Euclid where a similar argument was made.  There, the Supreme Court stated:

		"The effect of the allegations of the bill is

that the ordinance of its own force operates

greatly to reduce the value of appellee's

lands and destroy their marketability for

industrial, commercial and residential uses;

and the attack is directed, not against any specific provision or provisions, but against

the ordinance as an entirety.  Assuming the

premises, the existence and maintenance of the

ordinance, in effect, constitutes a present

invasion of appellee's property rights and a

threat to continue it.  Under these

circumstances, the equitable jurisdiction is

clear."  Euclid, 272 U.S. at 386, 71 L. Ed. at 310, 47 S. Ct. at 117-18. 

	Here too, Hanna challenges the ordinance at issue in its

entirety.  He has properly alleged that the mere existence of the

LCSD, which limits the use of his property, has greatly reduced the

value of his property and has served to shift $300 million in

property values from one subarea to another.  This reduction in

property values as pleaded, if proved, is sufficient to establish

an immediate and irreparable injury.    

     Accordingly, the judgment of the circuit court is affirmed in

part, reversed in part and this cause is remanded.

	Affirmed in part and reversed in part; cause remanded. 

	GORDON and SOUTH, JJ., concur.