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City of Chicago Heights v. Living World Outreach Full Gospel Church, No. 1-97-4627 1st Dist. 2/3/99 |
THIRD DIVISION
February 3, 1999
Nos. 1-97-4627 and 1-98-0929, Consolidated
Plaintiff-Appellant, v. LIVING WORD OUTREACH FULL GOSPEL CHURCH and MINISTRIES, INC., Defendant-Appellee. Circuit Court of Cook County No. 96 CH 6939 Honorable Robert Boharic, Judge
Presiding. MODIFIED ON DENIAL OF PETITION
FOR REHEARING PRESIDING JUSTICE CAHILL delivered the opinion of
the court: Plaintiff, the City of Chicago Heights, sued to
enjoin defendant from violating an ordinance that prohibited religious
organizations from locating a house of worship in a part of the city zoned
commercial. The court entered judgment for defendant. Plaintiff appeals. We
vacate in part and reverse and remand with directions to grant the injunctive
relief sought by the city. Chicago Heights (the city) adopted a comprehensive
zoning plan in December 1995, with an announced purpose to counteract an
economic decline in the city. The plan designated Lincoln Highway a commercial
corridor to foster economic development. The Lincoln Highway area was zoned B-2,
commercial. Under the city zoning plan, churches may locate anywhere in a
residential zone. Churches may locate in a B-2 commercial zone with a special
use permit. Defendant, Living Word Outreach Full Gospel Church
and Ministries, Inc. (the Church), bought a former Masonic temple in January
1996. The temple was located at 400 West Lincoln Highway in the city in the B-2
zone. City officials told Church officials that a special use permit was
required. The Church had made the special use permit a condition precedent in
the original contract to buy the temple, but the condition was omitted in the
final contract. The Church took possession of the building on January 12, 1996,
and only then applied for a special use permit. To obtain a special use permit in the city, the
applicant must establish that the special use will not (1) be unreasonably
detrimental to or endanger the public, health, safety, morals, comfort or
general welfare; (2) be injurious to the use and enjoyment of other property in
the immediate vicinity or substantially diminish and impair property values in
the neighborhood; or (3) impede the normal and orderly development and
improvement of surrounding property for permitted uses. The applicant must also
show that there is adequate ingress and egress, utilities, access roads and
drainage facilities and that the use otherwise conforms to the district
regulations. Chicago Heights Zoning Ordinance §12-6.6 (1972). The Church's application was presented to the city
council, which sent it to the zoning board of appeals for review. The zoning
board of appeals forwarded the application to the plan commission for a
recommendation. The plan commission recommended to the zoning board of appeals
that the application be denied. After a hearing, the zoning board recommended to
the city council that the application be denied. The city council denied the application because the
property is located in a commercial corridor the city "targeted" for economic
development. Despite the lack of a permit, the Church continued church-related
activities on the property. The city then issued approximately 65 separate
zoning violation citations over a period of seven months. When they were
ignored, the city filed this action to enjoin the Church's use of the property.
The complaint was styled in a single count and sought an injunction against the
Church to prevent further violations of the ordinance. The Church responded with 14 affirmative defenses,
later refiled as a 14-count counterclaim. The counterclaims raise state and
federal constitutional issues and include a claim for fees under section 1988 of
the United States Code (the Code) (42 U.S.C. §1988 (1994)). After a hearing, the trial court denied the city's
injunction. The court then found that the city improperly denied the special use
permit, concluding that all requirements for a permit were satisfied. The court
rejected the Church's alternative argument that the use was a continuing
nonconforming use. The court said that because of its ruling, "it need not reach
the constitutional defenses raised by the Church." The court also said that its
ruling "terminates the lawsuit." The order reflecting the court's ruling was
entered on December 12, 1997, and read as follows: The city filed a notice of appeal on December 16,
1997. The Church filed a petition for attorney fees on
January 7, 1998. This petition argued that, because the court's ruling was based
on constitutional grounds, attorney fees were warranted under section 1988 of
the Code. 42 U.S.C. §1988 (1994). In an order entered on February 26, 1998, the
court expanded its order of December 12, 1996. The court permanently enjoined
the city from enforcing the ordinance against the Church at the Lincoln Highway
location. The court also found that the city's actions violated the free
exercise clause of the United States Constitution and granted relief under count
VI of the Church's counterclaim. This count alleged that the special permit
requirement burdened and infringed on the Church's right of free exercise of
religion. The court then ordered further proceedings to determine the fee award.
The city appealed this order by a second notice of appeal filed on March 16,
1998. These appeals were consolidated. The city makes two arguments on appeal: (1) the
circuit court lacked jurisdiction to enter the February 26, 1998, order; and (2)
the court erred in substituting its reading of the zoning ordinance for that of
the city council. The first issue requires us to examine our
jurisdiction over this appeal. To confer appellate jurisdiction, the judgment or
order appealed from must be final. Rice v. Burnley, 230 Ill. App. 3d
987, 596 N.E.2d 105 (1992). An order is final if it fixes absolutely and finally
the rights of the parties and decides the litigation on the merits so that the
only thing left is execution of the judgment, if affirmed. Nelson v. United
Airlines, Inc., 243 Ill. App. 3d 795, 799, 612 N.E.2d 980
(1993). The December 12 order contained Supreme Court Rule
304(a) language. 155 Ill. 2d R. 304(a). We note that there was a fee petition
pending at the time the December 12 order was entered in the form of count I of
the counterclaim. The dispute in this case was whether the city's
denial of the Church's special use permit application was proper. The court
entered an order finding that it was not. The court stated on the record that
this finding terminated the controversy between the parties. This conclusion is not altered by the court's
failure to mention the counterclaim or rule on the constitutional claims. The
counterclaim consisted of the earlier filed affirmative defenses. The
counterclaim not only sought a finding that the Church met the requirements for
a special use permit, but also raised constitutional issues. In Lynch Imports, Ltd. v. Frey, 200 Ill.
App. 3d 781, 785, 558 N.E.2d 484 (1990), we held that an order granting the
seller summary judgment on its complaint, but not addressing the buyer's
counterclaim, was nevertheless final and appealable because the rights and
liabilities in the complaint and counterclaim were identical. The seller's
complaint sought to recover the purchase price of a car. The counterclaim sought
damages for the seller's failure to provide an acceptable car. The buyers had a
contract right to reject the car. The court reasoned that an order disposing of
the complaint necessarily disposed of the counterclaim because no further action
could be taken on the counterclaim. Lynch, 200 Ill. App. 3d at 785. No
Rule 304(a) language was needed to vest the appellate court with jurisdiction.
Lynch, 200 Ill. App. 3d at 785. See also Waters v. International
Harvester Co., 244 Ill. App. 3d 741, 614 N.E.2d 466 (1993) (where the issue
in the initial complaint is exactly the same as that necessary to decide the
counterclaim, summary judgment on the complaint will be a final judgment
notwithstanding the order's silence on the counterclaim). Counts XIII and XIV of the counterclaim alleged that
the special use permit was improperly denied and that the requirements for the
permit were met. These counts repeated the Church's initial affirmative defense
to the complaint. By ruling against the city on the complaint, and finding that
the Church met the requirements for a special use permit, the court effectively
ruled on counts XIII and XIV of the counterclaim. Although the court's oral
remarks before entry of the order suggested that the city's denial violated the
Church's constitutional rights, the remarks were not the reason for the court's
finding that the denial was improper. We read the statements made in open court
and the wording of the December 12 order as a finding by the court that the
Church met the requirements for a special use permit. Because the requirements
were met, the court ruled that the Church's application should have been
approved and the denial was arbitrary and capricious. The order's silence on the
claims asserted in counts II through XII of the counterclaim does not affect our
jurisdiction. In its December 12 ruling, the court stated that it did not need
to reach the other constitutional issues in light of its ruling. The court was
able to decide the controversy on state law grounds. This was proper. A court
should avoid constitutional questions where the case may be decided on other
grounds. In re S.G., 175 Ill. 2d 471, 479, 677 N.E.2d 920 (1997). The
December 12 order terminated the controversy between the parties. Filing a notice of appeal divests the trial court of
jurisdiction in a case. R.W. Dunteman Co. v. C/G Enterprises, Inc., 181
Ill. 2d 153, 162, 692 N.E.2d 306 (1998). Appellate jurisdiction attaches
instanter and the trial court may not enter orders changing or
modifying a judgment or its scope or interfering with review of the judgment.
In re Marriage of Ward, 267 Ill. App. 3d 35, 641 N.E.2d 879 (1994);
In re Marriage of Sawyer, 264 Ill. App. 3d 839, 637 N.E.2d 559 (1994).
Since the December 12 order was final with respect
to all issues but the fee petition, the December 16 notice of appeal divested
the court of jurisdiction on all substantive matters before the court. But
orders entered after filing of a notice of appeal are valid if the substantive
issues on appeal are not altered so as to present a new case to the reviewing
court. R.W. Dunteman, 181 Ill. 2d at 162. The February 26, 1998, order
is valid only if it did not expand or modify the judgment entered on December
12, 1997. We conclude that it did. The February 26, 1988, order contained the court's
ruling on the Church's January 7, 1998, fee petition under section 1988 of the
Code. 42 U.S.C. §1988 (1994). This section authorizes fees for constitutional
violations. But the court went on to grant the Church relief under count VI of
its counterclaim, finding that the city's actions violated the free exercise
clause of the first amendment. The court also permanently enjoined the city from
enforcing the zoning ordinance against the Church. The February 26, 1998, order
is a nullity because it expanded and modified the December 12, 1997, order. The
order purported to rule on claims that the court determined it need not reach in
its December 12 ruling and over which it no longer had jurisdiction. But our jurisdiction still depends on the nature of
the Church's January 8, 1998, motion for fees. If the petition is a proper
post-trial motion, as long as it remains unresolved, the underlying judgment is
not final and complete jurisdiction remains with the trial court. Spurgeon
v. Alton Memorial Hospital, 285 Ill. App. 3d 703, 707, 674 N.E.2d 517
(1996). If the motion is only a fee petition, our jurisdiction is unaffected
because the original order contained Rule 304(a) language. Niccum v. Botti,
Marinaccio, DeSalvo & Tameling, Ltd., 182 Ill. 2d 6, 7, 694 N.E.2d 562
(1998). As we have noted, the fee claim remained unresolved when the December 12
order was entered. To qualify as a post-trial motion, the movant must
ask for at least one of the forms of relief specified in section 2-1203 of the
Illinois Code of Civil Procedure (735 ILCS 5/2-1203 (West 1996)), specify
grounds that would warrant granting the relief, and file the motion with the
court with proof that copies have been served on all parties. Sho-Deen, Inc.
v. Michel, 263 Ill. App. 3d 288, 291, 635 N.E.2d 1068 (1994). Section
2-1203 allows a party to ask for a rehearing, new trial or modification of the
judgment. 735 ILCS 5/2-1203 (West 1996). The Church's motion is entitled
"Defendant-Counter-Plaintiff's Motion to Determine if Attorneys' Fees Costs and
Other Relief is Awardable." The motion consists of seven paragraphs, over 4 1/2
pages. The first six paragraphs set out the Church's argument for attorney fees
based on section 1988 of the United States Code. The last paragraph is one
sentence. It alternatively asks the court to rule on the other constitutional
claims if the court decides that the basis of the court's December 12 ruling
does not by itself authorize a fee award under section 1988. The Church states
that "it is necessary to reach [the] counterclaims to decide the requested
relief of attorney's fees." We believe the January motion cannot be read as a
fee petition. The motion does not challenge the judgment or ask for a new trial.
The relief asked for is on the Church's entitlement to fees. While the last
paragraph arguably requests a form of relief cognizable under section 2-1203,
the request is cursory and fails to state the legal and factual basis upon which
to base this relief. Sho-Deen, 263 Ill. App. 3d at 292. At most, the January motion can be characterized as
a hybrid motion in the sense that it is a fee petition with an alternative
request to reconsider the court's earlier refusal to reach the constitutional
claims. But hybrid motion practice is not favored. See Storm &
Associates, Ltd. v. Cuculich, 298 Ill. App. 3d 1040, 700 N.E.2d 202 (1998)
(considering the procedural effects and requirements of a combined section
2-619.1 motion). Further, the motion fails to identify grounds for the requested
relief. So we conclude that the filing of the January motion had no effect on
our jurisdiction over this appeal. The court only had jurisdiction on February
26 to rule on the request for fees. All other claims for relief were resolved in
the December order. To the extent that the February order makes additional
findings and grants additional injunctive relief, it is vacated. We now consider the substantive issue in this case:
whether the city's denial of the special use permit was proper. In reaching its
decision, the court conducted a two-step analysis. It first considered the
city's ordinance on special use permits and applied each criterion to the
Church. Having decided that the Church met the requirements for a special use
permit, the court applied the reasoning expressed by the supreme court in
Columbus Park Congregation of Jehovah's Witnesses, Inc. v. Board of
Appeals, 25 Ill. 2d 65, 71, 182 N.E.2d 722 (1962). The court then found
that the denial in this case was arbitrary and capricious and not substantially
related to the public health, safety or welfare. Columbus Park, 25 Ill.
2d at 73. The city contends that the court erred because it
substituted the city council's judgment for its own, which the city argues is
not permitted when legislative action is reviewed. American National Bank
& Trust Co. v. Village of Skokie, 181 Ill. App. 3d 189, 196, 536 N.E.2d
926 (1989). Zoning ordinances and special uses are presumptively
valid. American National Bank, 181 Ill. App. 3d at 196. On review, the
issue is whether the denial was arbitrary or capricious. Copley Memorial
Hospital, Inc. v. City of Aurora, 99 Ill. App. 3d 217, 221, 425 N.E.2d 493
(1981). Generally, the challenger must prove by clear and convincing evidence
that the zoning ordinance as applied to its property is arbitrary and
unreasonable and not related to the public health, safety and morals. Mobil
Oil Corp. v. City of Rolling Meadows, 214 Ill. App. 3d 718, 725 (1991);
National Pride Equipment, Inc. v. Village of Niles, 109 Ill. App. 3d
639, 440 N.E.2d 1053 (1982). But different presumptions arise when zoning
ordinances implicate constitutional guarantees of freedom of religion. Our
Saviour's Evangelical Lutheran Church v. City of Naperville, 186 Ill. App.
3d 988, 542 N.E.2d 1158 (1989); South Side Move of God Church v. Zoning
Board of Appeals, 47 Ill. App. 3d 723, 728, 365 N.E.2d 118 (1977). Under
these circumstances, the ordinance does not enjoy presumptive validity
(Columbus Park, 25 Ill. 2d at 71-72), and the burden of proof shifts to
the city. In its petition for rehearing, the Church brings to
our attention House Bill 2370, the Religious Freedom Restoration Act (the Act)
(Pub. Act 90-806, eff. December 02, 1998). This act, signed by the governor on
December 4, 1998, applies retroactively and adopts the compelling interest test
set out in Wisconsin v. Yoder, 406 U.S. 205, 32 L. Ed. 2d 15, 92 S. Ct.
1526 (1972). The Church contends that since the Church's right to free exercise
of religion is burdened by the ordinance, the Act requires that the city meet
the Yoder burden of proof: that the city's interest in adoption of the
zoning ordinance is compelling and that the ordinance is the least restrictive
means of furthering that interest. We agree, but by applying the compelling
state interest test, we conclude that the city met its burden. The city submitted evidence that its zoning plan was
designed to invigorate the commercial corridor to regenerate declining revenues
and create a strong tax base. Even a substantial burden on the free exercise of
religion is justified by the broad public interest in maintaining a sound tax
system. Hernandez v. Commissioner of Internal Revenue, 490 U.S. 680,
699-700, 104 L. Ed. 2d 766, 786-87, 109 S. Ct. 2136, 2149 (1989). The city has a
cognizable compelling interest to enforce its zoning laws. We conclude that the
public health, safety and morals are served by the ordinance. Reserving areas
for commercial activity both protects residential areas from commercial
intrusion and fosters economic stability and growth. See Village of Belle
Terre v. Boraas, 416 U.S. 1, 9, 39 L. Ed. 2d 797, 804, 94 S. Ct. 1536, 1541
(1974). The Act next requires us to determine whether the ordinance is the least
restrictive means of furthering the city's interest. The record shows that approximately 60% of Chicago
Heights is zoned for noncommercial use. Under the zoning ordinance, churches may
locate anywhere in these zones without a special permit. The ordinance only
affects 40% of the city. Because the Church has free access to a majority of the
city, we conclude that the least restrictive means are used to further the
city's interest. The court erred in finding that the city improperly denied the
special use permit application. The February 26, 1998, order is vacated to the
extent that it makes rulings on issues other than fees. The judgment of the
trial court is reversed. The case is remanded with directions to grant the
injunctive relief sought by the city. Vacated in part and reversed and remanded with
directions. BURKE and McBRIDE,(1)
JJ., concur. 1. Justice Leavitt participated in the disposition of this
case before leaving the appellate court. Justice McBride, his replacement, read
the briefs and heard tapes of oral arguments.
THE CITY OF CHICAGO HEIGHTS,
Appeal from the
"This court having heard all the testimony and carefully
considered all the evidence and argument finds in favor of the Plaintiff City
on the issue of continuation of a legal non-conforming use and in favor of the
Defendant Church on the issue of whether the special use permit should have
been granted and finds that the permit was improperly denied. The Court finds
that it need not reach the constitutional defenses raised by the Church. This
is a final and appealable order and no just reason exists to delay enforcement
or appeal."