Appeal from the Circuit Court of Boone County. No. 99-CH-84 Honorable Gerald F. Grubb Judge, Presiding.
The opinion of the court was delivered by: Justice Inglis
Defendants, Studio 20 Inc., T. Michael Walker, a/k/a Terry Walker, Spyros Spyratos, and Jim Valkimadis, a/k/a Dimitrios Valkimadis (collectively, Studio 20 or the Studio 20 defendants), appeal from a preliminary injunction that prohibited them from opening an adult entertainment facility (facility). The circuit court ruled that the location of the facility would violate section 5--1097.5 of the Counties Code (55 ILCS 5/5--1097.5 (West 1998)) by being within 1,000 feet of the property boundary of a place of religious worship. Studio 20 contends that the circuit court erred when it included land not owned or leased by Studio 20 in determining the boundary of the facility. We disagree and affirm the preliminary injunction.
On May 11, 1999, the State filed a three-count complaint against the Studio 20 defendants, Bel-Mar Business Park, L.L.C., Mark A. Beaulieu, and Geraldine P. Parth, a/k/a Geraldine Beaulieu. The complaint identified defendants Mark A. Beaulieu, Geraldine P. Parth, a/k/a Geraldine P. Beaulieu, and Bel-Mar Business Park, L.L.C. (collectively, the owners) as either the owners or landlords of a 5.03-acre parcel of land located at 6677 Logan Avenue in unincorporated Boone County (the facility parcel).
The three counts of the complaint were virtually identical in substance. The complaint alleged that Studio 20 intended to open an adult entertainment facility in a building on the facility parcel and that this would violate section 5--1097.5 because the boundary of the facility parcel was within 1,000 feet of the boundary of another parcel of property that contained a place of religious worship (the church parcel). The three counts of the complaint sought, respectively, a permanent injunction, a preliminary injunction, and a temporary restraining order against defendants prohibiting them from operating the adult entertainment facility on the facility parcel. On the same date that the complaint was filed, the trial court entered an ex parte temporary restraining order that prohibited defendants from opening an adult entertainment facility on the facility parcel.
On May 20, 1999, the Studio 20 defendants filed a motion to dissolve the temporary restraining order and the trial court conducted a hearing on that motion and on the State's request for a preliminary injunction. At the hearing, the State advised the court that it had not been able to serve the owners. The attorney for the Studio 20 defendants responded that the Studio 20 defendants were the real parties in interest because they were the lessees. The trial court stated that it would be appropriate to proceed because the thrust of the preliminary injunction was directed against the Studio 20 defendants.
The record reveals the following. When the State filed its complaint there was an active place of religious worship on the church parcel. The facility parcel was east of the church parcel. A parcel or parcels of land, whose ownership is not established in the record, separated the church parcel and the facility parcel. The shortest distance between the boundary line of the church parcel and the boundary line of the facility parcel was the distance between the southeast corner of the church parcel and the southwest corner of the facility parcel. The distance between those points was 955.13 feet. There was only one building on the facility parcel. The building was located near the center of the parcel. Studio 20 intended to open and operate an adult entertainment facility in the building on the facility parcel.
Steve Schabacker, the building and zoning enforcement officer for Belvidere and Boone County, made at least two visits to the facility parcel. Schabacker testified that, in addition to the building on the facility parcel, the proposed adult entertainment facility would be using an outdoor sign, a driveway, a parking lot, a water well, a septic system, and a leach field, all of which were located on the facility parcel. Schabacker testified that in 1977 the entire 5.03 acres of the facility parcel were rezoned from agricultural to general business use. While Schabacker was visiting the facility parcel, one of the Studio 20 defendants gave Schabacker a copy of a lease agreement between the owners and the Studio 20 defendants. Schabacker testified that the lease used the word "premises" to describe the land that comprised the facility parcel.
On cross-examination, Schabacker initially opined that the lease indicated that Studio 20 was leasing the entire facility parcel. However, Schabacker was then asked to read a definition of the leased premises in the lease. Schabacker stated that the lease defined "premises" as the land under the building on the parcel.
On redirect examination, Schabacker testified that there was no indoor parking in the building on the facility parcel. Schabacker also testified that the parking lot, the sign, the septic tank, and the leach field were all on land that was not under the building.
On re-cross-examination, Schabacker testified that the outdoor sign was in the front of the property, that the driveway started in the front of the property and went to the rear of the building, and that neither the rear of the building nor the septic field extended to the southern property line of the facility parcel. Schabacker conceded that the State had not made any measurements of the distance between the septic field, the building, or the sign and the boundary line of the church parcel.
The State admitted a number of exhibits without objection. Included in these exhibits was a copy of a letter from the land manager of the five-acre parcel granting Studio 20 permission to perform "any and all modifications to the building and land to assist in [its] business."
Terry Walker, one of the Studio 20 defendants, testified that he was one of the lessees in the lease between Studio 20 and the owners of the facility parcel. Walker acknowledged that Studio 20 intended to operate an adult entertainment facility, as defined in section 5--1097.5, on the leased premises. Walker testified that the leased premises did not include the entire 5.03 acres of the facility parcel. Walker described the leased premises as including "the east section of that parcel that includes the building, the sign, the entranceway, and the parking lot which is directly behind the rear entrance of the building" and the septic field that was directly in front of the building. Walker measured the distance from the boundary line of the leased premises to the southwest property line of the facility parcel and determined that the distance was 175 feet.
Walker acknowledged that the lease had recently been amended. Walker explained that the lease was amended to make sure that the owners were not responsible for anything sold on the leased premises and to "delineate the exact description or exact boundaries of the property that we lease." Walker testified that Studio 20 had no interest in the part of the facility parcel that was not included in the leased premises (nonleased premises). Walker also testified that there was a sign on the nonleased premises stating that the nonleased premises were for sale and that the owners would build to suit.
On cross-examination, Walker acknowledged that the lease was amended after the State filed its complaint in this case. Walker testified that the reasons for amending the lease were (1) to correct the name of the lessees to Studio 20 from another name that was already in use; (2) to ensure that the owners were not responsible for anything that Studio 20 sold; and (3) to clarify exactly what portion of the facility parcel Studio 20 was leasing. Walker claimed that the part of the facility parcel that Studio 20 was leasing has been the same since the lease was first signed and that the amendment was intended only to clarify the extent of the leased premises.
Following the hearing, the trial court entered a preliminary injunction order that prohibited Studio 20 from opening an adult entertainment facility on the facility parcel. The order also stated that the motion to dissolve the temporary restraining order ...