Oak Grove Jubilee Center, Inc. v. City of Genoa, 2-01-0938.

• Decision Date: 20 April 2004
• Docket Number: No. 2-01-0938.,2-01-0938.
• Citation: 808 N.E.2d 576,283 Ill.Dec. 610,347 Ill. App.3d 973
• Parties: OAK GROVE JUBILEE CENTER, INC., Plaintiff-Appellant, v. The CITY OF GENOA, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

808 N.E.2d 576
347 Ill. App.3d 973
283 Ill.Dec. 610

OAK GROVE JUBILEE CENTER, INC., Plaintiff-Appellant,
v.
The CITY OF GENOA, Defendant-Appellee

No. 2-01-0938.

Appellate Court of Illinois, Second District.

April 20, 2004.

808 N.E.2d 579

Matthew J. David, David C. Gibbs III, Gibbs Law Firm, P.A., Seminole, FL, Jonathan C. Wright, Hartsburg, for Oak Grove Jubilee Center, Inc

William P. Brady, Gallagher & Brady, Sycamore, for City of Genoa.

Justice GROMETER delivered the opinion of the court:

Plaintiff, Oak Grove Jubilee Center, Inc., appealed from an order of the circuit court of De Kalb County dismissing its action against defendant, the City of Genoa. In December 1999, plaintiff filed a complaint seeking administrative review of defendant's denial of its request for a special-use permit. Defendant moved to dismiss the case, asserting that "in Illinois, a legislative bodies' [sic] decision regarding the zoning application is not subject to administrative review by the courts." Plaintiff then amended its complaint, replacing its claim for administrative review with a direct challenge to defendant's Unified Development Ordinance and the ordinance's application to plaintiff.

Plaintiff's three-count first amended complaint alleged facial and as-applied violations of the Religious Freedom Restoration Act (Act) (775 ILCS 35/1 et seq. (West 1998)) as well as a violation of the equal protection clauses of the state and federal constitutions (Ill. Const.1970, art. I, § 2; U.S. Const., amend. XIV). The latter claim was brought pursuant to section 1983 of the Civil Rights Act (42 U.S.C. § 1983 (1994)). Plaintiff filed a motion seeking summary judgment as to these counts. The trial court, however, did not address plaintiff's summary judgment motion and dismissed the action, sua sponte, on grounds that the trial court itself raised. Plaintiff appealed, requesting that we reverse the trial court's dismissal order and grant its motion for summary judgment. We reversed and remanded. Oak Grove Jubilee Center, Inc. v. City of Genoa,

808 N.E.2d 580

331 Ill.App.3d 102, 264 Ill.Dec. 547, 770 N.E.2d 1243 (2002)

Defendant sought leave to appeal to the supreme court. Meanwhile, the supreme court issued its decision in People ex rel. Klaeren v. Village of Lisle, 202 Ill.2d 164, 269 Ill.Dec. 426, 781 N.E.2d 223 (2002). Defendant's petition for leave to appeal was denied, but the supreme court, in an exercise of its supervisory authority, remanded the cause to this court with directions that we reconsider our decision in light of Klaeren. We did, vacated our original opinion and issued another in its stead (Oak Grove Jubilee Center, Inc. v. City of Genoa, 338 Ill.App.3d 967, 273 Ill. Dec. 662, 789 N.E.2d 836 (2003)). We determined that Klaeren should not be given retroactive application in this case. Oak Grove Jubilee Center, Inc., 338 Ill. App.3d at 974-75, 273 Ill.Dec. 662, 789 N.E.2d 836.

Defendant again sought leave to appeal, and the supreme court again remanded the case to us. In a supervisory order, the supreme court directed us to vacate our opinion. It further directed, "if the appellate court intends to apply the test in Bogseth v. Emanuel, 166 Ill.2d 507, 515, 211 Ill.Dec. 505, 655 N.E.2d 888 (1995), to determine whether or not this Court's decisions are subject to retroactive or prospective application, the appellate court must consider the full test applied in Bogseth and not limit its consideration to the balance of the equities." Oak Grove Jubilee Center, Inc. v. City of Genoa, 205 Ill.2d 589, 589-90, 277 Ill.Dec. 693, 796 N.E.2d 1059 (2003). Having done so, we again conclude that, on the facts before us, Klaeren should be limited to prospective application in this case. Accordingly, we reverse and remand for further proceedings. We vacate our previous opinion (Oak Grove Jubilee Center, Inc., 338 Ill. App.3d 967, 273 Ill.Dec. 662, 789 N.E.2d 836) and issue this opinion in its place.

BACKGROUND

Plaintiff is a church and is organized as an Illinois nonprofit corporation. It is operated primarily for the purpose of engaging in religious worship and promoting spiritual development for the people residing in Genoa. The church is pastored by Reverend Bill Myers. Defendant is a municipal corporation. Plaintiff desired to operate a church at 527 West Main Street (the subject property) in the City of Genoa (the city). Plaintiff had possession of the subject property by virtue of an oral month-to-month lease. The lease has since been terminated. In the area in which the subject property is located, churches are classified as special uses by the Genoa zoning ordinance. Accordingly, plaintiff sought to obtain a special-use permit.

Plaintiff submitted an application for a special-use permit to defendant, and the city plan commission recommended that defendant grant a permit. Nevertheless, defendant denied plaintiff's application. Plaintiff challenged this denial in the trial court. Plaintiff's original complaint was one for administrative review. Defendant moved to dismiss, contending that the actions of the city council were not subject to administrative review. Plaintiff then filed an amended complaint for declaratory judgment, asserting violations of the Act and equal-protection violations. Plaintiff moved for summary judgment as to these counts.

The trial court did not rule on plaintiff's summary judgment motion. Instead, the trial court dismissed plaintiff's action. The court raised three issues, sua sponte, which it articulated as the bases for the dismissal. First, the trial court ruled that there was no indication in the application

808 N.E.2d 581

for the special-use permit that plaintiff was a corporation or other entity with a capacity to sue. Second, the trial court held that there was similarly no indication that Reverend Myers had the authority to represent the church in any capacity. Finally, the trial court held that any document Myers filed on behalf of the church in the special-use proceedings was void ab initio because Myers was not licensed to practice law

ANALYSIS

Before turning to the merits of this appeal, we note that defendant has renewed its argument that this case is moot. Defendant previously filed with this court a motion to dismiss the appeal, citing this ground. We denied the motion. Defendant bases its argument on the fact that plaintiff no longer holds an interest in the subject property, since its oral month-to-month lease was terminated. Defendant points out that the grant or denial of a special-use permit turns on "`"whether there are facts and circumstances that show that the particular use proposed at the particular location proposed would have any adverse effects above and beyond those inherently associated with such a special exception use irrespective of its location within the zone."' * * * [Citations.]" (Emphasis omitted.) City of Chicago Heights v. Living Word Outreach Full Gospel Church & Ministries, Inc., 196 Ill.2d 1, 22, 255 Ill.Dec. 434, 749 N.E.2d 916 (2001). Thus, defendant concludes, since plaintiff no longer has an interest in the subject property, and since the propriety of the denial of a special-use permit depends on the particular property involved, this appeal is moot.

We adhere to our prior ruling. It is well recognized that "[a]ppellate jurisdiction is contingent upon the existence of a real controversy, and where only moot questions are involved, [a] court will dismiss the appeal." Midwest Central Education Ass'n v. Illinois Educational Labor Relations Board, 277 Ill.App.3d 440, 448, 213 Ill.Dec. 894, 660 N.E.2d 151 (1995). When the resolution of an issue will have no practical effect on the existing controversy, it is moot. La Salle National Bank, N.A. v. City of Lake Forest, 297 Ill.App.3d 36, 43, 231 Ill.Dec. 651, 696 N.E.2d 1222 (1998). Matters dehors the record may be considered in determining whether a claim is moot. In re Marriage of Dowd, 214 Ill.App.3d 156, 157, 157 Ill. Dec. 894, 573 N.E.2d 312 (1991).

None of the counts set forth in plaintiff's complaint are moot. Regarding the facial challenge to defendant's zoning ordinance based on the Act, we observe that the ordinance excludes churches from locating anywhere in the city as a matter of right. If we were to find the ordinance violative of the Act, plaintiff could then locate a church anywhere it wished without seeking defendant's approval. Hence, we can order effective relief regarding this count. Similarly, plaintiff challenges the constitutionality of the ordinance on equal protection grounds. Again, if we were to hold the ordinance unconstitutional, we would be granting plaintiff effective relief. Moreover, plaintiff is seeking damages in this count; hence, even though defendant cannot be ordered to permit plaintiff to operate a church on the subject property, monetary relief for the loss of the opportunity to use the subject property in such a manner may be appropriate.

Plaintiff's as-applied challenge presents a closer question. It is true that, so far, the ordinance has been applied to plaintiff only to deny it a special-use permit for the subject property. However, the current action is one for declaratory judgement. In a declaratory judgment action, a party may seek relief where "he or

808 N.E.2d 582

she pleads both facts demonstrating a protected interest that clearly falls within the ambit of the enactment and that his or her rights will be affected adversely by its enforcement." Stone v. Omnicom Cable Television of Illinois, Inc., 131 Ill.App.3d 210, 214, 86 Ill.Dec. 226, 475 N.E.2d 223 (1985). Recalling that pleadings are to be construed liberally so as to do substantial justice between the parties (A.J. Maggio Co. v. Willis, 316 Ill.App.3d 1043, 1050, 250 Ill.Dec. 376, 738 N.E.2d 592 (2000)), and further recalling that we may consider matters dehors the record (Dowd, 214 Ill. App.3d at 157, 157 Ill.Dec. 894, 573 N.E.2d 312), we conclude that this count is not moot.

First, we note...