FIRST DIVISION

									February 23, 20034

No. 1-02-1730

EILEEN A. O'MALLEY, 

	Plaintiff-Appellant,

	v.

THE VILLAGE OF PALOS PARK, a Municipal

Corporation,

	Defendant-Appellee.		

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Appeal from the

Circuit Court of

Cook County

96 CH 11004

Hon. Peter A. Flynn,

Judge Presiding.

		JUSTICE McBRIDE delivered the opinion of the court:

	This is an appeal from a summary judgment order entered in

favor of defendant-appellee, the Village of Palos Park (Village),

and against plaintiff-appellant, Eileen O'Malley.  In 1981, the

Village and O'Malley entered into an annexation agreement where

certain property in Palos Park, Illinois, commonly known as the

Palos Park County Club (the Property) would be annexed into the

Village.  In 1994, the parties, by way of another contract (the

1994 agreement), extended the original annexation agreement to the

year 2001, and O'Malley submitted a development concept plan to the

Village for the purpose of developing the Property.  The Board of

Commissioners of the Village of Palos Park (Village Board)1 approved the development plan "subject to confirmation that the

[1994 agreement] was in order."  The Village Board later rejected

the development plan on the basis that the 1994 agreement was invalid because no notice and public hearing were held prior to its

execution as required by section 11-15.1-3 of the Illinois

Municipal Code.  65 ILCS 5/11-15.1-3 (West 2000).  

	O'Malley thereafter brought suit and her original complaint

against the Village alleged causes of action for declaratory relief

(count I), and theories of estoppel (count II), breach of contract

(count III), and disconnection (count IV).  She then filed an

amended complaint which alleged a one-count claim for breach of

contract (count I). On August 3, 2001,  O'Malley filed a second

amended complaint which alleged only that her "vested right" to

approval of the development plan had been violated.  

	The Village filed an amended motion for summary judgment on

O'Malley's second amended complaint.   On May 15, 2002, the trial

court granted that motion finding that the Village Board's vote to

approve the development plan "subject to confirmation that the 

[1994 agreement] was in order," "was not such an approval as to

create a vested right."

	The following background facts are relevant to our disposition

of the issues.  On August 10, 1981, the Village and O'Malley entered into an annexation agreement (1981 agreement) which

provided that the Property would be annexed into the Village.  The

1981 agreement lasted for a term of 10 years, provided for R-1

residential zoning, and permitted plaintiff to apply for special

development district classification zoning upon revision of the

Village's zoning code.  Several years later, the Village Board adopted a zoning ordinance (chapter 1273) to provide for a special

development district classification known as the "S-1 Planned Unit

Development" (S1-PUD) district on February 25, 1985.  On May 13,

1985, the Village Board voted to rezone the Property as S-1 PUD.

	The ordinance, chapter 1273.05(d), states, in relevant part:

		(3) 	Action by Plan Commission.  Following the conclusion of the public hearing and its

deliberations thereof, the commission shall

submit its findings in a report to Council,2 including a recommendation that the

development concept plan be approved, approved

subject to modification[,] or not approved.  

		(4)	Action by Council.  Following receipt of the formal recognition of the Commission,

Council shall:

				A. 	Refuse to approve the development concept plan;

				B.  	Refer it back to the commission for further consideration of

specified matters; or

						C.  	By ordinance duly adopted, approve the development concept

plan with or without modifications as a condition of

such approval, grant a special

use for the planned unit

development, assign an S-1

zoning classification on the

property and take such

additional actions as may be

necessary to permit the subject

development.

		(5) 	Effect of Approval A development concept plan which has been approved shall not be

modified, revoked or otherwise impaired,

and the land use arrangement, intensity

of use and other zoning and bulk

standards established by the development

concept plan shall remain intact and run

with the land unless modified by further

ordinance pursuant to the required public

hearing process as outlined in this

section."  Village of Palos Park Planning

and Zoning Code ch. 1273.05(d) (1985).

	On June 27, 1994, the parties entered into the 1994 agreement,

which extended the 1981 agreement to August 9, 2001.  The 1994

agreement also contained an amendment that stated: "Paragraph 3(c)

of the [1981 agreement] is amended by deleting 'eight dwelling units per acre' and inserting '7 dwelling units per acre.' " 

Another amendment was that "all other provisions of the [1981

agreement] *** shall remain the same."

	Paragraph 8 of the 1981 agreement stated, in pertinent part,

"[O'Malley] and subsequent owners shall comply and be subject to

all ordinances, resolutions, rules and regulations of the VILLAGE,

including every governmental body having jurisdiction thereof which

now or hereafter may be in effect."

	On June 26, 1997, O'Malley sought to move forward with her

development plan.  The minutes of the Village plan commission

meeting on June 26, 1997, indicate that O'Malley thought all the

Village development requirements had been satisfied based on the

1981 agreement.  However, a Village official informed O'Malley that

engineering standards had changed since the Property was annexed

and that the documents provided by O'Malley would serve as a

preapproval conference, but that she must submit documents in

compliance with chapter 1273.  

	The Village plan commission posted a notice that a public

hearing would be held on September 18, 1997, "to consider the

proposals of the Palos Park County Club for their Concept Plan

under the requirements of Village Code Ch. 1273.05(c), S-1 Planned

Unit Development."  The September 19, 1997, public hearing was

continued until October 16, 1997.  After the public hearing on

October 16, 1997, the Village plan commission met.  The minutes of

the October 16, 1997, plan commission meeting indicate that the commission would consider approving O'Malley's development plan

"contingent upon the submittal of five (5) items listed by the

Village engineer."  Ralph Jones III, of the Village plan

commission, sent a letter to the Village Board dated October 24,

1997, stating the plan commission moved to approve O'Malley's

development plan contingent upon the Village engineer's recognition

that the five items had been submitted. 

	The Village Board met on November 10, 1997, to consider

O'Malley's development plan.  Peter Downey, an attorney for

O'Malley, stated that "he was appearing before the [Village Board]

to seek approval of the concept plan, which was the first stage of

development, and would enable them to move forward to the next step

of the proposed project."  At one point during the meeting, a

citizen voiced his concerns about the proposed development,

including the fact that he was not notified of any public hearings

for the extension of the 1981 agreement in 1994.  The mayor stated

that "he did not believe that a public hearing was necessary to

extend an agreement."  At the end of the meeting the Village Board

approved the development plan, "subject to confirmation that the

1994 extension to the annexation agreement was in order."

	On November 24, 1997, the Village Board met again and the mayor stated that an individual indicated at the November 10, 1997, 

meeting that no public notice had been given and that no public

hearing had been held prior to the approval of the 1994 agreement. 

Because of this individual's concern, the mayor noted that the approval of the development plan was contingent upon all required

public notices and hearings having been given and held relative to

the 1994 agreement.  He then said, based on a review of the Village

records, "Village staff *** determined that there was no public

notice published, and no public hearing held, in regard to" the

1994 Agreement.  Thus, the Village attorney was directed to

research the ramifications of this issue on the development review

process with regard to O'Malley's development plan.  Because

approval of the development plan was contingent upon a public

hearing having been held, the development plan was not formally

approved and further action on the development plan was tabled

until the meeting on January 26, 1998.

	On January 26, 1998, the Village Board adopted a motion

nullifying the 1994 agreement on the ground that it had been

approved without a public hearing.  The record shows that O'Malley

was given the option of requesting a new public hearing for the

purpose of evaluating the amendment to the 1981 agreement and

putting the 1994 agreement back into place.   

	In lieu of requesting another public hearing, O'Malley filed

a four-count complaint against the Village on August 2, 1999.  As

pointed out above, the original complaint sought a declaratory

judgment (count I) and alleged theories of estoppel (count II),

breach of contract (count III), and disconnection (count IV).

	In subsequent court proceedings counts I, II, and IV of the

original complaint were all dismissed.  On January 9, 2001, O'Malley filed an amended complaint, which alleged only a breach of

contract.  

	On March 12, 2001, a hearing on the Village's amended motion

for judgment on the pleadings was held.  The Village argued that

the 1994 agreement was invalid under section 11-15.1-3 of the

Illinois Municipal Code because no notice had been given and no public hearing had been held prior to its execution.  The trial judge stated that he was inclined to agree that the 1994 agreement

was invalid because no notice and no public hearing had been held

prior to its execution but the judge continued the matter for

further briefing on the issue.  

	Section 11-15.1-3 of the Illinois Municipal Code, which

applies to annexation agreements and all amendments to annexation

agreements, requires municipal authorities to "hold a public

hearing upon the proposed annexation agreement or amendment" and to

"give notice of the proposed agreement or amendment not more than

30 nor less than 15 days before the dated fixed for the hearing." 

65 ILCS 5/11-15.1-3 (West 2000).

	Section 11-15.1-5 of the Illinois Municipal Code states that

any "annexation agreement executed prior to October 1, 1973, *** is

hereby declared valid and enforceable as to such provisions for the

effective period for such agreement, or for 20 years from the date

of the execution thereof, whichever is shorter."  65 ILCS 5/11-

15.1-5 (West 2000).  It further states that the effective term of any annexation agreement "executed prior to the effective date of this Amendatory Act of 1985 may be extended to a date which is not

later than 20 years from the date of execution of the original

Annexation Agreement."  65 ILCS 5/11-15.1-5 (West 2000).  This

statutory section has no language requiring a hearing or notice.

	On April 9, 2001, the trial court denied the Village's amended

motion for judgment on the pleadings, but dismissed the first amended complaint on the basis that the 1994 agreement was invalid

and ultra vires.  

	On June 21, 2001, the trial court granted O'Malley leave to

file a second amended complaint.  On August 3, 2001, O'Malley filed

a second amended complaint, which alleged only that she had a

vested right to the approval of her development plan and that she

was entitled to damages.  On May 15, 2002, the trial court granted

the Village's motion for summary judgment on the basis that the

approval of the development plan, which was subject to confirmation

that the 1994 agreement was in order, was not a vested right. 

O'Malley appeals the orders entered by the trial court on March 12,

2001,3 April 9, 2001, and  May 15, 2002.

	O'Malley seeks review of the trial court's finding that the

1994 agreement was invalid, in particular, the April 9, 2001, order

dismissing her amended complaint.  She also contends that the

summary judgment order entered May 15, 2002, was in error.  As

noted above, O'Malley alleged a breach of contract claim in her original and amended complaints based on the 1994 agreement.  She then dropped these claims in her second amended complaint and alleged only that she had obtained a vested right in the approval

of her development plan.  The Village argues that any breach of

contract claim based upon the 1994 agreement has been waived

because O'Malley failed to replead this cause of action in her

second amended complaint.

	O'Malley argues that the waiver rule may be relaxed in certain

cases, and she relies upon American Federation of State, County & Municipal Employees, Council 31, v. County of Cook, 145 Ill. 2d 475, 480, 584 N.E.2d 116 (1991) (AFSCME).  

	In AFSCME, the plaintiff (AFSCME) appealed a decision by the appellate court which held that the defendant, Cook County, was not

required to bargain over the effects of an examination requirement

imposed by the civil service commission for three incumbent employees.  These employees held "Computer operator I" positions at

Cook County Hospital and they were hired before the examination

requirement was established.  Under the collective bargaining

agreement between AFSCME and Cook County, AFSCME took the position that Cook County was required to bargain over whether the three

incumbent employees should be required to take the examination. 

The basis for this argument was that, because of Cook County's

status as a home rule unit, it was not bound by the civil service

provisions of the Illinois Counties Code.  55 ILCS 5/1-1001 et seq. (West 2000) (formerly, Ill. Rev. Stat. 1991, ch. 34, par. 1-1001 et seq.).  AFSCME also insisted that the employees be "grandfathered" into their positions.  In response, Cook County argued that it was

barred by state law from bargaining on behalf of the employees

under certain civil service provisions in the Counties Code, cited

above.  

	AFSCME filed an unfair labor practice charge with the

plaintiff, the Illinois Local Labor Relations Board (Board), and

the Board found that Cook County had failed to bargain in good

faith with regard to the impact of the examination requirement upon

the three employees.  The Board specifically found that Cook County

had violated section 10(a)(4) of the Illinois Public Labor

Relations Act by not bargaining over the test requirement, and

declared it an unfair labor practice for Cook County to refuse to

bargain collectively in good faith with a public employee union. 

5 ILCS 315/10(a)(4)(2000) (formerly, Ill. Rev. Stat. 1987, ch. 48,

par. 1610).  Contrary to the Board's decision, the appellate court

found that Cook County was not required to bargain over the effects

of the examination requirement and reversed the finding of the

Board.

	On review to the supreme court, AFSCME argued that the

appellate court ignored legal precedent supporting AFSCME's claim

and had erroneously distinguished the supreme court's decision in City of Decatur v. American Federation of State, County, & Municipal Employees, Local 268, 122 Ill. 2d 353, 522 N.E.2d 1219 (1988).  That decision required the City of Decatur to bargain collectively over AFSCME's proposal that the city's employees be

permitted to submit disciplinary grievances to arbitration. 

AFSCME, 145 Ill. 2d at 481-82, citing, City of Decatur, 122 Ill. 2d at 361-62.  The City of Decatur decision also set out the Illinois public policy that favors public employee bargaining laws over the

optional, rather than mandatory, civil service laws adopted by

Decatur.  AFSCME, 145 Ill. 2d at 482, citing, City of Decatur, 122 Ill. 2d at 365-66.  

	In AFSCME, the plaintiff (AFSCME) specifically claimed that the appellate court ignored the policy, established in City of Decatur, favoring public employee bargaining laws over civil service laws and erroneously found that City of Decatur was limited to arbitration issues.  The supreme court agreed that the decision

in City of Decatur was squarely on point because it involved whether the City of Decatur, under section 7 of the Illinois Public

Labor Relations Act, had a duty to bargain collectively despite

limiting language in section 7 which would supplant certain

statutory civil service provisions.  Based on City of Decatur, the supreme court held that Cook County was required to bargain with

AFSCME over the effects of requiring the three incumbent employees

to take the proposed civil service examination.  AFSCME, 154 Ill. 2d at 482.       

	We note that the threshold issue in AFSCME was whether the appellate court, on the basis of waiver, had properly refused to

consider AFSCME's argument that Cook County was not bound by the civil service provisions of the Counties Code because of its status

as a home rule unit.  The appellate court held that this argument had been waived because AFSCME failed to raise it in the hearing

before the Board.  The supreme court found that, even if AFSCME

waived the argument, it would consider the claim based upon the

court's authority to take judicial notice of Cook County's status

as a home rule unit of local government.  AFSCME, 145 Ill. 2d at 480.

	The supreme court noted that it was well established that

courts may take judicial notice of their state's statutes and

constitutional provisions.  AFSCME, 145 Ill. 2d at 480.  It also  observed that the waiver rule was an admonition to litigants, not

a limitation upon the jurisdiction of a reviewing court.  AFSCME, 145 Ill. 2d at 480.  Finally, it held that the waiver rule may be overridden where the need for "a just result and for the maintenance of a sound and uniform body of precedent" exists.

AFSCME, 145 Ill. 2d at 480.

	Based on the decision in AFSCME, O'Malley claims that the waiver rule should be relaxed in the instant case.  She suggests that because the validity of the 1994 agreement is intertwined with

the trial court's ruling on summary judgment, we should consider

the issue even if waiver exists.  O'Malley, however, does not argue

or even suggest how her failure to replead a contract claim has

anything to do with a "just result" or "the maintenance of a sound

and uniform body of precedent."

	We believe the supreme court relaxed the waiver rule in AFSCME because of the need for and maintenance of a sound body of

precedent.  The primary question posed by that appeal was whether

Cook County's civil service system, adopted under the Counties

Code, was mandatory upon the county or whether it could be altered

by the county any time.  AFSCME, 145 Ill. 2d at 479.  As noted above, the issue, according to the supreme court, had been

previously decided by the court in City of Decatur.  Because the appellate court had improperly distinguished Decatur, the supreme court relaxed the waiver rule and reached the merits of the appeal. 

AFSCME, 145 Ill. 2d at 479-80. 

	Based upon our reading of AFSCME, we find no reason to relax the waiver rule here.  Instead, we rely on the general rule that, when an amended pleading is complete in itself and does not refer

to or adopt the prior pleading, "the earlier pleading ceases to be

part of the record for most purposes and is effectively abandoned

and withdrawn."  Barnett v. Zion Park District, 171 Ill. 2d 378, 384, 665 N.E.2d 808 (1996).  Further, "[a]llegations in a former complaint not incorporated in the final amended complaint are

deemed waived."  Barnett, 171 Ill. 2d 378, 384, 665 N.E.2d 808 (1996).  

	Because O'Malley has waived any argument based upon the breach

of contract claim she did not replead in her second amended

complaint, we will limit our review to the summary judgment ruling entered by the trial court on May 15, 2002.

	Summary judgment is proper " 'where the pleadings, affidavits, depositions, admissions, and exhibits on file, when viewed in the

light most favorable to the nonmovant, reveal that there is no

genuine issue as to any material fact and that the movant is

entitled to judgment as a matter of law.' [Citation.]"  Zekman v. Direct American Marketers, Inc., 182 Ill. 2d 359, 374, 695 N.E.2d 853 (1998).  Although the summary judgment procedure is an

efficient means for disposing of certain lawsuits, "it is a drastic

measure that should be employed only when the right of the moving

party is clear and free from doubt. [Citation.]"  O'Banner v. McDonald's Corp., 173 Ill. 2d 208, 211-12, 670 N.E.2d 632 (1996).  On a summary judgment motion, our standard of review is de novo.  Zekman, 182 Ill. 2d at 374.

	The Village first argues that it is immune from liability on O'Malley's vested rights claim under section 2-104 of the Local

Governmental and Governmental Employees Tort Immunity Act (Tort

Immunity Act) (745 ILCS 10/2-104 (West 2000)).  It also relies upon the decision in U-Haul Co. of Chicago Metroplex v. Town of Cicero, 87 Ill. App. 3d 915, 918, 410 N.E.2d 286 (1980), as support. Section 2-104 of the Tort Immunity Act states:

			"A local public entity is not liable for

an injury caused by the issuance, denial,

suspension or revocation of, or by the failure

or refusal to issue, deny, suspend or revoke,

any permit, license, certificate, approval, order or similar authorization where the

entity or its employee is authorized by

enactment to determine whether or not such

authorization should be issued, denied,

suspended or revoked."  745 ILCS 10/2-104

(West 2000). 

	O'Malley claims that section 2-104 and the U-Haul decision  are inapplicable to her vested rights claim because the Village

actually approved her plan, and therefore lost the discretion to

determine whether or not such authorization should be issued,

denied, suspended, or revoked.  O'Malley relies upon chapter

1273.05(d)(5) of the Village zoning ordinance, which states, among

other things, that once a development plan has been approved, it

cannot be modified.  Reading section 2-104 and the Village zoning

ordinance together, O'Malley argues that the Village has no

immunity from liability under section 2-104 because once it

approved the plan it no longer had the discretion to deny her that

approval and therefore the immunity granted by 2-104 does not

apply.

	We reject this argument for several reasons.  

	First, O'Malley does not cite any relevant authority in

support of her argument.  Instead, she relies upon United Citizens of Chicago & Illinois v. Coalition to Let the People Decide in

1989, 125 Ill. 2d 332, 338-39, 531 N.E.2d 802 (1988).  The main issue in United Citizens was whether the Illinois Municipal Code required an interim election for mayor of the City of Chicago. 

United Citizens, 125 Ill. 2d at 337.  To resolve this question, the supreme  court indicated that it had to analyze provisions in the

Illinois Municipal Code and the Election Code because, while the

Illinois Municipal Code was more specifically drawn, each of these

codes shared the common purpose of providing a procedure in the

event of a vacancy in the city's mayoral post.  United Citizens, 125 Ill. 2d at 338-40.  Specifically, the court said that when

construing statutes in pari materia, or statutes having a common purpose, the court's obligation "is to ascertain and give effect to

the legislative intent."  United Citizens, 125 Ill. 2d at 338.  It further recognized that statutes in pari materia " 'should be considered with reference to one another so that both *** may be

given harmonious effect.  [Citations.] *** ' "  United Citizens, 125 Ill. 2d at 339, quoting People v. Maya, 105 Ill. 2d 281, 286-87 (1985).    

	Aside from pointing to this general proposition of statutory

construction set forth in United Citizens, an Election Code case, O'Malley does not cite any authority that involves section 2-104 of

the Tort Immunity Act.  Further, O'Malley provides no authority

that section 2-104 of the Tort Immunity Act and chapter

1273.05(d)(5) of the Village zoning ordinance are statutes in para materia, like the Election Code and the Illinois Municipal Code in United Citizens, which shared the common purpose of providing a procedure in the event of a vacancy in the city's mayoral post.  In the instant case, no evidence exists that section 2-104 of the Tort

Immunity Act, which involves governmental immunity, and chapter

1273.05(d)(5) of the Village zoning ordinance, share a common purpose.

	Further, to the extent that municipal ordinances are in

conflict with the Tort Immunity Act, they are invalid.  Newsome v. Thompson, 202 Ill. App. 3d 1074, 1079, 560 N.E.2d 974 (1990).  It has also been established that municipal authorities "cannot adopt

ordinances which infringe the spirit of a State law or are

repugnant to the general policy of the State. [Citation.]" 

Newsome, 202 Ill. App. 3d at 1079.     

	Supreme Court Rule 341(e)(7)(Official Reports Advance Sheet

No. 21 (October 17, 2001), R.341(e)(7), eff. October 1, 2001) requires O'Malley to provide this court with relevant authority and

failure to do so results in a waiver of the issue on appeal.  Roe v. Jewish Children's Bureau of Chicago, 339 Ill. App. 3d 119, 125, 790 N.E.2d 882 (2003).  Since she has not done so, we could find

the argument waived.

	In any event, O'Malley cannot prevail on the merits of this

claim.  O'Malley is essentially asking this court to carve an

exception onto the language of 2-104.  However, our supreme court

has held that courts are not at liberty to create or read

exceptions into statutes such as the Tort Immunity Act where the

language of the enactment is clear and no exception is intended.  

	For example, in Village of Bloomingdale v. CDG Enterprises, Inc., 196 Ill. 2d 484, 493, 752 N.E.2d 1090 (2001), the Village of Bloomingdale denied a zoning petition submitted by CDG Enterprises,

Inc. (CDG), a developer.  CDG petitioned the Bloomingdale planning

commission to annex five parcels of land adjacent to Bloomingdale

so that CDG could build a subdivision.  Bloomingdale denied CDG's

project and later publicly revealed that it planned to acquire a

golf course adjacent to the five parcels.  Bloomingdale filed suit

against CDG for failure to pay for Bloomingdale's services in

reviewing CDG's petition for rezoning and site plan approval.  CDG

filed a counterclaim alleging that Bloomingdale deliberately

frustrated CDG's business expectancy by secretly working to force

CDG out of the planned development.  

	The trial court dismissed the counterclaim against

Bloomingdale holding that it was barred by the Tort Immunity Act. 

745 ILCS 10/2-104 (West 2000).  The appellate court reversed and

held that the general grants of immunity afforded by the Tort

Immunity Act "are limited by the common law exception for 'corrupt

or malicious motives.' [Citation.]"  Village of Bloomingdale, 196 Ill. 2d at 488.  

	On appeal, the supreme court considered whether the common law

exception for corrupt or malicious motives could be imposed onto

certain provisions of the Tort Immunity Act.  The court found that,

unless the Tort Immunity Act provided for such, it did not

implicitly contemplate the common law exception for corrupt or

malicious motives.  Village of Bloomingdale, 196 Ill. 2d at 493.  The court stated that when an " 'enactment is clear and unambiguous

[,] a court is not at liberty to depart from the plain language and

meaning of the statute by reading into it exceptions, limitations [,] or conditions that the legislature did not express.'

[Citation.]"  Village of Bloomingdale, 196 Ill. 2d at 493.  It concluded that because the plain language of the Tort Immunity

Act's provisions did not contain an exception for corrupt or

malicious motives, one could not be supplied by the courts. 

Village of Bloomingdale, 196 Ill. 2d at 493. 

	The supreme court also found that the appellate court's

holding ignored the plain language of section 2-104 of the Tort

Immunity Act, which provides that public entities are immune from

liability for injury caused by the denial or by the failure or

refusal to issue any permit.  Village of Bloomingdale, 196 Ill. 2d at 495, citing 745 ILCS 10/2-104 (West 1998).  The court also held

that the village's denial of the defendant's rezoning petition "is

precisely what the legislature intended to immunize such entities

from."  Village of Bloomingdale, 196 Ill. 2d at 495.  It further found that it was immaterial whether the village's denial was based

upon a corrupt or malicious misuse of power because section 2-104

contained "no reference to intent whatsoever."  Village of Bloomingdale, 196 Ill. 2d at 496.

	The court also rejected CDG's argument that Bloomingdale's

denial was improper because its conduct was a deviation from the

customary ministerial task of approving a zoning permit.  Although the supreme court agreed that a municipality  cannot claim immunity

for the improper performance of ministerial tasks it pointed out, "[w]e have never held *** that the grant or denial of a zoning

petition is a ministerial, as opposed to a discretionary, task

under a tort theory of liability."  Village of Bloomingdale, 196 Ill. 2d at 497.  The court then reiterated that section 2-104 plainly grants immunity for injury caused by the denial of "any"

permit and was, therefore, controlling.  Village of Bloomingdale, 196 Ill. 2d at 497.

	CDG's argument that it was injured by Bloomingdale's denial of

its petition in the form of " 'theft of [CDG's] opportunity,' " was

also rejected.  Village of Bloomingdale, 196 Ill. 2d at 497.  The court held that the action of denial of a permit "falls squarely

within section 2-104 of the [Tort Immunity] Act because

[Bloomingdale] and its officials were authorized to either grant or

deny CDG's petition for rezoning and site plan approval."  Village of Bloomingdale, 196 Ill. 2d at 497.  Finally, the court concluded that the Tort Immunity Act immunized Bloomingdale from liability

for any alleged injury resulting from the denial of CDG's petition. 

Village of Bloomingdale, 196 Ill. 2d at 497.

	In the instant case, the plain language of section 2-104 of the Tort Immunity Act does not contemplate an exception to

governmental immunity when a development concept plan has been

approved under chapter 1273.05(d)(5) of the Village zoning

ordinance and we will not supply one.  Village of Bloomingdale, 196 Ill. 2d at 493.  

	Further, we read chapter 1273.05(d)(5) to mean that once the Village approves a development plan, it cannot be "modified,

revoked, or otherwise impaired," unless a public hearing is held. 

This language does not create an exception to section 2-104 nor

does it supplant the Tort Immunity Act's clear and unambiguous

language that "[a] local public entity is not liable for an injury

caused by the issuance, denial *** of, or by the failure *** to

issue *** any permit."  745 ILCS 10/2-104 (West 2000).  Therefore,

O'Malley cannot prevail whether the Village Board approved or

refused her development plan.  Village of Bloomingdale, 196 Ill. 2d at 497.     

	O'Malley's reliance upon chapter 1273.05(d)(5) of the

ordinance, which states, once a "development concept plan has been

approved," it "shall not be modified, revoked or otherwise

impaired" is misplaced.  Village of Palos Park Planning and Zoning

Code ch. 1273.05(d)(5) (1985).  For the reasons that we discuss below, this provision was never triggered because O'Malley's

development plan was never approved.

	O'Malley relies upon the following evidence in support of her

claim that the development plan was approved and that she satisfied

all of the requirements under chapter 1273.  First, a letter from

Village officials dated August 8, 1997, which advised O'Malley that

the development plan approval process was controlled by chapter

1273.  Second, the minutes of the Village plan commission meeting dated October 16, 1997, which indicated that the plan commission

recommended that the Village Board approve the development plan

"contingent upon" review and approval of five items by the Village

engineer.  Third, a letter from the Village plan commission to the

Village Board dated October 24, 1997, which stated that the plan

commission recommended that the Village Board approve the

development plan "contingent upon" the review and approval of five

items by the Village engineer.  Fourth, statements made at the Village Board meeting on November 10, 1997, where the Village Board

approved the development plan "subject to the confirmation that the

1994 extension to the annexation agreement was in order."  Fifth,

a letter to O'Malley from the Village dated November 12, 1997,

indicating that O'Malley needed to furnish submittals for the 

Village plan commission as required by chapter 1273.  Sixth, a

letter from the Village to a consultant dated November 14, 1997,

stating that the development plan was approved by the Village Board

at its November 10, 1997, meeting.  Finally, O'Malley contends that

the testimony of James Madden, the Village commissioner, and Donald Jeans, the Village mayor, establishes that the validity of the

annexation agreement and approval of the development plan had

nothing to do with one another so long as O'Malley followed the

requirements of the ordinance.  In a discovery deposition, Madden

testified that the validity of the 1981 agreement and S-1 zoning

were separate issues.  Jeans testified in a discovery deposition

that whether O'Malley had met all the requirements for the development plan had nothing to do with the 1981 agreement.

	We agree with the Village that none of the evidence relied

upon by O'Malley raises a question of material fact that the

Village approved the development plan.  In fact, the evidence, at

most, demonstrates that the Village conditionally voted to approve

the development plan only if the 1994 agreement was valid and

enforceable.  The minutes of the November 10, 1997, Village Board

meeting clearly establish that the Board approved the development

plan "subject to the confirmation that the 1994 extension to the

annexation agreement was in order."  Further, the minutes of the

November 24, 1997, Board meeting demonstrate that the Board did not

approve the development plan and tabled the approval because a

review of the Village records indicated that there was no public

notice given and no public hearing held with regard to the

execution of the 1994 agreement.  In sum, there never was any

approval of O'Malley's development plan.  

	Moreover, as pointed out by the Village, "the official acts of municipal corporations must be recorded and the records are the

only lawful evidence of the action to which they refer."  Western Sand & Gravel Co. v. Town of Cornwall, 2 Ill. 2d 560, 564, 119 N.E.2d 261 (1954).  Here, the Village minutes control and the correspondence relied upon by O'Malley above and the testimony of

Madden and Jeans, taken more than four years after the Village

meetings in November, 1997, do not raise questions of material fact

regarding approval of O'Malley's plan.

	Further, in Village of Bloomingdale, the supreme court held that liability for detrimental reliance based on assurances made by

village officials was precluded by the Tort Immunity Act.  The court noted that section 2-106 of the Tort Immunity Act provides

that a "local public entity is not liable for an injury caused by

an oral promise or misrepresentation of its employee, whether or

not such promise or misrepresentation is negligent or intentional." 

745 ILCS 10/2-106 (West 2000);  Village of Bloomingdale, 196 Ill. 2d at 497.  Based on section 2-106, the court found that Bloomingdale was immune from liability for any injury resulting

from a village official's assurance that the project would be

approved.  Village of Bloomingdale, 196 Ill. 2d at 497.  It therefore rejected CDG's detrimental reliance argument.  

	As we set forth above, a public hearing and requisite notice

are required when an annexation agreement is amended under section

11-15.1-3 of the Illinois Municipal Code.  65 ILCS 5/11-15.1-3

(West 2000).  Unlike section 11-15.1-3, section 11-15.1-5, which applies to the extension of existing annexation agreements, does

not require a public hearing and accompanying notice.  65 ILCS

5/11-15.1-5 (West 2000).  In her brief, O'Malley asserts that because the 1994 agreement was not an amendment to the original

annexation agreement, it was subject to section 11-15.1-5 and did

not require a public hearing and accompanying notice to be valid.

	We find that the 1994 agreement did amend the original

annexation agreement and therefore was an amendment subject to section 11-15.1-3.  The 1994 agreement specifically states: 

			"The Annexation Agreement heretofore

entered into between OWNER and VILLAGE be and

is hereby extended to August 9, 2001 with the

following amendments:

			Paragraph 3(c) of the Annexation

Agreement is amended by deleting 'eight

dwelling units per acre' and inserting 'seven

dwelling units per acre.' "

The amendatory language in the 1994 agreement could not be more

clear.  We conclude that the 1994 agreement was invalid because it

was an amendment to the original annexation agreement and thus

required notice and a hearing pursuant to section 11-15.1-3 of the

Illinois Municipal Code.  

	Chapter 1273.05(d)(4)(C) of the village ordinance provides

that if the Village Board does approve a development plan, it shall

do so "by ordinance duly adopted."  All the evidence demonstrates that the Village Board never approved O'Malley's development plan and never adopted any ordinance.  As pointed out above, the

approval of the plan was "subject to" the 1994 agreement being "in

order."  At the  Village Board meeting on November 10, 1997, the

Village attorney stated that "if the [Village Board] members

approved the concept plan ***, there would be a concept approval

ordinance adopted at a December meeting."  On November 24, 1997,

the Village Board "tabled" the development plan because "Village staff *** determined that there was no public notice published, and

no public hearing held, in regard to the" 1994 agreement. 

O'Malley's development plan was never approved by ordinance duly

adopted as required by chapter 1273.05(d)(4)(C).

	Finally, even if the Village did approve O'Malley's

development plan or O'Malley had a vested right to the approval

(which we do not find), section 2-104 of the Tort Immunity Act

still shields a local public entity "for an injury caused by the

issuance *** of *** any permit *** where the entity *** is

authorized by enactment to determine whether or not such

authorization should be issued, denied, suspended or revoked."  745

ILCS 10/2-104 (West 2000). 

	U-Haul Co., 87 Ill. App. 3d at 918, is further support for our determination.  In U-Haul, the plaintiff, U-Haul Co. sought a special use permit from the defendant, the town of Cicero, to allow

the development of a U-Haul rental business on the subject

premises.  After a hearing, the board of trustees of Cicero denied

U-Haul's permit application.  U-Haul then filed a three-count

complaint in the trial court.  Specifically, count III alleged that

U-Haul had an absolute right to have a license issued without a

special use application.  Subsequently, the trial court granted

Cicero's motion to dismiss U-Haul's entire complaint and U-Haul

appealed.  

	On review, the appellate court, sua sponte, affirmed the trial court's dismissal of count III and found that section 2-104 of the Tort Immunity Act rendered the defendant immune from suit regarding

the denial of U-Haul's special use permit.  U-Haul, 87 Ill. App. 3d at 918-19. 

	As in U-Haul, we find that section 2-104 of the Tort Immunity Act renders the Village immune from suit regarding its rejection of

O'Malley's development plan.  O'Malley offers no relevant authority

that requires the opposite conclusion.  

	Therefore, we conclude that the Tort Immunity Act precludes any liability against the Village for either the denial, approval,

or refusal of O'Malley's development plan.  Because of our finding

that the Village is immune from liability in this case, we need not

address any other issues raised by O'Malley.  The trial court's

grant of summary judgment in favor of the Village is affirmed.

	Affirmed.

	o'aO'MALLEY, PJ.,.J., and McNULTY, J., CONCUR.concur.