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Int'l Soc'y For Krishna v. City of Evanston

OPINION FILED SEPTEMBER 30, 1980.

INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS, INC., PLAINTIFF-APPELLANT AND CROSS-APPELLEE,

v.

THE CITY OF EVANSTON, DEFENDANT-APPELLEE AND CROSS-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. DOM RIZZI, Judge, presiding.

MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Rehearing denied October 28, 1980.

In a civil rights action brought under 42 U.S.C. § 1983 (1976), involving what is essentially a zoning dispute, plaintiff International Society for Krishna Consciousness, Inc. (Krishna), charged that defendant City of Evanston (Evanston) violated Krishna's constitutional rights of due process and equal protection by its actions concerning Krishna's application for a special use permit for its property located in Evanston. Early in the proceedings, the trial court entered summary judgment for Evanston, and Krishna appealed to this court. In International Society for Krishna Consciousness, Inc. v. City of Evanston (1977), 53 Ill. App.3d 443, 368 N.E.2d 644 (Krishna I), we reversed the trial court and remanded the case for trial. Trial was held. The trial court found that Evanston had violated only Krishna's procedural due process rights by its activities. Nominal damages ($1) were awarded and a mandatory injunction requiring Evanston to issue a special use permit to Krishna was entered. Both parties appealed.

On review, the parties ask us to decide whether (1) the trial court erred in finding that Evanston violated Krishna's procedural due process rights or in failing to find that Evanston violated Krishna's substantive due process and equal protection rights, (2) the trial court erred in entering an injunction requiring Evanston to issue a special use permit containing certain conditions which Krishna claims are illegal, and (3) the trial court erred in failing to award Krishna compensatory damages or to grant attorney's fees allegedly available under a Federal statute.

Krishna took leasehold possession in October 1972 of property located in an area zoned by Evanston for commercial uses. At the time a special use permit was required in order to use the property as desired (temple, theological school, and residence). Application was made by Krishna for this permit. Seventeen months later, Evanston passed an ordinance granting the special use permit to Krishna conditioned, among other things, upon the correction of all existing building code violations within 180 days.

In September 1974, seven days before this time period was to expire, Krishna petitioned Evanston for an extension of time to correct the violations. Prior to receiving the extension, Krishna entered into various contracts for work necessary to achieve code compliance "in anticipation" of the requested extension.

On November 4, 1974, Evanston did in fact grant an extension which was to have been valid until February 15, 1975. One week after the extension was granted, on the advice of Evanston's corporation counsel and without notice and hearing to Krishna, the extension was rescinded. Krishna thereafter was notified of the action. The effect was to render much of the work intended to be done under the contracts impossible due to the subsequent impossibility of procuring building permits.

Nevertheless, Krishna continued use of the premises and entered into an installment land contract to buy the property in February 1975. Three months later, application for a second special use permit was filed with Evanston. The latter undertook "standard" procedures on this application, including public hearings before the zoning board of appeals as well as legislative hearings before Evanston's Planning and Development Committee of City Council. The recommendations of these two bodies regarding the application were diametrically opposed. On September 13, 1976, Evanston accepted the recommendation of the latter group and denied the application. This court action resulted from Evanston's ensuing order to Krishna to vacate the premises for violation of the zoning ordinance.

At trial following this court's reversal of an earlier-granted summary judgment for Evanston (Krishna I), Krishna called numerous and varied witnesses. Several witnesses described the practices of the Krishna movement, apparently to demonstrate that Krishna qualified as a religious group, to bolster its constitutional arguments. A contractor and an architect testified to dealings with Krishna concerning work to be done in order to put the property in compliance with the building code pursuant to the conditions of the special use permit. Members of Krishna's management staff also testified about these transactions and about dealings with Evanston in the effort to secure approval for the permanent use of the property. One of Krishna's attorneys testified as to litigation expenses incurred in this process. An appeals officer from Evanston's Department of Amendments and Appeals testified as part of Krishna's unsuccessful attempt to prove a contrast between the treatment given Krishna's application and that given other special use permit applicants. (The trial court did not allow this last evidence into the record.)

Evanston called a real estate consultant, two building inspectors, and residents of the locale of Krishna's property. Evanston apparently called these witnesses because it was proceeding to trial solely on the theory that it need only justify the denial of the second special use application. However, it must be pointed out that at no time was this proceeding undertaken as a typical zoning case (e.g., administrative review, declaratory judgment, or mandatory injunction). Rather, this action was clearly brought and tried under Federal statute for the alleged violation of Krishna's constitutional rights by Evanston.

The closing arguments to the trial court indicated that, as then noted by Krishna's attorney, the parties had conducted two separate cases, neither of which was very responsive to the other. The trial court, in a detailed and thoughtful judgment memorandum, found that Evanston had violated only Krishna's procedural due process rights through the revocation of the extension of the initial special use permit without prior notice or hearing, and that the evidence did not show this action of Evanston to have been taken in bad faith. An award of nominal damages was entered as well as a mandatory injunction directing Evanston to again issue a special use permit of similar nature as that permit originally granted to Krishna.

At oral argument before this court, Krishna's attorney responded to inquiry that they had never approached Evanston during the ensuing period to obtain the permit ordered to issue by the trial court. Evanston's counsel then informed this court that Krishna had in fact vacated the property in question approximately two months prior to oral argument. Asked to verify this fact, Krishna's attorney admitted that Krishna had vacated the property, but stressed that the group still held legal title thereto.

I.

Krishna contends that the trial court erred in failing to find that Evanston violated its substantive due process rights and its equal protection rights in addition to its procedural due process rights when Evanston revoked and did not reissue a special use permit. ...


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