APPEAL from the Circuit Court of Cook County; the Hon.
RAYMOND K. BERG, Judge, presiding.
MR. PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
These consolidated appeals concern the continued occupancy by plaintiff, International Society for Krishna Consciousness, Inc., of premises commonly known as 1014 Emerson Street in Evanston, Illinois. Plaintiff, a not-for-profit religious organization, utilizes the premises as a temple, theological school, and place of religious worship. Although the premises are classified for C-2 *fn1 commercial purposes, the use of the premises as a theological school and related accessory uses are prohibited without a special use permit. The cases before us exemplify plaintiff's protracted efforts to secure such a permit from defendants, the City of Evanston and others.
Case No. 76-1500 is an interlocutory appeal from an order of the trial court which denied plaintiff's request for a preliminary injunction. The preliminary injunction would have restrained defendants from proceeding against plaintiff pending final resolution of the lawsuit. Case No. 77-573 is an appeal from an order of the trial court which granted summary judgment in defendants' favor, which denied plaintiff's cross-motion for partial summary judgment, which dismissed plaintiff's amended complaint, which granted judgment in defendants' favor on their counterclaim, and which issued a writ of injunction as prayed for in defendants' counterclaim. That injunction permanently restrained and enjoined plaintiff from using or occupying the premises in question as a theological school, temple or related accessory uses, or from, in any manner, violating the Zoning Ordinances, Building Code, Electrical Code, or other ordinances of the City of Evanston. The two cases were consolidated by order of this court.
Plaintiff contends in its interlocutory appeal that the court below abused its discretion in denying plaintiff's request for a preliminary injunction. When the court denied the request, it permitted plaintiff to file an amended complaint for injunction, declaratory judgment, and damages, and the court also allowed plaintiff an extension of time to answer defendants' counterclaim. These matters culminated in the second appeal. In case No. 77-573, defendants moved for and were granted summary judgment. Plaintiff raises the following issues in its appeal from that final judgment: (1) whether summary judgment was properly granted; (2) whether the city's decision to revoke or withdraw a certain ordinance was arbitrary, capricious, and unreasonable; (3) whether the city's decision to deny a second application for a special use permit was arbitrary, capricious, and unreasonable; (4) whether the denial of the second application violated plaintiff's constitutional right to freely exercise its religion; (5) whether the second application was denied for reasons having no substantial relationship to public safety, health, morals, or welfare; (6) whether the provisions of the Municipal Code of Evanston dealing with special use permit application procedures are constitutionally sufficient; and (7) whether the city is estopped to assert a legal position inconsistent with its enactment which originally granted plaintiff an extension of time for its special use permit.
A review of some of the significant events is necessary to understand our disposition of these complex appeals. Plaintiff brought a complaint for injunction and declaratory judgment against defendants, City of Evanston, William Dettmer, and M. Garland. Dettmer was the city's director of inspections and permits; Garland was the city's chief property standards inspector. Within the complaint plaintiff made numerous allegations which are hereinafter set forth. Plaintiff took possession of the disputed premises in Evanston under a lease on October 1, 1972; and on October 4, 1972, plaintiff and its landlord submitted an application to the Zoning Board of Appeals of Evanston (Zoning Board) for a special use permit to use the premises as a theological school. On March 20, 1973, the Zoning Board conducted a hearing and reported its findings and recommendations to the Mayor and City Council of Evanston. The Zoning Board found that the proposed special use was designed, located, and proposed to be operated for public health, safety, and welfare, as the change in the premises from its former use as a storage warehouse and the correction of building violations would be in the best interests of the community. In addition, the Zoning Board also found that the proposed special use would not cause appreciable injury to the value of other property; instead, the use would benefit surrounding properties because plaintiff would be upgrading the premises. Upon the completion of these findings, the Zoning Board then recommended to the Evanston City Council that plaintiff's application for a special use permit be granted subject to compliance with zoning ordinances, the Building Code, and all other applicable laws.
On July 30, 1973, the Evanston City Council referred plaintiff's application back to the Zoning Board for further findings of fact. The Board conducted additional hearings and again found that plaintiff's proposed special use was designed, located, and proposed to be operated so that public health, safety, and welfare would be protected. The Board again found that the proposed use would not cause appreciable injury to the value of surrounding property. The Board again recommended that the special use permit be granted subject to the condition that all housing, electrical, plumbing, and building violations be corrected within 120 days. If the violations were not corrected within the stipulated time period, the Board then recommended that the application should be denied. On March 25, 1974, the Evanston City Council adopted ordinance 7-0-74 granting the special use permit subject to the correction of violations within 180 days.
Prior to the expiration of the 180-day period, plaintiff petitioned the City Council for additional time in which to correct violations. The City Council then enacted an ordinance granting an extension of time to February 15, 1975. Once the additional time was granted, plaintiff allegedly became obligated under a certain building contract. The subcontractors were issued permits to correct violations on November 8, 1974. On November 11, 1974, however, the Evanston City Council withdrew its ordinance granting the extension of time. In a notice dated November 13, 1974, plaintiff was notified that its permits issued by the Department of Inspection and Permits were revoked effective November 12, 1974.
Plaintiff entered into an installment agreement for warranty deed for the premises on February 20, 1975. On May 16, 1975, plaintiff then submitted a second application to the Zoning Board for a special use permit. The Board thereafter made the same basic findings it had previously and again recommended that the special use permit be granted. This time the Board recommended that the permit be subject to the conditions that the wholesaling and storage of incense on the premises and other commercial activities be eliminated; that the maximum occupancy on the premises be 46; that the owner make an annual payment in lieu of taxes if the property should be exempted from taxation; and that the applicant submit a recordable covenant re the conditions enumerated. On December 9, 1975, the Planning and Development Committee of the Evanston City Council passed a motion requiring plaintiff to submit a written report regarding zoning ordinance requirements, the impact of the proposed use, and the number of motor vehicles owned by those occupying the premises. Plaintiff was also asked to provide a floor plan of the building. On February 15, 1976, plaintiff complied by providing both the report and the floor plans.
Nevertheless, on August 23, 1976, the Planning and Development Committee made certain findings of fact which were in sharp contrast to those by the Zoning Board. The Committee found that plaintiff had not demonstrated that the proposed use was designed, located, and proposed to be operated to protect public health, safety, and welfare because the frequent chanting at the temple disturbed neighbors, because the large number of parked cars generated by the operation created traffic congestion, and because the dilatory response in meeting code violations and answering requests for information made it unlikely that public health and safety would be adequately protected. For these reasons, the Committee also found that plaintiff had not demonstrated that the use would not cause appreciable injury to the value of surrounding property. Lastly, the Committee also found that plaintiff had not demonstrated that the use "will not subvert or defeat the primary purpose of the zoning ordinance, or the zoning district or area for which it is proposed, when its effect is considered in conjunction with the cumulative effect of the number of various special uses of all types already located in the adjacent area."
On September 13, 1976, at a meeting of the Evanston City Council, the Committee reported its recommendation and that of the Zoning Board. The Evanston City Council thereafter passed a motion denying plaintiff's second application for a special use permit. On September 28, 1976, defendant Garland, chief property standards inspector, sent plaintiff a letter ordering it to vacate the premises on or before October 31, 1976, under pain of future legal proceedings. All of these facts were set forth in plaintiff's complaint.
In their answer to the complaint, defendants admitted almost all of the background information alleged by plaintiff, but denied that any contracts were contingent or became absolute upon the extension of the 180-day time period or the issuance of permits. Defendants did allege, however, that the ordinance purportedly enacted to extend the time period for correction of code violations was itself null and void because that enactment purported to amend ordinance 7-0-74 without a public hearing as required. Although defendants admitted that certain permits were issued, they denied that plaintiff secured any rights thereunder or became obligated on certain contracts as a result. Defendants also alleged that the city withdrew the ordinance permitting the extension because the corporation counsel informed the City Council that the ordinance was null and void because it was adopted without a public hearing. In addition, defendants alleged that the provisions of the ordinance were no longer applicable because plaintiff's original special use permit had expired due to plaintiff's failure to comply with the conditions imposed. Defendants then counterclaimed for an injunction restraining plaintiff from occupying or using the premises as a theological school or in any manner violating applicable zoning ordinances or building codes. A hearing on these matters was held on November 1, 1976.
A minister and president of the Evanston Krishnas, Ron Marinelli, testified as to the nature of the religion, its usual practices and operations, a description of the premises, and the daily activities of the religion's devotees. Since September 1976, the Evanston group has been attempting to relocate, has looked at three or four places in Chicago but has not entered into any agreements. Upon cross-examination Marinelli stated that when the group began to make payments pursuant to the purchase agreement for the premises, plaintiff did not have a special use permit. After the argument of counsel, defendants moved that plaintiff's motion for a preliminary injunction be denied. The preliminary injunction was then denied.
A substitution of attorneys was filed a week later and plaintiff made a motion to reconsider the issuance of a preliminary injunction, which motion was then granted. Another hearing was held and Marinelli again testified. Besides repeating his previous testimony, Marinelli testified concerning the purchase agreement and payments pursuant thereto. Although the building contractor, Ashland Building Company, began work on the premises, the contractor stopped working when the building permits were revoked. Marinelli also discussed certain checks he had written as payments under the purchase and building contracts and for attorney's fees.
Defendants called several city inspectors, all of whom discussed the numerous code violations which exist in plaintiff's temple. Their testimony demonstrated the number and nature of violations in regard to the building, electrical, and plumbing regulations. A series of 42 photographs were also introduced into evidence which clearly reflect the violations. Although construction permits are needed to repair many of the violations, the witnesses explained that the necessary permits cannot be issued while premises are in violation of the zoning ordinance. Lastly, all of the inspectors agreed that the disputed premises could be repaired.
Following completion of the evidence and the argument of counsel, the court denied plaintiff's motion for a preliminary injunction; the court also denied plaintiff's motion for a stay order pending appeal. Plaintiff then took this interlocutory appeal. On the same day of the court's order and plaintiff's interlocutory appeal therefrom, the court allowed plaintiff's motion for leave to file an amended complaint and for an extension of time to answer defendants' counterclaim.
In case No. 77-573, plaintiff filed its amended complaint against the City of Evanston and Frank Hoover, a City Council member. The six-count amended complaint sought an injunction, declaratory judgment, and damages. In essence, the amended complaint alleged that defendants infringed upon plaintiff's free exercise of religion by unlawfully withdrawing an extension of a special use permit and by denying the second application; that the Evanston procedures for the issuance of special use permits are violative of due process; that defendants deprived plaintiff of equal protection and due process by its actions; that the denial of the second application had no basis in fact; and that defendants wilfully and maliciously interfered with plaintiff's property rights and free exercise of religion. Defendants generally denied all allegations while reasserting all the claims and defenses offered in response to the original complaint. Plaintiff also answered defendants' counterclaim to the original complaint which had sought an injunction restraining plaintiff from using the premises. In plaintiff's answer, it denied the allegations and disputed the reasonableness of the zoning ordinance.
Defendants filed a motion for summary judgment accompanied by an affidavit of the corporation counsel and the report of proceedings from case No. 76-1500. The attorney's affidavit summarized the various pleadings and the testimony from the hearings in 76-1500. Plaintiff then filed a motion to strike the affidavit and defendants' motion for summary judgment. At the same time plaintiff filed a cross-motion for partial summary judgment on counts I and III of the amended complaint. The court entered judgment in defendants' favor and granted their motion for summary judgment, dismissed plaintiff's amended complaint with prejudice, entered judgment for defendants on their counterclaim, and enjoined plaintiff from using or occupying the premises or, in any manner, violating the ...