City of Elgin v. All Nations Worship Center

• Decision Date: 20 December 2006
• Docket Number: No. 2-06-0238.,2-06-0238.
• Citation: 308 Ill.Dec. 9,860 N.E.2d 853
• Parties: The CITY OF ELGIN, Plaintiff and Counterdefendant-Appellee, v. ALL NATIONS WORSHIP CENTER, Defendant and Counterplaintiff-Appellant.
• Court: United States Appellate Court of Illinois

860 N.E.2d 853

308 Ill.Dec. 9

The CITY OF ELGIN, Plaintiff and Counterdefendant-Appellee, v. ALL NATIONS WORSHIP CENTER, Defendant and Counterplaintiff-Appellant.

No. 2-06-0238.

Appellate Court of Illinois, Second District.

December 20, 2006.

John W. Mauck, Amy J. Vroom, Mauck & Baker, LLC, Chicago, for All Nations Worship Center.

William A. Cogley, Corporate Counsel-City of Elgin, Michael R. Gehrman, Assistant Corporate Counsel-City of Elgin, Richard G. Kozal, Assistant Corporate Counsel-City of Elgin, Jack H. Tibbetts, Assistant Corporate Counsel-City of Elgin, Elgin, for City of Elgin.

Justice CALLUM delivered the opinion of the court:

In 2003, defendant, All Nations Worship Center (All Nations), began conducting worship services in Elgin. The city filed a complaint in the circuit court alleging that, under title 19 of the Municipal Code (the zoning ordinance), a church was not a permitted use in the district where All Nations was operating. All Nations responded with a counterclaim alleging that the zoning ordinance was unconstitutional and violated the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) (42 U.S.C. § 2000cc et seq. (2000)). The trial court dismissed the counterclaim and All Nations appeals, contending that its counterclaim stated causes of action under the constitution and RLUIPA. We affirm.

In August 2003, All Nations began conducting services on property it leased in Elgin. Its use of the property included weekly worship services and preaching, counseling, prayer meetings, musical performances, religious rites such as weddings and baptisms, Bible studies, youth activities, social gatherings, and service projects.

All Nations' property was located in an AB area business district where churches were not allowed as either a permitted or a conditional use pursuant to the zoning ordinance. In an attempt to comply with the ordinance, All Nations applied for a planned unit development permit. However, the city denied its application. The city then filed a complaint in the circuit court alleging that All Nations was violating the ordinance. All Nations answered the complaint and filed a counterclaim alleging that the ordinance was unconstitutional and violated RLUIPA.

All Nations' counterclaim alleged that the zoning ordinance denied it equal protection (U.S. Const., amend. XIV) because the ordinance excluded churches from the AB district but permitted similar, nonreligious uses such as "membership organizations," sports and recreation clubs, motion picture theaters, and funeral services. All Nations also alleged that the ordinance violated RLUIPA, which requires that municipal zoning not discriminate against church uses (42 U.S.C. §§ 2000cc(b)(1), (b)(2) (2000)) and not unreasonably limit religious assemblies within a jurisdiction (42 U.S.C. § 2000cc(b)(3)(B) (2000)). All Nations alleged that the ordinance permitted various types of nonreligious assemblies in the AB zoning district but excluded churches, thus discriminating against churches. Moreover, the ordinance permitted churches as a matter of right in only 1 of 30 zoning categories, and as conditional uses in 2 more, thus unreasonably restricting churches from locating within the city. After All Nations filed its counterclaim, the city dismissed its complaint.

During this time, the city amended the zoning ordinance. After the amendment, a church can be a conditional use in the RB residence business district, the NB neighborhood business district, and the AB area business district. Elgin Ordinance No. G65-05, eff. July 27, 2005. Similar nonreligious uses would also have to apply for conditional use permits in those districts. Elgin Ordinance No. G65-05, eff. July 27, 2005. The city then moved to dismiss All Nations' counterclaim, contending that the amendments cured any defects in the zoning ordinance. See 735 ILCS 5/2-619 (West 2004). The trial court dismissed the counterclaim and All Nations timely appeals.

All Nations does not appear to dispute that the amendment cured the perceived problems with the zoning ordinance. However, it contends that the trial court nevertheless erred in dismissing its counterclaim. All Nations argues that, prior to the amendment, it acquired a vested right to continue to operate without obtaining a conditional use permit. According to All Nations, because the ordinance was unconstitutional before it was amended, we should proceed as if the ordinance never existed. Because no zoning ordinance ever existed, All Nations was entitled to use its property any way it wished. Because it expended considerable amounts in making the property suitable for worship services, it acquired a vested right to continue operating in that fashion even after the ordinance was amended.

The city first responds that the case is moot. According to the city, the amendment cured the defects in the zoning ordinance that All Nations identified and, accordingly, All Nations can obtain no further relief. An appeal is moot where it presents no actual controversy or where the issues involved in the trial court no longer exist because intervening events have rendered it impossible for the reviewing court to grant effectual relief to the complaining party. In re J.T., 221 Ill.2d 338, 349-50, 303 Ill.Dec. 103, 851 N.E.2d 1 (2006). Here, All Nations seeks, in essence, a declaration that it may continue to hold services without the necessity of obtaining a conditional use permit from the city. A judgment in its favor would mean that it does not have to obtain a conditional use permit. Because it is possible for All Nations to receive effectual relief, the case is not moot.

The city further contends that the trial court properly dismissed All Nations' complaint because All Nations did not acquire a vested right to continue its operations. The city contends that All Nations cannot attack the preamendment zoning ordinance as void and at the same time claim a vested right thereunder. The city appears to miss the point of All Nations' argument, but not by much. All Nations argues that it acquired a vested right, not under the preamendment ordinance, but under the "common law" of zoning, i.e., as if no zoning ordinance ever existed. Nevertheless, we agree with the city's primary contention that All Nations did not acquire a vested right to continue operating and, accordingly, the trial court properly dismissed its counterclaim.

A complaint or, as here, a counterclaim should not be dismissed under section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2004)) unless it clearly appears that no set of facts could be proved under the pleadings that would entitle the plaintiff to relief. Ogle v. Fuiten, 102 Ill.2d 356, 360-61, 80 Ill.Dec. 772, 466 N.E.2d 224 (1984); Capitol Indemnity Corp. v. Stewart Smith Intermediaries, Inc., 229 Ill.App.3d 119, 123, 171 Ill.Dec. 52, 593 N.E.2d 872 (1992). We review de novo the dismissal of a pleading pursuant to section 2-619. Hartshorn v. State Farm Insurance Co., 361 Ill.App.3d 731, 735, 297 Ill.Dec. 724, 838 N.E.2d 211 (2005).

Initially, we note that there are several parallels between this case and Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752 (7th Cir.2003). There, an association of churches and five of its individual members sued the city, claiming that its zoning ordinance violated the constitution and RIULPA. The opinion describes the arduous processes that the member churches endured to obtain suitable locations within the city for their facilities and to obtain zoning approval. While the case was pending, the city amended its zoning ordinance. On appeal, the Seventh Circuit held that the amended ordinance complied with the constitution and the statute. The court noted that while the five churches had faced substantial burdens in opening their new facilities, they were the same burdens faced by any other individual or entity seeking to conduct business in the city. Civil Liberties, 342 F.3d at 761. Accordingly, the new ordinance did not discriminate against churches.

All Nations, seeking to avoid the fate of the Civil Liberties plaintiffs, argues that it may proceed with its claims because it acquired a vested right to operate. Generally, there is no vested right to the continuation of a zoning ordinance. 1350 Lake Shore Associates v. Casalino, 363 Ill.App.3d 806, 814, 299 Ill.Dec. 535, 842 N.E.2d 274 (2005). However, "`where there has been a substantial change of position, expenditures or incurrence of obligations made in good faith by an innocent party under a building permit or in reliance upon the probability of its issuance, such party has a vested property right and he may complete the construction and use the premises for the purposes originally authorized, irrespective of subsequent zoning or a change in zoning classification.'" 1350 Lake Shore Associates, 363 Ill.App.3d at 814, 299 Ill.Dec. 535, 842 N.E.2d 274 quoting People ex rel. Skokie Town House Builders, Inc. v. Village of Morton Grove, 16 Ill.2d 183, 191, 157 N.E.2d 33 (1959).

Although it does not use this precise terminology, All Nations' argument is based on the premise that the Elgin zoning ordinance was void ab initio. It has been stated that "[a]n unconstitutional law `confers no right, imposes no duty and affords...