WALTER PAUL, LINETTE DeHAVEN, and CURTIS DeHAVEN, Plaintiffs-Appellants, v. THE COUNTY OF OGLE, MIKE STUKENBERG, COLLEEN M. STUKENBERG, and STKE, LLC, Defendants-Appellees.
Docket No. 2-17-0696
Appellate Court of Illinois, Second District
April 20, 2018
2018 IL App (2d) 170696
Illinois Official Reports; Appeal from the Circuit Court of Ogle County, No. 16-MR-41; the Hon. John C. Redington, Judge, presiding. Judgment Reversed and remanded.
James R. Griffin, of Schain Banks, Ltd., of Chicago, and Dan G. Fishburn, of Fishburn Whiton Thruman, of Freeport, for appellants.
Nicole M. Bauer and Ryan R. Stodden, of Plager, Krug, Bauer & Rudolph, Ltd., of Freeport, for appellee Styke, LLC.
No brief filed for other appellees.
Justices Zenoff and Burke concurred in the judgment and opinion.
OPINION
¶ 1 Plaintiffs—Walter Paul, Linette DeHaven, and Curtis DeHaven—appeal the trial court’s order dismissing their amended complaint against defendants—the County of Ogle (county), Mike Stukenberg, Colleen M. Stukenberg, and STKE, LLC. Plaintiffs contend that the trial court erroneously held that they lacked standing to challenge the county’s granting of a special-use permit on nearby property and that they did not allege a facial challenge, as required, to the ordinance approving the special use. We reverse and remand.
¶ 2 Plaintiffs’ amended complaint alleged the following. The county had granted a special-use permit to operate a “Motor Carrier Facility” to store garbage trucks and dumpsters on property owned by the Stukenbergs and STKE, LLC. The property was located in an AG-1 agricultural zoning district. It was surrounded by private property containing unimproved farmland and rural home sites, farm buildings, and single-family homes. The surrounding property was generally being used consistently with the AG-1 zoning.
¶ 3 Paul owned property adjacent to the Stukenberg property, and the DeHavens owned property approximately 1250 feet away. Plaintiffs alleged that the proposed use would be unconstitutional as applied to their properties pursuant to the factors enumerated in La Salle National Bank of Chicago v. County of Cook, 12 Ill. 2d 40 (1957), and Sinclair Pipe Line Co. v. Village of Richton Park, 19 Ill. 2d 370 (1960). The complaint alleged that each of the La Salle/Sinclair factors militated against granting the proposed use.
¶ 4 Specifically, plaintiffs alleged that their properties would be devalued by the
¶ 5 The complaint further alleged that the proposed use did not promote the health, safety, or general welfare of the public. Moreover, the Stukenbergs’ property was not suitable for the proposed use, as it was zoned AG-1, included a house, and was frequently flooded. According to the staff report, the property consisted of “ ‘prime farm land.’ ”
¶ 6 The complaint alleged that the property had not been vacant as zoned, having been purchased in 2016. It also alleged that there was no community need for the proposed use and that the use was inconsistent with the comprehensive plans of both the county and the Village of Forreston.1 Accordingly, count I sought a declaratory judgment that the ordinance approving the special use was unconstitutional.
¶ 7 Count II alleged that the county violated its own zoning ordinance in approving the special use. Plaintiffs alleged that a “Motor Carrier Facility,” as defined by the county’s zoning ordinance, allowed for the storage of trucks or buses but did not allow for the storage of dumpsters. Further, the ordinance provided that vehicle maintenance be conducted only on vehicles owned and operated by the owner of the property, whereas the vehicles to be stored on the property here were owned by another entity and would need to be serviced if they did not run properly. Count III sought to enjoin defendants from developing the site pursuant to the special-use permit.
¶ 8 Defendants moved to dismiss (
¶ 9 Plaintiffs first contend that the trial court erred in concluding that they lack standing. Standing requires some injury to a legally cognizable interest. Village of Chatham v. County of Sangamon, 216 Ill. 2d 402, 419 (2005). The claimed injury, whether actual or threatened, must be distinct and palpable, fairly traceable to the defendant’s actions, and substantially likely to be prevented or redressed by granting the relief requested. Id. at 419-20.
¶ 10 We note that the cases are unclear as to what, if anything, a plaintiff must plead to establish standing in a case such as this one. Plaintiffs invoke the general rule that lack of standing is an affirmative defense that may be raised in a motion pursuant to section 2-619(a)(9) of the Code of Civil Procedure (
¶ 11 However, defendants rely on Garner v. County of Du Page, 8 Ill. 2d 155 (1956), where the court stated that “for a party to have standing in a court of equity to complain about the use of another’s property, he has the burden of proving that he has suffered a special damage by reason of such use which differs from that suffered by the general public.” Id. at 158-59. In that case, the complaint was not dismissed pretrial but, after trial, the court entered judgment for the defendant. The supreme court affirmed, holding that the plaintiffs, who lived 1½ and 3 miles from the proposed development, “failed to prove damage which is different from that suffered by the public generally and therefore have no standing to maintain the action.” Id. at 159. Defendants also cite Treadway v. City of Rockford, 28 Ill. 2d 370 (1963). There, the court held that the plaintiffs proved a “sufficient special interest and damage to justify maintenance of this action,” in that their property would be devalued by the construction of a proposed shopping center. Id. at 376.
¶ 12 In People ex rel. Klaeren v. Village of Lisle, 202 Ill. 2d 164, 176 (2002), the court again considered whether neighboring landowners had standing to complain about a proposed development. The court cited Yusuf v. Village of Villa Park, 120 Ill. App. 3d 533, 538 (1983), which held that allegations of a diminution in value and a loss of quiet enjoyment of property, caused by additional traffic and noise, were enough to confer standing on adjoining property owners. Klaeren, 202 Ill. 2d at 176. The Klaeren court found that identical allegations in the case before it, as well as testimony from a preliminary injunction hearing, were sufficient to convey standing. Id.
¶ 13 It is thus unclear whether a plaintiff challenging the granting of a special-use permit for a neighboring property has a duty to plead special damages. We need not resolve the issue here, however, as plaintiffs have clearly done so.
¶ 14 It is true that the complaint does not contain the magic words that plaintiffs will suffer damages different from those sustained by the general public, but defendants cite no case holding that such language is required. Indeed, the allegations in the complaint are very similar to those found to be sufficient to confer standing in cases such as Klaeren. See also Whipple v. Village of North Utica, 2017 IL App (3d) 150547. Plaintiffs allege that Paul’s property is immediately adjacent to the subject tract and that the DeHavens’ property is within 1250 feet of it. Based on proximity alone, common sense dictates that effects such as noise and odors will be felt more acutely on plaintiffs’ properties than on those many miles distant. Cf. Garner, 8 Ill. 2d at 159.
¶ 15 Further, the complaint does contain allegations of harm specific to plaintiffs’ properties. For example, plaintiffs allege that “run-off from the garbage dumpsters and garbage trucks will drain to the bottomland areas which are immediately adjacent to the Walter Paul property.” Thus, plaintiffs, at least at this stage of the proceedings, have adequately pleaded that they will suffer damages different from those of the public generally.
¶ 17 By the time the supreme court decided La Salle in 1957, the right to challenge in court municipal decisions concerning special-use permits was already well established. Thus, the court was able to derive from the numerous earlier cases a list of considerations to apply in such cases, which have come to be known as the La Salle factors. See La Salle, 12 Ill. 2d at 46-47.2
¶ 18 Confusion arose over whether, in ruling on special-use permits, municipal bodies acted in a legislative or administrative capacity. As the answer to the question potentially affected the standard of review, the supreme court considered the conflicting views in City of Chicago Heights v. Living Word Outreach Full Gospel Church & Ministries, Inc., 196 Ill. 2d 1, 13-16 (2001). (2001). The court first acknowledged the “widely held” view that a legislative body acts in an administrative, rather than a legislative, capacity when ruling on an application for a special-use permit. Id. at 13. When a body acts administratively in ruling on a permit application, its decision is subject to general principles of administrative review, and thus the decision can be reversed only if it was without support in the record or was otherwise arbitrary. Id. The court then explained that Illinois has generally followed a different approach:
“Although the clear weight of authority in the United States holds that a legislative body acts administratively when it rules on applications for special use permits, there is authority in this state which holds that the granting or denial of a permit application is a legislative act. [Citation.] When a legislative body acts in a legislative capacity in ruling on a permit application, its decision is not subject to principles of administrative review. Instead, the legislative body’s decision is reviewed for arbitrariness as a matter of substantive due process under the six-part test set forth in [La Salle].” Id. at 14.
The court found “considerable force” to the view that such decisions should be considered administrative (id. at 15), but declined to decide the issue going forward, concluding that the result in the case before it
¶ 19 The court commented on the unique nature of a special-use-permit decision. It explained that “[i]n general, a ‘special use’ is a type of property use that is expressly permitted within a zoning district by the controlling zoning ordinance so long as the use meets certain criteria or conditions.” Id. Thus, a special use “ ‘is a “permitted use” when allowed under a special permit. Thus, there has been a local legislative determination that the use, as such, is neither inconsistent with the public’s health, safety, morals or general welfare, nor out of harmony with the town’s general zoning plan.’ ” Id. at 17 (quoting 3 Edward H. Ziegler et al., Rathkopf’s The Law of Zoning and Planning § 41.08, at 41-34 (4th ed. 1992)); see also 83 Am. Jur. 2d Zoning and Planning § 974, at 814 (1992) (“Where a zoning ordinance authorizes a business as a special use, such authorization is tantamont [sic] to a legislative conclusion that the use is appropriate in the district.”).
¶ 20 The following year, in Klaeren, the court answered the question it had left open in Living Word Outreach. It explicitly held that decisions on special-use permits were administrative rather than legislative actions. Klaeren, 202 Ill. 2d at 183.
¶ 21 In response to Klaeren, the legislature enacted section 5-12012.1, which currently provides:
“Any decision by the county board of any county, home rule or non-home rule, in regard to any petition or application for a special use *** 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.”
55 ILCS 5/5-12012.1(a) (West 2016).
¶ 22 In Millineum Maintenance Management, Inc. v. County of Lake, 384 Ill. App. 3d 638 (2008), a defendant argued, inter alia, that section 5-12012.1 violated separation-of-powers principles (
¶ 23 In Napleton, the plaintiff challenged a text amendment to the defendant village’s zoning code to ban financial institutions on ground-floor spaces in the B-1 and B-3 zoning districts. Napleton, 229 Ill. 2d at 302. The plaintiff contended that the ordinance would diminish the value of her property by limiting the pool of potential tenants. Id. at 303. The court, after noting that the plaintiff had expressly proceeded with a facial challenge
“A facial challenge to the constitutionality of a legislative enactment is the most difficult challenge to mount successfully [citations], because an enactment is facially invalid only if no set of circumstances exists under which it would be valid. [Citation.] The fact that the enactment could be found unconstitutional under some set of circumstances does not establish its facial invalidity. [Citations.] In contrast, in an ‘as-applied’ challenge a plaintiff protests against how an enactment was applied in the particular context in which the plaintiff acted or proposed to act, and the facts surrounding the plaintiff’s particular circumstances become relevant. [Citation.] If a plaintiff prevails in an as-applied claim, he may enjoin the objectionable enforcement of the enactment only against himself, while a successful facial attack voids the enactment in its entirety and in all applications.” Id. at 305-06.
¶ 24 The court then considered the level of scrutiny to apply to the plaintiff’s constitutional challenge, concluding that the traditional rational-basis test was appropriate. Id. at 308-09. The plaintiff contended, however, that La Salle mandated more exacting scrutiny. The court rejected this argument, noting that the plaintiff’s challenge was facial whereas La Salle involved an as-applied challenge:
“The difference between a facial and an as-applied zoning challenge is significant: a zoning ordinance that may be valid in its general aspects may nevertheless be invalid as to a specific parcel of property because the balance of hardships—the gain to the public in general against the detriment to the individual owner—overwhelmingly burdens the individual owner. [Citation.] In light of this possibility, the La Salle opinion set forth a list of factors that may be relevant in an as-applied challenge to assist in balancing the gain to the public against the specific burdens experienced by an individual property owner. In addition, as a result of the difference in focus of each type of challenge, the evidence needed to sustain a claim of invalidity will be different depending upon whether the challenge is facial—alleging a universal invalidity—or as applied to a particular property. We agree with the appellate court below that if the same evidentiary standard were used in each type of challenge, there would be no
difference between these challenges, leading to the absurd result that a zoning ordinance ‘could never be generally valid but invalid as to a particular piece of property; instead, it would be either valid as to all or invalid as to all.’ [Citation.] That the La Salle factors do not lend themselves to application to a facial challenge is evident not only from the fact that they focus upon the specific effect of the challenged ordinance upon a particular parcel of property, but also in that plaintiff suggests that this court modify these factors for application to a facial challenge, acknowledging that ‘some of the La Salle factors that deal with the specifics of a parcel of property may not be relevant or applicable in a facial challenge, which *** maintain[s] that the ordinance at issue is invalid in all applications.’ ” Id. at 318-19.
¶ 25 Finally, in Our Savior Evangelical Lutheran Church v. Saville, 397 Ill. App. 3d 1003 (2009), the plaintiff challenged the denial of a special-use permit. Quoting the above passage, we held that the La Salle factors
¶ 26 Here, defendants seize on the statement that “a successful facial attack voids the enactment in its entirety” (Napleton, 229 Ill. 2d at 306) and argue that, because the ordinance in question applies only to the subject property, a successful challenge will “void[ ] the enactment in its entirety.” They argue, in essence, that all challenges to the granting of a special-use permit are facial because the effect of such a challenge is to void the ordinance entirely. This argument is fatally flawed for several reasons.
¶ 27 First, defendants fail to account for the unique nature of special-use permits, which, by design and definition, are granted on a case-by-case basis. The supreme court recognized the unique nature of such proceedings in Living Word Outreach, where it observed that they were functionally equivalent to administrative proceedings and noted that a majority of jurisdictions consider them to be such. In Millineum Maintenance, we held that, despite the legislature’s characterization of such proceedings as legislative, courts should continue to review them as before, using the La Salle factors, and we reaffirmed that conclusion in Our Savior.
¶ 28 Second, defendants err in assigning the distinction between facial and as-applied challenges talismanic significance. The United States Supreme Court has cautioned that “[t]he distinction is both instructive and necessary, for it goes to the breadth of the remedy employed by the Court, not what must be pleaded in a complaint.” Citizens United v. Federal Election Comm’n, 558 U.S. 310, 331 (2010); see also Richard H. Fallon Jr., As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1327-28 (2000) (“In order to raise a constitutional objection to a statute, a litigant must always assert that the statute’s application to her case violates the Constitution. But when holding that a statute cannot be enforced against a particular litigant, a court will typically apply a general norm or test and, in doing so, may engage in reasoning that marks the statute as unenforceable in its totality.” (Emphasis omitted.)).
¶ 29 An Illinois Supreme Court justice has observed:
“The difficulty may lie in the doctrine itself. One commentator has charged that ‘categorizing constitutional cases into “facial” and “as-applied” challenges, and relying on these categories to shape doctrine and inform case outcomes, is an inherently flawed and fundamentally incoherent undertaking.’ [Citation.] Another has lamented that the ‘distinction between as-applied and facial challenges may confuse more than it illuminates’ and argued that the distinction between facial and as-applied challenges
should be eliminated altogether.” People v. One 1998 GMC, 2011 IL 110236, ¶ 85 (Karmeier, J., specially concurring).
¶ 30 But more fundamentally, Napleton itself emphatically rejected the reading defendants assign to it. Far from rejecting the La Salle factors as applicable to cases that—like this one—must necessarily be decided on an as-applied basis, the court held that the La Salle factors can be “relevant in an as-applied challenge” and labeled “absurd” the suggestion that a zoning ordinance could never be invalid as applied to a particular piece of property. Napleton, 229 Ill. 2d at 318-19.
¶ 31 Moreover, to agree with defendants would be to effectively leave neighboring landowners without a remedy—something Illinois courts have said they have had for more than 60 years.4 The only way for a neighboring landowner to succeed on a facial challenge would be to argue that the special use is not appropriate anywhere in the relevant zoning district. However, as Living Word Outreach explained, the very existence of the special use within the zoning district demonstrates the legislative body’s conclusion that it is appropriate in the zoning district if certain conditions are met. Living Word Outreach, 196 Ill. 2d at 17.
¶ 32 Napleton did not purport to overrule Living Word Outreach, Klaeren, or other cases applying the La Salle factors to cases of this type. Those cases explain that special-use permits are, by their nature, decided on a case-by-case basis and are thus the functional equivalent of administrative decisions regardless of how they are categorized for other purposes. It is only because of the fact-specific nature of the decision that the “entire ordinance” will be invalidated by a successful challenge. Cases from other districts since Napleton have continued to apply the La Salle factors to neighbor challenges. See Whipple, 2017 IL App (3d) 150547; Robrock v. County of Piatt, 2012 IL App (4th) 110590. Thus, here, as the ordinance itself is fact-specific, plaintiffs’ challenge to it is properly fact-specific as well.5
¶ 33 Citing Conaghan v. City of Harvard, 2016 IL App (2d) 151034, defendants further contend that section 5-12012.1 does not create a cause of action. Conaghan considered a parallel provision in the Illinois Municipal Code (
¶ 34 Defendants make some additional arguments that plaintiffs’ allegations are insufficient. They contend that the allegations are conclusory. A pleading that merely paraphrases the elements of a cause of action in conclusory terms is insufficient. Landers-Scelfo v. Corporate Office Systems, Inc., 356 Ill. App. 3d 1060, 1065 (2005). On the other hand, a plaintiff need not set out his or her evidence in the complaint. A fact is well pleaded if a plaintiff has clearly set out the ultimate fact he or she intends to prove. Id. A motion to dismiss under section 2-615 raises issues of law; we therefore review the dismissal de novo. Id.
¶ 35 Here, plaintiffs’ allegations include ultimate facts. For example, the complaint alleges that the value of Paul’s property will be diminished by the proposed use and lists five specific ways in which that will occur. It alleges that “run-off from the garbage dumpsters and garbage trucks will drain to the bottomland areas which are immediately adjacent to the Walter Paul Property. All further drainage from the Subject Property drains over and across the Walter Paul Property. There is a potential for ground water contamination on the Walter Paul Property.” This seems to be reasonably specific, and defendants do not specify what additional information they require.
¶ 36 Plaintiffs’ allegations are similar to those found sufficient in similar cases. In Whipple, for example, the plaintiffs challenged the granting of a permit to operate a mine on a nearby property. Their complaint closely tracked the La Salle factors, much like the complaint here. The reviewing court held that the lower court erred in dismissing it. Whipple, 2017 IL App (3d) 150547, ¶ 53.
¶ 37 Defendants further contend that plaintiffs’ allegations are “speculative.” In a case of this type, allegations will always be speculative in the sense that the proposed use has not commenced, so it would be impossible to calculate with mathematical precision the damages to the plaintiffs’ properties. As the First District has observed, “Defendants call plaintiffs’ allegations of harm speculative, but plaintiffs respond that any zoning case involves expert projections that an opponent will wish to term speculative. Plaintiffs correctly add that, at the pleading stage, they have not yet had a chance to prove what defendants contend is speculative.” Rodriguez v. Henderson, 217 Ill. App. 3d 1024, 1035 (1991).
¶ 38 Defendants argue that, even if the trial court erred in dismissing the entire complaint, its dismissal of count II should nevertheless be affirmed because the count fails to state a claim. See Ultsch v. Illinois Municipal Retirement Fund, 226 Ill. 2d 169, 192 (2007) (reviewing court may affirm on any basis supported by the record). In count II, plaintiffs allege that the county failed to follow its own zoning ordinance in granting the special-use permit. Defendants’ argument on this point consists only of a brief general assertion that this count improperly seeks administrative review of a legislative decision. We disagree. A municipality must follow its own valid ordinances. People ex rel. J.C. Penney Properties, Inc. v. Village of Oak Lawn, 38 Ill. App. 3d 1016, 1019 (1976). If a municipality violates its own valid ordinance, its action is illegal, and the courts may enjoin it. Tierney v. Village of Schaumburg, 182 Ill. App. 3d 1055, 1059 (1989).6 As we reject defendants’ alternative basis for affirming it, we reverse the dismissal of count II.
¶ 39 Plaintiffs assert that count III, seeking to enjoin the proposed use, likewise was improperly dismissed. A party seeking a permanent injunction must allege that he or she has a clear and ascertainable right that needs protection, there is no adequate remedy at law, and he or she will suffer irreparable harm if such relief is not granted. Helping Others Maintain Environmental Standards v. Bos, 406 Ill. App. 3d 669, 688 (2010). Injunctive relief can be appropriate to prevent a prospective use of neighboring property, at least where that use would constitute a nuisance. See Whipple, 2017 IL App (3d) 150547, ¶ 45; Helping Others Maintain Environmental Standards, 406 Ill. App. 3d at 689.
¶ 40 As with count II, the trial court did not specifically rule on the sufficiency of this count. Defendants’ argument that it is insufficient largely restates their previous arguments about the complaint in general. Thus, we do not consider whether plaintiffs’ specific allegations are sufficient to state a cause of action for injunctive relief. We reverse the dismissal of this count as well.
¶ 41 The judgment of the circuit court of Ogle County is reversed and the cause is remanded.
¶ 42 Reversed and remanded.