The opinion of the court was delivered by: Presiding Justice Campbell
APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE DOROTHY KIRIE KINNAIRD, JUDGE PRESIDING.
Defendant, the Village of Olympia Fields (the Village), appeals from an order granting partial summary judgment in favor of plaintiff, Sonya D. Hawthorne (Hawthorne), in connection with plaintiff's complaint against the Village for prohibiting the operation of a day care facility from her home. *fn1 On appeal, the Village contends that: (1) the Village's Zoning Ordinance, which limits commercial day care businesses in homes, is valid and not exclusionary; (2) The Village is not pre-empted by State law from exercising land use control over home day care. The circuit court denied the Village's motion to stay judgment pending appeal. The Village filed an identical motion in the Appellate court pursuant to Supreme Court Rule 305(h); this motion was taken with the case. *fn2 For the following reasons, we affirm the judgment of the trial court and deny the motion for stay.
The record reveals the following relevant facts. The Village of Olympia Fields (Village) is a non-home rule municipality located in southern Cook County. The Village has a comprehensive Zoning Ordinance (Zoning Ordinance) which establishes permitted and non-permitted uses of property within various zoning districts in the Village. "Home occupations" are permitted in zoning districts defined as R-1, R-2, and R-3. the Zoning Ordinance defines "home occupation" as follows:
"Home occupation means any gainful occupation or profession engaged in by an occupant of a dwelling unit as a use which is clearly incidental to the use of the dwelling unit for residential purposes. The 'home occupation' shall be carried on wholly within the principal building or within a building accessory thereto, and only by members of the family occupying the premises * * *. There shall be no exterior display, no exterior sign except as allowed by the sign regulations for the district in which such 'home occupation' is located, no exterior storage of materials, no other exterior indication of the 'home occupation,' or variation from the residential character of the principal building, and no offensive noise, vibration, smoke, dust, odors, heat or glare shall be produced. Offices, clinics, doctors' offices, hospitals, barbershops, beauty parlors, dress shops, millinery shops, tearooms, restaurants, tourist homes, animal hospitals and kennels, among other things, shall not be deemed to be home occupations." Olympia Fields Municipal Code, §§ 22-187, 22-207, 22-227 (Ord. No. 17, as revised May 11, 1981).
The Child Care Act of 1969 (225 ILCS 10/1, et seq. (West 1998)) (the Child Care Act), was adopted by the Illinois Legislature prior to the effective date of the 1970 Constitution which established the distinction between home rule and non-home rule units of local government. Under section 2.18 of the Act, "Day Care Homes" are defined as family homes which receive more than three up to a maximum of 12 children for less than 24 hours per day. A day care home may receive children at any time of the day or night as long as the stay of the child is less than 24 consecutive hours. A day care home cannot be operated as a "child care facility" without a license or permit issued by the Illinois Department of Children and Family Services (DCFS).
The Child Care Act is comprised of seven sections. Section 7 sets forth the minimum standards for licensing of facilities and the substantive areas where the DCFS may prescribe standards. The authorized standards are specifically restricted to 15 enumerated areas, none of which authorizes the DCFS to preempt non-home rule zoning authority. The DCFS is restricted and mandated by subsection 7(a)5 to prescribe standards for:
"* * * the appropriateness, safety, cleanliness and general adequacy of the premises, including maintenance of adequate fire prevention and health standards conforming to State laws and municipal codes providing for the physical comfort, care and well-being of children received."
The DCFS must require day care homes to comply with municipal building and fire safety codes, but does not exempt day care homes from other zoning requirements.
The DCFS promulgated regulations entitled "Licensing Standards for Day Care Homes" pursuant to section 3 of the Child Care Act. 89 Ill Adm. Code § 406, et. seq. (West 1998). Section 406.13 provides that an owner "alone" may care for up to eight children without any assistant. If the owner employs an assistant, the owner and the assistant may care for up to 12 children under the age of 12. Section 406.12 provides that children may remain on the premises for more than 12 hours in any 24-hour period if the parent's employment schedule requires more than 12 hours of day care. Under section 406.8(k), a day care home must provide an outdoor play area such as the yard of the home.
The DCFS issued a license to Hawthorne to operate a day care home in her residence, effective October 28, 1999, and valid through October 28, 2002. The license allowed Hawthorne to care for children from the ages of six (6) weeks to twelve (12) years old. Late in 1999, Hawthorne made an application to the Village to remodel her residence to accommodate her business. By letter dated December 16, 1999, Village Administrator, Mary Clumpner *fn3 , advised Hawthorne that her proposed operation of a day care home did not fall within the definition of "home occupation" under the Zoning Ordinance. The letter stated that Hawthorne's proposal to have another employee work at Hawthorne's residence did not conform to the Zoning Ordinance; that parents dropping off and picking up as many as fourteen children would be an exterior indication of the home occupation; and that a second kitchen for purposes of the operation would change the residential character of the principal building. In addition, the use of the back yard for an outdoor play area would also be contrary to the requirements of the Zoning Ordinance.
On January 5, 2000, Hawthorne filed a petition for zoning variance, requesting two forms of relief. First, Hawthorne requested a variance to allow the operation of a day care home as a home occupation. Second, Hawthorne requested a variance to allow a non-family member employee to work at the facility. On January 24, 2000, the Village board of Trustees conducted a public hearing on the variance requests. A number of residents expressed concerns relative to the proposal a the public hearing. In particular, they were concerned with the increase in traffic, disruption of residential tranquility, and employment of non-residents in the home. Following the hearing, the President and Board of Trustees denied Hawthorne's requests for the variances.
Hawthorne filed a verified complaint for declaratory and injunctive relief. Subsequently, Hawthorne filed an eight count complaint alleging: (1) the Village acted arbitrarily, capriciously and unreasonably when it misinterpreted the Zoning Ordinance in determining home day care is not a "home occupation" permitted in residences; (2) the Village is without lawful power to wholly exclude home day care from the Village; (3) the Child Care Act and the implementing DCFS regulations preempt the inconsistent or prohibition of home day care by non-home rule municipalities; (4 & 5) Hawthorne's state license is a species of property entitled to protection by the fifth amendment of the United States Constitution and Article I, Section 15 of the Illinois constitution, and the Village's conduct in allegedly prohibiting her from deriving "any use of enjoyment" of the license is an unconstitutional taking; (6) the Village treated Hawthorne, as a home day care provider, differently from persons engaged in similarly situated home occupations without any rational basis, thereby denying her equal protection of the laws under Article I, Section 2 of the Illinois Constitution; (7) the Village's interpretation of its zoning ordinance violates Dillon's Rule (non-home-rule municipalities may only exercise powers granted by law or by the Illinois Constitution (see Ill. Const.1970, art. VII, sec. 7)), and therefore deprives Hawthorne of her property without due process of law; and (8) She is similarly deprived of due process under the 14th amendment to the U. S. Constitution.
Hawthorne filed a motion for partial summary judgment on counts I through V of her amended complaint, and the Village filed a cross-motion for partial summary judgment on counts II through V. At a hearing on the cross-motions, Hawthorne conceded that the Village did not misinterpret its Zoning Ordinance in defining "home occupation," and the trial court dismissed count I as moot.
On December 11, 2000, the trial court gave an oral decision on the cross-motions and requested that counsel draw up a written order reflecting its decision. On December 15, 2000, the trial court entered a written order, but failed to include language pursuant to Illinois Supreme Court Rule 304(a). On January 17, 2001, the trial court entered a final written order, making the preliminary injunction permanent, and adding the Rule 304(a) language.
The final order granted summary judgment in favor of Hawthorne on Count II, finding that the Zoning Ordinance constitutes exclusionary zoning and is null and void. The trial court granted summary judgment in part in favor of Hawthorne on count III, finding: (1) the Village, as a non-home rule entity, is partially preempted by the Child Care Act and the DCFS regulations from regulating day care homes under the Zoning Ordinance or otherwise; (2) to the extent that any ordinance of the Village conflicts with the Act and the DCFS regulations it is preempted and null and void; (3) the Village is permanently enjoined from regulating day care homes under the Zoning Ordinance, or otherwise, in a manner that conflicts in any way with the Act or the DCFS regulations; and (4) Hawthorne is entitled to operate a day care home at her residence in the Village pursuant to her DCFS license. The Village filed a timely notice of appeal from this order on January 29, 2001.
Initially, the Village contends that the trial court erred in determining that the Zoning Ordinance, which prohibits or limits day care business in homes, is exclusionary. The Village frames this case as one of first impression.
This case involves the construction of a municipal ordinance and a state statute. Our standard of review is de novo, as the interpretation of ordinance and statutes are questions of law. North Avenue Properties, L.L.C. v. Zoning Board of Appeals of ...