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 have influence or effect." Webster's Third New International
Dictionary 2116 (3rd ed. 1986).
Therefore, the proper construction of the Ordinance requires a
determination of the general, particular use or uses proposed for the
subject property. Then a determination whether this use or uses is a
"Regulated Use," as defined above, is made.
A court considers three criteria in deciding whether to grant permanent
injunctive relief. including whether: (1) the plaintiff will have an
adequate remedy at law or will be irreparably harmed if the injunction is
not granted; (2) the threatened injury to the plaintiff outweighs the
threatened harm the injunction may inflict on defendant; and (3) the
granting of the injunction will harm the public interest. Plummer v.
American Institute of Certified Public Accountants, 97 F.3d 220, 229 (7th
Cir. 1996). A permanent injunction is not provisional in nature as is a
temporary injunction; rather, a permanent injunction is a final
judgment. As such, a plaintiff seeking a permanent injunction must
demonstrate not whether he has a reasonable likelihood of success on the
merits but whether he has in fact succeeded on the merits. Plummer, 97
F.3d at 229.
As mentioned above, plaintiff applied for a Zoning Certificate to
operate a retail establishment at 1015-1019 North Milwaukee Avenue,
Libertyville, Illinois, on August 29, 2000. Plaintiffs proposed
retail business would operate as a lingerie and gift shop with 80% of the
store's floor space and stock in trade consisting of lingerie and other
clothing; 10% of the store's floor space and its stock in trade dedicated
to bath and bed products; and 10% of floor space and stock in trade
dedicated to the sale of books, video tapes, greeting cards, party
favors, and novelties.
Plaintiffs business is therefore an apparel and accessory store and a
miscellaneous retail store. The Manual includes within its major group of
apparel and accessory stores: men's and boys' clothing and accessory
stores, women's clothing stores, women's accessory, specialty stores, and
miscellaneous apparel and accessory stores. Within the major group of
miscellaneous retail, the manual includes operations including book
stores, stationery stores, jewelry stores, gift, novelty, and souvenir
shops. Both uses are permitted in a C-3 district, where plaintiff seeks
to locate its store. Therefore, because both uses are permitted, it would
logically follow that a combination of both permitted uses would also be
permitted within the Ordinance. As mentioned above, the Village cites no
provision of the Ordinance to the contrary nor provided any authority for
this novel assertion other than to characterize this combination of
obviously permitted uses as a "hybrid."
Having determined plaintiffs proposed business is permitted, the Court
must then determine if the business is a "Regulated Use" within 750 feet
of a residential district, residential use, or institutional building.
The parties have stipulated that the business plaintiff proposes to
operate in the Village would have as part of its stock in trade, books,
videotapes, or paraphernalia which are characterized by an emphasis on
matter depicting, describing or relating to "Specified Sexual Activities"
or "Specified Anatomical Areas" as defined within the Ordinance. Such
stock in trade would constitute 14% of the total cost of goods of
plaintiffs stock in trade; or 10% of the actual number of individual items
offered for sale by plaintiff; or 7% of the store's retail floor-display
space. Plaintiff will not have a segment or section devoted to the sale or
display of any such materials at the Libertyville store; rather, any of
the materials at the store will be dispersed throughout the store.
Plaintiff does not have a substantial or significant portion of its
stock in trade, books, magazines, periodicals, videotapes, films, or
paraphernalia that are distinguished or characterized by an emphasis on
matter depicting, describing, or relating to specified sexual activities
or anatomical areas. Nor does plaintiff have a segment or section devoted
to the sale or display of such material. Plaintiffs president testified
that plaintiff will limit its sale of books, videotapes, or paraphernalia
which are characterized by an emphasis on matter depicting, describing or
relating to "Specified Sexual Activities" or "Specified Anatomical Areas"
so as not to constitute a substantial or significant portion of its stock
in trade. Defendant's expert admits that plaintiffs stock in trade does
not constitute a substantial portion of its stock and trade. The
stipulated amounts of plaintiffs stock which includes "Specified Sexual
Activities" or "Specified Anatomical Areas" is not substantial or
FINDINGS OF FACT
1. The court has federal question jurisdiction over
the plaintiffs claim (28 U.S.C. § 1331, 1343
(3)), and venue is proper pursuant to
28 U.S.C. § 1391.
2. At all times relevant hereto, the plaintiff was
and is a duly authorized corporation existing
under the laws of the State of Illinois with a
lease to occupy a commercial business in the
3. The defendant was and is a Non-Home-Rule
municipality located in the County of Lake, State
4. On or about August 29, 2000, plaintiff applied for
a Zoning Certificate to operate a retail
establishment at 1015-1019 North Milwaukee
Libertyville, Illinois. On this same day.
Building and Sign Permits were also applied for in
accordance with the Ordinance.
5. Article 16-4.6 of the Ordinance requires that a
Zoning Certificate be issued or denied with
fourteen (14) days of its initial application.
Libertyville denied plaintiff a Zoning Certificate
on October 20, 2000, after this suit had been
filed, on the grounds that plaintiffs proposed
business was not allowed to operate within the
Village's C-3 Zoning District.
6. The Village subsequently reaffirmed its denial of
a Zoning Certificate to plaintiff on the ground
that plaintiffs proposed business was a "Regulated
Use" as defined within the Ordinance; and because
it was within 750 feet of a rehabilitation
operation that the Village considered to be a
residence, it could not operate at the location
plaintiff had selected. The Village invited
plaintiff to participate in a proceeding to amend
the Village's Ordinance if it wished to operate
its business at that location.
7. Plaintiffs proposed business is an apparel and
accessory store, general merchandise store or
miscellaneous retail store or a combination
8. The location that plaintiff intends to operate its
retail establishment is in a C-3 Zoning District
in the Village, which was "established to provide
locations for a wide variety of commercial uses
ranging in both size and intensity." The
Ordinance, by its terms, allows the following
business to be operated within it as a matter of
right, including, in part: "Apparel and Accessory
Stores . . . General Merchandise Stores
Miscellaneous Retail Stores. . . ."
9. Plaintiffs proposed business is therefore a
permitted use in the C-3 District within the
10. Plaintiffs proposed business is not a regulated
use as defined in the Ordinance.
11. Plaintiff complies with the provisions of the
Ordinance for the proposed location of its store
and is entitled to issuance of a Zoning
Certificate of Compliance.
12. The Zoning Certificate is necessary for the
plaintiff to exercise its right to conduct its
proposed business at the proposed location within
the C-3 Zoning District of the defendant Village.
13. Defendant, by its inaction and pursuant to Article
6-4.6(b) of the Ordinance, has unlawfully denied
plaintiffs application for a Zoning Certificate,
which precludes the issuance by the Village of
building permits, sign permits, and the operation
of plaintiffs business.
14. Plaintiff does not have an adequate remedy of law
to remedy the denial of a Zoning Certificate.
15. The threatened injury to the plaintiff outweighs
the threatened harm the issuance of a Zoning
Certificate may inflict upon the defendant,
16. The granting of a permanent injunction will not
harm the public interest.
IT IS THEREFORE ORDERED that plaintiffs, LOVERS LANE & COMPANY'S,
complaint for a permanent mandatory injunction against THE VILLAGE OF
LIBERTYVILLE is hereby granted. Defendant is ordered to issue a Zoning
Certificate of Compliance to plaintiff pursuant to its application on or
before December 11, 2000 to permit the operation of said business in
compliance with the Village's Ordinance consistent with this Opinion and
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