The opinion of the court was delivered by: Darrah, District Judge.
On October 20, 2000, the plaintiff, Lovers-Lane & Company, sought
interlocutory injunctive relief alleging the defendant, The Village of
Libertyville (Village), unlawfully denied it a permit to operate its
retail store at 1015-1019 North Milwaukee Road, Libertyville, Illinois. A
trial was conducted regarding the issuance of a permanent injunction by
agreement of the parties. (Transcript of November 9, 2000, pp. 2-4).
On October 20, 2000, defendant denied plaintiff a Zoning Certificate of
Compliance (Zoning Certificate). Defendant has based this denial on two
theories and has attempted to maintain these positions throughout the
trial and within its final summation.
First, the Village contends that the proposed use is a combination of
different and/or new uses which were not within the contemplation of the
Board at the time the Ordinance was enacted and, therefore, does not fit
within any specific use defined in the Ordinance. The defendant Village
argues from this premise that the plaintiff must seek a text amendment to
the Ordinance for its "hybrid" use. Defendant fails to cite any case law
supporting this interpretation of its ordinance nor is any support for
this theory found in the language of the Ordinance or reasonably inferred
therefrom. The plaintiff responds that requiring a resort to the
cumbersome and time-consuming process has serious constitutional
Second, the Village contends, in the alternative, that plaintiffs
proposed business is a "Regulated Use" pursuant to the Ordinance because a
"substantial or significant portion of its stock in trade" is
"distinguished or characterized by an emphasis on matter" of a sexual
nature as defined by the Ordinance. (See Village Ordinance, art. 2-2).
The Village has maintained this position from the outset. (See October
20, 2000 letter from Village to plaintiff; Village's Amended Response to
Motion for Preliminary Injunction pp. 5-8). The plaintiff has raised
constitutional challenges to this construction. The plaintiff also
challenges the factual application of this standard based on the usual
and customary meaning of those words, and the trial between the parties
generally proceeded on this issue.
In general, a zoning ordinance is presumed to be constitutionally
valid. Clark v. County of Winnebago, 817 F.2d 407, 408 (7th Cir. 1987).
The rules of construction of an ordinance are the same as those
applicable to statutes. See Foster v. Zeeko, 540 F.2d 1310, 1317 (7th
Cir. 1876); Indiana Waste Systems, Inc. v. County of Porter,
787 F. Supp.2d 859, 867 (N.D.IND. 1992). Ordinances, like statutes, are
narrowly construed in order to sustain their constitutionality. See
National Mobilization Committee to End the War in Viet Nam v. Foran,
411 F.2d 934, 938 (7th Cir. 1969). An ordinance is construed in the
context of its entirety. See In re Merchants Grain, Inc. v. Mahern,
93 F.3d 1347, 1353-354 (7th Cir. 1996).
Therefore, the Court reserves consideration of the constitutional
challenges of the plaintiff as may be necessary. The issue is properly
resolved by construing the ordinance narrowly, in its entirety, reading
all pertinent sections to determine the intent
of the drafters and apply that meaning to the case at bar.
The purpose of the Village's C-3, General Commercial District, is to
"provide locations for a wide variety of commercial uses ranging in both
size and intensity." (Ordinance, art. 5-4.1). The Ordinance defines a
"Commercial Use or Purpose" as: "Any use permitted or specially permitted
in a Commercial District." The Ordinance defines a Permitted Use as: "A
use that appears on the permitted use list of a particular Zoning
District." The Ordinance allows retail trade, "limited to: Apparel and
Accessory Stores . . . Drinking Places . . . Food Stores . . . General
Merchandise Stores Miscellaneous Retail Stores." The Ordinance provides
that the Village administrator may refer to the Standard Industrial
Classification Manual (Manual) and the use classification methodology
used therein as a reference for use interpretations.
Words not defined within the Ordinance are given the definition found
in the most recent edition of the Illustrated Book of Development
Definitions; or, if not found, in the Transportation and Land
Developments; or, if not found, in Webster's International Dictionary of
the English Language.
In addition to this classification scheme, the Ordinance also
specifically treats uses related to sales of sexually related materials as
a "Regulated Use," The Ordinance defines a "Regulated Use" as: "Adult
bookstores, adult mini-motion picture theaters, adult motion picture
theaters, and cabarets." The ordinance defines an adult bookstore as: "An
establishment having as a substantial or significant portion of its stock
in trade books, magazines, periodicals, videotapes, films, or
paraphernalia which are distinguished or characterized by an emphasis on
matter depicting, describing or relating to `Specified Sexual Activities'
or "Specified Anatomical Areas,' both as defined herein, or an
establishment wit[h] a segment or section devoted to the sale or display
of such material." A "Regulated Use" establishment cannot be located
within 750 feet of any residential district, residential use, or
"Substantial" is defined as "adequately or generously nourishing
abundant, plentiful . . . being that specified to a large degree or in
the main." Webster's Third New International Dictionary 2280 (3rd ed.
1986). "Significant" is defined as "having meaning . . . suggesting or
containing some concealed, disguised, or special meaning . . . having or
likely to ...