OAK GROVE JUBILEE CENTER v. City of Genoa, No. 2-01-0938.

• Court: United States Appellate Court of Illinois
• Citation: 338 Ill. App.3d 967,789 N.E.2d 836,273 Ill.Dec. 662
• Docket Number: No. 2-01-0938.
• Decision Date: 05 May 2003
• Parties: OAK GROVE JUBILEE CENTER, INC., Plaintiff-Appellant, v. The CITY OF GENOA, Defendant-Appellee.

789 N.E.2d 836
338 Ill. App.3d 967
273 Ill.Dec. 662

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

No. 2-01-0938.

Appellate Court of Illinois, Second District.

May 5, 2003.

789 N.E.2d 838

Jonathan C. Wright, of Lincoln, and Matthew J. Davis and David C. Gibbs III, both of Gibbs Law Firm, P.A., of Seminole, Florida, for appellant

William P. Brady, of Gallagher & Brady, of Sycamore, for appellee.

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. Plaintiff had filed a three-count first amended complaint alleging 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, 331 Ill.App.3d 102, 264 Ill.Dec. 547, 770 N.E.2d 1243 (2002).

Defendant sought leave to appeal to the supreme court. In the interim, 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. Having reconsidered, we vacate our original opinion and issue this opinion in its stead. For the reasons that follow, we adhere to our original views, reverse, and remand.

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 classed 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 the city, and the city plan commission recommended that defendant grant a permit. Nevertheless, the city denied plaintiff's application. Plaintiff challenged this denial in the circuit 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

789 N.E.2d 839

equal protection violations. Plaintiff moved for summary judgment as to the 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 for the special use permit that plaintiff was a corporation or other entity with a capacity to bring a suit. 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 a 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 appeal 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

789 N.E.2d 840

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 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 that plaintiff, in the as-applied count, has pleaded that defendant has excluded plaintiff from all zoned districts within the city and has made it unlawful for the church's members to exercise their religion within the city without first seeking permission to do so. Second, plaintiff has filed an affidavit stating that it is currently conducting religious services at the house of Reverend Myers. The zoning ordinance prohibits the "[u]se of a building" in certain manners. (Emphasis added.) Genoa Municipal Code, art. 5.3. Plaintiff is using Myers's house as a church. The immediate enforcement of the ordinance would prevent it from doing so. Moreover, the complaint, liberally construed, encompasses the use of Myers's house as a church by alleging that the ordinance excludes plaintiff from every zoned district of the city. Hence, plaintiff is entitled to seek declaratory relief.

We will now turn to the merits of the trial court's decision. This appeal comes to us following a dismissal of plaintiff's complaint. Accordingly, we conduct de novo review. Mars, Inc. v. Heritage Builders of Effingham, Inc., 327 Ill.App.3d 346, 350, 261 Ill.Dec. 458, 763 N.E.2d 428 (2002).

Plaintiff first argues that the manner in which the trial court dismissed its complaint violated due process. While plaintiff's summary judgment motion was pending,...