No. 2--06--0238 filed: 12-20-06
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE CITY OF ELGIN, ) Appeal from the Circuit Court
) of Kane County.
Plaintiff and Counterdefendant- )
Appellee, )
)
v. ) No. 04--OV--1418
)
ALL NATIONS WORSHIP CENTER, )
) Honorable
Defendant and Counterplaintiff- ) Michael J. Colwell,
Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE CALLUM delivered the opinion of the court:
In 2003, defendant, All Nations Worship Center (All Nations), began conducting worship
services in Elgin. The city filed a complaint in the circuit court alleging that, under title 19 of the
Municipal Code (the zoning ordinance), a church was not a permitted use in the district where All
Nations was operating. All Nations responded with a counterclaim alleging that the zoning ordinance
was unconstitutional and violated the Religious Land Use and Institutionalized Persons Act of 2000
(RLUIPA) (42 U.S.C. §2000cc et seq. (2000)). The trial court dismissed the counterclaim and All
Nations appeals, contending that its counterclaim stated causes of action under the constitution and
RLUIPA. We affirm.
In August 2003, All Nations began conducting services on property it leased in Elgin. Its use
of the property included weekly worship services and preaching, counseling, prayer meetings, musical
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performances, religious rites such as weddings and baptisms, Bible studies, youth activities, social
gatherings, and service projects.
All Nations' property was located in an AB area business district where churches were not
allowed as either a permitted or a conditional use pursuant to the zoning ordinance. In an attempt
to comply with the ordinance, All Nations applied for a planned unit development permit. However,
the city denied its application. The city then filed a complaint in the circuit court alleging that All
Nations was violating the ordinance. All Nations answered the complaint and filed a counterclaim
alleging that the ordinance was unconstitutional and violated RLUIPA.
All Nations' counterclaim alleged that the zoning ordinance denied it equal protection (U.S.
Const., amend. XIV) because the ordinance excluded churches from the AB district but permitted
similar, nonreligious uses such as "membership organizations," sports and recreation clubs, motion
picture theaters, and funeral services. All Nations also alleged that the ordinance violated RLUIPA,
which requires that municipal zoning not discriminate against church uses (42 U.S.C. §§2000cc(b)(1),
(b)(2) (2000)) and not unreasonably limit religious assemblies within a jurisdiction (42 U.S.C.
§2000cc(b)(3)(B) (2000)). All Nations alleged that the ordinance permitted various types of non-
religious assemblies in the AB zoning district but excluded churches, thus discriminating against
churches. Moreover, the ordinance permitted churches as a matter of right in only 1 of 30 zoning
categories, and as conditional uses in 2 more, thus unreasonably restricting churches from locating
within the city. After All Nations filed its counterclaim, the city dismissed its complaint.
During this time, the city amended the zoning ordinance. After the amendment, a church can
be a conditional use in the RB residence business district, the NB neighborhood business district, and
the AB area business district. Elgin Ordinance No. G65--05, eff. July 27, 2005. Similar non-religious
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uses would also have to apply for conditional use permits in those districts. Elgin Ordinance No.
G65--05, eff. July 27, 2005. The city then moved to dismiss All Nations' counterclaim, contending
that the amendments cured any defects in the zoning ordinance. See 735 ILCS 5/2--619 (West 2004).
The trial court dismissed the counterclaim and All Nations timely appeals.
All Nations does not appear to dispute that the amendment cured the perceived problems with
the zoning ordinance. However, it contends that the trial court nevertheless erred in dismissing its
counterclaim. All Nations argues that, prior to the amendment, it acquired a vested right to continue
to operate without obtaining a conditional use permit. According to All Nations, because the
ordinance was unconstitutional before it was amended, we should proceed as if the ordinance never
existed. Because no zoning ordinance ever existed, All Nations was entitled to use its property any
way it wished. Because it expended considerable amounts in making the property suitable for
worship services, it acquired a vested right to continue operating in that fashion even after the
ordinance was amended.
The city first responds that the case is moot. According to the city, the amendment cured the
defects in the zoning ordinance that All Nations identified and, accordingly, All Nations can obtain
no further relief. An appeal is moot where it presents no actual controversy or where the issues
involved in the trial court no longer exist because intervening events have rendered it impossible for
the reviewing court to grant effectual relief to the complaining party. In re J.T., 221 Ill. 2d 338, 349-
50 (2006). Here, All Nations seeks, in essence, a declaration that it may continue to hold services
without the necessity of obtaining a conditional use permit from the city. A judgment in its favor
would mean that it does not have to obtain a conditional use permit. Because it is possible for All
Nations to receive effectual relief, the case is not moot.
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The city further contends that the trial court properly dismissed All Nations' complaint
because All Nations did not acquire a vested right to continue its operations. The city contends that
All Nations cannot attack the preamendment zoning ordinance as void and at the same time claim a
vested right thereunder. The city appears to miss the point of All Nations' argument, but not by
much. All Nations argues that it acquired a vested right, not under the preamendment ordinance, but
under the "common law" of zoning, i.e., as if no zoning ordinance ever existed. Nevertheless, we
agree with the city's primary contention that All Nations did not acquire a vested right to continue
operating and, accordingly, the trial court properly dismissed its counterclaim.
A complaint or, as here, a counterclaim should not be dismissed under section 2--619 of the
Code of Civil Procedure (735 ILCS 5/2--619 (West 2004)) unless it clearly appears that no set of
facts could be proved under the pleadings that would entitle the plaintiff to relief. Ogle v. Fuiten, 102
Ill. 2d 356, 360-61 (1984); Capitol Indemnity Corp. v. Stewart Smith Intermediaries, Inc., 229 Ill.
App. 3d 119, 123 (1992). We review de novo the dismissal of a pleading pursuant to section 2--619.
Hartshorn v. State Farm Insurance Co., 361 Ill. App. 3d 731, 735 (2005).
Initially, we note that there are several parallels between this case and Civil Liberties for
Urban Believers v. City of Chicago, 342 F.3d 752 (7th Cir. 2003). There, an association of churches
and five of its individual members sued the city, claiming that its zoning ordinance violated the
constitution and RIULPA. The opinion describes the arduous processes that the member churches
endured to obtain suitable locations within the city for their facilities and to obtain zoning approval.
While the case was pending, the city amended its zoning ordinance. On appeal, the Seventh Circuit
held that the amended ordinance complied with the constitution and the statute. The court noted that
while the five churches had faced substantial burdens in opening their new facilities, they were the
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same burdens faced by any other individual or entity seeking to conduct business in the city. Civil
Liberties, 342 F.3d at 761. Accordingly, the new ordinance did not discriminate against churches.
All Nations, seeking to avoid the fate of the Civil Liberties plaintiffs, argues that it may
proceed with its claims because it acquired a vested right to operate. Generally, there is no vested
right to the continuation of a zoning ordinance. 1350 Lake Shore Associates v. Casalino, 363 Ill.
App. 3d 806, 814 (2005). However, " 'where there has been a substantial change of position,
expenditures or incurrence of obligations made in good faith by an innocent party under a building
permit or in reliance upon the probability of its issuance, such party has a vested property right and
he may complete the construction and use the premises for the purposes originally authorized,
irrespective of subsequent zoning or a change in zoning classification.' " 1350 Lake Shore Associates,
363 Ill. App. 3d at 814, quoting People ex rel. Skokie Town House Builders, Inc. v. Village of
Morton Grove, 16 Ill. 2d 183, 191 (1959).
Although it does not use this precise terminology, All Nations' argument is based on the
premise that the Elgin zoning ordinance was void ab initio. It has been stated that "[a]n
unconstitutional law 'confers no right, imposes no duty and affords no protection. It is *** as though
no such law had ever been passed.' " People v. Gersch, 135 Ill. 2d 384, 399 (1990), quoting People
v. Schraeberg, 347 Ill. 392, 394 (1932). Thus, All Nations claims to have a vested right, not under
the ordinance itself, but under the law as it existed before the ordinance was passed. There are two
fatal flaws in this argument, however.
First, the void ab initio doctrine applies only to statutes and ordinances that are
unconstitutional on their face. Hill v. Cowan, 202 Ill. 2d 151, 156 (2002). All Nations could not
plausibly claim that the Elgin zoning ordinance was facially unconstitutional. At most, All Nations'
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contention is that the ordinance was unconstitutional as applied to it. Therefore, the ordinance was
not void ab initio.
Second, and perhaps more important, vested rights are acquired by attempting to comply with
an ordinance as written. As noted, when a party expends substantial time and effort attempting to
comply with an ordinance as it then exists and the legislative body amends the ordinance, the party
may acquire a vested right to proceed under the old ordinance. 1350 Lake Shore Associates, 363 Ill.
App. 3d at 814. Here, however, All Nations proceeded in violation of the zoning ordinance as
written. It is difficult to see how All Nations can claim a vested right to ignore the existing ordinance.
The supreme court recently discussed the void ab initio doctrine in Perlstein v. Wolk, 218 Ill.
2d 448 (2006). The court noted that " '[t]he actual existence of a statute, prior to [a determination
of unconstitutionality], is an operative fact and may have consequences which cannot justly be
ignored.' " Perlstein, 218 Ill. 2d at 461, quoting Chicot County Drainage District v. Baxter State
Bank, 308 U.S. 371, 374, 84 L. Ed. 329, 332-33, 60 S. Ct. 317, 318 (1940). The court adopted an
equitable approach to application of the void ab initio doctrine, "tempered by considerations of
reasonableness and good-faith reliance on the purportedly valid statute." (Emphasis added.)
Perlstein, 218 Ill. 2d at 463. The court emphasized that individuals are not "required or empowered"
to determine whether a law is unconstitutional. Perlstein, 218 Ill. 2d at 459. The court quoted
extensively from a Delaware case:
" 'The Delaware Landlord Distress Law has never been adjudged unconstitutional.
Therefore, it is clothed by a presumption of constitutionality. [Citations.] The [defendants]
in the instant case were entitled to rely upon that presumption of constitutionality and validity,
and to act reasonably and in good faith under the provisions of the Law as it then existed.
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Citizens and public officials have a right to accept the law as it is written until it is repealed
or judicially condemned. They are not required to speculate upon the validity of a statute or
to act under it at their peril. Until legislatively or judicially excised, a statute is an operative
fact. Courts presume every legislative act constitutional and indulge every intendment in
favor of validity. No penalty may be visited upon citizens for doing likewise.' " Perlstein, 218
Ill. 2d at 463-64, quoting Downs v. Jacobs, 272 A.2d 706, 707 (Del. 1970).
Perlstein holds that the existence of an ordinance is a historical fact that cannot simply be
ignored. While a party may have a right to assume that an ordinance is valid and proceed
accordingly, it has no corresponding right to do the contrary: to assume that the ordinance is invalid
and proceed in violation of it. As Perlstein put it, a party is not "empowered" to determine for itself
whether an ordinance is unconstitutional. Perlstein, 218 Ill. 2d at 459. That is what All Nations did
here: it proceeded in violation of the zoning ordinance as written on the assumption that it would be
found unconstitutional. However, no one had so found when All Nations began its operations. All
Nations simply could not acquire a vested right to conduct services in violation of the presumptively
valid ordinance.
All Nations cites City of Marengo v. Pollack, 335 Ill. App. 3d 981 (2002), apparently for the
proposition that even an illegal use of property can create vested rights. However, Marengo does
not so hold. There, the defendant repaired and sold pallets, which was always a legal use. At some
point, the city amended its zoning ordinance, which had the effect of reducing the percentage of
property that could be devoted to outdoor storage. The defendant used a much greater percentage
of its property for storing pallets. The city later recodified its zoning ordinance, creating a new
industrial zone. The city then filed a complaint, alleging that because the defendant had continually
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violated the outdoor-storage restriction, its use of the property was not a legal nonconforming use.
This court rejected the argument, holding that it could easily separate the permitted use from the
prohibited use. Marengo, 335 Ill. App. 3d at 988. This court held that the defendant could continue
the permitted use, but did not hold that it could continue the prohibited use.
Because All Nations did not have a vested right to continue operations in violation of the
zoning ordinance, the trial court properly dismissed its counterclaim. We note that All Nations is not
without a remedy. As the city points out, under the amended ordinance churches are now a
conditional use in the AB zone where All Nations' property is located. In its brief, the city states that
it would have no legitimate basis to oppose a conditional use permit for the subject property. While
this statement is not binding on the city should All Nations choose to apply for a permit, it is at least
some indication that the city is not prepared to close the door on the All Nations facility.
The judgment of the circuit court of Kane County is affirmed.
Affirmed.
GROMETER, P.J., and HUTCHINSON, J., concur.
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