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Byron Dragway, Inc. v. County of Ogle

November 14, 2001

BYRON DRAGWAY, INC., PLAINTIFF-APPELLANT,
v.
THE COUNTY OF OGLE, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Ogle County. No. 98--CH--0024 Honorable Richard E. DeMoss, Judge, Presiding.

The opinion of the court was delivered by: Justice Callum.

Ordered published January 2, 2002.

BYRON DRAGWAY, INC., PLAINTIFF-APPELLANT,
v.
THE COUNTY OF OGLE, DEFENDANT-APPELLEE.

Appeal from the Circuit Court of Ogle County. No. 98--CH--0024 Honorable Richard E. DeMoss, Judge, Presiding.

The opinion of the court was delivered by: Justice Callum.

Plaintiff, Byron Dragway, Inc., sought a declaratory judgment against defendant, the County of Ogle. Plaintiff asserted that an ordinance amendment reducing the days and hours that plaintiff's raceway could be open for business resulted in a taking of its property without compensation. The trial court granted defendant's motion to dismiss pursuant to section 2--619(a)(9) of the Code of Civil Procedure (the Code) (735 ILCS 5/2--619(a)(9) (West 1998)). We reverse and remand.

The complaint contains the following relevant allegations. Since 1964, plaintiff and its predecessors in interest have operated the only commercial racing dragstrip in Ogle County. Plaintiff obtained from defendant annual licenses and permits to conduct its business. These licenses were subject to certain operating requirements in the Ogle County Code. Section 4--1D--4 of the Ogle County Code governed the operating hours for all business. Ogle County Code §4--1D--4(B) (1982). That section established the permissible operating hours for three categories of businesses: outdoor movie theaters, vehicle racing businesses, and all other businesses.

Before November 18, 1997, section 4--1D--4 provided that vehicle racing businesses could (1) open at 3 p.m. Friday and close at 12:15 a.m. Saturday; (2) open at 8 a.m. Saturday and close at 12:15 a.m. Sunday; (3) be open from 8 a.m. to 6 p.m. on Sunday; and (4) be open from 8 a.m. to 9 p.m. on Memorial Day and Labor Day. See Ogle County Code §4--1D--4(B) (1982). Plaintiff alleged that, relying on the ordinance, it spent hundreds of thousands of dollars to construct and improve the raceway to attract competitors and spectators to annual events between April and October.

On November 18, 1997, defendant amended the ordinance to reduce the permitted operating hours for vehicle racing businesses. The amendment eliminated racing on Fridays and established operating hours of 8:30 a.m. to 6 p.m. on Saturdays, Sundays, Memorial Day, and Labor Day. See Ogle County Code §4--1D--4(B) (amended November 18, 1997). In 1998, plaintiff obtained a license to conduct its racing business.

Plaintiff further alleged that it competes with dragstrip racing businesses in Moline and Joliet, Illinois; Union Grove, Wisconsin; Morocco, Indiana; and Dubuque, Iowa. The economic viability of its business depends on conducting racing on Fridays and during the evenings on Saturdays, Sundays, Memorial Day, and Labor Day. Such hours are essential to attract sufficient regional and national competitors and spectators to provide the minimum income necessary to continue the business. If the amendment is enforced, races will have to be canceled or significantly restricted, substantially reducing plaintiff's income and permanently damaging its national reputation as a viable dragstrip raceway. Also, plaintiff alleged on information and belief that no similar business in the United States has maintained its economic viability without holding races on Fridays or during the evenings on Saturdays, Sundays, and holidays. Plaintiff sought a declaration that enforcing the amendment to section 4--1D--4 would result in a taking of its property without just compensation in violation of federal and state constitutional law.

Defendant moved to dismiss the complaint pursuant to section 2--619(a)(9) of the Code. It argued that (1) because section 4--1D--4(B) was a permissible nuisance abatement measure, its enforcement could not result in a "taking"; (2) res judicata barred the action because plaintiff could have raised its constitutional claim in an earlier action in which defendant alleged that in 1996 plaintiff violated section 4--1D--4(B); (3) because section 4--1D--4(B) was not a zoning ordinance but instead a part of a licensing scheme, the takings clause did not apply; and (4) section 4--1D--4(B) was rationally related to the legitimate goal of noise reduction.

The trial court rejected defendant's first and second arguments. The court agreed with defendant, however, that section 4--1D--4(B) was a part of a legitimate licensing scheme and was rationally related to defendant's legitimate interest in regulating the hours of a business that creates substantial noise and traffic. Accordingly, the trial court granted defendant's motion. Plaintiff timely appealed.

Defendant's motion was based primarily on section 2--619(a)(9), which provides for an involuntary dismissal on the ground that the claim is barred by other affirmative matter avoiding the legal effect of or defeating the claim. 735 ILCS 5/2--619(a)(9) (West 1998). A section 2--619(a)(9) motion admits the legal sufficiency of the complaint but asserts an affirmative defense or other matter that avoids or defeats the claim. Zimmerman v. Fasco Mills Co., 302 Ill. App. 3d 308, 311 (1998). In ruling on a section 2--619(a)(9) motion, the trial court must interpret all pleadings and supporting documents in the light most favorable to the nonmoving party. In re Chicago Flood Litigation, 176 Ill. 2d 179, 189 (1997). We review de novo the trial court's ruling and consider whether a genuine issue of material fact precludes the dismissal and, if not, whether the dismissal is proper as a matter of law. Bainter v. Village of Algonquin, 285 Ill. App. 3d 745, 750 (1996).

Although plaintiff alleged violations of both state and federal constitutional law, both here and below, plaintiff and defendant limited their arguments and supporting authority to considerations of federal constitutional law. ...


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