City of Aurora v. Navar

• Decision Date: 08 March 1991
• Docket Number: No. 2-90-0657,2-90-0657
• Citation: 568 N.E.2d 978,154 Ill.Dec. 757,210 Ill.App.3d 126
• Parties: , 154 Ill.Dec. 757 The CITY OF AURORA, Plaintiff and Counterdefendant-Appellant, v. Juventino NAVAR, Defendant and Counterplaintiff-Appellee.
• Court: United States Appellate Court of Illinois

Page 978

568 N.E.2d 978

210 Ill.App.3d 126, 154 Ill.Dec. 757

The CITY OF AURORA, Plaintiff and Counterdefendant-Appellant, v. Juventino NAVAR, Defendant and Counterplaintiff-Appellee.

No. 2-90-0657.

Appellate Court of Illinois Second District.

March 8, 1991.

Valerie D. Brown, City Atty. (argued), Ronald R. Moses, Corp. Counsel, Aurora, for City of Aurora.

Patrick M. Kinnally (argued), Murphy, Hupp, Foote, Mielke & Kinnally, Aurora, for Juventino Navar.

Justice BOWMAN delivered the opinion of the court:

Plaintiff and counterdefendant, the City of Aurora (Aurora or City), appeals from orders of the circuit court of Kane County which permanently enjoined the City from enforcing its noise nuisance ordinance and awarded attorney fees to defendant and counterplaintiff, Juventino Navar (Navar).

Navar is the owner of Navar's Auto Service, an auto repair garage, in the City of Aurora. Navar's business is a permitted use under Aurora's zoning ordinance. On September 25, 1989, Navar was contacted by Mark Anderson, the director of the division of inspections and permits for the City, and told to close the garage because it was after 9 p.m. and a City ordinance required that his business be closed after 9 p.m.

Either later in September or early in October 1989 Anderson came to Navar's garage accompanied by two police officers. Jesus Navar, Juventino's uncle, was there, watching over the business while his nephew was out on the tow truck. Anderson told Jesus that the garage would have to be closed for the evening since it was in violation of the 9 p.m. closing time mandated by the City ordinance.

On November 7, 1989, the Aurora City Council amended section 21-20 of its nuisance ordinance (Aurora, Ill., Code of Ordinances ch. 21, § 21-20 (1969)) by adding a noise nuisance. (Aurora, Ill., Ordinance 89-108 (November 7, 1989).) Navar received a copy of the amended ordinance from Anderson around the fourth or fifth of December 1989.

Aurora filed a complaint against Navar on December 11, 1989, alleging that on November 29, 1989, he had operated his auto repair shop in such a manner as to constitute a noise nuisance in violation of section 21-20 of the City's nuisance ordinance. Navar did not answer but filed affirmative defenses and a counterclaim. In his counterclaim Navar sought a declaratory judgment that ordinance 89-108, the noise ordinance, was unconstitutional, both on its face and as applied to him, under the due process clauses of both the Illinois and United States Constitutions. (Ill. Const.1970, art. I, § 2; U.S. Const., amend. XIV.) Navar attacked the ordinance on grounds that it was so vague and/or overly broad as to deny him due process of law. He also requested that the City be enjoined from prosecuting him under the challenged ordinance and that he be awarded attorney fees and costs.

At the hearing on Navar's subsequent motion for a permanent injunction both parties presented evidence. With regard to the incidents which occurred before the City amended its nuisance ordinance, Navar testified that on September 25, 1989, Anderson first telephoned him at home while he was preparing to eat supper. Upon Anderson's insistence that the garage had to be closed immediately because it was after 9 p.m., Navar returned to his shop. Later that evening Anderson made repeated calls to Navar at the shop to verify that Navar was closing. According to Navar, Anderson ultimately threatened him with arrest if he did not comply. When Navar asked about the closing time law, Anderson told him it was a new ordinance and indicated that he would send Navar a copy of it. Jesus Navar testified that during the incident when he was at the garage, Anderson also told him he had to close the business or be arrested.

Anderson, testifying for Aurora, indicated that he had been a City zoning enforcement officer for almost two years prior to becoming director of the City's division of inspections and permits in 1986. Anderson's testimony deviated slightly from Navar's in regard to the dates of the incidents which Navar had described. However, Anderson admitted making repeated calls to Navar at his place of business on one occasion and to being accompanied by two police officers when he confronted Jesus Navar. He denied ever threatening that anyone would be arrested but acknowledged that he had indicated that "the police could be contacted and have him closed down." Anderson testified that, on the occasions he contacted Navar, he had received complaints that Navar's garage was open in the evening. In response to questioning by the court, Anderson admitted that the complaints that had prompted both him and the police to go to Navar's garage had all come from a single complainant.

It was undisputed that the particular ordinance Anderson sought to enforce in September and October had not yet been adopted by the City council. Anderson testified that he thought the ordinance was in effect on the occasions he contacted Navar prior to November 7, 1989.

Navar also testified regarding incidents which occurred after the nuisance ordinance was amended. On November 29 a police officer came to the garage and told Navar he had received complaints of noise. The officer indicated that he himself had been standing outside but had not heard any noise. Around December 9 or 10, at about 9:30 p.m., Navar again was contacted by police. According to Navar, he was changing the oil in his own van inside his garage, which had been closed for the night, when four squad cars pulled into the garage parking lot. Two of the officers called him outside and told him they had received complaints of noise coming from his garage. Navar explained that he was merely changing the oil in his vehicle and not making noise. The officers gave him a warning regarding noise and left. It was not contested that Navar was never sent a notice to abate after the ordinance went into effect.

At the conclusion of the hearing the trial court granted Navar's motion and permanently enjoined Aurora from enforcing its noise ordinance against Navar. The judge's oral remarks indicate that he granted injunctive relief on the basis that Aurora had selectively enforced its noise ordinance against Navar. While the court indicated its belief that the constitutional issues were well raised, it did not render a judgment as to the constitutionality of the challenged ordinance.

Navar subsequently filed a petition for attorney fees and costs which was initially denied. Navar then filed a post-trial motion asking the court to reconsider its decision and resolve the important constitutional issue which had been raised. The court granted the motion and ultimately found, among other things, that the City's noise ordinance was unconstitutional in that it improperly deprived Navar of a protected property interest in his business, denied him equal protection of the law, and was vague and overly broad. The ordinance was declared unconstitutional on both State and Federal constitutional grounds. The City was enjoined from any enforcement of the ordinance and Navar was awarded attorney fees and costs. Aurora then filed this appeal.

Initially, Aurora asserts that the trial court erroneously ignored the presumption of validity enjoyed by the City's ordinance. (See City of Evanston v. Ridgeview House, Inc. (1976), 64 Ill.2d 40, 66, 349 N.E.2d 399; Village of Glenview v. Velasquez (1984), 123 Ill.App.3d 806, 809, 79 Ill.Dec. 319, 463 N.E.2d 873.) We note, however, that the City does not cite to any portions of the record to support its assertion that the trial court ignored these principles. Rather, it cites to the locations in the record where it raised this issue in the lower court. Evidently, since the trial judge did not specifically mention it in his oral or written rulings, the City assumes that he ignored the rule regarding presumptive validity altogether. The record does not support such an assumption.

In its written order holding the order unconstitutional the trial court stated: "The court has carefully reviewed the memoranda and pleadings as well as its own notes relating to the hearing held. The court has also considered the arguments presented." The City had first pointed out the presumption of validity due its ordinance in its response to Navar's motion for a temporary restraining order. It again raised the issue in the memorandum of law it submitted to the court in opposition to Navar's motion for a permanent injunction. The trial court explicitly stated that it had reviewed the memoranda and pleadings. On these facts we are confident the lower court took into consideration the presumption set forth by the City.

The City next challenges the trial court's findings that the noise ordinance is unconstitutionally vague and overly broad. As a preliminary matter we note that in his counterclaim Navar alleged and sought relief specifically in relation to Aurora's ordinance 89-108. The trial court's declaration of unconstitutionality was precisely limited to ordinance 89-108. In this court the parties' arguments focus on ordinance 89-108. The ordinance in question amended a section of the City's nuisance ordinance by adding, in pertinent part, the following language: "Any commercial activity audible from adjacent premises, or conducted out-of-doors, after 9 p.m. is declared a nuisance." The complaint charging Navar indicates that the offense was an "unlawful Nuisance Noise" and was brought pursuant to section 21-20 of the City's Code of Ordinances (Aurora, Ill., Code of Ordinances ch. 21, § 21-20 (1969)). Section 20-21 is the section that was amended by ordinance 89-108. According to the complaint, Navar "unlawfully allowed a repair garage to operate * * * in such a manner as to be a noise nuisance after the hour of 9 p.m." It is apparent from the record that the only portion of Aurora's Code of Ordinances that is in real controversy is the language regarding noise from commercial activity,...