{ "id": 5409812, "name": "STEVEN MAKOWSKI et al., Plaintiffs-Appellants, v. THE CITY OF NAPERVILLE, Defendant-Appellee", "name_abbreviation": "Makowski v. City of Naperville", "decision_date": "1993-08-02", "docket_number": "No. 2\u201492\u20141181", "first_page": "110", "last_page": "127", "citations": [ { "type": "official", "cite": "249 Ill. App. 3d 110" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "210 Ill. App. 3d 985", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2534027 ], "pin_cites": [ { "page": "993" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/210/0985-01" ] }, { "cite": "146 Ill. 2d 477", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5597177 ], "year": 1991, "pin_cites": [ { "page": "484" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/146/0477-01" ] }, { "cite": "103 Ill. 2d 266", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3152411 ], "pin_cites": [ { "page": "277" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/103/0266-01" ] }, { "cite": "138 Ill. 2d 242", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5576546 ], "pin_cites": [ { "page": "247" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/138/0242-01" ] }, { "cite": "232 Ill. App. 3d 8", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498257 ], "pin_cites": [ { "page": "12" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/232/0008-01" ] }, { "cite": "223 Ill. App. 3d 294", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5256949 ], "year": 1992, "pin_cites": [ { "page": "298" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/223/0294-01" ] }, { "cite": "129 Ill. 2d 351", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5567184 ], "pin_cites": [ { "page": "358" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/129/0351-01" ] }, { "cite": "139 Ill. 2d 229", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5573832 ], "pin_cites": [ { "page": "234" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/139/0229-01" ] }, { "cite": "146 Ill. 2d 263", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5597010 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "271" }, { "page": "272" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/146/0263-01" ] }, { "cite": "214 Ill. App. 3d 888", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5297619 ], "pin_cites": [ { "page": "891" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/214/0888-01" ] }, { "cite": "152 Ill. App. 3d 610", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3574938 ], "pin_cites": [ { "page": "612" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/152/0610-01" ] }, { "cite": "109 Ill. App. 3d 814", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5452064 ], "weight": 4, "pin_cites": [ { "page": "819" }, { "page": "819" }, { "page": "818" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/109/0814-01" ] }, { "cite": "119 Ill. 2d 496", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3193126 ], "pin_cites": [ { "page": "502" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/119/0496-01" ] }, { "cite": "226 Ill. App. 3d 507", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5239798 ], "year": 1988, "pin_cites": [ { "page": "509" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/226/0507-01" ] }, { "cite": "233 Ill. App. 3d 221", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5195888 ], "pin_cites": [ { "page": "237" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/233/0221-01" ] }, { "cite": "98 Ill. 2d 382", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3121957 ], "pin_cites": [ { "page": "387" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/98/0382-01" ] }, { "cite": "154 Ill. 2d 90", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4820940 ], "pin_cites": [ { "page": "102" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/154/0090-01" ] }, { "cite": "695 F.2d 485", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1492044 ], "weight": 2, "pin_cites": [ { "page": "494" } ], "opinion_index": 0, "case_paths": [ "/f2d/695/0485-01" ] }, { "cite": "970 F.2d 397", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10515276 ], "weight": 3, "year": 1982, "pin_cites": [ { "page": "399" }, { "page": "399" } ], "opinion_index": 0, "case_paths": [ "/f2d/970/0397-01" ] }, { "cite": "42 U.S.C. \u00a71983", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "year": 1988, "opinion_index": 0 } ], "analysis": { "cardinality": 1123, "char_count": 39774, "ocr_confidence": 0.763, "pagerank": { "raw": 2.3506077512502375e-07, "percentile": 0.7931850466957726 }, "sha256": "7467c5b80a300f8ca211c5e93057d64a5db507ec4239b9607156cfae7b2f30ec", "simhash": "1:caaac3861658b441", "word_count": 6431 }, "last_updated": "2023-07-14T16:37:18.171744+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STEVEN MAKOWSKI et al., Plaintiffs-Appellants, v. THE CITY OF NAPERVILLE, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE UNVERZAGT\ndelivered the opinion of the court:\nPlaintiffs, Steven Makowski, Richard Swanson, Ronald Calaway and Kent Novatny, appeal from an order of the circuit court of Du Page County denying their motion for partial summary judgment and granting defendant\u2019s, the City of Naperville\u2019s (City\u2019s), motion for summary judgment. Plaintiffs contend that: (1) the trial court\u2019s refusal to provide findings of fact or law regarding the basis for its summary judgment decision was reversible error; (2) the trial court erred in reaching its summary judgment decision if it considered certain affirmative defenses raised by defendant; and (3) the trial court erred in granting summary judgment in favor of defendant.\nThe relevant facts, as gleaned from the record, are as follows. Plaintiffs are each owners of residential property located along River Road within the City\u2019s municipal boundaries. Plaintiffs\u2019 properties are all located in the Countryside subdivision (Countryside).\nCountryside was developed in four phases after it was annexed by the City in 1977. Plaintiffs contracted for the construction of their homes in Countryside between December 1985 and February 1986 in phase two of the Countryside development. Three plaintiffs took possession of their homes in June 1986, and the fourth took possession of his home in September 1986.\nTo the immediate south of Countryside is land within the City\u2019s municipal boundaries known as the Fields subdivision (Fields). In 1976, the Naperville city council (City Council) approved a planned unit development (PUD) preliminary plat for the Fields by enacting ordinance 76 \u2014 53. The Fields preliminary plat shows an unnamed, generally north-south roadway running north from the proposed Book Road extension through the Fields to the then-undeveloped Countryside. As depicted in the preliminary plat, the roadway abruptly curves to the west as it approaches the northern boundary of the Fields. The Fields preliminary plat remained in place until December 1, 1986, when the City Council approved a final plat for the Fields. In the Fields final plat, the roadway shown in the preliminary plat has been realigned.\nThe development of the Fields included the construction in 1987 of the north-south roadway shown in the Fields plats. The road became part of River Road. River Road in the Fields was designed and constructed as a local street. Plaintiffs contend that the extension of River Road from the Countryside through the Fields to the Book Road extension has resulted in severe traffic problems and safety concerns for them as homeowners along River Road.\nIn 1988, plaintiffs first sought judicial relief from these purported problems by filing a claim in Federal district court under 42 U.S.C. \u00a71983 (1988). In a memorandum opinion and order, dated December 20, 1989 (Makowski v. City of Naperville, No. 89\u2014 C\u20144043), the Federal court dismissed count I (the 42 U.S.C. \u00a71983 count) of plaintiffs\u2019 complaint for failure to state a claim, and found no reason to retain the pendant State claims which constituted counts II through VII of plaintiffs\u2019 complaint.\nOn May 10, 1990, plaintiffs filed a six-count complaint in State court. Plaintiffs\u2019 amended complaint contains seven counts. Counts I and II seek mandamus. Counts III and IV allege common-law negligence. Count V alleges statutory negligence. Count VI alleges public nuisance. Count VII seeks a declaratory judgment.\nThe parties filed cross-motions for summary judgment (plaintiffs\u2019 motion was for partial summary judgment, reserving the question of damages). The trial court subsequently entered a final order denying plaintiffs\u2019 motion for summary judgment and granting defendant\u2019s motion for summary judgment.\nPlaintiffs appeal from the final order on the summary judgment motions.\nThe first issue is whether the trial court\u2019s failure to provide findings of fact or law as a basis for its summary judgment rulings prevents effective appellate review and is therefore reversible error. The trial court issued a letter ruling concerning, inter alia, plaintiffs\u2019 motion for partial summary judgment and defendant\u2019s motion for summary judgment. The letter ruling indicated that the trial court had \u201cread and considered everything tendered to it\u201d regarding the summary judgment motions. The letter ruling also indicated that the rulings were made in the light of the attorneys\u2019 oral arguments at a prior hearing. The trial court provided no further explanation for its rulings and made no explicit findings of fact or law.\nPlaintiffs subsequently filed a motion to clarify and for findings. At a hearing on that motion, plaintiffs\u2019 counsel explained to the trial court that plaintiffs sought clarification because the letter ruling granted defendant partial summary judgment when defendant had made an unqualified motion- for summary judgment. The trial court responded that it had understood that the matter concerned cross-motions for partial summary judgment and then stated it would enter the written order as tendered (granting defendant\u2019s motion for summary judgment and denying plaintiffs\u2019 motion for summary judgment).\nAt the same hearing, plaintiffs stated that they assumed the trial court\u2019s ruling was based on the court\u2019s conclusion that there were no disputed issues of material fact. Plaintiffs then asked the trial court whether it had made some legal conclusions or findings based upon those undisputed facts, and whether that could be a part of the order to clarify exactly what the basis of the decision was. The trial court replied \u201cI can\u2019t say that I had done that,\u201d and, despite plaintiffs\u2019 request for elaboration, the trial court entered the order with no further explanation for its ruling.\nOn appeal, plaintiffs contend that the trial court did not understand the relief requested by defendant in its motion for summary judgment. Plaintiffs also contend that the trial court stated that it had not made any legal conclusions or finding of fact. Plaintiffs argue that such silence prevents effective review and cite two Federal cases (Smith v. Village of Maywood (7th Cir. 1992), 970 F.2d 397; Freeman v. Franzen (7th Cir. 1982), 695 F.2d 485) for the principle that such silence is reversible error.\nIn general, in a nonjury case, \u201c[n]o special findings of fact, certificate of evidence, propositions of law, motion for a finding, or demurrer to the evidence is necessary to support the judgment or as a basis for review.\u201d (134 Ill. 2d R. 366(b)(3)(i).) In appeals from summary judgment rulings, a reviewing court conducts a de novo review. (Outboard Marine Corp. v. Liberty Mutual Insurance Co. (1992), 154 Ill. 2d 90, 102.) It is the judgment and not what else may have been said by the lower court that is on appeal to the reviewing court. (Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387.) The reviewing court\u2019s function in reviewing a summary judgment is to determine whether the trial court correctly found that no genuine issue of material fact existed and whether the trial court correctly entered judgment for the moving party as a matter of law. (Fitzwilliam v. 1220 Iroquois Venture (1992), 233 Ill. App. 3d 221, 237.) In the light of the record made at the time the trial court ruled (Rayner Covering Systems, Inc. v. Danvers Farmers Elevator Co. (1992), 226 Ill. App. 3d 507, 509), a reviewing court may sustain the decision of the trial court on any grounds called for by the record, regardless of whether the trial court made its decision on the proper ground. Estate of Johnson v. Condell Memorial Hospital (1988), 119 Ill. 2d 496, 502.\nBased on these principles, we conclude that it is not reversible error for a trial court to fail to provide findings of fact or law when ruling on a motion for summary judgment. While such a failure' can leave the nonprevailing party in a quandary as to exactly why the trial court ruled as it did, it is the ruling which is being appealed, not the reasons for the ruling.\nBecause the reviewing court conducts a de novo review of the entire record in reviewing a summary judgment, the trial court\u2019s reasons for its ruling are not absolutely necessary for effective appellate review. A reviewing court must determine whether the record reveals disputed issues of material fact or errors in entering judgment as a matter of law. In making this determination, a reviewing court may rely on any grounds called for by the record and is not bound by the trial court\u2019s reasoning.\nPlaintiffs\u2019 reliance on the Federal eases cited is unavailing. Those cases involve questions of the reasonableness of the amount of trial court awards for attorney fees and whether the trial court abused its discretion in making the awards. (Village of Maywood, 970 F.2d at 399; Freeman, 695 F.2d at 494.) Under those circumstances, the failure of the trial court to provide the reasoning behind its decision prevented effective appellate review. Village of Maywood, 970 F.2d at 399.\nHere, we are reviewing the trial court decision granting defendant\u2019s motion for summary judgment. As seen above, our review is de novo and based on the entire record, and our determination is not dependant upon the trial court\u2019s reasoning. Consequently, the trial court\u2019s failure to provide the reasoning behind its decision does not prevent effective appellate court review. Accordingly, we hold that the failure of the trial court to provide findings of fact or law as the basis for its summary judgment rulings was not reversible error.\nThe next issue on appeal is whether the trial court erred in considering certain affirmative defenses in reaching its decision on the summary judgment motions. Prior to its motion for summary judgment, defendant motioned to dismiss plaintiffs\u2019 amended complaint pursuant to section 2 \u2014 619 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1991, ch. 110, par. 1 \u2014 101 et seq.). Defendant\u2019s motion was based on three affirmative defenses: (1) that defendant\u2019s acts were discretionary and therefore not subject to a mandamus action; (2) that sections 2 \u2014 109 and 2 \u2014 205 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1991, ch. 85, par. 1 \u2014 101 et seq.) expressly immunized defendant from liability for failure to enforce a law; and (3) that plaintiffs\u2019 claims were barred by laches.\nWe note that on appeal there has been some confusion as to the affirmative defenses in question. In their appellate brief, plaintiffs state that the affirmative defenses raised by defendant in its motion to dismiss were: \u201cthe statute of limitations, tort immunity and laches.\u201d However, a careful review of the record shows that the affirmative defenses raised by defendant in its motion to dismiss were those stated above: the applicability of a mandamus action, tort immunity and laches. We will therefore consider the affirmative defenses actually raised by defendant before the trial court as the affirmative defenses in question here.\nThe trial court denied defendant\u2019s motion to dismiss. The trial court did not indicate if its ruling was on the merits.\nPlaintiffs note on appeal that because the trial court did not give any reasons for its summary judgment rulings it is impossible to determine whether the trial court based its summary judgment decision on any of the affirmative defenses in question. Plaintiffs contend that, in the event the trial court did base its decision on any or all of the affirmative defenses in question, the trial court erred.\nPlaintiffs argue that section 2 \u2014 619(d) of the Code (Ill. Rev. Stat. 1991, ch. 110, par. 2 \u2014 619(d)) prohibits the subsequent raising of affirmative defenses which a court has previously disposed of on the merits. Plaintiffs assert that in denying defendant\u2019s motion to dismiss the trial court must have ruled on the merits of the affirmative defenses and defendant was therefore precluded from raising these affirmative defenses again in its motion for summary judgment.\nAlternatively, relying on Smith v. Powell (1982), 109 Ill. App. 3d 814, plaintiffs argue that even if the trial court did not reach the merits in disposing of the issues raised by the affirmative defenses when it denied defendant\u2019s motion to dismiss, defendant must submit some additional evidence in order for the trial court properly to reconsider affirmative defenses in a motion for summary judgment. Plaintiffs maintain that defendant did not submit any evidence to support the affirmative defenses in question at the summary judgment stage and therefore the trial court could not base its summary judgment decision on those affirmative defenses.\nDefendant responds that plaintiffs\u2019 reliance on Smith v. Powell is misplaced. Defendant contends that where the factual requirements for a motion for summary judgment are established a party may raise an affirmative defense in a motion for summary judgment even if the same affirmative defense was previously denied on a motion to dismiss. Defendant asserts that it based its motion for summary judgment on facts contained in an affidavit, public documents on file with the court, and the deposition testimony of plaintiffs. Defendant argues that these facts were not part of its motion to dismiss and that the facts support the affirmative defenses it asserted in its motion for summary judgment. Defendant concludes that it has therefore properly raised the affirmative defenses in question in its motion for summary judgment.\nIn reference to affirmative defenses, section 2 \u2014 619(d) provides:\n\u201cThe raising of any of the foregoing matters by motion under this Section does not preclude the raising of them subsequently by answer unless the court has disposed of the motion on its merits; and a failure to raise any of them by motion does not preclude raising them by answer.\u201d (Ill. Rev. Stat. 1991, ch. 110, par. 2 \u2014 619(d).)\nUnder section 2 \u2014 619(d), where a party has previously raised affirmative defenses by a section 2 \u2014 619 motion and the court has disposed of the motion on its merits, the court has adjudicated all the grounds set forth in the motion and the party cannot raise the affirmative defenses again on the same grounds in a later motion. See Mogul v. Tucker (1987), 152 Ill. App. 3d 610, 612.\nHere, the record does not indicate whether the trial court disposed of defendant\u2019s section 2 \u2014 619 motion to dismiss on the merits. Because a court may deny such a motion without reaching the merits, such as when it cannot determine with reasonable certainty that the alleged defense exists or because it concludes the motion may involve disputed factual issues (Sjogren v. Maybrooks, Inc. (1991), 214 Ill. App. 3d 888, 891), we conclude that the denial of such a motion, without more, does not show that the court disposed of the motion on its merits. The plain language of section 2 \u2014 619(d) provides that a party who has raised affirmative defenses in a prior section 2 \u2014 619 motion may raise the same matters again in a subsequent motion \u201cunless the court has disposed of the motion on its merits.\u201d (Ill. Rev. Stat. 1991, ch. 110, par. 2 \u2014 619(d).) Accordingly, we conclude that unless the non-moving party shows that a court disposed of the prior motion on the merits, the moving party may subsequently raise the matters.\nThe record here does not indicate whether the trial court disposed of defendant\u2019s motion to dismiss on the merits. Under these circumstances, we conclude that section 2 \u2014 619(d) did not preclude defendant from raising the same affirmative defenses in its motion for summary judgment that it raised in its motion to dismiss.\nWith regard to plaintiffs\u2019 alternative arguments, we find plaintiffs\u2019 authority unpersuasive for the purported principle that a party must submit additional evidence in order to reassert an affirmative defense. In Smith, the plaintiff alleged that the trial court erred when it allowed defendant there to assert a statute of limitations defense in a motion for summary judgment after a prior ruling denying defendant\u2019s motion to dismiss based on a statute of limitations defense. (Smith, 109 Ill. App. 3d at 819.) However, the reviewing court found no trial court error because the trial court had additional evidence before it in its ruling on the motion for summary judgment. (109 Ill. App. 3d at 819.) In Smith, it was clear that the prior ruling had been on the merits. (109 Ill. App. 3d at 818.) Thus, Smith at most stands for the proposition that when a trial court allows a party to reassert a defense after previously ruling on the merits, new evidence is required.\nHere, as seen above, the record does not show that the trial court reached the merits when it denied defendant\u2019s motion to dismiss. Consequently, Smith is inapplicable. Furthermore, additional evidence, which was not available when the trial court denied defendant\u2019s motion to dismiss, was available when the trial court granted defendant\u2019s motion for summary judgment.\nFor all these reasons, we hold that the trial court did not err in its motion for summary judgment ruling if it relied on any or all of the affirmative defenses raised by defendant in its motion to dismiss.\nThe last issue on appeal is whether the trial court erred when it granted defendant\u2019s motion for summary judgment. We will first set out general principles which govern the granting of a motion for summary judgment.\nA court should grant summary judgment when \u201cthe pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.\u201d (Ill. Rev. Stat. 1991, ch. 110, par. 2 \u2014 1005(c).) While the goal of expeditious disposition of a lawsuit by the use of summary judgment is encouraged, summary judgment is a drastic means of disposing of litigation and should only be allowed when the right of the moving party is clear and free from doubt. (Loyola Academy v. S & S Roof Maintenance, Inc. (1992), 146 Ill. 2d 263, 271.) Accordingly, a court ruling on a motion for summary judgment must strictly construe the evidence against the movant and liberally in favor of the nonmoving party. Logan v. Old Enterprise Farms, Ltd. (1990), 139 Ill. 2d 229, 234.\nIt is well established that in deciding a motion for summary judgment the court may draw inferences from undisputed facts. (Loyola Academy, 146 Ill. 2d at 272.) However, where reasonable persons could draw divergent inferences from undisputed facts, the trier of fact should decide the issues and the summary judgment motion should be denied. Pyne v. Witmer (1989), 129 Ill. 2d 351, 358.\nIf the record shows that plaintiff has failed to establish an element of a cause of action, summary judgment for defendant is proper. (Town of Avon v. Geary (1991), 223 Ill. App. 3d 294, 298.) To prevent the entry of summary judgment, plaintiff need not prove his case at a preliminary stage, but plaintiff must present facts sufficient to support the elements of his claim. Kuwik v. Starmark Star Marketing & Administration, Inc. (1992), 232 Ill. App. 3d 8, 12.\nEach of the seven counts in plaintiffs\u2019 amended complaint alleges that defendant violated one or more ordinances. Each count is predicated on these alleged violations. Hence, under the above principles, if the record shows there are no genuine issues of material fact and the undisputed facts show as a matter of law that defendant did not violate the ordinances as alleged, then the trial court did not err in granting defendant\u2019s motion for summary judgment. Accordingly, the first question before us is whether there are any genuine issues of material fact with respect to the alleged violations. If not, then the next question is. whether the record shows as a matter of law that defendant violated or did not violate the ordinances as alleged.\nPlaintiffs\u2019 amended complaint alleges that defendant violated ordinances in two ways: (1) procedural violations, where defendant allegedly failed to follow the procedures mandated by ordinances for approval of the Fields final plat; and (2) nonprocedural violations, where defendant allegedly knew or should have known that its approval of the Fields final plat would violate ordinances related to street design and use. We will determine for each of these sets of allegations whether there are genuine issues of material fact precluding summary judgment and, if not, whether defendant is entitled to summary judgment as a matter of law.\nPlaintiffs first allege that defendant failed to follow mandatory procedures in approving the Fields final plat. This allegation is based on plaintiffs\u2019 contention that there were \u201cmajor changes\u201d to the Fields preliminary plat as evidenced by the proposed Fields final plat.\nThe City\u2019s Municipal Code provides that \u201c[a] revised preliminary plat of planned unit development and supporting data shall be submitted upon a major change.\u201d (Naperville, Ill., Municipal Code \u00a76 \u2014 4\u20146.2 (19_).) The Municipal Code also provides that the procedure to be followed when there has been a major change shall be the same procedure used in seeking approval of a preliminary plat. (Naperville, Ill., Municipal Code \u00a76 \u2014 4\u20146.2 (19_).) That procedure requires a number of specific steps, including a public hearing before the plan commission, notice of the public hearing in a newspaper of general circulation, and written findings of fact. (Naperville, Ill., Municipal Code \u00a76 \u2014 4\u20144.2 (19_).) It is undisputed that the procedural steps required for the approval of a major change were not completely followed in the Fields final plat approval process.\nThe Municipal Code defines major changes as \u201cmodifications which alter the concept or intent of the planned unit development such as, changes in density, changes in location and type of uses of land *** or alteration in road alignment.\u201d (Naperville, Ill., Municipal Code \u00a76 \u2014 4\u20146.1 (19_).) The Municipal Code defines minor changes as \u201cchanges not defined as major changes and which do not alter the concept or intent of the planned unit development.\u201d (Naperville, Ill., Municipal Code \u00a76 \u2014 4\u20146.2 (19_).) Unlike major changes, \u201c[mjinor changes shall be approved by the City Council without the review and recommendation of the Plan Commission.\u201d (Naperville, Ill., Municipal Code \u00a76 \u2014 4\u20146.2 (19_).) The immediate question before us is whether there were genuine issues of material fact related to whether there were major changes.\nThe parties both contend that there were no genuine issues of material fact related to the question of whether there were major changes in the Fields preliminary plat. We agree. The undisputed facts show that there were changes between the Fields preliminary plat and the Fields final plat. The changes were: (1) changes in the way the north-south street which became River Road is depicted; (2) the removal of a school site; and (3) changes in the width of River Road. The record does not establish the magnitude of any of these three changes, but it seems clear that the road alignment and road width changes were relatively minor. The exhibits which plaintiffs attached to their amended complaint purporting to show the change in road alignment shed little light on the exact nature or magnitude of the change.\nPlaintiffs contend that each of these changes was a major change. In their arguments, plaintiffs focus primarily on the road alignment change. Plaintiffs essentially contend that the road alignment change was a major change because it is defined as such in the Municipal Code. Because the Fields final plat approval did not completely follow the procedural steps required for the approval of a final plat after a major change, plaintiffs maintain that defendant violated the ordinance requiring such procedures and that the trial court erred in granting defendant\u2019s motion for summary judgment.\nDefendant responds that none of the changes was a major change and therefore it did not violate the procedural ordinance when it approved the Fields final plat. Defendant primarily relies on the affidavit of Walter S. Newman to conclude that none of the changes was a major change.\nIn his affidavit, Newman, the City\u2019s director of the department of community development and zoning administrator since 1976, stated that his duties include the interpretation of zoning regulations such as those governing PUD plat approval. Newman\u2019s affidavit further stated that the plan commission, after several workshops and meetings which considered the Fields final plat proposal, \u201cdetermined that the plat was changed for engineering purposes only and was considered to be in conformance to the preliminary plat.\u201d Newman also stated in his affidavit that the Fields final PUD plat \u201cdid not alter the concept or the intent of the original planned unit development and is a minor change under section 6 \u2014 4\u20146 of the Naperville Municipal Code.\u201d Newman also stated that he was authorized by title 7 of the Municipal Code to recommend approval of a final plat to the City\u2019s mayor and City Council if he determined that a final plat was in substantial conformance with a preliminary plat. Newman\u2019s affidavit also stated that \u201cIn my opinion the final plat of the Fields Subdivision was in substantial conformance to the preliminary plat as approved.\u201d\nDetermining whether the changes in question were major changes requires us to construe the City\u2019s Municipal Code. The fundamental rule of statutory construction is to give effect to the intent of the drafters. (State of Illinois v. Mikusch (1990), 138 Ill. 2d 242, 247.) To do that, a court first looks to the language of the statute, and, if the language is clear and unambiguous, the court should give the language effect and not employ extrinsic aids to construction. (In re Marriage of Logston (1984), 103 Ill. 2d 266, 277.) The court must examine the language of the statute as a whole and consider each part or section in connection with every other part or section. (Antunes v. Sookhakitch (1992), 146 Ill. 2d 477, 484.) The construction of a statute or ordinance is a question of law. Monahan v. Village of Hinsdale (1991), 210 Ill. App. 3d 985, 993.\nHere, the central provision in question is section 6 \u2014 4\u20146.1 of the Municipal Code, which provides:\n\u201cMajor changes are modifications which alter the concept or intent of the planned unit development such as, changes in density, changes in location and type of uses of land, increases in the height of buildings or structures, reduction in the acreage of open space, modification of more than ten percent (10%) in the number of dwelling units in any designated land use area, or alteration in road alignment.\u201d Naperville, Ill., Municipal Code \u00a76 \u2014 4\u20146.1 (19_).\nWhen section 6 \u2014 4\u20146.1 is read without reference to other sections of the Municipal Code, it suggests a construction that agrees with the construction urged by plaintiffs. That construction is that any change in road alignment is a major change. However, title 6 of the Municipal Code is subject to title 7 of the Municipal Code in some respects because \u201c[a]ll public improvements shall conform to the regulations and design standards of title 7, Subdivisions, of this Municipal Code.\u201d Naperville, Ill., Municipal Code \u00a76 \u2014 4\u20143.2 (19_).\nAccordingly, section 6 \u2014 4\u20146.1 must be read in connection with section 7 \u2014 2\u20145.7. Section 7 \u2014 2\u2014-5.7 authorizes the director of the Department of Community Development (DCD) to \u201crecommend approval of a final plat to the mayor and City Council if the director determines that the final plat is in substantial conformance to the preliminary plat as approved.\u201d (Naperville, Ill., Municipal Code \u00a77 \u2014 2\u20145.7 (19_).) This section clearly allows for some discretion by the director of DCD in recommending approval for a final plat even though it may contain some changes from a preliminary plat. We conclude that this discretion extends to the specific changes listed in section 6 \u2014 4\u2014 6.1. A contrary conclusion (that there is no discretion with respect to the changes specifically listed) would require the notice and hearing procedure for any change in a specifically listed item. Such a construction would clearly conflict with section 7 \u2014 2\u20145.7, which is controlling. Such a construction would also be an absurd and inconvenient result, and courts should not construe statutes to lead to such results. Loyola Academy, 146 Ill. 2d at 273.\nApplying this construction of the City\u2019s Municipal Code to this case leads us to the conclusion that the changes in question were not major changes and therefore did not require the notice and hearing procedures mandated for major changes. While Newman\u2019s affidavit was addressed primarily to the road alignment change, it also encompassed the school and road width changes. Newman\u2019s affidavit indicated that the Fields final plat, as a whole, did not alter the concept or intent of the preliminary plat and that the Fields final plat changes were minor changes under the Municipal Code.\nPlaintiffs argue that Newman\u2019s affidavit was inconsistent with a different DCD recommendation written by Newman to the City Council indicating that a school site change was a major change. We find this argument unpersuasive. Newman\u2019s other recommendation was based on a proposed school change in a different PUD. Under the circumstances of that PUD, Newman concluded that the proposed school change would be a major change because it would alter the concept or intent of the PUD. We disagree with plaintiffs\u2019 position that Newman\u2019s recommendation, based on the facts of another PUD, necessarily means that any school change is a major change. With respect to the road width change, plaintiffs simply did not present any evidence to support their conclusion that the road width change was a major change.\nFor all these reasons, we conclude, as a matter of law based on the undisputed facts, that there were no major changes in the Fields final plat. Accordingly, defendant did not violate procedural ordinances when it approved the Fields final plat without following the procedures required for a major change.\nWe turn next to plaintiffs\u2019 allegations of nonprocedural ordinance violations. In their amended complaint, plaintiffs allege that defendant violated mandatory ordinances governing street design and use when defendant approved the Fields final plat.\nPlaintiffs claim that defendant violated three ordinances. The first ordinance, the master thoroughfare plan (Naperville, Ill., Municipal Code, title 1, ch. 11 (1985)), was incorporated as part of the official comprehensive plan of the City and contained a map indicating that River Road in the Fields should be a local street. (This indication was by default, because the map did not depict River Road as a higher classification street; River Road was deemed classified by default as a local street.)\nThe second ordinance in question provides in relevant part:\n\u201cThe street layout shall conform to the adopted Thoroughfare Plan of the City. The street layout shall recognize the functional classification of the various types of streets and shall be developed and located in proper relation to existing and proposed streets, *** to public convenience and safety, to the proposed use of the land to be served by such streets and to the most advantageous development of adjoining areas.\u201d Naperville, Ill., Municipal Code \u00a77 \u2014 3\u20143.1.1 (19_).\nThe third ordinance in question provides that local streets \u201cshall be arranged *** to discourage use by through traffic.\u201d Naperville, Ill., Municipal Code \u00a77 \u2014 4\u20142.1.5 (19_).\nThe facts relevant to the issue of alleged nonprocedural ordinance violations are not in dispute. Defendant admitted that the master thoroughfare plan, by default, indicates that River Road in the Fields should be a local street. Defendant also admitted that River Road was designed and actually constructed to local street standards as defined by City ordinances. Defendant further admitted that it has conducted traffic studies which indicate that River Road in the Fields, in 1991, experienced traffic flow in excess of the standards for a local street. Because these facts are not in dispute, we may determine as a matter of law whether defendant violated the ordinances in question and whether, therefore, defendant was or was not entitled to summary judgment on this issue.\nPlaintiffs contend that the undisputed facts show that defendant violated the ordinances. On appeal, plaintiffs assert that defendant \u201cviolated these ordinances with regard to the extension of River Road by approving a street layout that failed to recognize the functional classification of the existing local street design within the Countryside Subdivision, failed to locate the extension of River Road in proper relation to existing and proposed streets of higher functional classification, failed to consider the safety and convenience of plaintiffs within the Countryside subdivision, encouraged the continuing use of a local street design by through traffic from other parts of Naperville and from areas outside the corporate limits of the city, and not conforming to the Master Thoroughfare Plan of the city.\u201d Plaintiffs also assert that they presented evidence showing that defendant recognized traffic problems on River Road and that defendant therefore knew or should have known that its conduct in approving the Fields final plat would result in ordinance violations.\nDefendant responds that the undisputed facts show that defendant did not violate the ordinances in question. Defendant asserts that plaintiffs failed to establish any facts showing noncompliance by defendant with any of the ordinances or any other violations. We agree.\nThe first ordinance plaintiffs alleged defendant violated was the master thoroughfare plan (MTP). The MTP indicates that River Road in the Fields should be a local street. The undisputed facts show that River Road in the Fields was laid out and constructed as a local street and is classified as a local street. Although plaintiffs imply that there is a kind of ongoing violation of the MTP because the actual vehicle usage on River Road in the Fields exceeds the standards for a local street, plaintiffs have failed to present any evidence supporting such a conclusion. Plaintiffs have not pointed to anything in the MTP itself or anywhere else that even suggests that a change in the usage of a street laid out in conformity with the MTP violates the MTP. Accordingly, we find that the undisputed facts show that defendant did not violate the MTP.\nThe first sentence of the second ordinance defendant allegedly violated provides: \u201cThe street layout shall conform to the adopted Thoroughfare Plan of the City.\u201d (Naperville, Ill., Municipal Code \u00a77 \u2014 3\u2014 3.1.1 (19_).) The record shows that the adopted thoroughfare plan of the City is the MTP. The undisputed facts show that under the MTP River Road in the Fields should be a local street and that River Road in the Fields was actually constructed as a local street. Again, we fail to see how defendant violated the ordinance in question when the ordinance requires that street layout conform to the MTP and River Road in the Fields was in fact laid out and constructed in conformity with the MTP.\nPlaintiffs rely on the part of the ordinance following the first sentence for their argument that defendant failed to recognize the functional classification of adjoining streets and failed to locate River Road in proper relation to existing streets and for public convenience and safety. We find that plaintiffs failed to present facts supporting these claims. In addition, as seen above, the ordinance first required plaintiff to follow the MTP which defendant did. Plaintiffs have not argued that the MTP violated other ordinances or was itself invalid. Accordingly, we find that the undisputed facts show that defendant did not violate section 7 \u2014 3\u20143.1.1 of the Municipal Code.\nThe last ordinance plaintiffs allege defendant violated is section 7 \u2014 4\u20142.1.5 of the Municipal Code. This ordinance requires that local streets shall be arranged \u201cto discourage use by through traffic.\u201d (Naperville, Ill., Municipal Code \u00a77 \u2014 4\u20142.1.5 (19_).) Plaintiffs\u2019 amended complaint alleged that defendant knew or should have known that its approval of the Fields final plat would result in the continuing violation of this ordinance.\nWe find that plaintiffs have not presented facts sufficient to support this claim. On appeal, plaintiffs argue that they presented evidence showing that defendant recognized that River Road was functioning as a collector street and that defendant recognized a River Road problem and a \u201cRiver Road syndrome\u201d where an arterial street dumps into a residential area. However, plaintiffs\u2019 evidence does not establish that defendant knew or should have known that its approval of the Fields final plat would result in these problems.\nThe evidence purportedly showing that defendant knew; River Road was functioning as a collector street is contained in a 1988 interoffice memo which was a follow-up of a City Council deliberation concerning River Road in Countryside. This evidence fails to support the allegations in plaintiffs\u2019 amended complaint because: it is after the fact of the Fields final plat approval which occurred in December 1986; it is in reference to River Road in Countryside rather than the subject of plaintiffs\u2019 complaint, River Road in the Fields; and the interoffice memo taken as a whole shows that when defendant realized there were problems with traffic \u00f3n River Road in Countryside defendant responded with reasonable attempts to solve the problem including various alternative solutions with particular attention to child safety.\nThe evidence purportedly showing that defendant was aware of a River Road problem or River Road syndrome is based on a 1989 plan commission public hearing meeting concerning revisions to the MTP. This evidence suffers from the same deficiencies as the collector street evidence seen above. This evidence also arose after the approval of the Fields final plat and therefore does not support a conclusion that defendant knew or should have known of it when the final plat was approved. This evidence also does not deal directly with River Road in the Fields. Rather, the evidence specifically concerns River Road in Countryside, so that even if it was timely its relevance is doubtful. In addition, the evidence again shows that when defendant realized there were problems of this type defendant took reasonable steps to try to solve the problems.\nFor these reasons, we conclude that the undisputed facts show that defendant did not violate section 7 \u2014 4\u20142.1.5 of the Municipal Code.\nBased on the foregoing, we conclude that the undisputed facts of this case, construed liberally in favor of plaintiffs, show that defendant did not violate any of the ordinances plaintiffs\u2019 amended complaint alleges defendant violated. Because these alleged violations are essential elements in each count of plaintiffs\u2019 amended complaint, we conclude that the trial court did not err when it granted defendant\u2019s motion for summary judgment. Because of our finding with respect to the alleged ordinance violations, it is not necessary for us to address the affirmative defenses the trial court might have considered.\nThe trial court\u2019s order granting defendant\u2019s motion for summary judgment is affirmed.\nAffirmed.\nWOODWARD and QUETSCH, JJ., concur.", "type": "majority", "author": "JUSTICE UNVERZAGT" } ], "attorneys": [ "Peter H. Jagel, of Knuckles & Jagel, of Naperville, for appellants.", "Marvin J. Glink and Jeffrey D. Greenspan, both of Ancel, Glink, Diamond & Cope, P.C., of Chicago, for appellee." ], "corrections": "", "head_matter": "STEVEN MAKOWSKI et al., Plaintiffs-Appellants, v. THE CITY OF NAPERVILLE, Defendant-Appellee.\nSecond District\nNo. 2\u201492\u20141181\nOpinion filed August 2, 1993.\nPeter H. Jagel, of Knuckles & Jagel, of Naperville, for appellants.\nMarvin J. Glink and Jeffrey D. Greenspan, both of Ancel, Glink, Diamond & Cope, P.C., of Chicago, for appellee." }, "file_name": "0110-01", "first_page_order": 128, "last_page_order": 145 }