Tomax Tree Serv. v. Vill. of Westmont

• Court: Appellate Court of Illinois
• Writing for the Court: DAVENPORT, JUSTICE
• Citation: Tomax Tree Serv. v. Vill. of Westmont, 2025 IL App (3d) 240675U, 3-24-0675 (Ill. App. Nov 13, 2025)
• Docket Number: 3-24-0675
• Decision Date: 13 November 2025
• Parties: TOMAX TREE SERVICE, LLC, an Illinois limited liability company, TJ REAL ESTATE, LLC, an Illinois limited liability company, and THOMAS JUNG, an individual, Plaintiffs v. VILLAGE OF WESTMONT, an Illinois Municipal Corporation, and VILLAGE OF WESTMONT ADMINISTRATIVE CODE HEARING SYSTEM, an agency of the Village of Westmont, Defendants-Appellees. (Tomax Tree Service, LLC, and TJ Real Estate, LLC, Plaintiffs-Appellants),

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2025 IL App (3d) 240675-U

TOMAX TREE SERVICE, LLC, an Illinois limited liability company, TJ REAL ESTATE, LLC, an Illinois limited liability company, and THOMAS JUNG, an individual, Plaintiffs (Tomax Tree Service, LLC, and TJ Real Estate, LLC, Plaintiffs-Appellants), v. VILLAGE OF WESTMONT, an Illinois Municipal Corporation, and VILLAGE OF WESTMONT ADMINISTRATIVE CODE HEARING SYSTEM, an agency of the Village of Westmont, Defendants-Appellees.

No. 3-24-0675

Court of Appeals of Illinois, Third District

November 13, 2025

This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of the 18th Judicial Circuit, Du Page County, Illinois, Circuit No. 24-MR-60 Honorable Bryan S Chapman, Judge, Presiding.

JUSTICE DAVENPORT delivered the judgment of the court. Presiding Justice Brennan and Justice Holdridge concurred in the judgment.

ORDER

DAVENPORT, JUSTICE

¶ 1 Held: The hearing officer erred in finding a tree service business violated local ordinances when (1) the principal use was permitted, (2) off-street parking was allowed as an accessory use, and (3) the Village established the weight, but not capacity, of the tree service's vehicles. Reversed.

¶ 2 Plaintiffs, Tomax Tree Service, LLC, and TJ Real Estate, LLC, filed a complaint seeking administrative review of the decision of the Village of Westmont Administrative Code Hearing System finding Tomax violated three local ordinances and issuing a $150,000 fine. The circuit court affirmed the hearing officer's decision, and Tomax appeals. We reverse.

¶ 3 I. BACKGROUND

¶ 4 Thomas Jung owns and operates Tomax (and TJ Real Estate^[1]) from property in Westmont's B-2 General Business District. Tomax has occupied the property since 2018, and Jung has owned the property since 2021. The property consists of one building with a yard completely enclosed by a fence.

¶ 5 In August 2022, the Village issued a citation to Jung and Tomax. This citation alleged (1) Tomax was conducting business, servicing, storing, or processing outside of a completely enclosed building in violation of Westmont Code of Ordinances (Code) § 7.02(B) (amended Dec. 6, 2010), (2) Tomax was parking trucks or commercial vehicles on the property in violation of Westmont Code of Ordinances § 7.02(D) (amended Dec. 6, 2010), and (3) Tomax was operating an unpermitted zoning use (a landscape/tree service business with outdoor storage) in the B-2 Zoning District in violation of Westmont Code of Ordinances § 7.03 (amended Dec. 17, 2020). The administrative hearing took place over four days in February, March, and April 2023.

¶ 6 Jung testified that Tomax plants, removes, trims, and prunes trees, in addition to performing clearing services. It employs at least one certified arborist. According to Jung, Tomax is not a landscaping business. Rather, it is more akin to a demolition, farming, or construction business. Tomax sells goods, but it does not store large amounts of inventory or supplies on the property. Jung stated, "We provide services and sell goods as needed." Tomax invented a specialized harness and sold some to local tree contractors, with the goal to eventually sell the harnesses in bulk. Tomax has four or five trucks that the State considers commercial vehicles with a license plate classification of "E or higher." Trucks, trailers, and equipment are stored within the fenced yard. Jung bought the property from Spunder Metals. Before Spunder Metals, the property hosted an excavator, a construction company, a metal recycling dump plant shop, and a gas station. According to aerial photographs that were admitted into evidence, various trucks parked on the property from 1956 to the present.

¶ 7 Joe Hennerfeind, the deputy director of community development for planning at the Village, testified the most analogous use he could find to Tomax's business was a "landscape contractor's office," which is a permitted use in the M-1 District, but not the B-2 District. Tomax does not fit the "contractor's retail shop" use category, however, because Tomax is not retailing anything out of the space, and it exclusively sells services that it performs off-site. He did not explain how he obtained knowledge that Tomax was not retailing anything. Hennerfeind opined the outdoor storage of commercial trucks and equipment violates section 7.02(B). Spunder Metals operated from the property before Tomax. In 1981, Spunder Metals obtained a special use permit to operate non-ferrous recycling on the property. He opined the special use approval for Spunder Metals terminated because (1) Spunder Metals ceased operating from the property for at least 365 days, (2) Tomax's principal use does not constitute a continuation of Spunder Metals's special use, and (3) Tomax's parking or storage of commercial vehicles and equipment does not constitute a continuation of the special use approvals granted to Spunder Metals.

¶ 8 Joey Jeraminas, the Village code enforcement officer, testified he observed commercial trucks, trailers, and a cherry picker parked on the property. The commercial vehicles had license plates classed as VJ or H. Jeraminas did not observe any business being conducted outdoors other than the vehicles entering or leaving the property as he was passing by. He did not see any lawn mowers or items distinct to a landscaping business.

¶ 9 Jason Vitell, the Village building commissioner, testified he observed commercial trucks parked on the property. According to Vitell, if a specific business use is not listed in section 7.03 as either a permitted or special use, then it is not allowed in the zoning district, and section 7.03 does not list a tree service business. He also testified that "capacity" as used in section 7.02(D) refers to the combined curb weight and load weight that a vehicle can sustain.

¶ 10 Joe Sacco testified he was a resident of Westmont for 59 years. In that time, there have been very few modifications to the property. In the past, trucks would park overnight on the property, using it as a rest area.

¶ 11 Steven Watson, former Village building inspector, testified he observed semi-trucks on the property from 1994 to 2010.

¶ 12 In March 2023, the Village passed an ordinance deleting section 12.02(G)(2), regarding nonconforming accessory use, from its Code. Westmont Code of Ordinances § 12.02(G)(2) (amended July 6, 2009); Westmont Ordinance No. 23-044, § 2, (adopted March 23, 2023).

¶ 13 After receiving written closing arguments, the hearing officer issued his findings, decision, and order. He found Tomax violated section 7.02(B) by storing commercial vehicles and equipment on the property outside of an enclosed building, and no exceptions applied. He found Tomax's tree service business, whether more analogous to a landscaping company or to arboriculture, is simply not permitted in the B-2 Zoning District as a permitted, special, or accessory use, in violation of section 7.03. The hearing officer also found Tomax violated section 7.02(D) because there was no dispute commercial vehicles were parked on the property on an overnight basis. Additionally, Tomax's business was not a permitted use, and therefore commercial vehicle parking was not accessory to a permitted use. Further, the State's license plate classification system using weight subsumed the concept of capacity or load. The hearing officer entered judgment for the Village in the amount of $150,000.

¶ 14 Tomax filed its complaint for administrative review in the circuit court. After a hearing, the court entered a written order affirming in all respects the administrative decision.

¶ 15 Tomax appeals.

¶ 16 II. ANALYSIS

¶ 17 On appeal, Tomax^[2] argues the hearing officer (1) erred in finding Tomax's business use was not permitted, (2) erred in finding Tomax's outdoor activities violated section 7.02(B), (3) erred in finding Tomax violated section 7.02(D) when it used weight to determine capacity, (4) erred in refusing to apply section 12.02(G)(2) in effect at the start of the hearing to evaluate nonconforming accessory use, (5) violated Tomax's substantive and procedural due process rights, and (6) illegally enhanced fines. We address each issue in turn.

¶ 18 A. Standard of Review

¶ 19 Tomax seeks review of the hearing officer's decision pursuant to the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2022)). In such cases, we review the hearing officer's decision, not the circuit court's ruling. FLM Enterprises, LLC v. Peoria County Zoning Board of Appeals, 2020 IL App (3d) 180634, ¶ 22. The applicable standard of review, which determines the deference we afford the hearing officer's decision depends on whether the question presented is a question of fact, a question of law, or a mixed question of law and fact. Marconi v. Chicago Heights Police Pension Board, 225 Ill.2d 497, 532 (2006). "A question of fact is reviewed under the manifest weight of the evidence standard, which asks whether the opposite conclusion is clearly apparent, and a question of law is reviewed de novo." FLM Enterprises, 2020 IL App (3d) 180634, ¶ 22. A mixed question of law and fact is reviewed under the clearly erroneous standard, and a decision is clearly erroneous "where the reviewing court, on the entire record, is 'left with the definite and firm conviction that a mistake has been committed.'" AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill.2d 380, 395 (2001) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). Under any standard of review, "a plaintiff to an administrative proceeding bears the burden of proof, and relief will be denied if he or she fails to sustain that burden." Marconi, 225...