dissenting:
I respectfully dissent.
We are called upon to review the trial court’s grant of summary judgment in favor of the County. As the majority points out, summary judgment is proper if, when viewed in the light most favorable to the nonmoving party, the pleadings, depositions, admissions, and affidavits on file demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2 — 1005(c) (West 2004); Progressive Universal Insurance Co. v. Liberty Mutual Fire Insurance Co., 215 Ill. 2d 121, 127 (2005). The circuit court’s grant of summary judgment is reviewed de novo. Home Insurance Co. v. Cincinnati Insurance Co., 213 Ill. 2d 307, 315 (2004). Faced with this record, I believe that a genuine issue of material fact exists such that the circuit court’s grant of summary judgment in favor of the County was improper.
The majority recognizes that special use permits may be issued for certain periods of time and under certain circumstances. Consumer Illinois Water Co. v. County of Will, 220 Ill. App. 3d 93, 96 (1991). The ability to limit the scope of a special use permit allows the county authorities the opportunity to maintain a certain degree of control of the special use. Consumer Illinois Water Co., 220 Ill. App. 3d at 96. The special use application in this case, which was initially issued in 1978, contains the limiting phrase “presently existing.” In addition, the ZBA’s findings and recommendations state the special use is limited to “existing conditions.” The County asserts, and the majority agrees, that the phrases “presently existing” and “existing conditions” were meant to restrict the special use sought for the private boarding of horses to those that were then “presently existing” under the “existing conditions” such that the special use permit was meant to expire once the property was transferred to a new owner.
Defendants, on the other hand, assert that the phrases “presently existing” and “existing conditions” were not meant to limit the special use to the then-living owners or to the then-living horses. In support of their assertion that the special use permit was not limited to the particular owner of the particular horses, defendants point out that neither the special use application nor the ZBA findings and recommendations mention the names of the particular owners or otherwise suggest that the special use was limited to the current owners. Furthermore, defendants contend that the phrases “presently existing” and “existing conditions” refer generally to the private boarding of horses on that property because the boarding of horses was the presently existing condition at the time the special use permit was granted. I believe that the dispute regarding the intended meaning of the limiting phrases, both in the special use permit application and in the ZBA’s findings and recommendations, gives rise to a genuine issue of material fact such that summary judgment is inappropriate. See Progressive Universal Insurance, 215 Ill. 2d at 127. Accordingly, rather than accepting the County’s interpretation of these limiting phrases, I would reverse the summary judgment and remand this matter for further proceedings.