No. 2--06--0656 Filed: 8-3-07

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ SMART GROWTH

SUGAR GROV

E, LLC, ) Appeal from the Circuit Court

) of Ka ne Co un ty. Plaintiff -Appella nt, )

) v. ) No. 05--MR--465 ) THE VIL LAGE OF SUGAR GROVE, ) Honorab le ) Michael

J. Colwell, Defendant-Appellee. ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE O'MAL LEY d elivere d the opini on of the c ourt: Plaintiff, Smart Growth Sugar Grove, L LC, fi led a six-c ount compl aint ag ainst def endant, the Village of Sugar Grove ( the Village), challenging

(1) the Village's refusa

l to rezone p laintif

f's pr op er ty, which the Village had annexed in accorda nce with an agreem e nt wi th pl ainti ff's predecessor; and (2) a provision in the Village's compre hensive plan recommending that the Vill age acquire a right-of-way

across plaintiff's property for a possible highway

interchange. The Vill age moved to di sm is s t he co mp la in t a s u nt im el y ( see 735 ILC S 5/2--619(a)(5) (West 2004)) under section7--1--46 of the Illinois Municipal Code (Code) (6 5 IL CS 5/7--1--46 (West 2004)), which states that a complaint

directly or indirec

tly challenging the annexation of te rritory to a munic ipality be filed no later than a y

ear after the annexat ion becomes final. The Village also arg ued that the counts of the complaint challenging the compre hensive plan were unripe. The trial court held that all of the counts we

re untime ly, and it dismi ssed the c omplaint.No. 2--06--0656

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Plaintiff appeals , contending that (1) the two counts of its co mplai nt att ackin g the Vi llage's refusal to rezone its property ar e not governed by

section 7--1--46 of the Code; and (2) the trial court erred i n dismi ssing the four counts of the complaint directed ag ainst the Village's comprehensive plan, as these counts are not governed by section 7--1--46 of the Code and are ripe for adjudication. We hold that the trial court c orrectly dismissed the counts of the complaint challenging the annexation as time-barred and that the dismissal of the remaining counts wa s proper under the ripenes s doctrine. Ther

efore, we affi

rm. OnOctober

31, 2005, p laintiff

filed its c omplaint. It al leges t he follow ing fac ts common to all counts. Plaintiff

owns 89.40

unimprove d acres

located south of I -88 on eit

her side of BlissRoad. OnJuly 23, 2002, the Village passed an ordinance a nnexing the property . In compliance with a 1991 preannexation agreement with plaintiff's pr edecessor, the Village

zoned the p

ropertyOR-2 officeresearch. InApril 2005, the Village amended its comprehensive plan so that it now rec ommends that plain tiff's property be

developed for single-family residential use, not office-research use. The plan also recommends that the Village set aside land for the development of a highw ay inte rchange at Bliss Road and I-88. The plan state s that, alt hough de veloping the inter chang e "is not

an immedia

te priority for eithe r the Toll way Authority

or the Vil lage," a right

- o f-way could be acquired "as adjacent propert y de velops." It is not clear

whether this recommendati on p redate d plai ntiff 's applicationfor rezoning, but it was in the comprehensive plan by the time that the Village staff reported on the application. Onor about September 13, 2004, plaintiff applied to the Village to rezone theproperty R-2 residential and for prelimina ry app roval of

a plat of subdivision so that pl aintiff c ould deve lop its pro perty with single-family home s, parks, and open spaces. I n various meetings and r eports, t h eNo. 2--06--0656

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Vill age staff re commende d deny ing the r ezoning a pplication becau se (1) it

did not set aside any

land for the highway

interchange that thecomprehensive pl an recommended; (2) in viol ation of a Vi llage ordinance, plaintiff

did not apply for a pla

nned unit development (PUD); and (3) the preannexation agreement

bound plaintiff to accept OR-2 zoning for the property . However, the staff also stated that plain tiff's proposed

residen tial deve lopment "would be gener ally cons istent" with the comprehensive planand "could be an app ropriate lan d use for the ar ea." On September 20, 2005, the Village Board denied plaintiff's application for rezoning. (We have no record of the decision itself.) Counts I through I

V of plaintiff's complaint are directed agains t t he com prehen sive p lan's proposal to use part of plaintiff's property for a highway

interchange. Count I

allege s that thissetaside is arbitrary a

nd that obtaining the right-of-way would unfairly diminish the value of plain tiff's pr op er ty, and it re quests a j udgmen t declar ing the s et-aside

proposal void and enjoi ning t he Vil lage fromenforc ing it or

acting upon it. Cou

nt II all eges that

the set-aside violates substantive due process because plaintiff would bear an undue shar e of the costs of the interchange, and it re quests
a declar atory judgmen t and dama

ges. C ount I II

allege s that the s et-aside is a taking

without jus t compensation, and it requests a dec la ra to ry judgment and damages. Count I V, pleaded in the alternative to count I

II , alleg es that, e

ven if the

set-asid e is valid, plaint iff is ent itled to jus t compensation from the Village. CountV of the complaint is directed agains t the Village's denial of plaintiff' s rezoning request and alleges as follows. Under the Village's comprehensive plan, the la nd south, west, and east of p laintiff

's prop erty

is all designated residential. Almost all the property south of plain tiff's propert y is z oned R-2 residential, and plaintiff's proposed development is consistent with the two residential developments immediately to the south. T he land dire ctly east and wes t of pl ainti ff'sNo. 2--06--0656

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propert y is used for agriculture. Directly

north of plaintiff's property is I-88; the land north of I -88, inunincorporated Kane County , is used for agriculture. OR-2 z oning is no t sui ted to plain tiff's propert y and is inc onsistent w

ith the tre

nd of dev elopment

in th e area. F urthermore, the uses permitted by OR-2 zoning would g enerate more traffi c, noi se, an d park ing th an pla inti ff's proposed development. Theref

ore, the present zoning is a

rbitrar y a nd capri cious and

effects a taking without just compensation. Count V seeks a declaratory judgment that

the OR-2 zoning is unconstitutional insofar as it bars the proposed development and an injunction to prevent the Villag e from prohibiting or delay ing the d evelopme nt. CountVI of the complain

t alleg es that one reason that the Village denied pl aintiff' s reques t for rez oni ng was that a Village ordinanc e requires any residential subdivision consisting of more than3 acres or more than 10 lots to be processed as a PUD. According to count VI, this requirement applies to almost all residential subdivisions in the Village, including the one that plaintiff hopes to build, and is ar

bitr ar y and capricious. Count VI asks the c ourt to declare the PUD ordinance
un co ns ti tu ti on al an d t o p ro hi bi t t he Vi ll ag e f ro m e nf or ci ng it ag ai ns t p la in ti ff

's pr op er ty. Attached to the complaint are copies of the July 23, 2002, annexation ordinance and the preannexation agree

ment that i

t incorporates. T

he agr eement is dated April 22, 1991, and is signed by the Village and

Robert Cerny, plaintiff' s predecessor in title. It states in part that, with

in 10 y ears, the owner shall peti tion the Vi llage t

o annex the

propert y a nd that the

Village shall do so

subject to the agr eement' s terms. A

mong the se terms i s section 2, the first parag

raph of w hich rea ds:

" Uponannexati on , the Pr operty *** shall be zoned and c lassified as OR-2, Office Researc h, dist rict p ursua nt to the pr ovis ions of the curren t Board of the Vill age of S uga r Grove Zoning Ordinance reg ulating same, s ubject to

the addit ional con ditions, va

riations,No. 2--06--0656

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and restrictions hereinafter set forth, and shall be used a nd develop ed only in acc ordance with the pr

ovisions c ontained

herein, with all a

pplicabl e statutes and ordinances, a nd shall be allowed

the use a s set fort

h in the cur

rect [ sic ] OR classification." (Emphasis in original.) Section2 also sta

tes that, i nany offic e building erected on the property , certain enumerated businessuses not allowed under OR-2 zoning are permitted on the first floor of the building and that the owner may be

allowed one restaurant buildingnot ex ceedin g five ac res, s ubjec t to t he Vil lage's approva l. Finally, section 2 states that the ow ner may c ontinue the present nonconforming use of the property f

or agricultural purposes but may not expand that use. Section20 states that the agreement shall bind theparties and their successors for 20 y ears "from the date of execution hereof ." Secti o n 21 states that, if the owner sells all or part of the property, his obliga

tions shall devolve upon the buyer to the e xtent of the transfer. The Village

moved to di smiss plain

tiff's c omplaint, a ss erti ng two gr ounds . The V illa ge contended

first that the rezoning that plaintiff sought was barred by the agreement and

by section 11- -15.1 of the Code (65 IL CS 5/11--15.1--1 et seq. (West 2004)) because the agre ement bound plaintiff and thus required it to accept the OR-2 zoning that the agr eement imposed. T he Village went further, con tendi ng that the relief that plaintiff sought was illegal bec ause it would require the Village to breach its contractual obliga tion by allowing uses that the a greement prohibited. The Village 's second grou nd for dismissal wa s s ecti on 7--1--46 of the Code (65 I LCS 5/7--1-- 46 (West 2004)), which states that "an action contesting either directly or indirectly the annexation of any territor y to a municip ality " may not be co mmenced more than a y ear after the date that the annexation becomes final. The Village noted that plaintiff' s complaint, filed October 31, 2005, asks the trial court to abrogate the zoning that was imposed on July 23, 2002, when the Village passedNo. 2--06--0656

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t he ordinanc e that ad

opted the preanne xation ag reemen t. Thus, a

ccordin g to the V

illage , th e
co mp la in t i nd ir ec tl y ch al le ng es th e a nn ex at io n i ts el f a nd , a s a re su lt , i s u nt im el y. Plaintiff responde d to the moti on with several ar guments . It c ontended

first tha t counts I throu gh IV of the c ompl aint c halle nge the compr ehens ive pl an's se t-asi de pro visi on, no t the V illa ge's denial of plaintiff's request for rezoning, and thus a re not barred by

the agreement or section 7--1- -46 of the Code. Plaintiff contended next that the agreement does not prevent the Village from granting the rezoning

petition bu

t only from c hangin g the zoning without plaintiff's consent. Plaintiff contended

finally that section 7--1- -46 of the Code does not apply to the last two counts of the complaint because plaintiff has not challeng ed "the

underly ing ordi nance that rezone d the prop erty to the OR- 2 classif

ication" but only

the Villa ge's denial of plaintiff 's rezon ing req uest. Inreply, the Villag e contended that the entire complai nt, includ ing the f irst four counts, st ems fromthe Vi llage's denial of rezoning and thus is barred by the ag reement and section 7--1--46 of the Code. The Villag e con

tended nextthat, insofar as the complaint alleges that the comprehensive plan violates plain tiff's rights, the action is not ripe. The Village observed that, under se ction 11--12--6 of the Code (65 IL CS 5/11- -12--6 (West 20 04)) and case law ( City of Chicago He ights v. Living WordOutreach Full GospelChurch & Ministries, Inc. , 196 Ill. 2d 1, 22-23 (2001)), a compre hensive planis strictly

advis ory and has no lega l effec t by itse lf. Th us, t he Vil lage con clude d, th e plan 's mere recommendations cannot inflict a le gally cogniza ble injury . Appare

ntly , plaintif

f did not res pond specific ally

to this arg

ument. The trial court dismissed the entire complaint as barred by section 7--1--46 of

the Code. The court explained that the counts challenging the comprehensive plan are time-barre d because they are based on a challenge to the denial of pla intiff's rezoning petition. Plaintiff timely a ppealed.No. 2--06--0656

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Onappeal, plaintiff

contends that (1) t he trial c ourt err

ed in holdi

ng that c ounts V

and VI of its complaint, which challenge the Village 's de nia l of plaintiff's rezoning request, are ba rred by section7--1-- 46's one-yea r statute of limitations ; and (2)even if s ection 7- -1--46 a pplies to c ounts V and VI , countsI through I V of the complaint are not governed by section 7--1--46 and

thus should not have been d ismi ssed. In respon se, th e Vill age contends that sec tion 7--1 --46 app lies to all six counts of the complaint, a nd it also a

rgues t hat the di smissa l o f co unt s I through IV wa s proper be ca us e t he y fa il to al le ge a r ip e c on tr ov er sy. For the reasons that follow, we hold that (1) the dismissal of counts V and VI as ba rred by section7--1--46 of the Code was correct; and (2) the dismissal of counts I through I V was correct because, to the extent that they are independent of a challeng e to the annexation, they are not ripe. Alth ough our reasoning differs from that which the trial court used, we may affirm the judgment on any g round of record. See Hoffman v. Altamore , 352 Ill. App. 3d 246, 255 (2004)
. We hold first that the trial court properly dismissed the last two co unts of pla inti ff's complain t, contesting the Vill age's denia l of pl ainti ff's rez onin g reques t. We agree wi th th e Vill age that these counts are time-barred under se ction 7--1--46 of the Code. We review de novo the trial court's ruling on the Village's section 2--619 motion to dismiss. See Kawaguchi v. Gainer , 361 Ill. App. 3d 229, 237 (2005). Ou r resolution of the issue that the motion raises depends on the construction of section 7--1--46 of the Code. Statutory construction raises issues of law that we review de novo
. In re Estate of Dier kes , 191 Ill. 2d 326, 330 (2000). Our overridinggoal is t

o ascer tain the le gislatu

re's in te nt. Garci a v. Nelson , 326 Ill. App. 3d 33, 38 (2001). Ordinarily, the

statutory lang

uage is the best guide to intent, and, if it is unambiguous, we must follow it. Garcia , 326 Ill. App. 3d at 38.No. 2--06--0656

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As pertinent here, section 7--1--46 states that any action "contesting either directly or indirectly the anne

xation of any territory

to a municipality" must be initiated within one year a

fter the date that the annexation becomes fin al. 65 IL CS 5/7--1--46 (West 2004). We agree with the Vill age that this language unam biguou sly applies to counts V and VI of plaintiff's complaint, and
we reject p laintiff

's conte ntion that t

hese cou nts conte st only

the zoning

of its property a

nd not the actual annexation. Althoug h counts V

and VI do not dire ctly

contest the annexation, they do so in di re ct ly. Counts V and VI explicitly challenge only

the present zoning of plaintiff's property and the PUD ordinance that the Village alleg edly relied on in par t to reject plaintiff

's appli c ation for
rez onin g. However, the present zoning is the direct result of the a nnexation ordinance, which adopted the agreement that required the pr operty to be zoned OR-2. Anannexation or preannexation agreement

executed under section 11--15.1 of the Code (65 IL CS 5/11--15.1--1 et seq. (West 2004)) may include an agreement on the zoning of the proper ty that is the subject of the anne xation. Langendor

f v. City of Urbana , 197 Ill. 2d 100, 105 (2001). Once made into law by the annexation ordinance, the pre annexation agreement bound Cerny, and now binds plaintiff, to accept OR-2 zoning for the property
. Plaintiff cannot have the OR-2 zoning abrogated by judicial decisionunless it is entitle d to have t

he annexation ordin

ance invalidated , at leas t in part. Plai ntiff 's contenti on that itssuit challenges only the present zoning of the property , and not the annexation that imposed that zoning, is inconsistentwith the plain language of section 7-- 1--46 of the Code. As importa

nt, it is foreclosed by our supr eme court's holding in Langendor f . There, the municipality entered into anne xation a greem ents wit h t he o wne rs o f tw o pr ope rti es. In accordancewith the agreements, the city rezoned the properties. T he plai ntiff, who did not own either property, c ontested the rezoning. The trial court dismissed the suit as untimely under sectionNo. 2--06--0656

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7--1--46 of the Code. The appella te court re

versed, but the supreme co urt affi rmed the trial cou rt. Langendor

f , 197 Ill. 2d at 102. The supreme court agreed with the tr ial c ourt t hat " [the] a

ttac k on the zoni

ng action s [was ], inreality, an a

ttack on the annexation agre ements t hemselves" because, in entering into the agree ments, the city bound

itself to effect the rezoning. Langendor f , 197 Ill. 2d at 104. The court observed that the agreements themselves showed that the rezoning of

the properties "was an integra l part of and was in fact the essential condition of and consideration for the agreement s." Langendor f , 197 Ill. 2d at 107. Thus, con testing the rezon ing was tantamou nt to contesting the annexations. The court endorsed our holding in Echo Lake Concer ned Citizens Homeowners Ass'n, Inc. v. Village of Lake Zurich , 68 Ill. App. 3d 219 (1979), that a constitutional challeng e to a rezoning pursuant to an annexation agreement was gove rned by sec

tion 7--1--46 of

the Code. Because theagreement there (like the ones in Langendor f ) made r ezon ing a prerequisite to annexation, "a successful attack on the rezoning could

lead to a suit by the owner s to declare the annexation void." Langendor

f , 197 Ill. 2d at 108; see Echo Lake , 68 Ill. App. 3d at 223. The supreme court noted

that the specially conc

urring justice in Echo Lake would hav e held that an attack on the zoning adopted through annexation n eed not be an attack on the annexation itself merely because it might give rise t

o a suit against the municipality. Langendor f , 197 Ill. 2d at 108 ; see Echo Lake , 68 Ill. App. 3d at 226 (Seidenfeld, J., specially concurring). H owever , th e
supreme court "[found] the reasoning of the majority in Echo Lake

to be more persua sive. " Langendor

f , 197 Ill. 2d at 109. The court explained that section 7--1-- 46 applies to actions that "i nd ir ec tl y" contest annexations and that to exclude challenges to a zoning decision that was part and parcel of an annexation ag reemen t would re ad the te

rm "indir ectly " out of t

he statute . Furthe

r, itNo. 2--06--0656

-10-

would ignore the legislature's intent to shield such a zoning provision from attack a fter a yea r had passed. Langendor

f , 197 Ill. 2d at 109. Following Langendor

f , we conclude that counts V and VI are untimely

under section 7--1--46 of the Code. By se eking to invalidate the z oning that the Village imposed when it wrote the preannexation

agreement into law, plaintiff is seeking to void its obli gation u nder the agree ment. Moreover, as with the agreements in Langendor f and Echo Lake , the text of the prea n nexation agreement

demonstrates that the zoning requirement was part o f the co nsid erati on th at the Vill age received for entering into the barga in. T he agreement imposes the specified zoning f or the maximum period of 20 year

s (see Ill. Rev. Stat. 1991, ch. 24, par. 11--15.1--1 (now, as amended, 65 ILCS 5/11- -15.1--1 (West 2004 ))). I t caref ully restricts the use s that the owner may make of t

h e proper ty , including nonconforming uses, a nd requi res the Village's approva l for the few uses that it allows other than those

permit ted by OR-2 zoning. The be nefit to the Village from including the zoning requirement

in the agreement is not merely that the OR-2 zon ing per se might be in t he Vil lage's interest, but also that

fixing the present zoning for at least 20 y ears could help the Village "ensure the predicta bility necessary for orderly growth and d evelopment ." Langendor f , 197 Ill. 2d at 105. Contrary to what plaintiff maintains, it is not crucial here that the challenge to the zoning is being br ou gh t b y a p ar ty t o t he pr ea nn ex at io n a gr ee me nt ra th er th an a t hi rd pa rt y, and we need not examine whether a successful attack on the pre sent zoning would lea

d to lawsuits challenging the
anne xa tion itself. Plaintiff's challenge to the zoning is in itself an attempt to nullify part of th e agreement. Under section 7-- 1--46 of the Code, it was not timely filed. Plaintiff does not specifically a

rgue that count VI

contests only the

PUD ordinance and not the annexation. In any

event, we w o uld see no

merit in su

ch an ar gument. It ap

pears that, by

its character, the PUD ordinance applies only to property upon which r esidential devel op ment isNo. 2--06--0656

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permi tted, and thus it is triggered here only if plaintiff's property

is rezoned. See Black's L aw Dictionary

1171 (7th e d. 1999). We note tha t th e Vi llage s taff re comme nded t hat pl ainti ff's applicationfor rezoning be denied because (a mong other reasons) plaintiff had not submitted an applicationfor a PUD. To the extent that the Village's denial of plaintiff's r ezoning application was based on plaintif

f's re fusal to f

ollow the PU

D ordina nce (as plaintif f's complaint alleges conclusi onally

that it wa s), plain

tiff's c halleng e to the PUD or

dinance indirec tly contests the current zoning and thus the annexation. However, if the Village' s decisionhad nothing to do with the PUD ordinance, thenthe PUD ordinance caused plaintiff no injury and can cause plaintiff no harm now,
as the PUD ordinance is irrelevant as long as plaintiff ma y not use its property

for resident ia l purposes . Thus, to the

extent that count VI does not contest the denial of r ezoning, it alleges no injury at all, and was pr

operly dismissed for that re ason. The Village asserts that counts V and VI are barred for a sec ond reason: that the Village may notrezone the property

even if it wante d to beca

use doing so would breach its obligation under the agreement

to ma in ta in th e p re se nt zo ni ng fo r 2 0 ye ar s. Pl ai nt if f r es po nd s, no t w ho ll y im pl au si bl y, that if both parties to the agreement desire rezoning , nothing prevent s the Villa ge from waiving

its contractual r ight to the pres ent zoning . We need n ot decide whether the Villa ge may voluntar ily forgo its rights under the agree ment, as it emphatically has not d one so . Becaus e plai ntiff 's chal lenge to the denial of

re zo ni ng is un ti me ly, we do not d ecide w hether i t is barre d for othe

r reasons as well
. We turn to the dismissal of counts I through I V of the complaint, which assert that the Vill age's comprehensive plan violates plaintiff's rights by recommend in g usin g part o f plai ntiff 's propert y for a highway

interchange. The trial court held that these counts are barred by section 7--1-- 46 of the Cod

e becau se they are

"based on a

constituti onal cha

llenge to the zonin

g or the failure toNo. 2--06--0656

-12-

rezone." Plai ntiff

disagr ees, n otin g that t he com prehen sive p lan's recommendation is separate from the zoning iss

ue, as the Village can condemn a ri ght-of

-way for a hig hway in terc hange

regar dless of whether plaintiff's property is zoned OR-2 or R-2. We believe

th at plain tiff i s part iall y correct. The on ly connect ion b etween the Vi llage's rezoning decision and the comprehensive plan's intercha nge prov ision i s that the Village Board allege dly relied on the prov

ision as one grou

nd to deny rezo ning. To thi s ext ent, p laint iff's c halle nge to the provision indirectly contests the pre sent zoning, and thus the annexation. However, we agree with plaintiff that thechallenge to the set-aside provision also stands on its own, apart from the rezoning controversy . Unlike the PUD ord inance, wh ich comes into play only if resi dential development is permitted, the set-aside proposal retains whatever life it has regar dless of how plain tiff's prope rty is zo ned. N othi ng sugges ts th at the Vill age woul d forgo seekingto obtain

the rig ht-of-w ay merely because plaintiff 's prop erty

remaine d zoned OR- 2. Thus,
even had plaintiff decl ined to seek rezoning , the set- aside pr ovision wo

uld have p osed the s ame problems as it does now. Therefore, w e cannot a gree w ith the tri al court

that the f irst four counts of plaintiff 's comp laint a

re no more than an indirect attack on the annexation that imposed the present zoning. Nonetheless, we affirm the dismissal of these c ounts bec ause we agree with the Vill a ge that the c omprehe nsive pla n's mer e proposa l that the V

illage obtain a r

ight-of -way across pl ai nt if f' s p ro pe rt y do es no t c re at e a ri pe co nt ro ve rs y. Illinois courts may rule on a ctual controversies only. Crawfo rd v. C ity of Ch icago , 304 I ll. App. 3d 818, 822 (1999). In pa rticular, a co mplaint fo

r a decl arator

y ju dgment, such as c ounts I throu gh IV seek, require s an "actual controversy ." 735 IL CS 5/2--701 ( Wes t 2004). We may not pass judgment on mere abstract propositions of law, render advisory opinions, or give legal adviceNo. 2--06--0656

-13-

about future events. Shipp v. County of Kankake e , 345 I ll. App. 3d 250, 255 ( 2003); Crawford , 304 Ill. App. 3d

at 823. Thus, if the harm that a plaintiff claims is merely speculative or contingent, the claim is unripe and a court should not decide it. Shipp , 345 Ill. App. 3d at 255. Under the Code, a comprehensive plan "shall be advisory and in and of itself shall not be construed to regu late or c ontrol the

use of pr ivatepropert

y in any way , except a s to such part thereof
as has been implemented by ordinances duly e

nacted by the corpor

ate authorities." 65 IL

CS 5/11-- 12--6 (West 2004). Plainly put, "[a] zoning ordi nance is law; [a] comp rehensive pl an is not." Living Word Outreach Full Gospel Church & Ministries, I nc. , 196 Ill. 2d at 22. Plaintiff observes that, although the comprehensive plan is not its elf la w, the Vill age's ordinances do, to an extent, give it the effect of law. Specifically , plaintiff notes that, under section 11--31--11(F)(1) of

the Village of Sugar Grove Z oning Ordinance (Sugar Gr ove Zoning Ordinance §11--31--11(F)(1) (eff

. ____)), the Village Board may not gr

ant an amendment to the zoning map unless it shall determine, based u pon the evidence presented to the planning c ommission, that the amendment

complies w

ith the co mprehen sive plan . Plaintiff is corre ct that, u

nder this section, the comprehensive plan is not purely advisory , insofar as complia

nce is re quired in

order to obtain
rezon ing. But we are unp ersuad ed tha t thi s make s plai ntiff 's chall enge to the co mpreh ensiv e plan 's set-aside recommendation, which applies however the property is zoned, ripe. Of course, we agree with plaintiff that counts I through IV stand on their ow n as an attack
onthe set-aside provision itself. However, the recommendation itself is still only that; it does not bind the Village, and there is nothing to sugg est that the Village ha s passedany legislation that would actually give the recommendation the f orce of law, e xcep t as a gr ound t o deny rez onin g. Therefore, plaintiff can allege only speculative or contingent injury . Indeed, the s peculative andNo. 2--06--0656

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contingent

character of any such injury

is well documented by the c omplaint itself, which notes that the comprehensive plan states that developing the intercha nge "is not an immediate priority for either th e Tollway

Authority

or the Vil lage." Regar

dless of w

hether t he inter chang e is an immediat e pr io ri ty, we agr

ee with the Village that the mere proposal to build the interchang e is notactionable. Decidingwhether

the propo sed inter

chang e would vi olate pla inti ff's rights would requ ire us to provide the sort of advisory opinion or legal advice about future events that we may not provide. Apparently, no I

llinois case addresses directly whether a

nonbinding recommendation in a comprehensive plan

creates an actionable controversy. However, courts elsewhere have held that it does not. In Theobald v. Board of County Commissioners , 644 P .2d 942 (Colo. 1982), several propert y owners o btained a declar atory judgmen t that th e county' s comprehensive land use code (code) was unconstitutiona l both fac ially

and as ap plied to their pro

perties. The Color

ado Supre me Courtreversed, hol ding that the is sue was n ot ripe. T

he court noted tha

t the code

was mere ly advisory and ha

d no effect until it

was implemented by binding legislation ( Theobal d , 644 P.2d at 949) and that the property ow

ners did not allege that "they had applied for and been denied proposed uses of their

properties b ased on [t he code]" ( Theobal d , 644 P.2d at 950). Theref ore, the ir claims did not al lege "a dire ct injury to a leg ally

protect ed inter est" so a s to pr es en t a n a ct ua l c on tr ov er sy, and the controversy

was not ripe. Theobal d , 644 P.2d at 950. In Alamit Properties Co. v. Planning Board of Town of Harrison , 159 A.D .2d 703, 553 N.Y.S.2d 440 (1990 ), the pla

intiff' s proper

ty was zoned r

esidentia l. The de fendant's m aster pl an origina lly stated tha

t, if cer tain cont ingenc ies were

later sa tisfied, t he land mi ght be su

ita ble for commercial development. However, the defendant amended the plan by d eleting this lang uage, so that the plan endorsed only

residential development for the property. The plaintiff challenged theNo. 2--06--0656

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a men dment, alleging that the defendant had not suff iciently assessed the e

nvironmental consequences. The reviewing court held that the action should have been dismissed. It explained that any environmenta

l harm from the amendment was "purely speculative," so that the amendment caused the plaintiff no actual injury
. Alamit Properties , 159 A.D.2d at 704, 553 N.Y.S.2d at 441. We believe

that Theobal d

and Alamit Properties are sound and consistent with Illinois law, and we apply their r

easoning here. The comprehe nsive plan's recommend ati on th at the Vill age obtain a right-of-wa

y a cross plaintiff's property

for a highway

interchange is not binding legislation, and plaintiff has not alleged that the Village has in any

way ac ted on it (other than

making it a ground to den y rezoning). Indee d, plaintiff has noted that the comprehensive plan does not make the inter change an "immediate priority ." Thus, the plan's mere recommendation inflicts no lega l injury
on pl ai nt if

f, an d t he fi rs t f

ou r c ou nt s o f t he co mp la in t d o n ot al le ge a r ip e c on tr ov er sy. Incontending otherwise, plaintiff asserts that this case is indisting

uishable from Harris Bank of Roselle v. Vill a ge of Mettawa , 243 Ill. App. 3d 103 (1993). There , the plai ntiff soug ht a declaratory

judgment to invalidate ordinances that barred the use of its property for a

proposed development. The defendant argued that the c o nt roversy wa s unripe because, even were the ordin ances invalida

ted, the d

evelopme nt would sti ll be proh

ibited by the defe ndant' s z onin g ordinance anywa

y. W e disagreed and held that the controve rsy was ripe

and thus proper for resolutionby a dec laratory judg mentaction. We explained that, regardless of the effect of the zoning ordinance, the challenged ordinances were in themsel

ves leg al barr

iers to the

development. Therefore, an action to have them invalidated raised an actual c ontro ve rs y. Harris Bank , 243 I ll. App. 3d at 111-12.No. 2--06--0656

-16-

The obvious point of distinction b etween the present case and Harris Bank is that an ordinance is not mere

advice b ut law; as such, it ma

y give rise t

o "conc rete disp utes" that a court can settlein order

to make " a defini

tive and i mmediate determination of the right s of the parti es." Harris Bank , 243 I ll. App. 3d

at 111. B ecause

the compr

ehensive plan's r ecommen dation th a t an inter change be built is merely advisory , it does not present

such concrete disputes. Therefore, Harris Bank does not he lp plaintif

f. The fi rst four c ounts of the compla int do not pr

esent a ri pe co nt ro ve rs y, and thus they wer

e properly

dismissed. For the foregoing r

easons, the judgment of the circuit court of Kane County is affirmed. Affirmed. BOWMAN and ZENOFF, JJ., concur.