¶ 9 Plaintiffs responded that Dunlap did not apply, because this court had held that section 11–13–25 does create a private right of action against a municipality's zoning decision and does not merely specify standards of review. See Our Savior Evangelical Lutheran Church v. Saville, 397 Ill.App.3d 1003, 1027, 337 Ill.Dec. 566, 922 N.E.2d 1143 (2009). Further, they argued, denying them a right of action under this section would leave them without a remedy, as the Administrative Review Law (735 ILCS 5/3–101 et seq. (West 2014)) applies only to decisions by administrative bodies and not to a municipal council's legislative act (Hawthorne v. Village of Olympia Fields, 204 Ill.2d 243, 253–54, 274 Ill.Dec. 59, 790 N.E.2d 832 (2003) ).

The 90–day limitations period for review of these decisions is not optional. After 90 days have run, the decision of a municipality regarding a petition or application for a special use is deemed valid. ¶ 18 This court analyzed the application of section 11–13–25(a) in Our Savior Evangelical Lutheran Church v. Saville, 397 Ill.App.3d 1003, 337 Ill.Dec. 566, 922 N.E.2d 1143 (2009). In Our Savior, the Aurora city council, among other things, denied the church's application for a special use permit.

Plaintiff urges that the court should reach a similar conclusion regarding the substantive law that governs review of Plaintiff's claims. At least some case law supports Plaintiff's argument: Our Savior Evangelical Lutheran Church v. Saville, 397 Ill.App.3d 1003, 337 Ill.Dec. 566, 922 N.E.2d 1143 (2d Dist.2009) noted that the 2009 amendments subjecting zoning decisions to de novo legislative review were made in both the Municipal Code and the Counties Code. 397 Ill.App.3d at 1027, 337 Ill.Dec. 566, 922 N.E.2d at 1162. Our Savior concluded that de novo legislative review applied to municipal zoning decisions pursuant to 65 ILCS 5/11–13–25.

’ " Id. at 318–19, 322 Ill.Dec. 548, 891 N.E.2d 839. ¶ 25 Finally, in Our Savior Evangelical Lutheran Church v. Saville , 397 Ill. App. 3d 1003, 337 Ill.Dec. 566, 922 N.E.2d 1143 (2009), the plaintiff challenged the denial of a special-use permit. Quoting the above passage, we held that the La Salle factors continued to govern as-applied challenges such as the one in question.

The appellate court has held that the phrase "de novo judicial review as a legislative decision" in the statute refers to judicial review of a municipality's zoning decision as a legislative decision, which is subject to rational basis review, as opposed to review of administrative decisions, which are subject to heightened scrutiny. Condominium Ass'n of Commonwealth Plaza v. City of Chicago, 399 Ill. App. 3d 32, 47 (2010); see also Our Savior Evangelical Lutheran Church v. Saville, 397 Ill. App. 3d 1003, 1026-27 (2009). Thus, legislative zoning decisions are not subject to traditional de novo review, which requires no deference to the underlying decision.

Under Illinois law, for example, a hearing might be characterized as "legislative" for purposes of judicial review, see 65 ILCS 5/11-13-25 (making any decision regarding an application for a special use "subject to de novo judicial review as a legislative decision, regardless of whether the process in relation thereto is considered administrative for other purposes"), at the same time it is deemed "adjudicative" for the purpose of determining what process is due at that hearing, see People ex rel. Klaeren v. Village of Lisle, 202 Ill.2d 164, 269 Ill.Dec. 426, 781 N.E.2d 223, 234 (2002) (deeming hearings concerning special use applications "administrative or quasi-judicial" for purposes of determining whether petitioners received due process, not because of political considerations but because "property rights are at stake"). See Our Savior Evangelical Lutheran Church v. Saville, 397 Ill.App.3d 1003, 337 Ill.Dec. 566, 922 N.E.2d 1143, 1162 (2009) (interpreting 65 ILCS 5/11-13-25 to address only "the mode of direct judicial review over the listed zoning decisions, not the application of due process to any of those . . . decisions") (quotation omitted). Before applying these factors to the case now before us, however, we must note the significant constitutional concerns implicated by the fraud exception's application to petitioning activity.

Such courts will examine the zoning action de novo for arbitrariness as a matter of substantive due process under the six-part test set forth in LaSalle National Bank of Chicago v. County of Cook, 12 Ill.2d 40, 145 N.E.2d 65 (1957). Our Savior Evangelical Lutheran Church v. Saville, 397 Ill.App.3d 1003, 1027, 337 Ill.Dec. 566, 922 N.E.2d 1143 (2009).

Decisions made by the county board regarding special use, variance, and rezoning applications, or other amendments to a zoning ordinance, are reviewed de novo as legislative decisions, not administrative decisions subject to the ARL. See 55 ILCS 5/5-12012.1(a); Our Savior Evangelical Lutheran Church v. Saville, 922 N.E.2d 1143, 1162-63 (Ill. App. Ct. 2009) (noting that prior to the 2009 amendments to the municipal and counties codes, special use permit decisions were reviewed as administrative decisions according to the ARL). Unlike the ARL, the Counties Code does not provide for notice to third parties.

"Forfeiture *** is a restriction on the parties, not this court; we may overlook forfeiture, and we do so here. Our Savior Evangelical Lutheran Church v. Saville, 397 Ill.App.3d 1003, 1028 (2009) ('forfeiture is a limitation on the parties, not on the court, and the court may overlook forfeiture where necessary to obtain a just result or maintain a sound body of precedent')." IRED Elmhurst, LLC, 2021 IL App (2d) 200108, ¶¶ 48-49.

When a legislative zoning action is challenged based on substantive due process, we will examine the zoning action for arbitrariness under the six-factor test set forth in La Salle National Bank. Our Savior Evangelical Lutheran Church v. Saville, 397 Ill.App.3d 1003, 1027 (2009). ¶ 56 The La Salle court identified six factors as being "among the facts which may be taken into consideration" when determining a zoning ordinance's validity: (1) the existing uses and zoning of nearby property; (2) the extent to which property values are diminished by the particular zoning restrictions; (3) the extent to which the destruction of a plaintiff's property values promotes the health, safety, morals, or general welfare of the public; (4) the relative gain to the public as compared to the hardship imposed upon the individual property owner; (5) the suitability of the subject property for the zoned purposes; and (6) the length of time the property has been vacant as zoned, considered in the context of land development in its vicinity.