County of Kankakee v. Anthony

• Decision Date: 04 May 1999
• Docket Number: No. 3-98-0107,3-98-0107
• Citation: 710 N.E.2d 1242,238 Ill.Dec. 140,304 Ill.App.3d 1040
• Parties: , 238 Ill.Dec. 140 COUNTY OF KANKAKEE, Plaintiff-Appellee, v. Eugene ANTHONY and Sheila Anthony, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 1242

710 N.E.2d 1242

304 Ill.App.3d 1040, 238 Ill.Dec. 140

COUNTY OF KANKAKEE, Plaintiff-Appellee, v. Eugene ANTHONY and Sheila Anthony, Defendants-Appellants.

No. 3-98-0107.

Appellate Court of Illinois Third District.

May 4, 1999.

Modified on Denial of Rehearing

June 14, 1999.

Richard C. Baker (argued), Mauck, Bellande & Cheely, Chicago, for Eugene Anthony, Sheila Anthony.

Michael Kick, State's Attorney, Brenda Gorski, Assistant State's Attorney, Kankakee, Charles E. Hervas (argued), Dana M. Shannon, Hervas, Sotos, Condon, & Bersani, P.C., Itasca, for County of Kankakee.

MODIFIED UPON DENIAL OF REHEARING

Justice HOMER delivered the opinion of the court:

The County of Kankakee filed a complaint against Eugene and Sheila Anthony alleging that they violated county zoning ordinances by constructing and operating a private school in their garage without obtaining the proper permits. The county sought imposition of a fine and a permanent injunction. In response, the Anthonys contended, inter alia, that the zoning ordinances were unconstitutional. The trial court ruled in favor of the county, and the Anthonys appealed. After our careful review, we affirm.

FACTS

Pastor Eugene Anthony is an ordained minister of the Seventh-day Adventist Church; his wife, Sheila, is an experienced teacher with a masters degree in education. Upon moving to the Kankakee area, the Anthonys decided to establish a parochial school for their two children and the children of other Seventh-day Adventists in the area.

In April 1995, Pastor Anthony began to renovate a detached garage located on his residential property into a one-room school house. Before construction was underway, Pastor Anthony spoke with Robert Roach, a county building inspector. Based upon this conversation, Pastor Anthony believed it was unnecessary to obtain any permits for his renovation project. Although Pastor Anthony testified that he spoke openly with Roach about his plans to build the school, Roach testified that Pastor Anthony explained that he only wanted to insulate his garage and said nothing about a school.

The following month, Dan DeValk, another county building inspector, became aware of the extensive construction taking place in the Anthonys' garage. DeValk informed Pastor Anthony that he could not continue the renovation without obtaining a building permit.

Pastor Anthony then met with DeValk and Vicki Senesac, a supervisor from the county building department, to inquire about obtaining a building permit. When Pastor Anthony explained that he intended to operate a religious school in the garage once it was renovated, he was advised that the zoning code prohibited him from doing so without first obtaining a variance and a special use permit from the Kankakee County Zoning Board of Appeals (the zoning board). The variance was required because Pastor Anthony's property, which measured 100 feet by 168 feet, did not meet the minimum acreage requirements for the proposed special use.

On June 7, 1995, DeValk issued Pastor Anthony a building permit for the stated purpose of converting his garage for personal storage and use. Pastor Anthony asserted that he believed that the building permit was all he needed to create his school. However, he later testified that he knew that he needed to obtain a variance and special use permit to legally operate the school, but he believed that it was simply a formality. He began that process in July of 1995 when his attorney filed the applications with the zoning board.

Despite the fact that his applications for a variance and special use permit had not been heard or decided by the zoning board, Pastor Anthony began operating the school soon after the renovation was complete late in August of 1995. In October 1995, the County filed a two-count complaint alleging that the Anthonys were in violation of section V.D.2.b.4 of the 1967 zoning code by operating a school on their residential property without obtaining a variance or special use permit. Section V.D.2.b.4 provides that the following use of residential property is considered a special use and allowable only by a special use permit:

"Schools, parochial, private or not for profit and boarding schools, public or private--on a lot not less than two (2) acres for a nursery school, eight (8) acres for an elementary school, and thirty (30) acres for a high school."

Count I sought imposition of a fine and count II sought issuance of a permanent injunction against the operation of the school. In response, the Anthonys filed an answer, affirmative defenses, and a nine-count counterclaim alleging that the ordinances violated their rights under the state and federal constitutions, namely, equal protection, free exercise of religion, freedom of speech, and freedom of assembly. The Anthonys also alleged that the ordinances violated their rights under the Religious Freedom Restoration Act of 1993 (42 U.S.C.A. § 2000bb et seq. (West 1994)). ¹

Because a new zoning code was implemented by the county in May 1996 while this action was still pending, the county subsequently amended its complaint to include allegations that the operation of the school also violated section 8.02(F) of the 1996 zoning code. Section 8.02(F) provides that the following is a permitted use of residential property:

"Schools, non-boarding, elementary, junior high and high, and accessory uses, buildings and structures on a lot not less than 3 acres."

After a bench trial, the judge made a written decision with respect to count I finding that (1) by their own admission, the Anthonys constructed and operated the school with full knowledge that they were not in compliance with zoning ordinances, and (2) the 1996 county zoning code was properly enacted and passed constitutional scrutiny. In a subsequent order, the trial court imposed a fine of $200 against the Anthonys based upon count I.

After another hearing, the court rendered its decision on count II, issuing a preliminary injunction against the Anthonys' operation of the school in their garage. The trial judge later made the injunction permanent. During the pendency of this case, the Anthonys' application for a variance and special use permit was denied in a separate proceeding before the zoning board. The propriety of that zoning board decision is not a part of this appeal.

On appeal, the Anthonys contend that the trial court erred in: (1) applying the 1996 zoning code rather than the 1967 provisions, (2) finding that the Anthonys were in violation of county zoning regulations, and (3) finding that the Anthonys' constitutional claims had no merit.

ANALYSIS

I. Applicability and Validity of the 1996 Zoning Code

The Anthonys argue that the trial court erred in applying the 1996 zoning code provisions in this case because: (1) they acquired a vested right under the 1967 zoning code since their applications for a variance and special use permit were denied by the zoning board under that code in a separate proceeding and the county initially charged them with violating that code, and (2) the 1996 zoning code is void because it was not properly enacted in accordance with section 5-12014(b) of the Counties Code (55 ILCS 5/5-12014(b) (West 1996)).

Resolution of this issue requires this court to analyze the construction and application of both statutes and ordinances. An appellate court need not defer to the decision of the trial judge when reviewing such matters because they are considered questions of law. Constantine v. Village of Glen Ellyn, 217 Ill.App.3d 4, 16, 159 Ill.Dec. 303, 575 N.E.2d 1363, 1371 (1991). Consequently, in deciding whether the trial court erred in finding the 1996 zoning code validly enacted and applying it in the instant case, we will conduct de novo review. See County of Lake v. Zenko, 174 Ill.App.3d 54, 60, 123 Ill.Dec. 869, 528 N.E.2d 414, 418 (1988).

Well-settled Illinois law holds that a legislative body has a continuing right to amend a statute or ordinance even while litigation is pending involving the legislation. Sagittarius, Inc. v. Village of Arlington Heights, 90 Ill.App.3d 401, 404, 45 Ill.Dec. 757, 413 N.E.2d 90, 93 (1980). In such instances, the court must decide the case in accordance with the law in effect at the time the court renders its decision (Sagittarius, Inc., 90 Ill.App.3d at 404, 45 Ill.Dec. 757, 413 N.E.2d at 93), unless to do so would adversely affect a vested right (Maiter v. Chicago Board of Education, 82 Ill.2d 373, 390-91, 47 Ill.Dec. 721, 415 N.E.2d 1034, 1042 (1980)).

However, the Anthonys argue that the 1996 zoning code was not validly enacted because it did not receive a simple majority of the votes of the county board as required by section 5-12014(b) of the Counties Code. 55 ILCS 5/5-12014(b) (West 1996). After our careful review, we agree.

The power to regulate the use of land through zoning ordinances is a legislative function conferred upon county boards by statute. See 55 ILCS 5/5-12001 et seq. (West 1996). Courts are precluded from reviewing the propriety of a county board's legislative enactment unless it was accomplished in violation of a statute or constitutional provision. Illinois Gasoline Dealers Association v. City of Chicago, 119 Ill.2d 391, 404, 116 Ill.Dec. 555, 519 N.E.2d 447, 452-53 (1988). In this regard, the General Assembly has established certain procedures which govern the manner in which county boards carry out their legislative function. Compliance with these statutory procedures is a prerequisite to the valid enactment of an ordinance. See Traders Development Corp. v. Zoning Board of Appeals of Peoria, 20 Ill.App.2d 383, 156 N.E.2d 274 (1959). When a county board has failed to follow proper procedures in amending a zoning ordinance, the amendment is void. See Village of Southern View v. County of Sangamon, 228 Ill.App.3d 468, 170 Ill.Dec. 203, 592 N.E.2d 639 (1992); Forestview Homeowners Association, Inc. v. Cook County, 18 Ill.App.3d 230, 309 N.E.2d 763 (19...