STEVEN CONAGHAN and BERTRAM P. IRSLINGER, Plaintiffs-Appellees, v. THE CITY OF HARVARD; THE HARVARD CITY COUNCIL; and THE PLANNING AND ZONING COMMISSION OF THE CITY OF HARVARD, Defendants-Appellants.
No. 2-15-1034
Appellate Court of Illinois, Second District
August 31, 2016
2016 IL App (2d) 151034
Appeal from the Circuit Court of McHenry County, No. 13-MR-399; the Hon. Michael T. Caldwell, Judge, presiding.
John W. Gaffney, of Harvard, for appellees.
JUSTICE BIRKETT delivered the judgment of the court, with opinion.
Justices Hutchinson and Burke concurred in the judgment and opinion.
¶ 1 Plaintiff Steven Conaghan purchased a house in Harvard, renting it out to separate tenants on the two floors as a legal nonconforming use. After property damage rendered it uninhabitable, Conaghan hired a contractor to rehabilitate the property. The contractor’s permit lapsed, and the property remained vacant for more than a year. Acting on the recommendation of defendant the Planning and Zoning Commission of the City of Harvard (Zoning Commission), defendant Harvard City Council (City Council) passed an ordinance denying the petition of Conaghan and plaintiff Bertram P. Irslinger, who had become the property’s joint owner, to allow the continued use of the property as a multifamily residence. The City Council declared that the nonconforming use had been discontinued, and it restricted the use of the building to a single-family residence. Plaintiffs filed a complaint against the Zoning Commission, the City Council, and defendant City of Harvard (City), under
¶ 2 The trial court held that the denial of the petition was arbitrary and capricious and that plaintiffs were entitled to continue the nonconforming use. Defendants appeal, contending that (1)
I. BACKGROUND
¶ 4 Plaintiffs’ complaint alleged as follows. In 2008, Conaghan purchased the building at 206 East Diggins Street in Harvard. He operated it as a two-unit rental residence, a legal nonconforming use under the pertinent ordinance (Harvard Municipal Code § 17.48.040 (amended Jan. 19, 1999)), renting out the upper and lower levels separately. In January 2010, the lower-level tenant vacated the property and, shortly afterward, so did the upper-level tenant. Before they left, however, they had caused pipes to freeze, producing extensive water damage to both levels. Conaghan, with financing from Irslinger, who became part owner, continued to maintain the property. Upon discovering the damage in February 2010, plaintiffs contacted their insurance company and began work to make both levels inhabitable.
¶ 5 The complaint continued as follows. Through their mortgage lender, plaintiffs hired a general contractor to repair the property. The contractor and the insurance company had a falling out over the release of funds to pay for the repairs; as a result, the repairs slowed down. As of July 17, 2012, though, they were complete for the upper unit and about 90% complete for the lower unit. On that date, a City zoning officer issued an opinion that, because the property had been vacant for more than 12 months, the previous multifamily use had been discontinued, as dictated by the pertinent ordinance. As pertinent here, the ordinance states:
“Whenever a non-conforming use of a building or structure, or part thereof, has been discontinued for a period of 12 months or whenever there is evident a clear intent on the part of the owner to abandon a non-conforming use, such use shall not, after being discontinued or abandoned, be re-established, and the use of the premises thereafter shall be in conformity with the regulations of the district.” Harvard Municipal Code § 17.48.040(D)(1), added by Harvard Municipal Ordinance No. 99-102, § 1 (1999).
¶ 7 Plaintiffs claimed that the denial of the petition was improper because they had neither discontinued the nonconforming use of the building as a multifamily residence nor shown a clear intent to do so. Plaintiffs asserted that
“(a) Any decision by the corporate authorities of any municipality *** in regard to any petition or application for a special use, variance, rezoning, or other amendment to a zoning ordinance shall be subject to de novo judicial review as a legislative decision, regardless of whether the process in relation thereto is considered administrative for other purposes. Any action seeking the judicial review of such a decision shall be commenced not later than 90 days after the date of the decision.
(b) The principles of substantive and procedural due process apply to all stages of the decision-making and review of all zoning decisions.”
65 ILCS 5/11-13-25 (West 2012) .
¶ 8 Defendants moved to dismiss the complaint (see
¶ 9 Plaintiffs responded that Dunlap did not apply because this court had held that
¶ 10 The trial court denied the motion to dismiss. Defendants answered the complaint, asserting as an affirmative defense that
¶ 12 Next, the parties stipulated to the admission of eight exhibits. Plaintiffs’ first exhibit was a certificate of occupancy that the City issued on June 30, 2011. The document states that a building permit was issued on July 14, 2010, to repair water damage. The certificate was signed by Steve Santeler, the City’s community development director who oversaw the building department and code enforcement. Santeler wrote “upper unit completed” and placed an “x” next to “final [occupancy]” (as opposed to “temporary” or “partial”). Plaintiffs’ second exhibit was a group of photographs of the lower level of the building in June 2011.
¶ 13 Defendants introduced the following exhibits: (1) the nonconforming-use ordinance (Harvard Municipal Code § 17.48.040 et seq. (amended Jan. 19, 1999)); (2) the minutes of the Zoning Committee meeting of June 4, 2013; (3) the building permit issued to Conaghan, signed by Santeler, and dated July 14, 2010, allowing repair and remodeling necessitated by water damage; (4) a letter dated July 17, 2012, from Clayton Brennecka to Conaghan, serving as “formal notice that the multi-family, non-conforming residential use” of 206 East Diggins had been “discontinued” and was no longer permitted, because the property had been vacant for more than 12 months; (5) a letter dated April 5, 2013, from Santeler to Conaghan, stating that the property had lost its legal nonconforming use as a two-family residence and must be converted to a single-family home; and (6) ordinance No. 2013-115, dated June 25, 2013, denying plaintiffs’ petition.
¶ 14 Plaintiffs then called Conaghan, who testified as follows. In 2008, he acquired the property with the intent to continue its use as a “two-flat unit,” renting out both levels. At the time, the two levels had separate entrances and gas and electrical service, although they shared water service. In February 2010, after two continuous years of separate rentals, a second-floor pipe burst, flooding the top floor and causing leaks that “destroyed” the lower level. The insurance company paid Conaghan about $50,000 to repair the damage.
¶ 15 Conaghan testified that, in July 2010, he hired a contractor to make repairs at a projected cost of $117,000. The building was essentially gutted. Conaghan intended to keep using the building as a multifamily residence. He supervised the repairs by meeting monthly with the contractor and immediately updating the insurance company. The insurance company released money “a little bit at a time as [Conaghan] met each phase of the project.” Conaghan and the contractor made the repairs so as to maintain the building’s character as a multifamily residence: they kept the utilities, furnaces, water tanks, and electrical panels separate.
¶ 16 Conaghan testified that, at some point, the contractor slowed work down because the insurance company was withholding money out of dissatisfaction with the condition of the repairs. During 2010 and until June 2011, as the repairs were underway, nobody from the City
¶ 17 Conaghan testified that Irslinger stepped in to fund the project after the insurance company stopped releasing money. In June 2012, when the repairs to the lower level were about 90% complete, Irslinger applied for a permit to replace the building’s fascia and roof but was told that the City would not grant plaintiffs an occupancy permit for the nonconforming use. In March or April 2013, Conaghan met with Santeler. Only then did he learn personally that the City was seeking to deny the multifamily use. After the meeting, plaintiffs filed their petition, appeared before the Zoning Commission, and went in front of the City Council. In June 2013, the City Council denied the petition.
¶ 18 Conaghan testified that, throughout the repair process, he intended to continue using the building as a multifamily residence. Before he met with Santeler, nobody had objected to him about that use of the building. The property was vacant from February 2010 until after the City Council meeting, when a tenant moved into the second floor. Defendants’ counsel showed Conaghan the building permit; Conaghan said that he had never seen it before, but he acknowledged that it was issued in July 2010 and was good for one year. He admitted that, when it expired in July 2011, nobody sought an extension.
¶ 19 Conaghan testified that he recognized plaintiffs’ exhibit No. 1, the certificate of occupancy, and that it said nothing about the lower-level unit. He reiterated that not until 2013 did he receive notice that the nonconforming use had been lost. Counsel then asked him whether he recognized defendants’ exhibit No. 4, the letter dated July 17, 2012, telling him that the nonconforming use had been discontinued. Conaghan said that he had never seen it before. Also, when he sought relief to reestablish the nonconforming use, both levels of the building had been vacant for more than three years.
¶ 20 Conaghan testified that the general contractor applied for the building permit and assured Conaghan that he would take care of it. The contractor stopped work in about June 2011 because, he claimed, the insurance company had stopped paying him.
¶ 21 Plaintiffs next called Irslinger, who testified as follows. He became involved with the property in 2013, when he provided financing to Conaghan to complete the rehabilitation. Irslinger intended to help Conaghan preserve the property’s use as a multifamily residence and had been under the impression that a final occupancy permit had been issued for the whole building. At the time, he was unaware of any objection the City had to the continuation of that use. Shown the permit issued on June 30, 2011, he testified that the issuer had checked off the space for “final” occupancy but not the one for “partial” occupancy.
¶ 22 Irslinger testified that, in January or February 2013, he spoke to Santeler and requested a building permit to replace the soffit, fascia, and roof. It was then that he was told that the continued use of the property as a multifamily residence was unacceptable. By then, the repairs
¶ 23 Irslinger testified that he first inspected the property early in 2013, before he gave Conaghan money. Before then, he had had no idea what the property looked like. Shown defendants’ exhibit No. 4, the July 17, 2012, zoning notice, Irslinger testified that he had never seen it before. His attorney had reviewed the recorder of deeds’ file for the property, and Irslinger conceded that the notice had been stamped by that office on August 6, 2012, before he had inspected the property. He also agreed that the occupancy permit mentioned that the upper unit was complete but said nothing about the lower unit. After Irslinger testified, plaintiffs rested.
¶ 24 Defendants first called Santeler, who testified as follows. As community development director, he was responsible for enforcing the City’s zoning code. The purpose of the nonconforming-use ordinance is to eliminate nonconforming uses in a district, in the interests of public safety and the general welfare. Plaintiffs’ use of the property as a multifamily residence was a nonconforming use. The lot, which was on a corner, was approximately 5300 square feet, but the minimum size for a corner lot with a multifamily residence was 14,700 square feet.
¶ 25 Santeler testified that a building permit was issued for the property on July 14, 2010, and was valid for one year. Nobody ever requested an extension. After inspecting the property and finding that there was “quite a bit of work to do” on the lower unit, Santeler issued the certificate of occupancy on June 30, 2011. It was for the upper unit only, as shown by the remark “upper unit completed” and the absence of any corresponding remark about the lower unit. Nobody had requested a certificate of occupancy for the lower unit.
¶ 26 Santeler testified that the July 17, 2012, notice was intended to let Conaghan know that the nonconforming use was no longer available, because the first floor, at least, had been vacant for 12 months or more. To the best of Santeler’s knowledge, the notice was mailed to Conaghan. It was also filed with the recorder of deeds’ office. Between June 30, 2011, and July 17, 2012, neither plaintiffs nor the contractor contacted Santeler about the property. Between February 2010 and July 17, 2012, Conaghan never contacted Santeler about any of the hardships that he had described in his trial testimony. After Santeler issued the notice, plaintiffs’ contractor had complained to him about it, but nobody had filed for an extension of the building permit.
¶ 27 Santeler identified defendants’ exhibit No. 5 as his letter of April 5, 2013, to Conaghan, stating that the property had lost its nonconforming use and must be converted to a single-family home. The letter stated that permits were required for the “de-conversion [sic]” and that the time limit was a year from “the date of property transfer.” Plaintiffs never converted the property and never sought any extension to avoid the loss of the nonconforming use. Between February 2010 and the City Council hearing, the property was not, to Santeler’s knowledge, used as a multifamily residence. Santeler identified defendants’ exhibit No. 6, ordinance No. 2013-115, which was passed on July 25, 2013. He noted the following statement in the ordinance:
“The City Council finds that the petitioners failed to show a hardship that merited granting the petition because the situation was created by the petitioners, given the fact
that the Property has remained vacant more than 40 months and no meaningful construction progress occurred to maintain the Property as a multi-family use. In addition, [the] City Council finds that [the] petitioners failed to pursue extensions of the original building permit of July 2010 thereby demonstrating a lack of intent to simply suspend the non-conforming use.” Harvard Municipal Ordinance No. 2013-115 (approved June 25, 2013).
¶ 28 Santeler testified that, per the nonconforming-use ordinance, a landowner can lose a nonconforming use either by discontinuing it for 12 months or by evidencing a clear intent to abandon the use. The notice of July 17, 2012, referred to discontinuation but not to evidence of a clear intent to abandon the use; Santeler testified that he had never said that there had been any such intent. He did not know the precise difference between “discontinue” and “abandon”; his notice had cited the ordinance verbatim, and the nonconforming use at issue had been “either discontinued or abandoned.”
¶ 29 Santeler testified that the contractor had applied for the building permit and had not applied for an extension. When Santeler inspected the property before issuing the certificate of occupancy, he looked only at the upper unit and not at the lower one. He had never been asked to inspect the lower unit for a certificate of occupancy.
¶ 30 Defendants next called James Carbonetti, who testified as follows. He was the chairman of the Zoning Commission and had presided over its meeting of June 4, 2013, concerning plaintiffs’ property. During the meeting, Carbonetti asked plaintiffs whether they had applied for an extension of the building permit; plaintiffs responded that they had not. They also said that the property had been vacant for 40 months. For this reason, the Zoning Commission denied plaintiffs’ request to be allowed to use the property as a multifamily residence.
¶ 31 Carbonetti testified that he did not know how long the property had been used as a multifamily residence or whether it had ever been used as a single-family home. After Carbonetti testified, defendants rested.
¶ 32 Conaghan testified in rebuttal as follows. When he purchased the building, he intended to use it as a multifamily residence, and he did so until the tenants vacated it. At no time after he purchased the building did he use it as a single-family residence (until the City required him to do so), and his intent had never changed. After Conaghan testified, plaintiffs rested.
¶ 33 In argument, plaintiffs contended as follows. First, by ordinance, plaintiffs could lose their nonconforming use only by discontinuing it or evidencing an intent to abandon it. The City had not asserted that plaintiffs had done the latter, so the case hinged on whether they had “discontinued” the use. Plaintiffs maintained that discontinuation did not automatically follow from “simply not using [the property] as a two-unit for a period of 12 months.” Had they used it as a single-family residence for 12 months, then tried to revert to renting it to two separate tenants, they could not revive the nonconforming use, but that had not happened.
¶ 34 Second, plaintiffs argued, they had done everything that they could to preserve the building’s use as a multifamily residence, and the delays involved were not their fault. Even so, by 2011, the repairs were “90 percent complete.” The purpose of the nonconforming-use ordinance was to protect the public health and safety, but that purpose was not served by the City’s refusal to allow plaintiffs to continue the building’s longstanding use simply because more than 12 months had elapsed. Thus, the City’s denial of the petition to continue the nonconforming use had been arbitrary and capricious. Plaintiffs’ argument did not mention La Salle or the reasoning of that opinion.
¶ 36 Defendants argued further that, although the nonconforming use lapsed early in 2011, a year after the tenants left, the City waited more than a year from that date to issue a notice that plaintiffs had lost their nonconforming use. Yet, despite the notice provided by the July 17, 2012, letter from Santeler, which was also filed with the recorder of deeds’ office, plaintiffs did nothing. In May 2013, the City sent plaintiffs another letter; this time plaintiffs finally appeared before the Zoning Commission, having waited 40 months without requesting an extension of the building permit. The nonconforming-use ordinance existed because sound policy disfavors nonconforming uses, and discontinuation promotes the public health and safety. Plaintiffs had allowed the use to expire. The City had not acted irrationally.
¶ 37 The trial judge announced his decision, stating as follows. The evidence of hardship was clear and convincing: Conaghan had been victimized by events beyond his control, specifically the accident that caused the flooding, followed by the delays occasioned by the dispute between the contractor and the insurance company. The City had provided no warning that the nonconforming use might be lost “because of elapsed time.” Only “when [plaintiffs] came in to apply for their building permit they were (Unintelligible) that the two-flat use was gone because it had been abandoned. There were no exceptions. There was no warning, and there were no extensions.”
¶ 38 The judge continued as follows. Plaintiffs had never intended to abandon the use of the property as a multifamily residence. From the time that the damage occurred, Conaghan had diligently attempted to renovate the property so as to restore it to that use. The judge concluded:
“The diligent pursuit of the repair by Mr. Conaghan, who has stated from [sic] making the insurance claim, hiring a contractor, seeking an additional investor, all militate against the conclusion in the ordinance that there was a clear intention to abandon the property.
The fact that it wasn’t occupied as a rental unit by any resident is—is immaterial in this particular kind of a circumstance.
The Court finds that the decision of the building inspector to declare this a discontinued use was arbitrary and capricious, and that the proof is indeed clear and convincing.”
¶ 39 Defendants timely appealed.
II. ANALYSIS
¶ 41 Defendants contend first that the trial court should not have entertained plaintiffs’ action at all because
¶ 42 To resolve this dispute, we must construe
¶ 43 For ease of discussion, we again set out
“(a) Any decision by the corporate authorities of any municipality *** in regard to any petition or application for a special use, variance, rezoning, or other amendment to a zoning ordinance shall be subject to de novo judicial review as a legislative decision, regardless of whether the process in relation thereto is considered administrative for other purposes. Any action seeking the judicial review of such a decision shall be commenced not later than 90 days after the date of the decision.
(b) The principles of substantive and procedural due process apply to all stages of the decision-making and review of all zoning decisions.” (Emphasis added.)
65 ILCS 5/11-13-25 (West 2012) .
¶ 44 Before we apply principles of statutory construction to this language, we discuss the two appellate court opinions on which the parties place the greatest weight. In Dunlap, the plaintiff filed an action under
¶ 45 The trial court denied the motion. It held that, although
¶ 46 At the pertinent time in Dunlap, subsection (a) of
¶ 47 The court began by explaining that enacting
¶ 48 The Dunlap court continued that, in enacting
“Thus ***, the intent of the legislature in enacting this amendment to the Zoning Enabling Act was not to expand private landowners’ right to take judicial action against municipal zoning decisions, but rather to clarify that when such challenges are properly made, the decisions are to be reviewed under the standards for legislative rather than administrative actions.” Id. at 642.
The court held that the plaintiff had no action against the village under
¶ 49 Dunlap cited Millineum Maintenance, in which this court construed
¶ 50 We began our analysis by noting Klaeren’s distinction between a municipality’s or county’s quasi-judicial administrative functions and its legislative functions. Id. at 641-42. Further, we observed, the Administrative Review Law does not apply to the legislative acts of legislative bodies. Id. at 642. We then held that, under the plain-meaning rule of statutory construction, only the grant of a special-use permit, and not the denial of one, was subject to the provision. Id. at 648.
¶ 51 The appellant raised another argument that focused on language in
¶ 52 We construed this phraseology so as to avoid any constitutional infirmity. We observed that the legislature may not control the courts’ power to adjudicate justiciable matters (Millineum Maintenance, 384 Ill. App. 3d at 649) and that a court may not directly review legislative decision making—but may decide whether legislation is unconstitutional (id. at 649-50). We held that the provision permissibly removed certain zoning decisions from the Administrative Review Law (id. at 650).
¶ 53 We next turned to whether, by providing for de novo review of zoning decisions as legislative acts,
“[A]t the time the legislature enacted section 5-12012.1, courts had chosen between two types of review for the relevant categories of zoning decisions—administrative review under the Administrative Review Law or ‘legislative’ review for arbitrariness as a matter of substantive due process [citation]—before finally settling on the former option [citation]. Against this backdrop, the language of section 5-12012.1, which invokes ‘de novo judicial review as a legislative decision’ (emphasis added), indicates an intent to remove certain zoning decisions from the bounds of administrative review and instead choose the second, ‘legislative’ type of review. As the legislature has the authority to dictate the type of review applicable to administrative decisions, this interpretation renders section 5-12012.1 constitutional.
The same language, ‘de novo review as a legislative decision’ (emphasis added), also provides a necessary qualification on the ‘de novo’ hearing the statute describes. *** [W]holly ‘de novo’ judicial review of an administrative decision impermissibly invites the judiciary to perform executive functions ***. The ‘as a legislative decision’ language invokes the alternative type of review described in [City of Chicago Heights v. Living Word Outreach Full Gospel Church & Ministries, Inc., 196 Ill. 2d 1, 14 (2001)]: review for ‘arbitrariness as a matter of substantive due process.’ [Citation.] This so-called ‘legislative’ test prescribes the deference to agency decision making necessary ***, because it requires not that a court independently reevaluate facts or assert independent judgment, but rather that a court intervene only where there was no rational basis for the challenged decision, just as it would with a legislative enactment. Though *** evidence outside the already-developed record may be presented to the trial court, that evidence must bear on a much narrower question than is presented in typical administrative review. Since a trial court in this type of case must confine itself to the question of whether the challenged decision had any rational basis (just as it would with a legislative enactment), the trial court may not conduct even the limited direct factual review allowed under the Administrative Review Law (just as it could not with a legislative enactment). Thus ***, the evidence received must bear on the court’s
review ‘for arbitrariness as a matter of substantive due process under the six-part test set forth in [La Salle].’ ” Id. at 652-53.
We note that this statement of the limited role for the judiciary in reviewing zoning decisions is consistent with what our supreme court later stated: “Zoning is primarily a legislative function, and it is within the province of local governmental bodies to determine the use of land and to establish zoning classifications.” Gurba v. Community High School District No. 155, 2015 IL 118332, ¶ 11. Thus, constitutional constraints on the zoning power are always appropriate for judicial consideration, but judicial review in other respects may be limited by the legislature. Even with the addition of de novo review, the intent of
¶ 54 We now turn to Our Savior, which we discuss in the context of the foregoing opinions. In Our Savior, as pertinent here, the plaintiff applied for a special-use permit for proposed changes to its property. The defendant’s city council initially denied the applications but later granted a special-use permit subject to several conditions. In between the two decisions, the plaintiff filed a three-count complaint in the trial court, based on (1) the Administrative Review Law, (2) certiorari, and (3) a request for a declaratory judgment (see
¶ 55 In addressing the plaintiff’s argument that the city had improperly denied the permit applications, we first clarified that we were concerned with the city’s denial of the plaintiff’s original application, and we then turned to “the standard of review to be applied” to that action. Id. at 1025. After Millineum Maintenance was issued, the legislature had amended both
“This ‘de novo judicial review as a legislative decision’ is not the familiar de novo standard of appellate review generally applicable in appeals of purely legal issues, grants of summary judgment, and so on. Millineum Maintenance, 384 Ill. App. 3d at 653. Indeed, it is not a standard of appellate review at all. Rather, it describes a wholly new action under which a plaintiff may challenge a zoning decision in the same manner that a plaintiff may challenge a legislative action. Thus, ‘the “de novo” language indicates that, unlike typical administrative review, evidence outside the already-developed [administrative] record may be presented to the trial court.’ Millineum Maintenance, 384 Ill. App. 3d at 653.” Id. at 1027.
¶ 56 Applying the foregoing to the facts of Our Savior, we noted that, although the city’s decision must be reviewed as a legislative one per the amended
¶ 57 Finally, we note that, in two opinions postdating Our Savior, the First District followed Dunlap and held that
¶ 58 We consider the implications of the foregoing opinions for the construction of
¶ 59 Only Our Savior provides any support for plaintiffs’ argument that such a private right of action exists. In Our Savior, however, the plaintiff did not actually assert a cause of action under
¶ 60 Our Savior relied heavily on Millineum Maintenance, which, as noted, did not hold that
¶ 61 In view of this background, we cannot read one paragraph in Our Savior to hold that, in enacting
¶ 62 As we noted earlier, the plaintiff in Our Savior did not assert that
¶ 63 Thus, as we explained in Millineum Maintenance, the hearing de novo in the trial court that
¶ 64 Moreover, and more fundamentally,
¶ 65
¶ 66 But the deciding consideration is that, read in the broader constitutional and statutory context,
¶ 67 Our state’s trial courts have original jurisdiction of all justiciable matters but only “such power to review administrative action as provided by law.”
¶ 68 Reading
¶ 69 Of most direct significance here is
¶ 70
¶ 71
“ ‘The corporate authorities of municipalities and counties are primarily—lawmaking bodies that operate through the political process. Their legislative decisions have traditionally been subject to de novo judicial review. While accepting the Supreme Court’s analysis regarding the character of the special use permit process, the General Assembly notes that quasi-judicial proceedings are to be reviewed on the record, which in turn requires such proceedings to be conducted in the manner of a mini-trial. Given their essential legislative character, the corporate authorities of municipalities and counties are not well suited to—conduct mini-trials. In order to promote the efficient and effective governance of municipalities and counties, the General Assembly hereby adopts Senate Bill 94. Senate Bill 94 is not intended to question the essential conclusions in Klaeren regarding the legal character of special use permit decisions or due process, but it provides that any special use decision made by a municipality—or county shall be treated as legislative decisions subject to de novo judicial review.’ ” Millineum Maintenance, 384 Ill. App. 3d at 646 (quoting 94th Ill. Gen. Assem., Senate Proceedings, May 3, 2006, at 22-23 (statements of Senator Garrett)).
See also Dunlap, 394 Ill. App. 3d at 641-42 (citing Millineum Maintenance, 384 Ill. App. 3d at 646-47, court explained that the passage of
¶ 73 We decline to read an enactment that was aimed primarily at easing the burden on counties and municipalities as creating a right of action that could potentially increase the burden on these same bodies. We agree with defendants that
¶ 74 We intimate no position on whether plaintiffs could have based their action on something other than
¶ 75 Owing to our holding, we need not decide whether the trial court erred in holding that the denial of plaintiffs’ petition deprived them of due process.
¶ 76 For the foregoing reasons, the judgment of the circuit court of McHenry County is reversed.
¶ 77 Reversed.