Millineum Maintenance v. County of Lake, 2-07-0728.

• Citation: 894 N.E.2d 845
• Decision Date: 15 August 2008
• Docket Number: No. 2-07-0728.,2-07-0728.
• Parties: MILLINEUM MAINTENANCE MANAGEMENT, INC., and Capital Development Group, LLC, Plaintiffs-Appellees, v. The COUNTY OF LAKE, Lake County Board, Lake County Chairman Suzi Schmidt, The Village of Mettawa, Deerpath Farm, LLC, Gordon White, John Cahill, John Franks, Liz Ostman, Ruriko Parsons, Dot Fox, Beverly Blossom, Carol Gledhill, Hugo Steinitz, Michael Flaws, Equestrian Connection, and Chet Stroyny, Defendants (Fred Baird, Defendant-Appellant).
• Court: United States Appellate Court of Illinois

894 N.E.2d 845

MILLINEUM MAINTENANCE MANAGEMENT, INC., and Capital Development Group, LLC, Plaintiffs-Appellees, v. The COUNTY OF LAKE, Lake County Board, Lake County Chairman Suzi Schmidt, The Village of Mettawa, Deerpath Farm, LLC, Gordon White, John Cahill, John Franks, Liz Ostman, Ruriko Parsons, Dot Fox, Beverly Blossom, Carol Gledhill, Hugo Steinitz, Michael Flaws, Equestrian Connection, and Chet Stroyny, Defendants (Fred Baird, Defendant-Appellant).

No. 2-07-0728.

Appellate Court of Illinois, Second District.

August 15, 2008.

Frederick R. Baird III, Lake Forest, for Appellant.

Robert T. O'Donnell, David W. Seabright, Eiden & O'Donnell, Ltd., Vernon Hills, for Capital Development Group, LLC, and Millineum Maintenance Management, Inc.

Michael F. Zimmerman, Raysa & Zimmerman, Ltd., Park Ridge, for Village of Mettawa.

George M. Covington, Law Offices of George M. Covington LLC, Lake Forest, for Beverly Blossom, John Cahill, Deerpath Farm, Inc., Equestrian Connection, Michael Flaws, Dot Fox, John Franks, Carol Gledhill, Liz Ostman, Ruriko Parsons, Suzi Schmidt, Hugo Steinitz, Chet Stroyny, and Gordon White.

Michael J. Waller, Lake County State's Attorney, Daniel L. Jasica, Assistant State's Attorney, Waukegan, for County of Lake, and Lake County Board.

Justice O'MALLEY delivered the opinion of the court:

Defendant Fred Baird filed this interlocutory appeal in connection with a suit by plaintiffs Millineum Maintenance Management, Inc., and Capital Development Group, LLC, which sought among other things administrative review of the Lake County Board's (Board) denial of their conditional-use permit application. The trial court granted plaintiffs' motion for a de novo hearing to review the Board's decision to deny them a conditional-use permit, but the court certified two questions of law pursuant to Supreme Court Rule 308, which allows this court in its discretion to allow an interlocutory appeal where "the trial court * * * finds that the [order to be appealed] involves a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the * * * litigation." 155 Ill.2d R. 308(a). On July 6, 2007, the trial court certified the following questions:

"1. Whether a special use that is not adopted by a county board, but rather is denied by a county board, is subject to de novo judicial review as a legislative decision under 55 ILCS 5/5-12012.1, which states that `Any special use ... adopted by the county board of any county ... shall be subject to de novo judicial review as a legislative decision[.]'

2. If 55 ILCS 5/5-12012.1 does apply to a denial of a special use permit, does it supersede the Second District's holding in [Gallik v. County of Lake, 335 Ill.App.3d 325[, 269 Ill.Dec. 725, 781 N.E.2d 522] (2002),] and preclude the court from reviewing the decision under the Administrative 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, 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 those questions on their merits. Instead, we determined that, regardless of the answers to the certified questions, the grant or denial of the special-use permit at issue there was a legislative act not subject to administrative review, because the Village of Libertyville's municipal ordinance required that any special-use permit be granted "`by ordinance duly adopted.'" (Emphasis omitted.) Libertyville, 378 Ill.App.3d at 665, 317 Ill.Dec. 476, 881 N.E.2d 962, quoting Libertyville Zoning Code § 16-9.2 (eff. February 28, 1995). The relevant ordinance here does not compel the same conclusion. See Unified Development Ordinance of Lake County §§ 3.6.6(B)(3) (eff. April 11, 2000) ("the County Board shall review the application and act to approve, approve with conditions or deny the application based on [a specific set of criteria]"). Thus, we must address the questions certified in this case.

Since we have the written argument of only one side of this appeal, we must apply the principles set forth by our supreme court in First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill.2d 128, 345 N.E.2d 493 (1976). Prior to the supreme court's decision in Talandis, Illinois reviewing courts had adopted various practices to dispose of appeals in cases in which appellees did not file briefs. "In some cases the courts * * * considered the merits of the appeal, while in others the courts * * * reversed pro forma." Talandis, 63 Ill.2d at 131, 345 N.E.2d 493. After reviewing the approaches adopted in other jurisdictions, the supreme court laid out the following rule:

"We do not feel that a court of review should be compelled to serve as an advocate for the appellee or that it should be required to search the record for the purpose of sustaining the judgment of the trial court. It may, however, if justice requires, do so. Also, it seems that if the record is simple and the claimed errors are such that the court can easily decide them without the aid of an appellee's brief, the court of review should decide the merits of the appeal. In other cases if the appellant's brief demonstrates prima facie reversible error and the contentions of the brief find support in the record the judgment of the trial court may be reversed." Talandis, 63 Ill.2d at 133, 345 N.E.2d 493.

Talandis supplies three points of guidance in a typical case. First, since Talandis did away with the practice of pro forma reversal, a reviewing court should not rule in the appellant's favor as a matter of course due to the appellee's failure to file a brief. Second, if the appellant's brief establishes a prima facie case, we may decide the case in the appellant's favor. Third, if the record is simple and the claims of error are susceptible to easy decision without the aid of an appellee's brief, or if justice so requires, we may reach the merits.

Talandis does not apply directly here, however, because we are considering not a typical appeal, but rather a discretionary interlocutory appeal limited to two certified questions. Since there is no particular order being appealed and we are presented only with two questions of law, the first Talandis option, outright reversal, is not an option in any event. Applying the second Talandis option, ruling in the appellant's favor if the appellant presents a prima facie case on appeal, would put us in the awkward position of making determinations of law that may or may not be accurate (as opposed to the normal Talandis situation in which we can order a particular case-specific outcome without expressing any opinion on the legal merits of the case). Thus, we decline that option as well. Instead, we pursue the third option and consider this appeal on its merits.

Because we are presented solely with questions of law, our review is de novo. Townsend v. Sears, Roebuck & Co., 227 Ill.2d 147, 153, 316 Ill.Dec. 505, 879 N.E.2d 893 (2007).

Before addressing the certified questions directly, we provide some background on the legal principles at play. "[T]here is `a recognized distinction in administrative law between proceedings for the purpose of promulgating policy-type rules or standards, on the one hand, and proceedings designed to adjudicate disputed facts in particular cases on the other.'" American Federation of State, County & Municipal Employees v. Department of Central Management Services, 288 Ill. App.3d 701, 711, 224 Ill.Dec. 377, 681 N.E.2d 998 (1997) (AFSCME), quoting United States v. Florida East Coast Ry. Co., 410 U.S. 224, 245, 93 S.Ct. 810, 821, 35 L.Ed.2d 223, 239 (1973). Administrative decisions, also called quasi-judicial decisions, "concern agency decisions that affect a small number of persons on individual grounds based on a particular set of disputed facts that were adjudicated." AFSCME, 288 Ill.App.3d at 711, 224 Ill. Dec. 377, 681 N.E.2d 998; see People ex rel. Klaeren v. Lisle, 202 Ill.2d 164, 183, 269 Ill.Dec. 426, 781 N.E.2d 223 (2002) (equating administrative and quasi-judicial acts); City of Chicago Heights v. Living Word Outreach Full Gospel Church & Ministries, Inc., 196 Ill.2d 1, 15, 255 Ill. Dec. 434, 749 N.E.2d 916 (2001), quoting O. Browder, R. Cunningham, G. Nelson, W. Stoebuck & D. Whitman, Note on "Special Exceptions," "Special Uses," or "Conditional Uses," in Basic Property Law 1184, 1186 (5th ed.1989) (equating administrative and quasi-judicial decisions). "On the other hand, quasi-legislative actions involve general facts affecting everyone." AFSCME, 288 Ill.App.3d at 711, 224 Ill. Dec. 377, 681 N.E.2d 998.

"When a legislative body acts administratively in ruling on a permit application, its decision is subject to general principles of administrative review." Living Word Outreach, 196 Ill.2d at 13, 255 Ill.Dec. 434, 749 N.E.2d 916. These "principles of administrative review" include the procedures set out in the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2006)). See 55 ILCS 5/5-12012 (West 2006) (decisions of county board of appeals reviewable under the Administrative Review Law); see also 55 ILCS 5/1-6007 (West 2006) (decisions of county board reviewable under the Administrative Review Law). Under the Administrative Review Law, a trial court's review "shall extend to all questions of law and fact presented by the entire record before the court." 735 ILCS 5/3-110 (West 2006). However, "[n]o new or additional evidence * * * shall be heard by the court." 735 ILCS 5/3-110 (West 2006). The trial court is thus limited to the record developed at the administrative level and may not "hear additional evidence * * * or conduct a hearing de novo." Acevedo v. Department of Employment Security, 324 Ill.App.3d 768, 773, 258 Ill.Dec. 12, 755 N.E.2d 93 (2001). A trial court may reverse the...