APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR
L. DUNNE, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Mr. JUSTICE MEJDA delivered the opinion of the court:
Plaintiff, Northwestern University (University), brought a complaint for declaratory judgment against defendant, City of Evanston (City), in which the University sought a declaration that section VII.B.U2(a) of the Evanston zoning ordinance is unconstitutional on its face and as applied by the City to prevent the University's use of its property for professional athletic events or other commercial purposes. The trial court granted the City's motion to dismiss the cause for failure to exhaust local and administrative remedies.
The University appeals, contending: (1) the University has fully exhausted its administrative remedies; (2) further attempts to seek local relief would be futile; and (3) exhaustion is not required since the ordinance is unconstitutional on its face. We reverse and remand.
The history of the dispute between the University and the City over the ordinance is set forth in the University's complaint. The City's motion to dismiss the complaint admits all facts well pleaded. (O'Fallon Development Co. v. Ring (1967), 37 Ill.2d 84, 224 N.E.2d 782; Hubbard v. Aetna Insurance Co. (1976), 37 Ill. App.3d 666, 347 N.E.2d 396; see also Village of Justice v. Jamieson (1955), 7 Ill. App.2d 113, 129 N.E.2d 269.) The pertinent facts are summarized.
Northwestern University is the owner of a 55,000 seat auditorium (Dyche Stadium) constructed in 1926, and an 11,226 seat fieldhouse (McGaw Hall) built in 1952. In 1960, the City of Evanston comprehensively amended its zoning ordinance to create a university district (U-2) under which it classified Dyche Stadium and McGaw Hall. Section VII.B.U2(a) of the ordinance specified the permitted uses in such districts, and excluded the use of any building, stadium or facility for commercial purposes.
In early 1970, the University and the Chicago Bears Football Club (Bears) agreed that the Bears football team would play a professional football game against the Philadelphia Eagles, another professional football club, in Dyche Stadium on September 27, 1970. In July 1970 the Bears filed a complaint in the circuit court seeking preliminary and permanent injunctions to prevent the City from interfering with the game. The circuit court granted a preliminary injunction in August 1970, and noted that any distinction prohibiting professional athletics would be unreasonable, arbitrary and discriminatory. While that order was being appealed, the Eagles game was played. The appeal was thereafter dismissed as moot.
Subsequent to the circuit court ruling in the Bears case, the City amended the zoning ordinance to its present form, which specifically refers to professional athletics. Section VII.B.U2(a) now lists permitted uses in a U-2 district as follows:
"Colleges, universities and theological schools including their buildings owned or leased for administrative and faculty offices, classrooms, laboratories, chapels, auditoriums, lecture halls, libraries, student and faculty centers, athletic facilities, dormitories, fraternities, and sororities, but not including colleges or trade schools operated for profit and not including the use of any building, stadium or other facility for professional athletics, sports or games, or other commercial purposes."
The City also amended section III of the zoning ordinance to add the following definition:
"COMMERCIAL PURPOSE. An occupation, employment or enterprise which is carried on for profit by the owner, lessee or licensee, except for activities carried on by a not-for-profit organization, which utilizes the proceeds of such activities solely for the purpose for which it is organized."
Thereafter the City, in 1970 and again in 1971, sought to enjoin the University from permitting professional tennis matches to be held in McGaw Hall. Both cases were subsequently dismissed by agreement and without prejudice.
In March 1971, the University filed an application before the Evanston Zoning Board of Appeals for a zoning variation to permit professional tennis matches in McGaw Hall. In April 1971, a hearing was held and the Board recommended to the City Council that a variation be granted under certain narrow conditions. The recommendation has been pending on the City Council's agenda for nearly six years, and the City Council has never acted upon it.
In 1974, the Evanston Zoning Amendment Committee received a reference from the City Council to consider amending the provisions of section VII of the zoning ordinance relating to University districts. The reference stated that "the language of the current ordinance does not reflect the activities that the City allows to take place in University Districts." It further stated that "the City Council wishes to update this section of the Zoning Ordinance by bringing it into conformance with actual intentions and present practice." Hearings were held in 1974. The matter is still pending unresolved before the Zoning Amendment Committee which has made no recommendations to the City Council, and the City Council has taken no further action thereon.
On September 5, 1975, the University filed a complaint for declaratory judgment seeking a declaration that the zoning ordinance was unconstitutional and that a basketball game between two professional teams, the Chicago Bulls and the Milwaukee Bucks, be permitted to take place at McGaw Hall on October 18, 1975. The game was cancelled, and on December 8, 1975, the complaint was dismissed without prejudice. The circuit court then noted that the University would be entitled to return to court for relief if the local zoning proceedings did not proceed "sufficiently expeditiously." The reference was to proceedings instituted by the University on November 21, 1975, wherein it had filed a petition for zoning amendment with the Evanston Zoning Amendment Committee and a separate application for variation with the Evanston Zoning Board of Appeals. The proceedings before the local bodies are set forth later.
In March 1976, the Zoning Board of Appeals issued subpoenas for discovery of documents and for depositions at the request of certain neighborhood residents, and informed the University that its application for variation would not be heard until the subpoenas were complied with.
On April 5, 1976, the Chicago Sting, a professional soccer team, sought permission from the University to use Dyche Stadium for a soccer game to be played in June 1976. The University filed the instant complaint for declaratory judgment on April 19, 1976, seeking a declaration that section VII.B.U2(a) is unconstitutional. The complaint further prayed that the subpoenas issued by the Zoning Board of Appeals be quashed. The City answered, and a trial on the merits of the declaratory judgment action was set for November 1976. On July 15, 1976, the subpoenas were quashed by the circuit court which found that the Board had no authority to issue ...