Tuesday, November 11, 2014

Is developer SLAPPing Park Ridge residents around?

The Park Ridge Herald-Advocate reports that 22 Park Ridge residents are being sued by a developer who has so far been frustrated in its efforts to turn an abandoned auto repair shop into a four-story mixed commercial and residential development.

The locus in quo (from Google Maps)
Also named in the suit, according to Jennifer Johnson's November 6 Herald-Advocate article, are the city of Park Ridge, 1st Ward Ald. Joe Sweeney, Park Ridge City Planner Jon Branham, and the nine members of the Park Ridge Planning and Zoning Commission. The suit is pending in the Chancery Division of the Circuit Court of Cook County (400 W. Talcott LLC v. Argionis, 14 CH 17457).

Johnson's article says the suit has been brought to overturn the city's zoning decision. I venture no opinion on the merits of the project or the city's decision.

But Johnson's article quotes a "zoning activist," Missy Langan, who says she and the other 21 residents were sued because they exercised "their First Amendment right to speak their opinions during city proceedings." The Park Ridge city attorney is quoted in Johnson's article as telling the City Council that the developer is interpreting the Administrative Review Act, under which the developer's suit is brought, as allowing it to name anyone who appeared at the zoning hearing in opposition to the plan. For the record, Section 3-107(a) of the Code of Civil Procedure provides, in pertinent part, "Except as provided in subsection (b) or (c), in any action to review any final decision of an administrative agency, the administrative agency and all persons, other than the plaintiff, who were parties of record to the proceedings before the administrative agency shall be made defendants."

A quick search this evening of the annotations to §3-107 compiled on Lexis shows no clear support for this expansive definition of the term "parties of record," but a quick search is not exhaustive research. On the other hand, inasmuch as these residents had no authority, individually or collectively, to deny (or, for that matter, to grant) anyone's request to rezone anything, it seems unlikely that they could possibly be considered "parties of record."

But let us suppose that the 22 residents could be joined as "parties of record." They may still be entitled to dismissal -- and an award of their attorneys' fees -- under the Illinois Citizen Participation Act, 735 ILCS 110/1, et seq. Section 15 of the Act, 735 ILCS 110/15, provides:
This Act applies to any motion to dispose of a claim in a judicial proceeding on the grounds that the claim is based on, relates to, or is in response to any act or acts of the moving party in furtherance of the moving party's rights of petition, speech, association, or to otherwise participate in government.

Acts in furtherance of the constitutional rights to petition, speech, association, and participation in government are immune from liability, regardless of intent or purpose, except when not genuinely aimed at procuring favorable government action, result, or outcome.
A party who succeeds in knocking out what is often referred to as a SLAPP suit (for "Strategic Lawsuit Against Public Participation" in government) can recover attorney's fees and costs under Section 25 of the Act, 735 ILCS 110/25.

What makes a motion to dismiss under the Citizen Participation Act different is Section 20 of the Act, 735 ILCS 110/20. Section 20 provides:
(a) On the filing of any motion as described in Section 15 [735 ILCS 110/15], a hearing and decision on the motion must occur within 90 days after notice of the motion is given to the respondent. An appellate court shall expedite any appeal or other writ, whether interlocutory or not, from a trial court order denying that motion or from a trial court's failure to rule on that motion within 90 days after that trial court order or failure to rule.

(b) Discovery shall be suspended pending a decision on the motion. However, discovery may be taken, upon leave of court for good cause shown, on the issue of whether the movants (sic) acts are not immunized from, or are not in furtherance of acts immunized from, liability by this Act.

(c) The court shall grant the motion and dismiss the judicial claim unless the court finds that the responding party has produced clear and convincing evidence that the acts of the moving party are not immunized from, or are not in furtherance of acts immunized from, liability by this Act.
This is a burden shifting provision. Typically, on a motion to dismiss, all well-pleaded facts in a complaint are assumed to be true. Here, though, the party responding to the motion must come forward with "clear and convincing evidence that the acts of the moving party are not immunized" by the Citizen Participation Act. But the Illinois Supreme Court has held that the burden does not shift unless and until the movants meet their "initial burden of proving that plaintiff's lawsuit was solely 'based on, relate[d] to, or in response to' their acts in furtherance of their rights of petition, speech or association, or to participate in government." Sandholm v. Kuecker, 2012 IL 111443, ¶56. In Samoylovich v. Montesdeoca, 2014 IL App (1st) 121545, the Appellate Court interpreted Sandholm as requiring that a movant under the Citizen Participation Act prove that the suit against him or her is "retaliatory and meritless" before the burden shift of Section 20 can be properly invoked. Of course, persons sued merely for testifying against a proposed zoning change at a zoning hearing might just clear that initial hurdle without breaking a sweat.

It may be interesting to watch this case unfold.


Anonymous said...

Great piece Jack. I agree with your comments. This was really some sloppy lawyering. Turns out there were 23 members of the community who approached the podium that night. The 23rd was the real estate agent who sold the developer the property. His comments were positive. IMHO, the exclusion of "#23" makes hurdling section 20 of the CPA a walk in the park.

Anonymous said...

What are they asking the 23 citizens to do? Since they expressed interest in the case shouldn't they be entitled to some notice of what is going on so they could have a say if they want in the court proceeding. They probably had to be given notice at the zoning board notice level, so why shouldn't they be entitled to the same in the court proceeding? Maybe we shouldn't call them defendants becausebthat has negative connotations. Maybe they should be called "notice parties" or something like that. They can decide what role, if any, to play in the proceedings. PAZ