Ashley v. Village of Libertyville
Decision Date | 07 January 2008 |
Docket Number | No. 2-07-0729.,2-07-0729. |
Citation | 378 Ill.App.3d 661,881 N.E.2d 962 |
Parties | ASHLEY LIBERTYVILLE, LLC., Plaintiff-Appellee, v. The VILLAGE OF LIBERTYVILLE, Defendant-Appellant. |
Court | United States Appellate Court of Illinois |
David F. Pardys, David S. Goles, Swanson, Martin & Bell, Libertyville, for Village of Libertyville.
Robert T. O'Donnell, Eiden & O'Donnell, Ltd., Vernon Hills, for Ashley Libertyville, LLC.
Defendant, the Village of Libertyville, denied a special use permit to plaintiff, Ashley Libertyville, LLC. Plaintiff sought de novo judicial review of that decision, invoking section 11-13-25 of the Illinois Municipal Code (Municipal Code) (65 ILCS 5/11-13-25 (West 2006)). The trial court granted that request. The Village filed a motion to reconsider or, in the alternative, to have the matter certified for appeal under Supreme Court Rule 308 (155 Ill.2d R. 308). The trial court denied the motion to reconsider, but certified the following two questions:
We granted the Village's petition for leave to appeal. We conclude, however, that these questions are not well taken, as neither section 11-13-25 of the Municipal Code nor the Administrative Review Law (785 ILCS 5/3-101 et seq. (West 2006)) has any bearing upon this case. Accordingly, we answer neither question, dismiss this appeal, and remand for further proceedings.
Understanding why neither question is pertinent requires an understanding of two supreme court cases, People ex rel. Klaeren v. Village of Lisle, 202 Ill.2d 164, 269 Ill.Dec. 426, 781 N.E.2d 223 (2002), and Hawthorne v. Village of Olympia Fields, 204 Ill.2d 243, 274 Ill.Dec. 59, 790 N.E.2d 832 (2003). The former involved an application for a special use permit, the latter an application for a zoning variance. In fact, Hawthorne distinguishes Klaeren on this basis. Hawthorne, 204 Ill.2d at 253 n. 2, 274 Ill.Dec. 59, 790 N.E.2d 832. Thus, one might conclude that this case, as it concerns a special use permit, should be controlled by Klaeren. A closer examination, however, reveals that Hawthorne is dispositive.
In Klaeren, 202 Ill.2d at 183, 269 Ill.Dec. 426, 781 N.E.2d 223, our supreme court held that "municipal bodies act in administrative or quasi-judicial capacities when those bodies conduct zoning hearings concerning a special use petition." The animating concern for the Klaeren court was the `protection of "the property rights of the interested parties." Klaeren, 202 Ill.2d at 183, 269 Ill.Dec. 426, 781 N.E.2d 223. It is worth noting that Klaeren concerned the procedures that a municipality must employ at a hearing on a special use permit rather than the manner of judicial review of a municipality's decision. Klaeren, 202 Ill.2d at 185, 269 Ill.Dec. 426, 781 N.E.2d 223 (). The instant case involves the nature of judicial review, and it therefore differs from Klaeren on that basis. It is also noteworthy that neither Klaeren itself nor the appellate court opinion in the matter mentions the Administrative Review Law. See Klaeren, 202 Ill.2d 164, 269 Ill.Dec. 426, 781 N.E.2d 223; People ex rel. Klaeren v. Village of Lisle, 316 Ill.App.3d 770, 250 Ill.Dec. 122, 737 N.E.2d 1099 (2000).
Before discussing Hawthorne, we take note of two principles set forth by the supreme court in City of Chicago Heights v. Living Word Outreach Full Gospel Church & Ministries, Inc., 196 Ill.2d 1, 13, 255 Ill.Dec. 434, 749 N.E.2d 916 (2001). There, the supreme court wrote, "When a legislative body acts administratively in ruling on a permit application, its decision is subject to general principles of administrative review." Living Word, 196 Ill.2d at 13, 255 Ill.Dec. 434, 749 N.E.2d 916. Later, in that same case, the supreme court stated: , Living Word, 196 Ill.2d at 14, 255 Ill.Dec. 434, 749 N.E.2d 916. This court has read Living Word and Klaeren broadly, suggesting, without qualification, that all actions by a municipality that can be characterized as administrative are to be reviewed under the Administrative Review Law.1 See PACE v. Regional Transportation Authority, 346 Ill.App.3d 125, 135, 280 Ill. Dec. 783, 803 N.E.2d 13 (2003) (); Gallik v. County of Lake, 335 Ill.App.3d 325, 327, 269 Ill. Dec. 725, 781 N.E.2d 522 (2002) () . In light of Hawthorne, which we will discuss next, it is apparent that such a broad reading is inappropriate. Acting administratively is necessary, but not sufficient, to trigger administrative review. After all, as the First District recently observed, "the Administrative Review Law does not apply to all administrative acts." Chicago Title Land Trust Co. v. Board of Trustees, 376 Ill.App.3d 494, 498, 316 Ill.Dec. 1, 878 N.E.2d 723 (2007).
The question presented in Hawthorne, 204 Ill.2d at 252, 274 Ill.Dec. 59, 790 N.E.2d 832, was whether the plaintiff was required to exhaust administrative remedies before seeking judicial review of a municipality's denial of her request for a zoning variance. The supreme court concluded that the Administrative Review Law was not applicable. Hawthorne, 204 Ill.2d at 254, 274 Ill.Dec. 59, 790 N.E.2d 832. The court explained that the plaintiffs variance was denied not by a zoning board of appeals but by the board of trustees. Hawthorne, 204 Ill.2d at 252-53, 274 Ill.Dec. 59, 790 N.E.2d 832. By statute, when a board of trustees elects to retain the power to grant zoning variances, it may exercise that power only through the adoption of ordinances. Hawthorne, 204 Ill.2d at 253, 274 Ill.Dec. 59, 790 N.E.2d 832; see 65 ILCS 5/11-13-5 (West 2006). Enacting or rejecting an ordinance is a legislative act. Hawthorne, 204 Ill.2d at 253, 274 Ill.Dec. 59, 790 N.E.2d 832. The court continued, "The Administrative Review Law does not apply to the legislative acts of legislative bodies." Hawthorne, 204 Ill.2d at 253, 274 Ill.Dec. 59, 790 N.E.2d 832. Rather, administrative review is possible "only where the legislative body transfers to some administrative agency the authority to administer the ordinance." Hawthorne, 204 Ill.2d at 253, 274 Ill.Dec. 59, 790 N.E.2d 832. Thus, "where zoning action is taken by the legislative body itself, as it was in this case, a civil proceeding challenging the legislative body's action is not subject to attack on the grounds that the plaintiff failed to proceed under `the Administrative Review Law." Hawthorne, 204 Ill.2d at 253-54, 274 Ill.Dec. 59, 790 N.E.2d 832. In fact, the court added that "proceedings to secure review of a legislative determination under the Administrative Review Law would be a nullity." Hawthorne, 204 Ill.2d at 254, 274 Ill.Dec. 59, 790 N.E.2d 832. Hence, even where an act would be otherwise administrative (such as if it had been done by a zoning board of appeals), it is legislative and outside the scope of the Administrative Review Law if it is accomplished through the enactment of an ordinance (or if its rejection entails rejecting an ordinance).
Variances and special uses, though appearing similar in many aspects, are in fact quite different. Different sections of the Municipal Code vest municipalities with the power to grant them. Regarding small municipalities (those with populations of less than 500,000), section 11-13-5 of, the Municipal Code gives the power to grant variances. 65 ILCS 5/11-13-5 (West 2006). That section contains a provision, stating that where this power is reserved to the corporate authorities, "it shall be exercised only by the adoption of ordinances." 65 ILCS 5/11-13-5 (West 2006). A municipality may identify, and grant special uses in accordance with section 11-13-1.1 of the Municipal Code (65 ILCS 5/11-13-1.1 (West 2006)). Section 11-13-1.1 does not contain a provision similar to section 11-13-5 regarding exercising the power to permit a particular special use only through the adoption of an ordinance. This difference in the relevant statutory sections is presumably why the supreme court distinguished Klaeren from Hawthorne based upon the fact that the former concerned a special use and the latter...
To continue reading
Request your trial-
Millineum Maintenance v. County of Lake, 2-07-0728.
...in original.) We granted Baird's petition for leave to appeal. In a recent case, Ashley Libertyville, LLC v. Village of Libertyville, 378 Ill. App.3d 661, 317 Ill.Dec. 476, 881 N.E.2d 962 (2008), we were presented with the same certified questions as are presented here, but we did not reach......
-
Irshad Learning Ctr. v. Cnty. of DuPage
...distinction between the Municipal Code and the Counties Code.9 See, e.g., Ashley Libertyville, LLC v. Village of Libertyville, 378 Ill.App.3d 661, 666, 317 Ill.Dec. 476, 881 N.E.2d 962, 966 (2d Dist.2008) (noting that the Counties Code “expressly adopts the Administrative Review Law” while ......
-
Sullivan v. Vill. of Glenview
...* * * that power can only be exercised through adoption of ordinances."); Ashley Libertyville, LLC v. Village of Libertyville , 378 Ill. App. 3d 661, 664–65, 317 Ill.Dec. 476, 881 N.E.2d 962 (2008) (same).¶ 53 The Village would have us believe that Ordinance No. 2856's reference to the Boar......
-
Milleneum Maintenance Management v. County of Lake, No. 2-07-0728 (Ill. App. 6/12/2008), 2-07-0728.
...Review Law?" (Emphasis in original.) We granted Baird's petition for leave to appeal. In a recent case, Ashley Libertyville, LLC v. Village of Libertyville, 378 Ill. App. 3d 661 (2008), we were presented with the same certified questions as are presented here, but we did not reach those que......