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LOVERS LANE & CO. v. THE VILLAGE OF LIBERTYVILLE

December 4, 2000

LOVERS LANE & CO., PLAINTIFF,
V.
THE VILLAGE OF LIBERTYVILLE, DEFENDANT.



The opinion of the court was delivered by: Darrah, District Judge.

OPINION AND ORDER

PROCEDURAL HISTORY

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 shortcomings.

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.

CONCLUSIONS OF LAW

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 institutional building.

"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 ...


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