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10/26/88 the Village of Mettawa Et v. June B. Carruthers Et Al.

October 26, 1988

THE VILLAGE OF METTAWA ET AL., PLAINTIFFS-APPELLEES

v.

JUNE B. CARRUTHERS ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

530 N.E.2d 537, 175 Ill. App. 3d 772, 125 Ill. Dec. 379 1988.IL.1578

Appeal from the Circuit Court of Lake County; the Hon. Stephen Walter, Judge, presiding.

APPELLATE Judges:

JUSTICE NASH delivered the opinion of the court. REINHARD and WOODWARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH

Defendant, June Carruthers, appeals from a judgment entered after a bench trial which found her to be in violation of the zoning ordinance of plaintiff, the Village of Mettawa (Village), for keeping an excessive number of horses on her property. Carruthers contends that the trial court erred because (1) the section of the zoning ordinance limiting the number of horses which may be kept on defendant's property within the Village is void because of procedural errors at the time of its passage in 1976, (2) the zoning ordinance was inadmissible in trial, as offered, because it was not competent evidence, (3) the relevant ordinance section is unconstitutional, and (4) the property use challenged by the Village is permitted under another section of the zoning ordinance. We reverse.

Carruthers purchased a 13-acre parcel of real estate located in the Village in June 1977, and it was then zoned R-1, permitting a single-family residence use with a five-acre minimum lot size requirement. Shortly after purchase, Carruthers obtained a building permit from the Village and constructed a large barn on the property which contained 21 stalls. Twelve more stalls were added in 1978, as was a residence for her own use; since 1978 the property has continuously been used to board, train, and breed horses. At the time of trial, there were approximately 33 horses being maintained at the site, some of which were owned by Carruthers.

The Village brought this action in 1985 alleging that Carruthers' horse boarding operation was in continuing violation of its zoning ordinance because she had not obtained a special use permit, as required by the ordinance, and because the number of horses being maintained on the property exceeded the one-horse-per-acre limitation imposed by the ordinance. The Village sought injunctive relief against Carruthers' business and that a fine be imposed for the zoning ordinance violation.

At trial, the Village sought to introduce into evidence the ordinance it seeks to enforce through the certification of the Village clerk. The ordinance, Mettawa, Ill., Ordinance No. 76 -- 0 -- 3 (1976) (Ordinance No. 76 -- 0 -- 3), had been adopted in 1976 as an amendment to the Village zoning ordinance. Carruthers challenged the competency of this evidence on the basis of deficiencies in the certification, and also asserted that the ordinance was void because the Village had not fulfilled the statutory procedural requirements at the time the ordinance was passed.

Both parties submitted proofs and presented written and oral argument on the issues. The Village was allowed to file a new, complete certification and supporting affidavits attesting to the purported fulfillment of the statutory requirements for adoption of an ordinance. The trial court found that Ordinance No. 76 -- 0 -- 3 had been passed and made effective in conformity with statutory requirements and that Carruthers' use of her property was in violation of its terms. She was enjoined from operating the stable business until she secured a special use permit from the Village and made liable for a fine for noncompliance.

We note initially some confusion exists as to whether the trial court considered Carruthers' argument that Ordinance No. 76 -- 0 -- 3 was void.

While it appears from the record that issues concerning the sufficiency of the certification of the ordinance became combined with questions of its validity, it is also evident that the validity issue was raised and considered in the court below and is properly before us. It is apparent that Carruthers challenged the ordinance's validity in an untimely fashion, but the Village's response indicates that it understood the challenge and had adequate opportunity to respond to it. The Village distinguished Carruthers' cases, asserted its own argument, submitted evidence in support of its argument, and continues to pursue the same argument on appeal. The trial court was aware that Carruthers was attacking the validity of the ordinance on the basis that there was no record of a roll call vote and, after both parties fully addressed the question, the court found that the ordinance had been adopted as required by statute. We conclude that the issue of the validity of Ordinance No. 76 -- 0 -- 3 is properly before us.

A municipal ordinance is presumed to be valid, and the burden of establishing invalidity is upon the party challenging the ordinance. (City of Evanston v. Ridgeview House, Inc. (1976), 64 Ill. 2d 40, 66, 349 N.E.2d 399; Greater Peoria Sanitary & Sewage Disposal District v. Hermann (1987), 153 Ill. App. 3d 398, 401, 505 N.E.2d 769.) In this case, the Village brought its complaint against Carruthers under its 1984 zoning ordinance to which she presented as an affirmative defense that her use of the property was a legal nonconforming use under the ordinance. The Village responded by introducing Ordinance No. 76-0-3, which contained the same relevant restrictions as the 1984 ordinance, and was purported to have been in effect when Carruthers bought her property and initiated the horse boarding business. Carruthers then urged the invalidity of the ordinance on the basis that in passing it the Village had failed to comply with requirements set forth in sections 3-11-17 and 1-1-2(8) of the Illinois Municipal Code (Code) (Ill. Rev. Stat. 1975, ch. 24, par. 3-11-17).

In 1976, section 3 -- 11 -- 17 of the Municipal Code provided, as it does today, that passage of ordinances must be by a majority vote of all members elected to a city council or Village board of trustees and "the yeas and nays shall be taken upon the question of the passage of the designated ordinances . . . and recorded in the journal of the city council." The cases interpreting this language leave no doubt that, for an ordinance to be valid, the record of its passage must show both the fact that a roll call vote was taken and the vote of each individual trustee. (People ex rel. Anderson v. Chicago & North Western Ry. Co. (1947), 396 Ill. 466, 469-70, 71 N.E.2d 701; People ex rel. Franklin v. Wabash R.R. Co. (1944), 387 Ill. 450, 459-60, 56 N.E.2d 820; Village of Bourbonnais v. ...


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