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Zebulon Enterprises v. County of Du Page





Appeal from the Circuit Court of Du Page County; the Hon. John S. Teschner, Judge, presiding.


Plaintiff, Zebulon Enterprises, Inc. (Zebulon), operates an adult book and video store in unincorporated Du Page County. The store includes 29 booths where patrons can watch sexually explicit videotapes on coin-operated television sets.

On March 23, 1984, the County of Du Page charged Zebulon with violating its comprehensive zoning ordinance by operating the "mini-theaters" without first acquiring a special-use permit from the county board. In response Zebulon filed an action seeking a declaratory judgment to the effect that the special-use-permit requirement of the zoning ordinance was inapplicable to its business. Alternatively, Zebulon sought to enjoin the county and its officials from enforcing the ordinance on the ground that it was unconstitutional. The actions were consolidated, and both Zebulon, and the county and its officials filed motions for summary judgment. The court granted Zebulon's motion but did not indicate whether it was holding that the ordinance was inapplicable or unconstitutional. The county and its officials have appealed.

At the outset we note that one month before the hearing on the motions for summary judgment, the county amended its comprehensive zoning ordinance. It is undisputed that under the ordinance as amended a business with two or more mini-theaters in the district where Zebulon's store is located would be a special use for which a permit would be required. The amendment, however, included a "grandfather" provision under which uses existing as permitted uses under the prior law were allowed to be continued. The parties agree, therefore, that the law prior to the amendment controls the outcome in this case. They agree that if that law did not require Zebulon to obtain a special-use permit, either by virtue of its terms or its unconstitutionality, then Zebulon may operate its business under the amended ordinance without obtaining a special-use permit.

Under the zoning ordinance prior to its amendment Zebulon's store was in a district zoned "B4." With respect to that zoning classification, the ordinance listed numerous "permitted uses" as well as several "special uses." Permits were required in order to operate a special use. The county maintains that Zebulon's business was included in the following two categories of special uses:

(1) "Recreation and amusement establishments; including archery ranges, bowling alleys, pool halls, dance halls, gymnasiums, swimming pools, skating rinks, golf driving ranges, miniature golf courses, miniature railroads, merry-go-rounds and other mechanical rides," and

(2) "Amusement Arcade (Game Room)."

In our judgment, the undisputed evidence presented in connection with the motions for summary judgment established that Zebulon's store was a recreation and amusement establishment within the meaning of the ordinance, and we need not, therefore, decide whether it could have been classified as an amusement arcade.

• 1 Zoning ordinances are to be construed in the same way as statutes. (LaSalle National Bank v. The Thresholds (1975), 27 Ill. App.3d 635, 327 N.E.2d 22.) Effect should be given to the intention of the drafters by concentrating on the terminology, its goals and purposes, the natural import of the words used in common and accepted usage, the setting in which they are employed, and the general structure of the ordinance. (Pioneer Trust & Savings Bank v. County of Cook (1978), 71 Ill.2d 510, 377 N.E.2d 21.) The classification at issue here is "recreation and amusement establishment." the word "recreation," when used as a noun, has been defined as "refreshment of the strength and spirits after toil: DIVERSION, PLAY." As an adjective, the word means "equipped so as to provide diversions or amusements." (Webster's Third New International Dictionary 1899 (1966).) The word "amusement" has been defined as "pleasurable diversion: ENTERTAINMENT." (Webster's Third New International Dictionary 74 (1966).) Considering the natural import of these words, we think it is clear that Zebulon's business, which includes 29 booths where patrons can watch motion pictures, was a recreation and amusement establishment.

• 2 Zebulon argues that we should not construe the words "recreation" and "amusement" according to their natural import, but that we should limit their meaning to active, rather than passive, activities. In support of this argument, Zebulon notes that several kinds of businesses that provide passive recreation and amusement were explicitly listed as permitted uses in a B4 district, e.g., "Taverns" and "Theaters (not outdoor)." (Zebulon has conceded that its business was not a "theater" within the meaning of the ordinance.) This argument is undercut by the fact that at least one form of active recreation and amusement, "Riding academies, and public stables," was also explicitly set forth as a permitted use. Inconsistencies between general and specific classifications are not unheard of in comprehensive zoning ordinances. When they are encountered, the specific takes precedence over the general. (See LaSalle National Bank v. The Thresholds (1975), 27 Ill. App.3d 635, 643-44, 327 N.E.2d 22.) Thus, the county could not have maintained under this ordinance that a tavern or a public stable was a special use pursuant to the general category of recreation and amusement establishments. Because the specific permitted uses included both active and passive recreations and amusements, however, we do not consider the inconsistencies to be a valid basis for limiting the meaning of the general classification to passive activities.

Zebulon has offered a second basis to support its argument that the terms "recreation" and "amusement" should be limited to active pastimes. Zebulon notes that the general classification "recreation and amusement establishments" was followed by the word "including" and then several examples of such establishments. Zebulon contends that all of the examples are active pastimes, and that the word "including" should be construed as a term of limitation on the antecedent general classification. We disagree.

• 3, 4 The term "include" does not necessarily imply the exclusion of items not specifically enumerated. In fact, the weight of authority ordinarily interprets "include" as a term of enlargement. (People v. Valley Steel Products Co. (1978), 71 Ill.2d 408, 419, 375 N.E.2d 1297; Greyhound Lines, Inc. v. City of Chicago (1974), 24 Ill. App.3d 718, 727-28, 321 N.E.2d 293; see also People v. Hall (1964), 55 Ill. App.2d 255, 204 N.E.2d 473.) Here we can perceive no reason for departing from the general rule, and we conclude that the word "including" was used merely to preface illustrative examples of the general classification, and not to limit its meaning. (See Greyhound Lines, Inc. v. City of Chicago (1974), 24 Ill. App.3d 718, 727-28, 321 N.E.2d 293.) Accordingly, the zoning ordinance required Zebulon to obtain a special-use permit in order to conduct its business in a district zoned B4, and we must address the issues regarding its constitutionality.

• 5 The first issue we must consider is whether Zebulon should be permitted to challenge the constitutionality of the zoning ordinance in this proceeding in light of its failure to exhaust its administrative remedies, i.e., to apply for a special-use permit. A property owner who complains that an otherwise valid zoning ordinance is unconstitutional as applied to his property must exhaust his administrative remedies before seeking judicial relief. (Northwestern University v. City of Evanston (1978), 74 Ill.2d 80, 383 N.E.2d 964.) The exhaustion requirement is inapplicable, however, where the property owner challenges the constitutionality of the ordinance on its face or in its terms. (See Smith v. Cahoon (1931), 283 U.S. 553, 75 L.Ed. 1264, 51 S.Ct. 582; Northwestern University v. City of Evanston (1978), 74 Ill.2d 80, 383 N.E.2d 964.) While the county maintains that Zebulon is attacking the constitutionality of the ordinance as applied to its property, we cannot agree. Zebulon's constitutional arguments, which we will discuss below, are concerned with only the terms of the ordinance and are not dependent on any factual matters peculiar to its property. Accordingly, Zebulon may challenge the ordinance here.

• 6 Zebulon's first contention is that any zoning ordinance requiring special-use approval for the operation of mini-theaters would be unconstitutional as an abridgement of the freedom of speech guaranteed by the first amendment. (U.S. Const., amend. I.) We cannot agree with that broad proposition. In the recent case of City of Renton v. Playtime Theatres, Inc. (1986), 475 U.S. ___, 89 L.Ed.2d 29, 106 S.Ct. 925, the United States Supreme Court was called upon to determine the constitutionality of a zoning ordinance which prohibited adult motion-picture theaters, as defined therein, from locating within 1000 feet of any residential zone, single-family or multifamily dwelling, church, park, or school. The court held that because the ordinance did not ban such theaters throughout the city, but merely restricted their location, it should be analyzed as a form of time, place, and manner restriction on freedom of speech. The court concluded that the zoning ordinance was "content-neutral" within the meaning of its previous decisions, and stated that "`content-neutral' time, place, and manner regulations are acceptable so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication." (475 U.S. ___, ___, 89 L.Ed.2d 29, 37, 106 S.Ct. 925, 926.) The court went on to conclude that the ordinance was "narrowly tailored" to serve the substantial governmental interest of preventing "the secondary effects" of adult theaters ...

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