dissenting:
Respectfully, I must dissent.
My colleagues have missed entirely the threshold issue in this case and have misconstrued the applicable statute. For these reasons, I believe the disposition is erroneous and I cannot concur.
An initial problem with the majority’s disposition is that it does not address the main point the defendant raised on appeal. By stating that "[t]he sole issue on appeal is whether the trial court erred in determining that the defendant was violating the Will County zoning ordinance,” the majority does a disservice to what the defendant has argued. (268 Ill. App. 3d at 20.) The defendant’s principal argument is that the trial court exceeded its jurisdiction and statutory authority in granting an injunction to plaintiffs because the court ignored the specific uses permitted under the special use permit issued by Will County and determined that the special use permit was beyond the scope of special uses permitted in a C-3 zoning district. Rather than addressing this argument, the majority merely repeats the trial court’s analysis. The problem with taking such a position is that defendant argues that there is an inherent flaw in the trial court’s reasoning. Thus, by repeating the trial court’s analysis, the majority ignores the defendant’s argument.
Further, the majority does not really address what it claims to be the issue. The majority claims that the sole issue is whether the defendant was violating the Will County zoning ordinance. However, the entire analysis that follows is a non sequitur. Rather than demonstrating that the defendant is in violation of the zoning, the majority concludes that defendant should not have been issued a special use permit because his uses are industrial rather than commercial in nature. For whatever reason, the majority fails to recognize that the zoning includes a special use permit. Therefore, the relevant inquiry is whether the defendant was in violation of the special use permit.
The majority does not address how the defendant is in violation of the special use permit. Section 5—12017 authorizes the circuit court to grant relief only if the applicable ordinance, resolution or regulation is being violated by the defendant. Here, the defendant obtained a special use permit along with the C-3 rezoning. Therefore, the court should only have considered whether the C-3 zoning with the special use permit was being violated. Instead, the court found that the defendant’s uses were not permissible special uses in an area zoned C-3. Such a finding challenges the action of the county zoning board and is not permissible under the plain language of this statute. The zoning board granted the defendant a special use permit for exactly the activities that the court enjoined the defendant from carrying out. .
The majority apparently bases its disposition on its construction of section 5—12017. One statement of the majority’s with which I wholeheartedly agree is that we must give the language of the statute its plain and ordinary meaning. However, I believe that a simple reading of the statute shows that it only applies if the person using the property is in violation of the zoning. The statute is not directed at the actions of zoning officials, but at those who use the property.
A confusing comment my colleagues make in construing the statute is that they can find no language in the statute to preclude an action brought after the defendant has sought and received a rezoning of his property. I find that language to be in the first sentence. After the defendant obtains a rezoning of the property to allow for his requested uses, how can he be in violation of the zoning? Here, the defendant was given a special use permit to carry out exactly the activities the trial court enjoined him from doing. The only way he can be in violation of the zoning is if he is in violation of the special use permit. The trial court found, and the majority concedes, that defendant is still using the property for the exact uses he disclosed to the zoning officials in his rezoning petition. Thus, it is not surprising that the majority ignores the proper inquiry — whether the defendant was in violation of the special use permit.
Finally, even if the majority’s interpretation of the statute is correct — that it can be used to attack the actions of zoning officials— the plaintiffs did not bring that action. The county was not made a party to this suit. The court’s finding that the defendant’s uses were not permitted under C-3 zoning is impermissible because it allows the plaintiffs to collaterally attack the action of the zoning board. Again, the defendant’s argument in this regard is compelling, but the majority does not respond to what the defendant argued. The majority claims that the defendant argues (1) that the board is the final arbiter of whether the proposed use fits within the land’s zoning; (2) that as long as the Board knew what activities were going to be carried on and determined that those activities were within the C-3 zoning with a special use permit, we are precluded from determining whether the defendant’s use violates the ordinance; and (3) that the board can be both legislature and judiciary.
The defendant did not make any of these arguments. What the defendant argued was that to attack the action of the zoning board, the plaintiffs needed to bring an action against the county. The defendant pointed out that the procedure for challenging the granting of a special use permit can be found in both York v. Village of Wilmette (1986), 148 Ill. App. 3d 108, 498 N.E.2d 712, and Knor v. County of Madison (1986), 151 Ill. App. 3d 767, 502 N.E.2d 1063. The plaintiffs did not follow this procedure, but rather sought to collaterally attack the action of the zoning board in a suit against Bouie Construction. The defendant also pointed out that it was held in La Salle National Bank v. The Thresholds (1975), 27 Ill. App. 3d 635, 327 N.E.2d 22, that the municipality is a necessary party to challenge the validity of a zoning ordinance. The majority addresses none of these arguments, but rather states that the defendant’s argument would mean that the Board can be both legislature and judiciary. What the defendant correctly argued was that judicial review of the Board’s action must come in an action against the county. The majority obviously knows that the courts hear appeals in zoning cases all the time. What the court cannot do is review the actions of the zoning board in a suit against a private landowner, under a statute that allows a cause of action if the party using the property is in violation of the zoning.
The unfairness of the majority’s decision to the defendant cannot be overstated. The defendant has followed all proper procedures in obtaining a rezoning of his property. He sought a rezoning of the property and special use permit that would allow him to carry out certain activities on the property. The zoning board granted the rezoning petition and gave him a special use permit to carry out those very uses. Then, the plaintiffs were able to obtain an injunction against him under a statute that only applies if a landowner is in violation of the zoning. The defendant cannot be in violation of the zoning because the zoning includes a special use permit that allows him to carry out the very activities the court enjoined him from doing. The majority has only been able to demonstrate that perhaps the special use permit should not have been granted. That conclusion, nevertheless, only demonstrates fault on the part of the county, not on the part of the defendant.
In sum, I find that the majority’s disposition answers all but the most important issue — defendant’s argument that the trial court exceeded its jurisdiction and statutory authority in finding that defendant’s uses were not permissible in C-3 zoning. The majority adopts the trial court’s analysis without responding to defendant’s argument. Further, I find that the majority has misconstrued the defendant’s arguments regarding why the proper suit had to be one against the county. This is a case in which I believe our only choice under the law is to reverse. Because the majority did not make that choice, I dissent.