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Palella v. Leyden Family Service





Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Du Page County, the Hon. Robert Nolan, Judge, presiding. MR. CHIEF JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 29, 1980.

Plaintiffs, all of whom are residents of the village of Villa Park, brought this action in the circuit court of Du Page County seeking to enjoin the operation of a "non-medical detoxification center" in Villa Park by defendants, Leyden Family Service & Mental Health Center (Leyden), West Suburban Detoxification Center (WSDC), Donald Goncher and Acre View, Inc., and seeking a writ of mandamus to compel the village of Villa Park, the village president and manager to comply with the governing ordinance and hold a public hearing on whether to permit the detoxification center. The circuit court entered an order enjoining the use of the property in question as a detoxification center and denied plaintiffs' prayer for mandamus. The circuit court awarded plaintiffs' attorney's fees to be paid by the village but denied plaintiffs' request that attorney's fees be assessed against Leyden and WSDC. Pursuant to a stipulation between plaintiffs and the village, the order awarding attorney's fees was vacated and the village was dismissed from the cause with prejudice. Defendants Leyden and WSDC appealed from the judgment ordering the injunction, and plaintiffs appealed from the order denying attorney's fees. The appellate court reversed the injunction (73 Ill. App.3d 134) and did not reach the issue of attorney's fees. We allowed plaintiffs' petition for leave to appeal. The facts are adequately set forth in the appellate court opinion and will be stated here only to the extent necessary to discuss the issues.

Acre View, the premises involved in this controversy, was annexed to the village of Villa Park in 1967. On November 6, 1967, in accordance with a preannexation agreement, and pursuant to its zoning ordinance (No. 861, later amended by No. 1195), which required action by the board of trustees on applications for special use permits, the defendant village adopted an ordinance (No. 1019) granting a special use permit for use of the premises as a nursing and convalescent home. The ordinance provides in part:

"2. This special use permit is hereby granted under the provisions of Village Ordinance No. 861, Section 25-10, A(h). The petitioners shall be permitted to operate a private nursing and convalescent home on the premises herein described. Said nursing and convalescent home shall not be converted to a hospital, nor to an institution for the care of the insane or feeble minded, but shall continue to operate under a special use permit under the same or similar conditions to those existing at the time of the annexation of said Acre View Nursing Home and located on the premises.

3. The term of this special use permit shall be for as long a period of time as the property is being used for present nursing home and convalescent purposes and shall expire upon a termination of the use of the property or any portion thereof for such purposes."

Included in the special uses enumerated in Ordinance No. 861 were "hospitals or sanitariums" and "institutions for the care of the insane or feeble-minded."

In 1978, Donald Goncher, the administrator of Acre View, sought the opinion of the village officials as to whether a day-care center for older adults was a permitted use within the terms of the special use permit. The village manager responded by letter that the "conversion of Acre View from a nursing home operation to an Adult Day Care Center appears to be within the scope of your special use permit and in accordance with the definitions set forth in our Village ordinance No. 1195 [the general zoning ordinance]." After commencing to operate Acre View as an adult day-care center, Goncher was approached by defendant Leyden, a not-for-profit, publicly funded organization, about the possibility of using a portion of Acre View as a non-medical detoxification center, to be known as West Suburban Detoxification Center. Such a facility would use various non-medical means to treat voluntary admittees for a period of up to five days for intoxication and alcoholism. One of the two buildings on the property was leased to Leyden.

Goncher testified that an attorney for WSDC contacted the village authorities to determine whether the intended use was permitted. The matter was referred to the village attorney and was considered at a regular meeting of the village board of trustees held on June 26, 1978. The minutes of the meeting reflect the village attorney's opinion:

"Attorney Faris reviewed Ordinance No. 1019 regarding the Special Use for Acre View Nursing Home. He advised that it is his legal opinion that the detoxification center does come under the purview of the Ordinance."

A number of residents of the village addressed the board, both for and against the proposed detoxification center. However, no formal board action was taken with regard to the proposed use. The minutes contain this final reference to the matter:

"Attorney Faris to investigate whether the Nursing Home license had been suspended or whether Special Use Ordinance is still in effect."

Plaintiffs, all of whom live within 1,200 feet of Acre View, based their complaint for injunction and mandamus on section 11-13-15 of the Illinois Municipal Code (Ill. Rev. Stat. 1977, ch. 24, par. 11-13-15), which provides:

"Sec. 11-13-15. In case any building or structure, including fixtures, is constructed, reconstructed, altered, repaired, converted, or maintained, or any building or structure, including fixtures, or land, is used in violation of an ordinance or ordinances adopted under Division 13, 31 or 31.1 of the Illinois Municipal Code, or of any ordinance or other regulation made under the authority conferred thereby, the proper local authorities of the municipality, or any owner or tenant of real property, within 1200 feet in any direction of the property on which the building or structure in question is located who shows that his property or person will be substantially affected by the alleged violation, in addition to other remedies, may institute any appropriate action or proceeding (1) to prevent the unlawful construction, reconstruction, alteration, repair, conversion, maintenance, or use, (2) to prevent the occupancy of the building, structure, or land, (3) to prevent any illegal act, conduct, business, or use in or about the premises, or (4) to restrain, correct, or abate the violation. When any such action is instituted by an owner or tenant, notice of such action shall be served upon the municipality at the time suit is begun, by serving a copy of the complaint on the chief executive officer of the municipality, no such action may be maintained until such notice has been given.

In any action or proceeding for a purpose mentioned in this section, the court with jurisdiction of such action or proceeding has the power and in its discretion may issue a restraining order, or a preliminary injunction, as well as a permanent injunction, upon such terms and under ...

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