dissenting:
I agree with the majority that non-home-rule municipalities have the authority to regulate land use through zoning and that article 11, division 13, of the Illinois Municipal Code (65 ILCS 5/11 — 13—1 et seq. (West 2000)) “unquestionably authorizes Olympia Fields to exclude a particular use from a particular district.” 204 111. 2d at 256. The majority concedes that Olympia Fields is within its authority in promulgating ordinances that “divide[ ] the village into districts according to the criteria set forth in the law, establish[ ] the standards to which buildings and structures in each district must conform, and prohibit[ ] certain uses in certain districts.” 204 Ill. 2d at 256. However, I disagree with the majority that the zoning ordinance in question expressly prohibits day-care homes in Olympia Fields and that the Child Care Act of 1969 and the DCFS regulations adopted pursuant to the Act have a preemptive effect.
In Olympia Fields, a proposed home business must satisfy either the performance criteria set forth in the home occupation ordinance or receive a variance under the municipality’s procedures. A home occupation is permitted based in part on the nature of the business proposed and on the impact it will have on the surrounding community. The majority states that there “is no longer any dispute that day-care homes do not meet the ordinance’s definition of a home occupation.” 204 Ill. 2d at 257. The declaration that all day-care homes fail to meet the ordinance’s definition of a home occupation is unwarranted. While this particular proposed day-care home may fail to satisfy the requirements set forth in the ordinance, it cannot be said categorically that no daycare home could ever be deemed a home occupation. In fact, one could easily conceive of a situation where a proposed day-care home would meet the definition of home occupation under the ordinance. For example, a proposed day-care home owned and operated solely by the residents of the home, adjacent to a park, without a sign or other profound exterior indications of home occupation, and not requiring alteration of the essential character of the building, could fall within the ordinance’s definition of home occupation.
Assuming, arguendo, that the majority’s conclusion that the home occupation ordinance contains restrictions effectively prohibiting day-care homes is correct, I do not agree that the ordinance in question is rendered unconstitutionally exclusionary. A use variance extends to property owners the ability to use property in a manner forbidden by zoning enactments. City of Chicago Heights v. Living Word Outreach Full Gospel Church & Ministries, Inc., 196 Ill. 2d 1 (2001). Exclusionary zoning occurs when a municipality totally excludes a business from operating anywhere within its corporate boundaries, without exception. It is clear that Olympia Fields allows day-care homes, without a variance, if the operation is run by members of the family who occupy the premises, if the day-care home is run wholly within the principal or an accessory building, and if there is no exterior indication of the home occupation. If the proposed daycare home does not meet these criteria, as was the case in this instance, the prospective operator has the ability to apply for a variance. Therefore, the ordinance does not operate as a blanket exclusion of day-care homes throughout Olympia Fields, but rather allows for a case-by-case determination of whether this home occupation, or any other proposed home occupation, is appropriate at a particular location.
The majority relies heavily on our holding in Pesticide Public Policy Foundation to find that the local ordinance must give way to state law because the operation of childcare facilities in Illinois is regulated by the state. In Pesticide Public Policy Foundation, a non-home-rule municipality promulgated an ordinance that imposed requirements separate from and in addition to those enacted by the state for individuals who wished to apply pesticides. We held that because of the comprehensiveness of the state regulations, and because of a legislative interest in a uniform scheme of pesticide regulation, the non-home-rule municipality was preempted by state law from enacting local ordinances regulating pesticides. The majority contends that the challenged ordinance in that case “merely made the business of pesticide application more onerous” and that a person “could still ply his trade if he conformed to the additional requirements imposed by the municipality.” 204 Ill. 2d at 261. By contrast, the majority contends that Olympia Fields’ ordinance stands as a complete bar to the operation of a state-licensed day-care home and that the licensing system for day-care homes is rendered a nullity. 204 Ill. 2d at 261.
Pesticide Public Policy Foundation is clearly distinguishable from this matter. Unlike the ordinance at issue in Pesticide Public Policy Foundation, the ordinance in question in this instance does not attempt to regulate licensure or impose additional requirements for obtaining certification for the operation of a day-care home. The Child Care Act is designed to insure that the operators of child-care facilities do so in a manner that protects the safety of and promotes healthy environments for children receiving child care. The Olympia Fields ordinance simply attempts to determine whether a licensed child-care facility may operate at a particular location in a manner that will not interfere with the essential character of a specific neighborhood or the quiet use and enjoyment of property by neighboring property owners. Olympia Fields is not attempting to regulate child care. It is simply regulating the location of industry and the location of buildings designed for specific industrial, business, residential, and other uses within its boundaries, as it is allowed to do pursuant to our constitution and the Municipal Code. The Act is silent as to the relationship between the regulated service provider and the surrounding property owners, or as to the ability of municipalities to determine whether a home day-care is appropriate in specific locations. If the legislature had intended that the licensing requirements of the Act would serve as a complete bar to local zoning authority as it relates to child-care facilities, it could have readily done so in a single sentence. It did not, and we should not do so in its stead.
I believe this case is more like Builders Supply & Lumber Co. v. City of Northlake, 21 Ill. 2d 14 (1960). In Builders Supply & Lumber Co., the plaintiff challenged a local zoning ordinance because it did not affirmatively allow multifamily dwellings. We held that the ordinance “does not prohibit multiple dwellings, it merely fails to provide for the same.” Builders Supply & Lumber Co., 21 Ill. 2d at 18. Because a multifamily dwelling may be a legitimate use of land in some areas of the community and not in others, it would be necessary to “prove the character of the neighborhood, the classification and the use of nearby property, the extent to which property values are diminished by the particular zoning restrictions involved, the gain to the public compared to the hardship imposed upon individual property owners, and thus determine whether the purported exercise of the police power is unreasonable or confiscatory.” Builders Supply & Lumber Co., 21 Ill. 2d at 18. In other words, the validity of a particular municipal zoning decision must be determined on a case-by-case basis.
I believe the same considerations are important in this instance. As argued by the appellant, a proposed day-care home located on a corner lot, with a spacious backyard, near a park, and serving a small number of children is entirely permissible, if not desirable. However, a proposed facility for a dozen or more children, at a small mid-block house on a busy street, with limited yard space, and with no driveway or drop-off area might be extremely disruptive to neighboring property owners’ quiet use and enjoyment of their investments. Unfortunately, the effect of the majority’s holding is that a municipality has no authority to conduct case-by-case zoning analyses of day-care home requests and that competing interests will not be considered. So long as the proposed operator has completed the requisite licensing requirements, he or she could operate a day-care home at the corner of the busiest intersection in town and the municipality and neighboring residents could do nothing about it.
The State of Illinois issues licenses or permits for numerous and diverse occupations as part of its regulating authority. However, the issuance of a state license is not an entitlement to operate a business wherever one sees fit, irrespective of the rights and interests of adjacent property owners and local governments established to protect and provide for residents. Today’s holding threatens the ability of a non-home-rule municipality to exercise any measure of control over the location of a state-regulated business within its own boundaries and, therefore, the ability to preserve the integrity of its residential neighborhoods from potentially incompatible uses. I fear this holding severely erodes long-standing principles of local governmental control inherent in our state constitution and developed through both statutory and case law.
I respectfully dissent and would reverse the trial and appellate courts’ findings that the zoning ordinance had the effect of unlawfully excluding day-care homes from the village.
JUSTICE KILBRIDE joins in this dissent.