{ "id": 4284261, "name": "ALBERT C. HANNA et al., Plaintiffs-Appellants, v. THE CITY OF CHICAGO et al., Defendants-Appellees", "name_abbreviation": "Hanna v. City of Chicago", "decision_date": "2009-03-06", "docket_number": "No. 1-07-3548", "first_page": "909", "last_page": "921", "citations": [ { "type": "official", "cite": "388 Ill. App. 3d 909" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "408 U.S. 104", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1782877 ], "weight": 3, "pin_cites": [ { "page": "110" }, { "page": "228-29" }, { "page": "2300" } ], "opinion_index": 0, "case_paths": [ "/us/408/0104-01" ] }, { "cite": "107 Ill. 2d 179", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3134941 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "186" }, { "page": "187" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/107/0179-01" ] }, { "cite": "178 Ill. 2d 399", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 385568 ], "year": 1997, "pin_cites": [ { "page": "424-25", "parenthetical": "\"[t]he question of vagueness and the question of delegation of legislative authority are intertwined (People v. Gurell, 98 Ill. 2d at 210" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/178/0399-01" ] }, { "cite": "232 Ill. App. 3d 367", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498836 ], "weight": 10, "year": 1992, "pin_cites": [ { "page": "377" }, { "page": "372" }, { "page": "372" }, { "page": "372" }, { "page": "372" }, { "page": "376-77" }, { "page": "376-77" }, { "page": "377" }, { "page": "372", "parenthetical": "when a legislative body grants an administrative agency discretionary authority to act, it must provide intelligible standards to guide the agency in the exercise of that authority" }, { "page": "376-77" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/232/0367-01" ] }, { "cite": "192 P.3d 591", "category": "reporters:state_regional", "reporter": "P.3d", "case_ids": [ 12254414 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/p3d/192/0591-01" ] }, { "cite": "368 A.2d 163", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1976, "opinion_index": 0 }, { "cite": "171 Conn. 198", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 529072 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/conn/171/0198-01" ] }, { "cite": "574 A.2d 760", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 7386150 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/a2d/574/0760-01" ] }, { "cite": "680 A.2d 835", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 465136, 7861781 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/pa/545/0094-01", "/a2d/680/0835-01" ] }, { "cite": "545 Pa. 94", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 465136 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/pa/545/0094-01" ] }, { "cite": "893 F. Supp. 589", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7834624 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/f-supp/893/0589-01" ] }, { "cite": "747 F.2d 323", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 644109 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/f2d/747/0323-01" ] }, { "cite": "215 Ill. App. 3d 220", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5294997 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "227" }, { "page": "227" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/215/0220-01" ] }, { "cite": "229 Ill. 2d 296", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3615201 ], "weight": 6, "year": 2008, "pin_cites": [ { "page": "305" }, { "page": "305" }, { "page": "305" }, { "page": "305" }, { "page": "305" }, { "page": "305" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/229/0296-01" ] } ], "analysis": { "cardinality": 951, "char_count": 28584, "ocr_confidence": 0.779, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14385877323349738 }, "sha256": "a483776ec6b0e683bb4ff3845b4ddddacd87b6f6ac96b5f2b01a509dbe87f400", "simhash": "1:f6ef32fb17499c73", "word_count": 4454 }, "last_updated": "2023-07-14T22:04:57.079883+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ALBERT C. HANNA et al., Plaintiffs-Appellants, v. THE CITY OF CHICAGO et al., Defendants-Appellees." ], "opinions": [ { "text": "PRESIDING JUSTICE FITZGERALD SMITH\ndelivered the opinion of the court:\nPlaintiffs Albert C. Hanna (Hanna) and Carol C. Mrowka (Mrowka) (collectively, plaintiffs), filed a 20-count complaint against the City of Chicago, the Commission on Chicago Landmarks, and several city officials (collectively, the City), alleging that the Chicago Landmarks Ordinance (the Ordinance) (Chicago Municipal Code \u00a7\u00a72 \u2014 120\u2014580 to 2 \u2014 120\u2014920) was invalid on its face and as it applied to plaintiffs\u2019 respective properties. The City moved to dismiss counts I, II, III, and V through XX, pursuant to section 2 \u2014 615 of the Code of Civil Procedure (735 ILCS 5/2 \u2014 615 (West 2006)), alleging that plaintiffs failed to state a cause of action. The trial court granted the City\u2019s section 2 \u2014 615 motion to dismiss pursuant to counts V through XX, and counts I, II, and III. Plaintiffs now appeal.\nI. BACKGROUND\nA. Complaint\nIn their first amended complaint, plaintiffs alleged that Hanna owned property in the Arlington Deming neighborhood in Lincoln Park. On October 5, 2006, the Commission on Chicago Landmarks (Commission) recommended that area as a Landmark District. Mrowka owned property in the East Village neighborhood. Pursuant to the Commission\u2019s recommendations, the Chicago city council designated the East Village as a Landmark District on January 11, 2006.\nWe will only discuss the counts pertinent to this appeal. In count I, plaintiffs alleged that the Ordinance was facially vague in violation of article IV section 2, of the Illinois Constitution. Count II challenged the delegation of authority to the Commission. Count III alleged that section 2 \u2014 120\u2014705 of the Ordinance violates article IV section 1, of the Illinois Constitution on its face for allowing the Commission to exercise legislative power. In counts V through XX, plaintiffs claimed that the Ordinance is facially, and as applied to their properties, unconstitutional.\nB. Ordinance\nThe Chicago Landmark Ordinance is comprised of sections 2 \u2014 120\u2014580 to 2 \u2014 120\u2014920 (Chicago Municipal Code \u00a7\u00a72 \u2014 120\u2014580 to 2 \u2014 120\u2014920). It establishes a commission to engage in various activities to protect and encourage the continued utilization of areas, districts, buildings, and structures in Chicago, eligible for designation by the Ordinance as a Chicago landmark.\nSection 2 \u2014 120\u2014600 states that Commission members shall be selected from professionals in the disciplines of history, architecture, historic architecture, planning, archaeology, real estate, historic preservation, or related fields, or shall be persons who have demonstrated special interest, knowledge, or experience in architecture, history, neighborhood preservation, or related disciplines.\nSection 2 \u2014 120\u2014610 provides for the powers and duties the Commission shall or may have. Section 2 \u2014 120\u2014610(6) states that the Commission may exercise the power to advise and assist owners of potential or designated landmarks on technical and financial aspects of preservation, renovation, and rehabilitation, and to establish standards and guidelines therefore.\nSection 2 \u2014 120\u2014620 provides for the seven criteria the Commission should use in considering a designation. Those seven criteria are characterized as (1) critical part of the City\u2019s heritage, (2) significant historic event, (3) significant person, (4) important architecture, (5) important architect, (6) distinctive theme as a district, and (7) unique visual feature.\nSection 2 \u2014 120\u2014630 provides that the Commission, in making the preliminary recommendation, must use at least two of the seven criteria and consider whether there is a significant historic, community, architectural, or aesthetic interest or value. It also provides for notice of preliminary recommendation to the owner of the property and to the alderman of the ward.\nSection 2 \u2014 120\u2014640 provides for the Commission to obtain a report for the commissioner of planning and development evaluating the relationship of the proposed designation to the comprehensive plan of the City. The section also provides that the Commission may proceed without such report.\nSection 2 \u2014 120\u2014650 provides for a process for the owner to consent to the designation. It states that notice to the owner shall provide the reasons for and the effects of the designation. If the owner does not consent, a public hearing is to be held, pursuant to the notice procedures delineated in section 2 \u2014 120\u2014670. If a hearing is held, the hearing must comply with the procedures in section 2 \u2014 120\u2014680.\nSection 2 \u2014 120\u2014690 governs the Commission\u2019s recommendation to the city council. The Commission must make findings related to at least two of the seven criteria in section 2 \u2014 120\u2014620 and must provide a copy to the owner and others.\nSection 2 \u2014 120\u2014700 provides for the city council\u2019s consideration of the Commission\u2019s recommendation. The city council may hold public hearings and, by ordinance, make the designation pursuant to the section 2 \u2014 120\u2014620 criteria.\nSection 2 \u2014 120\u2014705 sets the timeline for the city council to consider the Commission\u2019s recommendation. If the city council does not take final action within 365 days from the date of recommendation, the landmark designation will be granted. It further provides that the \u201chistorical landmark preservation committee\u201d of the city council shall hold timely hearings and report its recommendation to the city council.\nSection 2 \u2014 120\u2014730 provides the process for amendment, rescission, and reconsideration of the designation.\nSection 2 \u2014 120\u2014740 provides that, for property subject to a preliminary recommendation for landmark status or which has been designated a Chicago landmark, no permit for alteration, construction, reconstruction, erection, demolition, relocation, or other work shall be issued to any applicant by any department without the written approval of the Commission. Sections 2 \u2014 120\u2014750 to 2 \u2014 120\u2014825 govern the approval process.\nC. Trial Court Ruling\nPlaintiffs alleged in count I that the Ordinance was facially vague in that it did not provide sufficient specificity such that a citizen might know how to conform his or her conduct thereto. The trial court found that the language of the Ordinance was sufficient to guide the Commission in making recommendations as to landmark status and was therefore not unconstitutionally vague. The City\u2019s motion to dismiss was granted.\nPlaintiffs alleged in count II that the Ordinance violates article I, section 2, of the Illinois Constitution as an unconstitutional delegation of authority to the Commission. The City argued that the Ordinance is not a delegation of authority because the city council, the legislative body, has the final approval of the Commission\u2019s recommendation; and if the Commission has been delegated authority, the guidelines are sufficient. The trial court, in granting the City\u2019s motion to dismiss, found that the Commission\u2019s recommendations of potential landmarks to the city council are advisory, not declaratory; and that the Ordinance provided intelligible standards for the Commission to apply and was thus not vague.\nPlaintiffs alleged in count III that section 2 \u2014 120\u2014705 on its face violates article iy section 1, of the Illinois Constitution for allowing the Commission to exercise legislative power. The trial court held that the procedures for granting the Commission\u2019s recommendation in section 2 \u2014 120\u2014705 do not result in an improper delegation of legislative authority to the Commission.\nPlaintiffs alleged in counts V through XX of their complaint that the application of the Ordinance to their respective properties violated the equal protection clause and the substantive due process clause of the Illinois Constitution. The plaintiffs urged the court to use a \u201crational relationship test tailored to zoning\u201d rather than the \u201cgarden variety\u201d rational basis test in ruling on the City\u2019s section 2 \u2014 615 motion to dismiss. The trial court found that the law in Illinois utilizes the rational basis test and therefore granted defendant\u2019s section 2 \u2014 615 motion to dismiss for failure to state a cause of action.\nPlaintiffs now appeal the dismissal of counts I, II, III, and V through XX of their complaint and ask this court to find that they have properly stated a cause of action as to each count and to reverse and remand the case to the trial court.\nII. ANALYSIS\nOn appeal, plaintiffs allege that the trial court erred in dismissing certain counts of their complaint because (1) the trial court incorrectly reviewed their claims that the Landmark District designations violated their equal protection and substantive due process rights under the rational basis standard, (2) plaintiffs properly stated a cause of action alleging that certain Ordinance provisions are unconstitutionally vague, and (3) plaintiffs properly stated a cause of action alleging that certain provisions of the Ordinance constitute an unconstitutional delegation of legislative authority to an administrative body.\nA. Standard of Review\nA motion to dismiss brought under section 2 \u2014 615 of the Code of Civil Procedure (735 ILCS 5/2 \u2014 615 (West 2006)) tests the legal sufficiency of a complaint. Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 305 (2008). On review, the inquiry is \u201cwhether the allegations of the complaint, when construed in the light most favorable to the plaintiff, and taking all well-pleaded facts and all reasonable inferences that may be drawn from those facts as true, are sufficient to establish a cause of action upon which relief may be granted.\u201d Napleton, 229 Ill. 2d at 305. Illinois is a fact-pleading jurisdiction, and therefore plaintiffs must allege facts, not mere conclusions, to establish their claim as a viable cause of action. Napleton, 229 Ill. 2d at 305. A claim should not be dismissed pursuant to section 2 \u2014 615 unless \u201cno set of facts can be proved which would entitle the plaintiff to recover.\u201d Napleton, 229 Ill. 2d at 305. We review the trial court\u2019s dismissal of plaintiffs\u2019 action de novo. Napleton, 229 Ill. 2d at 305.\nB. Count I\nIn count I of the complaint, plaintiffs sought a declaration that the Ordinance was unconstitutionally vague and ambiguous, in its entirety or in certain parts, in violation of their due process rights under article I, section 2, of the Illinois Constitution. Their challenge was a facial challenge.\nPlaintiffs are correct that \u201c[a]n ordinance or statute violates due process guarantees when its terms are so incomplete, vague, indefinite and uncertain that men and women of ordinary intelligence must necessarily guess at their meaning and differ as to their application.\u201d City of Wheaton v. Sandberg, 215 Ill. App. 3d 220, 227 (1991). \u201cThe law is clear that a legislative act which is so vague, indefinite and uncertain that the courts are unable, by accepted rules of construction, to determine with any reasonable degree of certainty, what was intended will be declared void.\u201d Wheaton, 215 Ill. App. 3d at 227.\nPlaintiffs point to numerous provisions within the Ordinance that they claim are vague and arbitrary. They argue that the seven criteria used to guide landmark designation are vague and uncertain due to the Ordinance\u2019s use of phrases like \u201cmay or may not,\u201d \u201cor other,\u201d \u201cvalue,\u201d \u201cimportant,\u201d \u201ccritical,\u201d \u201chistoric,\u201d and \u201csignificant.\u201d Plaintiffs allege that the seven criteria are so rife with vague, ambiguous, and overly broad language that they could conceivably describe any property in any city.\nThe City, however, responds that such provisions are not vague or arbitrary when viewed in the context of the Ordinance as a whole. Specifically, the City points to the fact that the words \u201cimportant,\u201d \u201ccritical,\u201d and \u201csignificant\u201d have their ordinary and popularly understood meanings, and when viewed in the context of the Ordinance as a whole, these terms provide sufficient guidance to the Commission. The City further argues that the Commission is made up of \u201cprofessionals in the disciplines of history, architecture, historic architecture, planning, archeology, real estate, historic preservation, or *** persons who have demonstrated special interest, knowledge, or experience in architecture, history, neighborhood preservation, or related disciplines\u201d (see Chicago Municipal Code \u00a72 \u2014 120\u2014600 (2004)) who are equipped to apply the commonly understood terms that plaintiffs complain of. The City concedes that this provision may not \u201cguarantee\u201d any particular level of expertise of the individual members, the members could nonetheless have valuable experience and knowledge that could benefit the Commission.\nThe City further maintains that although some of the terms used in the seven criteria set forth in the Ordinance are open to interpretation, the procedures that govern the Commission\u2019s recommendations to the city council offer sufficient guidance. The City cites to several cases in other jurisdictions which rejected challenges to historic preservation ordinances with language similar to that at issue here. See Mayes v. City of Dallas, 747 F.2d 323 (5th Cir. 1984); Burke v. City of Charleston, 893 F. Supp. 589 (D.S.C. 1995); Park Home v. City of Williamsport, 545 Pa. 94, 680 A.2d 835 (1996); Bellevue Shopping Center Associates v. Chase, 574 A.2d 760 (RI. 1990); Figarsky v. Historic District Comm\u2019n, 171 Conn. 198, 368 A.2d 163 (1976); Kruse v. Town of Castle Rock, 192 P.3d 591 (Colo. App. 2008).\nWe note, however, that most of the cases cited by the City involved factors to be considered when accepting or rejecting a building permit, rather than designating an area or structure for landmark status. Even if such cases dealt directly with landmark ordinances, however, we would nonetheless find that just because certain language was found not to be vague in other jurisdictions does not compel us to so find in this case. Rather, we believe that plaintiffs\u2019 allegations are sufficient to state a cause of action. In this case, the pertinent parts of the Ordinance, which outline the seven criteria to be considered in recommending a district for landmark status, states that any two of the following must be satisfied:\n\u201c1. Its value as an example of the architectural, cultural, economic, historic, social, or other aspect of the heritage of the city of Chicago, state of Illinois or the United States;\n2. Its location as a site of a significant historic event which may or may not have taken place within or involved the use of any existing improvements;\n3. Its identification with a person or persons who significantly contributed to architectural, cultural, economic, historic, social, or other aspect of the development of the city of Chicago, state of Illinois or the United States;\n4. Its exemplification of an architectural type or style distinguished by innovation, rarity, uniqueness, or overall quality of design, detail, materials, or craftsmanship;\n5. Its identification as the work of an architect, designer, engineer, or builder whose individual work is significant in the history or development of the city of Chicago, state of Illinois, or the United States;\n6. Its representation of an architectural, cultural, economic, historic, social, or other theme expressed through distinctive areas, districts, places, buildings, structures, works of art, or other objects that may or may not be contiguous;\n7. Its unique location or distinctive physical appearance or presence representing an established and familiar visual feature of a neighborhood, community or the city of Chicago.\u201d Chicago Municipal Code \u00a72 \u2014 120\u2014620 (2000).\nWe believe that the terms \u201cvalue,\u201d \u201cimportant,\u201d \u201csignificant,\u201d and \u201cunique\u201d are vague, ambiguous, and overly broad. We are unpersuaded by the City\u2019s argument that the Commission members can be well guided by these terms. This is especially true in light of the fact that the qualifications of a Commission member are equally vague. We are uncertain as to what the Ordinance means when it provides that Commission members shall be selected from professionals in disciplines of history, architecture, historic architecture, planning, etc., or persons who have demonstrated a \u201cspecial interest, knowledge, or experience\u201d in architecture, history, neighborhood preservation, or related disciplines. The City has offered no criteria by which a person of common intelligence may determine from the face of the Ordinance whether a building or district will be deemed to have value or importance, or whether a person will be deemed to have a \u201cspecial interest\u201d in neighborhood preservation. See Waterfront Estates Development, Inc. v. City of Palos Hills, 232 Ill. App. 3d 367, 377 (1992) (the court found that the words \u201cinappropriate\u201d and \u201cincompatible\u201d were vague and ambiguous because defendants failed to provide criteria by which a person of normal intelligence could determine from the face of the ordinance whether a proposed project would be deemed inappropriate or incompatible with nearby property).\nWe reiterate that our inquiry is merely whether the allegations in plaintiffs\u2019 complaint, when construed in the light most favorable to plaintiffs, and taking all well-pleaded facts and reasonable inferences as true, are sufficient to establish a cause of action upon which relief may be granted. See Napleton, 229 Ill. 2d at 305. We find that the allegations in plaintiffs\u2019 complaint regarding the vagueness of the Ordinance are sufficient to establish a cause of action and should not have been dismissed on the pleadings by the trial court. Accordingly, we reverse the trial court\u2019s decision to dismiss count I pursuant to section 2 \u2014 615.\nC. Count II\nIn count II of their complaint, plaintiffs challenged the delegation of authority. Specifically, count II alleged that the Ordinance constitutes an impermissible grant of discretionary authority by a legislative body, the city council, to an administrative body, the Commission, without sufficient guidelines. We agree with the trial court that this count is related to count I insofar as both counts challenge the specificity of the language of the Ordinance. See East St. Louis Federation of Teachers, Local 1220 v. East St. Louis School District No. 189 Financial Oversight Panel, 178 Ill. 2d 399, 424-25 (1997) (\u201c[t]he question of vagueness and the question of delegation of legislative authority are intertwined (People v. Gurell, 98 Ill. 2d at 210) insofar as both address the standards given in the statute to guide the conduct the statute regulates and the administrative body that oversees that conduct\u201d).\nWhen a legislative body grants an administrative agency discretionary authority to act, it must provide intelligible standards to guide the agency in the exercise of that authority. Waterfront Estates, 232 Ill. App. 3d at 372. In contrast, when final approval of an administrative act rests with the legislative body, there is no delegation problem. Waterfront Estates, 232 Ill. App. 3d at 372. When an administrative body acts in a merely advisory capacity, constitutional standards need not be met. Waterfront Estates, 232 Ill. App. 3d at 372. \u201cWhether an administrative function is advisory or declaratory is judged by the nature of the act itself; the body\u2019s title or characterization of its function is not controlling.\u201d Waterfront Estates, 232 Ill. App. 3d at 372.\nThe City argues that the Ordinance does not amount to a delegation of authority because the city council, the legislative body, has the final approval of the Commission\u2019s recommendations. The City further argues that even if the Commission has been delegated authority, the guidelines outlined in the Ordinance are sufficient. We disagree.\n1. Delegation of Authority\nWe first address the issue of whether the city council has granted the Commission discretionary authority to act. If final approval of the Commission\u2019s recommendation rests with the city council, there is no delegation problem. Plaintiffs argue that because the Commission\u2019s recommendations can become final within 365 days without the city council\u2019s approval, the Commission has a declaratory function, rather than an advisory one. The City, on the other hand, responds that the Commission acts merely in an advisory capacity. We agree with plaintiffs.\nTwo sections govern the city council\u2019s designation of landmark status. In section 2 \u2014 120\u2014700, the city council may by ordinance designate a landmark. Additionally, section 2 \u2014 120\u2014705 provides:\n\u201cIf the city council does not take final action upon any landmark recommendation submitted by the commission on Chicago landmarks to the city council within 365 days of the date upon which the recommendation is filed with the city council, landmark designation based upon the recommendation of the commission shall be granted. The historic landmark preservation committee of the city council shall hold timely hearings and report its recommendation to the city council.\u201d Chicago Municipal Code \u00a72 \u2014 120\u2014 705 (1999).\nThe trial court found that the \u201cCity Council acted by enacting the section 2 \u2014 120\u2014705 procedures for granting the Commission\u2019s recommendation, which also includes hearings by the City Council Landmark Preservation Committee.\u201d In support of such proposition, the trial court cited Quinn v. Donnewald, 107 Ill. 2d 179 (1985), which, the trial court stated, found that the \u201cGeneral Assembly acts upon the Compensation Review Board\u2019s salary increase recommendations by not voting on the recommendations.\u201d This is a mischaracterization of the case.\nIn Donnewald, the plaintiffs contended that the Compensation Review Act (Ill. Rev. Stat., 1984 Supp., ch. 63, pars. 901 through 906) was unconstitutional because it impermissibly delegated to a board the power to determine the salaries of the state officials affected. Plaintiffs argued that the Illinois Constitution required the salaries of legislators, judges, and executive officers to be provided or established \u201cby law.\u201d Donnewald, 107 Ill. 2d at 186. Plaintiffs contended that the Illinois Constitution therefore required the legislature itself to set the salaries of such persons and prohibited the delegation of such responsibility to the board. The Donnewald court, however, found that the Act establishing the procedure for providing salaries was enacted through the law-making process, by the vote of a majority of both houses of the General Assembly and following presentment to the Governor for his action, and therefore satisfied the constitutional directive that salaries be provided or established by law. Donnewald, 107 Ill. 2d at 187. We find this case to be inapposite to the case at bar.\nIn the instant case, the Ordinance provides that the Commission, an administrative body, can recommend potential buildings, or in this case districts, to the city council, a legislative body; but if the city council does not act, in either approval or disapproval of the recommendation, the recommendation becomes law. The City appears to make the argument that the Commission\u2019s role remains advisory because the council, by its inaction, is essentially approving the recommendation and therefore making the final decision regarding landmark status in Chicago. We do not agree.\nRather, we agree with the plaintiffs that Waterfront Estates is more instructive in the case at bar. In Waterfront Estates, the court found that the appearance commission\u2019s recommendation was declaratory. Waterfront Estates, 232 Ill. App. 3d at 376-77. The court found that the legislative body, the city council, did not have the final say because the mayor, who is not a legislative body, also was involved in the final approval of the appearance commission\u2019s recommendation. Waterfront Estates, 232 Ill. App. 3d at 376-77. Additionally, the court found that, looking at the ordinance as a whole, neither the city council nor the mayor was actually required to review the commission\u2019s recommendations, and therefore the recommendation of the appearance commission was in reality a final decision. Waterfront Estates, 232 Ill. App. 3d at 377.\nSimilarly here, under the Ordinance the Commission can make a recommendation to the city council and the city council is not required to review the Commission\u2019s recommendations before they become final. Although the Ordinance provides that the historical landmark preservation committee of the city council shall hold timely hearings and report its recommendations to the city council, we find no basis to conclude that this language mandates the city council to review the recommendations of the Commission or those of the landmark preservation committee. As such, we find that the Commission performs a declaratory function.\nWe note, however, that even if we were to have found that the Commission\u2019s function was merely advisory, the seven criteria outlined in the Ordinance to assist the Commission in recommending buildings or districts for landmark status remains unconstitutionally vague, as discussed in the previous section.\n2. Intelligible Standards\nFinding that the Commission has been delegated authority by the city council, we must now turn to whether the guidelines the Ordinance provides to the Commission to determine landmark status are intelligible. See Waterfront Estates, 232 Ill. App. 3d at 372 (when a legislative body grants an administrative agency discretionary authority to act, it must provide intelligible standards to guide the agency in the exercise of that authority). When interpreting an ordinance to determine whether there are intelligible standards to guide an administrative body, \u201c[although \u2018we can never expect mathematical certainty from our language\u2019 (Grayned v. City of Rockford (1972), 408 U.S. 104, 110, 33 L. Ed. 2d 222, 228-29, 92 S. Ct. 2294, 2300), an ordinance which is so vague that persons of common intelligence must necessarily guess at its meaning is unconstitutional.\u201d Waterfront Estates, 232 Ill. App. 3d at 376-77.\nAs stated in the previous section, we find that the seven criteria outlined in the Ordinance are unconstitutionally vague and therefore do not adequately provide intelligible standards by which to guide the Commission. Accordingly, we find that the plaintiffs adequately stated a cause of action in count II of their complaint when they alleged that the Ordinance permitted an improper delegation of authority.\nD. Count III\nIn count III of their complaint, plaintiffs claimed that section 2 \u2014 120\u2014705 of the Ordinance is a facially unconstitutional delegation of legislative authority in violation of article I\\( section 1, of the Illinois Constitution. Plaintiffs argued that the Commission\u2019s recommendation is allowed to be granted without city council action if the city council does not take final action in 365 days. For the reasons stated above in regard to count II, we find that plaintiffs stated a cause of action sufficient to withstand the City\u2019s section 2 \u2014 615 motion to dismiss.\nE. Counts V through XX\nPlaintiffs\u2019 final counts of the complaint claimed that the designation of Arlington-Deming District and the East Village District as landmark districts, and the inclusion of their respective properties within those districts, was violative of their substantive due process and equal protection rights. We decline to address this issue before the trial court makes a finding on whether the Ordinance is unconstitutionally vague. If it is found to be vague and thus invalid, then the designation of Arlington-Deming District and Elk Grove Village District as landmark districts is invalid, and thus the issue of whether such designation was violative of substantive due process and equal protection rights would be moot.\nIII. CONCLUSION\nPlaintiffs properly stated a cause of action for vagueness, sufficient to overcome a section 2 \u2014 615 motion to dismiss, and thus we reverse the trial court\u2019s dismissal of plaintiffs\u2019 complaint and remand the case to the trial court for further proceedings.\nFor the foregoing reasons, we reverse the judgment of the circuit court of Cook County and remand.\nReversed and remanded.\nO\u2019MARA FROSSARD and TOOMIN, JJ., concur.\nThe Arlingfcon-Deming District was subsequently designated a Landmark District.", "type": "majority", "author": "PRESIDING JUSTICE FITZGERALD SMITH" } ], "attorneys": [ "Thomas J. Ramsdell & Associates, of Chicago (Thomas J. Ramsdell, Anthony S. Hind, and Carl E. Myers, of counsel), for appellants.", "Mara S. Georges, Corporation Counsel, of Chicago (Benna Ruth Solomon, Myriam Zreczny Kasper, and Sara K. Hornstra, Assistant Corporation Counsel, of counsel), for appellees." ], "corrections": "", "head_matter": "ALBERT C. HANNA et al., Plaintiffs-Appellants, v. THE CITY OF CHICAGO et al., Defendants-Appellees.\nFirst District (5th Division)\nNo. 1 \u2014 07\u20143548\nOpinion filed March 6, 2009.\nThomas J. Ramsdell & Associates, of Chicago (Thomas J. Ramsdell, Anthony S. Hind, and Carl E. Myers, of counsel), for appellants.\nMara S. Georges, Corporation Counsel, of Chicago (Benna Ruth Solomon, Myriam Zreczny Kasper, and Sara K. Hornstra, Assistant Corporation Counsel, of counsel), for appellees." }, "file_name": "0909-01", "first_page_order": 925, "last_page_order": 937 }