Appeal from the Circuit Court of Cook County; the Hon. Frank
J. Sulewski, Judge, presiding.
JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
This is an appeal from an order of the circuit court of Cook County enjoining defendants from operating their adult bookstores, which are located in unincorporated Cook County. On appeal, defendants challenge the constitutionality of the Cook County (hereinafter county) zoning ordinance which predicated that injunction.
This is the second time that Cook County's zoning scheme for adult uses is before this court. We had previously addressed the propriety of that scheme in County of Cook v. World Wide News Agency (1981), 98 Ill. App.3d 1094, 424 N.E.2d 1173. An understanding of the issues raised in this second appeal requires an appreciation of the predecessor ordinance, and our decision on its validity. To that end, we detail those prior proceedings herein.
Cook County first sought to regulate "adult uses," as therein defined (see County of Cook v. World Wide News Agency (1981), 98 Ill. App.3d 1094, 1095 nn. 1-3), by the passage of its adult regulated use ordinance, enacted October 3, 1977 (Cook County Zoning Ordinance sec. 13.16 et seq. (1977)). Under that ordinance, the county successfully sought to enjoin operation of an adult bookstore, and the bookstore appealed. On appeal, we reversed the holding of the circuit court based on our decision that certain aspects of the zoning ordinance created an unconstitutional prior restraint on protected speech. (98 Ill. App.3d 1094, 1100.) Significant to our discussion of the revised ordinance at issue herein was the nature of our 1981 decision.
In that opinion, we initially noted that the county's stated objective in enacting the ordinance (which sought to prevent a concentration of adult uses in any one area so as to avoid the deleterious effects that such concentration presented) served a valid governmental objective, and was constitutionally sound. (98 Ill. App.3d 1094, 1097.) We then went on to analyze the case by phrasing the issue and settling it as follows:
"The defendants contend that the zoning ordinance * * * operates as a prior restraint on the sale of constitutionally protected materials. * * *
* * * Such restrictions are permissible only so long as they are of no greater than necessary to further the County's interest. We cannot say that the ordinance in the instant case satisfies this requirement." (98 Ill. App.3d 1094, 1097-99.)
Of particular significance to that decision were those portions of the ordinance which required all operators of adult bookstores to obtain special use permits, and in most instances the consent of their neighbors, as a prerequisite to doing business.
The 1977 ordinance initially provided that adult uses could locate only in areas zoned C-3, and then only where they had obtained a special use permit providing for such operation. The process by which such a permit could be obtained was successively (a) application to the department of building and zoning; (b) public hearing by the zoning board of appeals; (c) recommendation of that board to the board of commissioners of Cook County; and (d) the ultimate grant or denial of the permit by that board. The zoning board of appeals was given a list of conditions upon which to base its decision (Cook County Zoning Ordinance secs. 13.16-2(a) through (d) (1977)), but no such conditions were placed upon the board of commissioners. The ordinance also provided that no two adult uses could locate within 1,000 feet of one another. (Cook County Zoning Ordinance sec. 13.16-1 (1977).) Additionally, the ordinance stated that it was unlawful to establish an adult bookstore, adult motion picture theatre or other facilities of a similar type within 1,000 feet of any area zoned for residential use or used by churches or schools. (Cook County Zoning Ordinance sec. 13.16-4 (1977).) (See County of Cook v. World Wide News Agency (1981), 98 Ill. App.3d 1094, 1095-96.) Finally, the ordinance provided for a waiver of the restrictions as to location where the applicant obtained the consent of 60% of those residing, owning or doing business within 1,000 feet of the location sought by the applicant.
In reversing the circuit court's grant of an injunction, we focused primarily on the prior-restraint aspect of the scheme, stating in summary:
"[V]arious sections of the Cook County Zoning Ordinance require the following: (1) that all operators of certain adult uses * * * must obtain special use permits; (2) that these uses must be located in areas zoned C-3 * * *; and (3) that the operators obtain a waiver of 60% of the persons owning, residing or doing business within a radius of 1,000 feet of the location * * *. Such a zoning scheme operates as a prior restraint on speech and is therefore unconstitutional." (98 Ill. App.3d 1094, 1100.)
It should be obvious from even the most cursory reading of our opinion that it was only the prior-restraint aspects of the zoning ordinance which were stricken by this court; the remainder of the zoning ordinance was left intact. In fact, given our reliance on the United States Supreme Court's decision in Young v. American Mini Theatres, Inc. (1976), 427 U.S. 50, 49 L.Ed.2d 310, 96 S.Ct. 2440, and our statement that the objective of the ordinance was constitutionally sound, it was clear that we approved the remaining provisions of the ordinance. (We note parenthetically that our approval was alluded to in the 1981 amendment to the zoning ordinance. Cook County Zoning Ordinance sec. 13.16-1 (1981).)
Thereafter, on December 7, 1981, the Cook County board of commissioners adopted an amendment to the Cook County zoning ordinance relating to adult uses. Section 6 of that amendment states that "Article 13 of the Zoning Ordinance is hereby amended by adding the following." (Emphasis added.) As noted, the amended ordinance declares that this court had approved the purpose of the ordinance. It goes on to provide as follows:
"In the development and execution of this Ordinance, it is recognized that there are some uses which, because of their very nature, are recognized as having serious objectionable operational characteristics, particularly when several of them are concentrated under certain circumstances, thereby having a deleterious effect upon the adjacent areas, particularly adjacent and nearby residential and commercial areas where nurseries, schools, nursing homes, churches and similar uses are located. Proper and realistic zoning and special regulations are necessary to insure that these adverse effects will not contribute to the blighting, downgrading of the surrounding neighborhood, or discouraging normal development of undeveloped areas. These special regulations are itemized in this section. A primary control or regulation is for the purpose of preventing a concentration of these uses in any one area. To prevent concentration of such uses from having an adverse effect upon the adjacent and nearby residential and commercial areas above referred to, such uses are hereby established as permitted uses in all the 78 industrially zoned areas of I-2, I-3, and I-4 and as special uses in all the 245 commercially zoned areas of C-3, C-4, C-6 and C-8. To prevent such uses from having an adverse effect upon adjacent areas in the C-3, C-4, C-6 and C-8 commercial zones, not more than two such uses shall be established within one thousand feet of each other."
The amendment proceeds to provide that the provision as to location may be waived, again if certain findings are made by the zoning board of appeals.
Notice was given to each of the defendants in January 1982, pursuant to the amended ordinance, that their businesses were nonconforming and subject to amortization. In March 1983, plaintiff Cook County filed the instant injunctive action against defendants, who thereupon filed motions to dismiss the complaint, challenging the constitutionality of the ordinance, which motions were denied by the circuit court. Defendant Mannheim Books filed a motion for substitution of judges, which was denied as untimely presented. On March 19, 1983, trial of this cause began.
There are 1,225 I (industrial), C (commercial) and R (residential) zones in unincorporated Cook County. The amended ordinance permits the location of adult uses as of right in only the 78 zones designated I-2, I-3 and I-4. The ordinance also permits the operation of adult uses in C-3, C-4, C-6 and C-8 commercial zones, but conditions such operation upon first obtaining special use approval from the county. (Cook County Zoning Ordinance sec. 13.16-1 (1981).) The process required for such permits is substantially similar to that of the 1977 ordinance and condemned by this court in World Wide News Agency, in that it requires findings by the zoning board of appeals but does not place any controls on the ultimate grant or denial of the permit by the county board of commissioners. (Cook County Zoning Ordinance sec. 13.16-2 (1981).) Pre-existing uses which do not conform to ...