Dana Herra Jun. 26, 2015, 12:40pm

An appeals court has ordered DuPage County’s circuit court to take another look at whether Planned Parenthood’s Aurora clinic may not be allowed in its current location under the city of Aurora’s zoning code.

In an unpublished order issued June 19, a three-justice panel of the Illinois Second District Appellate Court said trial courts erred in granting summary judgment to the city of Aurora in 2013, effectively shutting down attempts by opponents of the clinic, Fox Valley Families Against Planned Parenthood, from questioning city officials and others who could shed light on the process leading to the city’s approval of the clinic on the site.

The justices, however, upheld the trial court’s dismissal of the clinic opponents’ counts against the city pertaining to the actual development review and approval process itself.

The order was authored by Justice Kathryn E. Zenoff, with justices Susan F. Hutchinson and Robert B. Spence concurring.

The decision stems from the case brought by Fox Valley Families Against Planned Parenthood alleging a Planned Parenthood clinic that opened in Aurora in 2008 violates the city’s zoning ordinance and should never have been allowed to open.

Planned Parenthood purchased the site at East New York Street and North Oakhurst Drive in 2006 through a wholly owned subsidiary. In the initial permitting process to construct the building and develop the site, it was publicly known only that the building was intended for a medical clinic or offices, but no tenant was announced. It wasn’t until July 2007, with construction nearing completion, that a news article publicly identified the site as the future home of a Planned Parenthood clinic, where, among other services, abortions would be performed.

Amid a public outcry over the revelation, Aurora Mayor Tom Weisner ordered a review by outside counsel of the development process. That October, he announced that the Kane County state’s attorney had found no criminal wrongdoing, and two private attorneys concurred that the developer’s failure to disclose its relationship to Planned Parenthood or the fact that Planned Parenthood was the intended tenant was not enough cause to deny a certificate of occupancy. A temporary certificate was issued, and a permanent certificate followed.

The Fox Valley Families group filed administrative appeals with the zoning board of appeals and the building code board, both of which were dismissed. A lawsuit was filed in DuPage County circuit court in 2008 and amended in 2010, naming as defendants Weisner, Planned Parenthood, the city of Aurora, the Aurora Zoning Board of Appeals, the Aurora Building Code Board of Appeals, the Aurora Planning Commission, the Aurora Planning and Development Committee and the city’s zoning administrator and building code official.

In 2010, a trial court dismissed two counts of the lawsuit which claimed violation of due process and equal protection. It struck a request for declaratory relief, but let stand the rest of a count claiming Planned Parenthood’s use of the site is not permitted in that zoning district. In 2012, the trial court dismissed two counts seeking review of the zoning and building code boards’ dismissal of Fox Valley Families’ initial appeal. It also granted a motion by Planned Parenthood to limit discovery on the remaining count of the lawsuit, agreeing that the count challenges the zoning classification of the property and limiting discovery of that in the administrative record. In 2013, the court granted a summary judgment in favor of Planned Parenthood.

The new appellate court ruling finds that the court erred in granting a summary judgment, saying the court misinterpreted the city’s review of the development process as a legislative decision. It also found that the trial court should not have limited discovery, saying the count was interpreted as seeking administrative review when in fact it sought injunctive relief. It also found no reason for the trial court to have stricken declaratory relief.

The appeals court upheld the remainder of the trial court’s findings. The question of whether the clinic is permitted at its current location under the city’s zoning ordinance was remanded, and discovery relevant to that claim was permitted.

“On remand, the only claim left before the court will be the claim that Planned Parenthood’s ongoing use violates zoning laws,” the justices wrote. “The issue before the court on remand will not be the validity of the planning and development committee’s approval of the final plan.”

The justices remanded the case to DuPage County Circuit Court for further proceedings.

More News