Appeal from the Circuit Court of Cook County No. 96 CH 6939 Honorable Robert Boharic, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Cahill
MODIFIED ON DENIAL OF PETITION FOR REHEARING
Plaintiff, the City of Chicago Heights, sued to enjoin defendant from violating an ordinance that prohibited religious organizations from locating a house of worship in a part of the city zoned commercial. The court entered judgment for defendant. Plaintiff appeals. We vacate in part and reverse and remand with directions to grant the injunctive relief sought by the city.
Chicago Heights (the city) adopted a comprehensive zoning plan in December 1995, with an announced purpose to counteract an economic decline in the city. The plan designated Lincoln Highway a commercial corridor to foster economic development. The Lincoln Highway area was zoned B-2, commercial. Under the city zoning plan, churches may locate anywhere in a residential zone. Churches may locate in a B-2 commercial zone with a special use permit.
Defendant, Living Word Outreach Full Gospel Church and Ministries, Inc. (the Church), bought a former Masonic temple in January 1996. The temple was located at 400 West Lincoln Highway in the city in the B-2 zone. City officials told Church officials that a special use permit was required. The Church had made the special use permit a condition precedent in the original contract to buy the temple, but the condition was omitted in the final contract. The Church took possession of the building on January 12, 1996, and only then applied for a special use permit.
To obtain a special use permit in the city, the applicant must establish that the special use will not (1) be unreasonably detrimental to or endanger the public, health, safety, morals, comfort or general welfare; (2) be injurious to the use and enjoyment of other property in the immediate vicinity or substantially diminish and impair property values in the neighborhood; or (3) impede the normal and orderly development and improvement of surrounding property for permitted uses. The applicant must also show that there is adequate ingress and egress, utilities, access roads and drainage facilities and that the use otherwise conforms to the district regulations. Chicago Heights Zoning Ordinance §12-6.6 (1972).
The Church's application was presented to the city council, which sent it to the zoning board of appeals for review. The zoning board of appeals forwarded the application to the plan commission for a recommendation. The plan commission recommended to the zoning board of appeals that the application be denied. After a hearing, the zoning board recommended to the city council that the application be denied.
The city council denied the application because the property is located in a commercial corridor the city "targeted" for economic development. Despite the lack of a permit, the Church continued church- related activities on the property. The city then issued approximately 65 separate zoning violation citations over a period of seven months. When they were ignored, the city filed this action to enjoin the Church's use of the property. The complaint was styled in a single count and sought an injunction against the Church to prevent further violations of the ordinance.
The Church responded with 14 affirmative defenses, later refiled as a 14-count counterclaim. The counterclaims raise state and federal constitutional issues and include a claim for fees under section 1988 of the United States Code (the Code) (42 U.S.C. §1988 (1994)).
After a hearing, the trial court denied the city's injunction. The court then found that the city improperly denied the special use permit, concluding that all requirements for a permit were satisfied. The court rejected the Church's alternative argument that the use was a continuing nonconforming use. The court said that because of its ruling, "it need not reach the constitutional defenses raised by the Church." The court also said that its ruling "terminates the lawsuit." The order reflecting the court's ruling was entered on December 12, 1997, and read as follows:
"This court having heard all the testimony and carefully considered all the evidence and argument finds in favor of the Plaintiff City on the issue of continuation of a legal non-conforming use and in favor of the Defendant Church on the issue of whether the special use permit should have been granted and finds that the permit was improperly denied. The Court finds that it need not reach the constitutional defenses raised by the Church. This is a final and appealable order and no just reason exists to delay enforcement or appeal." The city filed a notice of appeal on December 16, 1997.
The Church filed a petition for attorney fees on January 7, 1998. This petition argued that, because the court's ruling was based on constitutional grounds, attorney fees were warranted under section 1988 of the Code. 42 U.S.C. §1988 (1994). In an order entered on February 26, 1998, the court expanded its order of December 12, 1996. The court permanently enjoined the city from enforcing the ordinance against the Church at the Lincoln Highway location. The court also found that the city's actions violated the free exercise clause of the United States Constitution and granted relief under count VI of the Church's counterclaim. This count alleged that the special permit requirement burdened and infringed on the Church's right of free exercise of religion. The court then ordered further proceedings to determine the fee award. The city appealed this order by a second notice of appeal filed on March 16, 1998. These appeals were consolidated.
The city makes two arguments on appeal: (1) the circuit court lacked jurisdiction to enter the February 26, 1998, order; and (2) the court erred in substituting its reading of the zoning ordinance for that of the city council.
The first issue requires us to examine our jurisdiction over this appeal. To confer appellate jurisdiction, the judgment or order appealed from must be final. Rice v. Burnley, 230 Ill. App. 3d 987, 596 N.E.2d 105 (1992). An order is final if it fixes absolutely and finally the rights of the parties and decides the litigation on the merits so that the only thing left is execution of the ...