Platform I Shore, LLC v. The Village of Lincolnwood

2014 IL App (1st) 133923

FIRST DIVISION
Filed: August 18, 2014
No. 1-13-3923

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as
precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT
______________________________________________________________________________

PLATFORM I SHORE, LLC, and ) Appeal from the Circuit Court
3318 W. DEVON, LLC, ) of Cook County.
)
Plaintiffs-Appellants, )
)
v. ) No. 13 CH 6635
)
)
THE VILLAGE OF LINCOLNWOOD, )
THE VILLAGE OF LINCOLNWOOD )
ZONING BOARD OF APPEALS, SHERWIN )
J. MALKIN, Chairman of the Village of )
Lincolnwood Zoning Board of Appeals, and )
AARON COOK, Zoning Officer for the )
Village of Lincolnwood, ) Honorable
) Mary Mikva,
Defendants-Appellees. ) Judge, Presiding.
__________________________________________________________________________

JUSTICE HOFFMAN delivered the judgment of the court, with opinion.
Presiding Justice Connors and Justice Cunningham concurred in the judgment and
opinion.

OPINION
2014 IL App (1st) 133923

¶1 The plaintiffs, Platform I Shore, LLC, and 3318 W. Devon, LLC, appeal from the circuit

court judgment which affirmed the decision of the defendants, The Village of Lincolnwood

(Village), the Village of Lincolnwood Zoning Board of Appeals, Sherwin J. Malkin 1, chairman

of the Village of Lincolnwood Zoning Board of Appeals (collectively referred hereinafter as "the

Board"), and Aaron Cook, zoning officer for the Village of Lincolnwood, denying their zoning

application for the development and operation of a firearms shooting range on their existing

property. For the reasons that follow, we reverse the judgment of the circuit court and remand

the cause for further proceedings.

¶2 On March 8, 2013, the plaintiffs filed a complaint for administrative review of the

Board's decision in the circuit court, alleging the following facts. Platform I Shore, LLC

(Platform), leased the second floor of a Lincolnwood property owned by 3318 W. Devon, LLC,

in order to operate a shooting range above the existing firearms dealership operated on the first

floor of the property. The property is located in a "B-2 zone district" according to the Village's

zoning district map. Pursuant to the "health club and private recreation" permitted-use provision

for B-2 zoned properties, Platform submitted its application for a business license on October 1,

2012, and on October 2, 2012, 3318 W. Devon, LLC, filed an application to obtain a building

permit for Platform's intended renovations and planned shooting range. The plaintiffs, through

counsel, sent a letter on October 24, 2012, demanding a decision on their zoning application as

promised by the Village's website which provides that decisions shall be rendered within 11 days

of submission. A second demand letter was sent on October 29, 2012.

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After the plaintiffs filed their notice of appeal, Sherwin J. Malkin, died, and Herbert Theisen
was appointed as the new chairman of the Village of Lincolnwood Zoning Board of Appeals.

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¶3 On November 1, 2012, Zoning Officer Cook denied the plaintiffs' application, stating that

a shooting range did not fall within the zoning ordinance's permitted-use provision for "health

club or private recreation." In the letter, Cook referenced a prior decision made in May 2012 in

which the plaintiffs were allegedly told that a shooting range did not fall within the permitted

uses for the property. The plaintiffs appealed from Cook's denial to the Board.

¶4 On December 19, 2012, the Board conducted a hearing on the plaintiffs' appeal at which

the following evidence was adduced. The plaintiffs submitted evidence of the plain definitions

of "recreation" and contended that Cook read into the ordinance a non-existent exception. They

also pointed to another shooting range located within the Village, namely in an area designated

as the more restrictive B-1 zone district. The plaintiffs further refuted that any decision on this

issue had been rendered in May 2012, and the record is void of any documentation of an

application or previous decision from that date. Scott Krone, an architect involved in the

planning of the plaintiffs' proposed new firearms store, testified that the May 2012 decision

concerned a different approval process for the construction of a different structure in a different

zoning district. He denied that he was ever informed by the Village at that time that a shooting

range was an impermissible use of a B-2 zoned property.

¶5 Village Trustee Thomas Heidtke testified for the Board that, when the zoning ordinance

was rewritten in 2008, the Village did not intend to reverse its policy opposing firearms dealers

and shooting ranges in the B-2 zone district. Further, on November 9, 2012, the Village adopted

Resolution No. R2012-1710, initiating amendments to the ordinance which would formally

codify the Village's determination that the provision for "health club or private recreation"

excluded shooting ranges. The Village also submitted evidence that the plaintiffs had applied for

permits on three prior occasions. In 1989, the plaintiffs applied for a special use permit to

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operate a shooting range on the second floor of its current location, and that application was

denied. In 1993, the plaintiffs applied for a special use permit, but they withdrew that

application before a decision was rendered. In 1997, the plaintiffs sought to relocate their

firearms store to a location at 3310 West Devon, but that application was denied.

¶6 On February 6, 2013, the Board affirmed Cook's denial of the plaintiffs' application,

finding that a shooting range did not fall into the intended meaning of the ordinance's definition

of "health club or private recreation." The Board, with one member dissenting, opined that the

Village clearly showed its legislative intent to exclude shooting ranges within the definition of

"private recreation" by virtue of its previous denials of the plaintiffs' applications for a shooting

range and the testimony of Heidtke. The dissenting Board member stated that, under the plain

language of the current ordinance, a shooting range fell within the definition of "private

recreation" and was a permitted use. Acknowledging that the Board had denied the plaintiffs'

application for a shooting range in the past under a different ordinance, the dissenting Board

member noted that there was also no evidence refuting that another shooting range had been

permitted in a more restrictive zoning area of the Village in the past.

¶7 The plaintiffs thereafter sought judicial review of the Board's decision in the circuit court.

See 735 ILCS 5/3-101 et seq. (West 2012) (providing for judicial review of administrative

agency decisions). On November 18, 2013, the circuit court affirmed the Board's decision,

stating that it deferred to the Board's expertise in interpreting its own ordinances and agreed that

the "health club or private recreation" provision did not include a shooting range within its

meaning. The court specifically stated that it did not need to determine whether the zoning

ordinance was ambiguous in making its ruling. The plaintiffs timely appealed.

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¶8 At the outset, we note that this court reviews the decision of the administrative agency,

not the decision of the trial court. Lombard Public Facilities Corp. v. Dep't of Revenue, 378 Ill.

App. 3d 921, 927-28 (2008). When reviewing the administrative agency's decision, the

applicable standard of review depends on whether the question presented on appeal is one of

fact, of law, or of both. Id. Our review of an agency's factual findings is limited to determining

whether such findings are against the manifest weight of the evidence, and our review of agency

rulings on questions of law are reviewed de novo. Id. However, when the issue presented

contains mixed questions of law and fact, the standard of review is whether the decision was

clearly erroneous. Id. The clearly-erroneous standard applies to administrative cases involving

mixed questions of law and fact, rather than a bifurcated standard, in part because of the

deference given to the agency's experience and expertise in interpreting its statutes. Id. "A

mixed question of law and fact is whether the facts satisfy a statutory standard or whether the

rule of law, as applied to the established facts, is violated." Id. While the agency is awarded

deference, a reviewing court will reverse the agency decision when there is evidence supporting

reversal and the reviewing court 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, 393 (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)).

Here, the question of whether the proposed use of the plaintiffs' property as a shooting range

comports with the language of the zoning ordinance is a mixed question of law and fact,

triggering our application of the clearly-erroneous standard-of-review.

¶9 On appeal, the plaintiffs contend that the zoning ordinance in effect at the time of their

application unambiguously provided that a shooting range was permissible under the "health

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club or private recreation" permitted-use provision and that their zoning application should not

have been denied. We agree.

¶ 10 Municipal ordinances, such as the zoning ordinance at issue here, are interpreted under

the general rules of statutory construction and interpretation. LeCompte v. Zoning Bd. of Appeals

for Village of Barrington Hills, 2011 IL App (1st) 100423, ¶ 22; Puss N Boots, Inc. v. Mayor's

License Comm'n of City of Chicago, 232 Ill. App. 3d 984, 986 (1992). The aim of statutory

interpretation is to determine the legislative intent, which is best indicated by the statutory

language, given its plain and ordinary meaning. Nowak v. City of Country Club Hills, 2011 IL

111838, ¶ 11. Where the statutory language is clear and unambiguous, we enforce it as written

without reading into it exceptions, conditions, or limitations not expressed by the legislature.

Martin v. Office of State's Attorney of Cook Cnty., 2011 IL App (1st) 102718, ¶ 10. Where a

statute is ambiguous, courts will give substantial weight and deference to an interpretation by the

agency charged with the administration and enforcement of the statute." Commonwealth Edison

Co. v. Illinois Commerce Comm'n, 2014 IL App (1st) 132011, ¶ 20. However, a statute is not

ambiguous simply because the parties disagree as to its meaning. Commonwealth Edison, 2014

IL App (1st) 132011, ¶ 21. "A statute is ambiguous if its meaning cannot be interpreted from its

plain language or if it is capable of being understood by reasonably well-informed persons in

more than one manner." Id. Where a statute is capable of more than one reasonable

interpretation, the statute is ambiguous and we may consider extrinsic aids to construction, such

as the legislative history. Martin, 2011 IL App (1st) 132011, ¶ 20.

¶ 11 It is undisputed that the plaintiffs' property rests in the B-2 zoning district, which is

defined by the ordinance in effect at the time of their application as follows:

"The B-2 District is established to provide areas for a wide variety of retail,

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services and commercial uses, and allows for the highest intensity of such uses. Unlike

the B-1 Traditional Business District-where pedestrian travel to and from the commercial

activity is encouraged-virtually all patrons will arrive by automobile." Lincolnwood

Zoning Ordinance, art. 4.01 (adopted November 6, 2008).

¶ 12 One of the stated permitted uses of a B-2 zone property is for a "health club or recreation

facility, private." Lincolnwood Zoning Ordinance, art. 4.05 (adopted November 6, 2008). A

"permitted use" is defined as a use "permitted as of right" provided that uses comply with all

other applicable standards of the ordinance. Lincolnwood Zoning Ordinance, art. 4.04 (adopted

November 6, 2008). The ordinance further defines "health club or private recreation" as:

"A building or portion of a building designed and equipped for the conduct of

sports, exercise, leisure time activities, or other customary or usual recreational activities,

operated for profit or not-for-profit and which can be open only to members and guests of

the organization or open to the public for a fee." Lincolnwood Zoning Ordinance, art.

2.02 (adopted November 6, 2008).

¶ 13 "Recreation" is defined as "the act of recreating or the state of being recreated:

refreshment of the strength and spirits after toil: DIVERSION, PLAY" or a "means of getting

diversion or entertainment" or "one that provides recreations or amusement. Webster's Third

New International Dictionary 1899 (1993). Article 2.02 of the Lincolnwood Zoning Ordinance

further defines the phrase "health club or private recreation" to include a building designed for

sports, exercise, leisure time activities, or other customary and usual recreational activities.

Shooting ranges for pistol and rifle shooting and target practice have been held to constitute a

recreational activity, even though not specifically enumerated in the statute at issue (McNames v.

Rockford Park District, 185 Ill. App. 3d 291, 295 (1989)).

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¶ 14 Here, we find that the plain language of the Lincolnwood Zoning Ordinance is

unambiguous. We, therefore, need not consider the extrinsic evidence submitted at the Board's

hearing on the plaintiffs' appeal, but rely solely on the plain language of the ordinance itself to

conclude that the proposed shooting range is a permitted use as of right under the ordinance's

provision related to "health club or private recreation. Like in McNames, in this case, we find

that the proposed shooting range falls squarely within the broad language used in the ordinance,

namely "recreation." Moreover, as the plaintiffs point out, common sense dictates that target

shooting is also considered a sport as it is an Olympic sporting event and a recognized sporting

activity within our national college associations and 4-H clubs. See People v. Chicago Title &

Trust Co., 75 Ill. 2d 479, 493 (1979) (stating that the words of a statute "must be read to reach a

common-sense result").

¶ 15 We acknowledge that the zoning ordinance has since been amended to specially address

shooting ranges, but our duty here is only to interpret the statute in effect at the time of the

plaintiffs' application, and we cannot read exceptions into the statute that simply are not there.

Our decision further does not address whether the application for this permitted use complies

with all other applicable standards of the ordinance as that issue is not present before us today.

See Lincolnwood Zoning Ordinance, art. 4.04 (adopted November 6, 2008) (stating a permitted

use is a use permitted as of right provided that uses comply with all other applicable standards of

the ordinance).

¶ 16 For the reasons stated, we reverse the judgment of the circuit court of Cook County and

remand the cause for further proceedings consistent with this opinion.

¶ 17 Reversed and remanded.

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