790 F. Supp. 2d 693
N.D. Ill.2011Background
- Chicago Joe's planned an adult-use business with semi-nude dancing and liquor sales at 2850 Indian Joe Road in Broadview, within an Office/Industrial zoning district.
- A special use permit was required under Village zoning code § 10-7-4, and an application was submitted in December 2006.
- A public zoning hearing occurred February 28, 2007, after which the Zoning Board of Appeals denied the permit because of § 10-4-6(D)(11)(a) prohibiting sale of alcohol to adult businesses.
- Chicago Joe's sued in May 2007 challenging § 10-4-6(D)(11)(a) and § 10-7-4 as unconstitutional First Amendment restraints, seeking declaratory, injunctive relief, and damages.
- In November 2007, the parties cross-moved for partial summary judgment; the court previously found Chicago Joe's had a vested right to the pre-December 2006 zoning rules during the application pendency.
- The court held § 10-4-6(D)(11) invalid as a content-based speech restriction but reserved ruling on § 10-7-4 as a potential invalid prior restraint, planning further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Chicago Joe's has standing to challenge the ordinances | Chicago Joe's has a barrier-based injury to open as per Harp and Tarpley reasoning. | Standing is lacking because compliance with all regulations may be required and ultimate success is uncertain. | Yes; Chicago Joe's has standing to challenge the two ordinances. |
| Whether the case is moot due to new zoning regulations | Vested rights keep the 2006 rules in effect during pendency, avoiding mootness from later regulations. | New regulations could moot claims and preclude relief. | Not moot; vesting preserves jurisdiction to resolve merits and relief. |
| Whether the court should decide the validity of § 10-7-4 at this stage | § 10-7-4 may be facially invalid as a prior restraint on speech. | Issues depend on factual development; merits must be resolved at a hearing. | Remains unresolved pending hearing; not dismissed at this stage. |
Key Cases Cited
- Harp Advertising Illinois, Inc. v. Village of Chicago Ridge, 9 F.3d 1290 (7th Cir. 1993) (standing may be present where plaintiff challenges barriers to benefit)
- Northeastern Florida Chapter of the Associated General Contractors of America v. City of Jacksonville, 508 U.S. 656 (U.S. 1993) (barrier to benefit supports standing without showing ultimate success)
- Tarpley v. Jeffers, 96 F.3d 921 (7th Cir. 1996) (standing for challenges to hiring processes based on barrier to qualificatory success)
- Hazelton v. Zoning Bd. of Appeals of City of Hickory Hills, 48 Ill. App. 3d 348 (Ill. App. Ct. 1977) (prior determinations not res judicata in subsequent proceedings)
- 1350 Lake Shore Assocs. v. Healey, 861 N.E.2d 944 (Ill. 2006) (vested rights in continuation of law as existed at time of application)
- Wilson v. Robinson, 668 F.2d 380 (8th Cir. 1981) (deferment and management of claims in equitable relief contexts)
- Harding v. County of Door, 870 F.2d 430 (7th Cir. 1989) (courts avoid entangling zoning disputes; defer to administrative processes)