Gallik v. County of Lake, 2-01-1387.

• Citation: 781 N.E.2d 522,335 Ill. App.3d 325,269 Ill.Dec. 725
• Decision Date: 22 November 2002
• Docket Number: No. 2-01-1387.,2-01-1387.
• Parties: William P. GALLIK and Christine E. Martin-Gallik, Plaintiffs-Appellants, v. The COUNTY OF LAKE; Suzi Schmidt Indiv. and as Chairman of the Lake County Board; Judi Martini, Indiv. and as Vice Chairman of the Lake County Board; Loretta McCarley, Brent Paxton, Bonnie Thomson Carter, Larry Leafblad, Al Westerman, Robert Sabonjian, Peggy Shorts, Diana O'Kelly, Sandy Cole, Angelo D. Kyle, John Schulien, Audrey Nixon, Carol Calabresa, Mary Beattie, Stevenson Mountsier, Pamela O. Newton, Michael Talbett, David B. Stolman, Martha Marks, Carol Spielman, Robert Buhai, Each Indiv. and as a Lake County Board Member; and Philip Rovang, Director, Lake County Planning, Building, and Development, Defendants-Appellees (The Township of Cuba; David F. Nelson, Cuba Township Supervisor; the Cuba Township Road District, Kermit Smiddy, Indiv. and as Cuba Township Highway Commissioner; and Thomas W. Gooch III, Indiv. and as Acting Cuba Township Highway Commissioner, Defendants).
• Court: United States Appellate Court of Illinois

781 N.E.2d 522
335 Ill. App.3d 325
269 Ill.Dec. 725

William P. GALLIK and Christine E. Martin-Gallik, Plaintiffs-Appellants,
v.
The COUNTY OF LAKE; Suzi Schmidt Indiv. and as Chairman of the Lake County Board; Judi Martini, Indiv. and as Vice Chairman of the Lake County Board; Loretta McCarley, Brent Paxton, Bonnie Thomson Carter, Larry Leafblad, Al Westerman, Robert Sabonjian, Peggy Shorts, Diana O'Kelly, Sandy Cole, Angelo D. Kyle, John Schulien, Audrey Nixon, Carol Calabresa, Mary Beattie, Stevenson Mountsier, Pamela O. Newton, Michael Talbett, David B. Stolman, Martha Marks, Carol Spielman, Robert Buhai, Each Indiv. and as a Lake County Board Member; and Philip Rovang, Director, Lake County Planning, Building, and Development, Defendants-Appellees (The Township of Cuba; David F. Nelson, Cuba Township Supervisor; the Cuba Township Road District, Kermit Smiddy, Indiv. and as Cuba Township Highway Commissioner; and Thomas W. Gooch III, Indiv. and as Acting Cuba Township Highway Commissioner, Defendants)

No. 2-01-1387.

Appellate Court of Illinois, Second District.

November 22, 2002.

Rehearing Denied January 3, 2003.

Paul C. Pinderski, Jerome W. Pinderski, Jr., Pinderski & Pinderski, Ltd., Palatine, for William P. Gallik, Christine E. Martin-Gallik.

781 N.E.2d 523

Michael J. Waller, Lake County State's Attorney, Lisle A. Staler, Assistant State's Attorney, Waukegan, for County of Lake

Thomas W. Gooch III, Wysocki & Gooch, Wauconda, for Cuba Township Defendants.

Justice O'MALLEY delivered the opinion of the court:

Plaintiffs, William P. Gallik and Christine E. Martin-Gallik, own real estate in an unincorporated portion of Lake County. Plaintiffs wished to construct a single-family residence on their land. Owing to the fact that their land is partially located in a floodplain, in order to construct their home, plaintiffs were required to obtain a conditional use permit from defendant Lake County (County) so that they could fill in the floodplain. None of the agencies charged with overseeing such matters (Army Corps of Engineers, Lake County Stormwater Management Agency, Lake County Health Department, Lake County Planning and Development Department) voiced any objections to plaintiffs' plan to fill in the floodplain portion of their property and construct their residence.

As part of the approval process, plaintiffs were required to submit their application for a conditional use permit to the Lake County zoning board of appeals. After a hearing on plaintiffs' application, the zoning board of appeals recommended that it be denied. Plaintiffs' application made its way to the Lake County board for final action, and the board denied it.

On July 16, 2001, plaintiffs filed an eight-count complaint against the County, challenging the Lake County board's denial of their conditional use permit. Count I of the complaint sought administrative review (see 735 ILCS 5/3-101 et seq. (West 2000)) of the Lake County board's denial of plaintiffs' application for a conditional use permit. The County filed a motion to dismiss and, after briefing, the trial court granted the County's motion and dismissed count I of the complaint. Pursuant to Supreme Court Rule 308 (155 Ill.2d R. 308), the trial court certified a question for appellate review and plaintiffs requested leave to appeal the certified question. This court denied plaintiffs' application for leave to appeal. On April 3, 2002, our supreme court entered a supervisory order directing this court to consider plaintiffs' certified question.

The certified question we are called upon to answer is:

"Whether the Illinois Administrative Review Act, 735 ILCS § 5/3-101 et seq., is applicable for judicial review of County of Lake's denial of Plaintiff's [sic] conditional use application in this case, or whether the dismissal of Count I of the Complaint is warranted because the denial of a conditional use permit is a legislative action of the County Board so a declaratory judgment action is the appropriate avenue of review."

The supreme court discussed this issue recently in City of Chicago Heights v. Living Word Outreach Full Gospel Church & Ministries, Inc., 196 Ill.2d 1, 255 Ill.Dec. 434, 749 N.E.2d 916 (2001). There, the court noted that the weight of authority throughout the country suggests that a legislative body acts administratively when it rules on an application for a special use permit. Living Word, 196 Ill.2d at 14, 255 Ill.Dec. 434, 749 N.E.2d 916. The court also noted, however, that Illinois had repeatedly viewed such a decision to be a legislative act rather than an administrative act (Living Word, 196 Ill.2d at 14, 255 Ill.Dec. 434, 749 N.E.2d 916), although some of those...