Thursday, November 13, 2014

Ken White says I'm wrong about the Park Ridge zoning suit

Ken White is one of the principals of Popehat, which I link to in my Sidebar, and a blogger of national renown on a number of free-speech related issues, SLAPP suits included.

His take on the case I wrote about Tuesday, 400 W. Talcott LLC v. Argionis, 14 CH 17457? A SLAPP False Alarm Out Of Chicago: The Law Is An Ass.

Somehow Mr. White finds time to practice both law and journalism from his base in California. I don't know how he does it.

Mr. White practiced journalism in this case by reaching out to the developer's attorneys, Ungaretti & Harris LLP, to get their side of the story (instead of regurgitating the local media coverage, as I did). Ungaretti & Harris sent Mr. White a copy of the Complaint filed on the developer's behalf.

In communicating with the developer's lawyers, Mr. White was able to discover the basis of the developer's ultra-expansive reading of §3-107 of the Administrative Review Law, 735 ILCS 5/3-107. The developer is relying on O'Hare International Bank v. Zoning Bd. of Appeals, 8 Ill.App.3d 764, 291 N.E.2d 349 (1st Dist. 1972). That case was cited by Lexis in the annotations to §3-107 for the generic proposition, "Plaintiffs' complaint for administrative review of a zoning decision was fatally defective because it did not name all parties of record as defendants." Lexis did not provide a clue that the "parties of record" might be neighboring property owners who testified against a proposed zoning change.

The text of the case, however, does. Mr. White quoted most of this passage from O'Hare International Bank in his post (8 Ill.App.3d at 767):
The Park Ridge residents who made personal or representative appearances at the zoning board hearing lived in the immediate vicinity of the plaintiffs' property. They were more than disinterested witnesses; they actively maintained a position opposed to the plaintiffs'. Their interest in the outcome of the hearing was substantial. They did not seek administrative review of the board's decision because the decision was favorable to them. Their interest became jeopardized a second time when the plaintiffs challenged the decision in the circuit court; yet they were neither notified of the suit nor made defendants. They were thus deprived of the opportunity of protecting their interest -- the monetary value of their homes and the aesthetic level of their neighborhood -- in court.

The plaintiffs' complaint for administrative review was fatally defective because it did not name all parties of record as defendants. The requirement of paragraph 271, chapter 110, Ill. Rev. Stat. 1967, is both mandatory and jurisdictional; it was not waived by the defendants' failure to raise this objection in the trial court.
I don't see that case as saying the persons opposing the zoning were necessary parties because they were opposed to it, but rather that they were necessary parties because, as neighbors, they had an interest in the zoning determination, whether they were for it or against it. I suppose, upon consideration of Mr. White's piece, the real legal question will be, in this case, if the neighbors are even arguably necessary parties, whether the suit against them is sufficiently "retaliatory and meritless" to overcome the burden shifting provisions of Section 20 of the Citizen Participation Act, 735 ILCS 110/20.

If the really case can go forward with the neighbors as defendants, one comment Mr. White makes is particularly useful:
From my Monday-morning-quarterback armchair I will note that it would have been prudent to have a paragraph in the complaint saying something like "the Neighbor Defendants are named solely as required by Illinois law as potential parties of record to the administrative hearing, and no relief is sought specifically from them." It also would have been prudent to have an advance media strategy when this hit; a furor about SLAPPs was predictable. Nobody's perfect.
The probabilities are that one of these 22 defendants may be looking for a new mortgage, or selling their house, or seeking financing for a business venture during the pendency of this lawsuit. The developer's suit against them will show up in the course of the lender's investigation. In a gentler time, a disclaimer such as Mr. White suggests might have been sufficient to soothe the ruffled feathers of a nervous would-be lender. It might even work in the world we live in today. It sure would be worth a try -- and it surely would be helpful to a court determining, if it ever comes to this point, whether a party was acting in good faith in naming defendants as it did.

Mr. White concludes that the peculiarities of joinder requirements under our Administrative Review Law take the 400 W. Talcott LLC case out of the category of SLAPP suit. If so, maybe some clarification of who is, or who isn't, a necessary party under §3-107 is in order. Hello, General Assembly? Meanwhile, this much is certain: this case will still be interesting to follow.

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