Appeal from the Circuit Court of Cook County. The Honorable James F. Stack, Judge Presiding.
The opinion of the court was delivered by: Justice Wolfson
Some pigeons race. Some fly away and come home again. Some simply hang around and leave a mess. The city of Burbank is not fond of any pigeons who live in residential areas. It passed one ordinance that prohibited the raising of pigeons in residential areas and another that excluded pigeon-raising as a proper residential use. On the other hand, the legislature for several years created a safe roost for carrier pigeons, later lifting that protection for pigeons who nest in Cook County.
The feathers began flying in this case when Burbank attempted to enforce its ordinance to stop Jan, Zofia, and Ludwina Czaja (the "Czajas") from raising carrier pigeons on their residential property. It filed a lawsuit against the Czajas, alleging in its first amended complaint that the Czajas had converted a garage on their residential property into a pigeon coop and were raising pigeons in violation of city ordinances.
In their motion to dismiss, the Czajas contended there are no such ordinances, that State law had repealed them. Burbank responded of course there are, they were lying dormant and were brought back to life in August of 1996. The trial court granted the motion to dismiss. We agree with Burbank.
For that reason, we reverse the trial court's order granting the Czajas' motion to dismiss and we remand this cause for further proceedings.
Because the trial court dismissed Burbank's first amended complaint after the Czajas brought a motion to strike and dismiss, we take the following facts from that complaint and accept them as true for the purpose of this appeal. The facts are not in dispute.
HISTORY OF STATUTES & ORDINANCES
The City of Burbank is a home rule municipal corporation located in Cook County, Illinois. In 1972, Burbank adopted section 7-101 of the Municipal Code of the City of Burbank. That section prohibited the raising of pigeons and other poultry for domestic purposes:
"Sec. 7-101. Keeping, raising, selling live poultry prohibited.
It shall be unlawful to keep, raise, sell, or offer for sale, barter, or give away live baby chicks, ducklings, goslings, pigeons, fowl or other poultry, domestic or otherwise, in the city except in stores or other commercial establishments engaged in the business of selling baby chicks, ducklings, goslings, pigeons, fowl or other poultry for commercial purposes, and not less than six (6) of each of the aforementioned variety shall be sold to any one person. It shall by unlawful to raise for home or domestic purposes poultry of any kind. (Ord. No. 1-11-16-72, § 4-10)." (Emphasis added.)
On July 1, 1985, the Carrier and Racing Pigeon Act of 1984 (the "Act of 1984") (510 ILCS 45/1 et seq. (West 1994)) was enacted. Section 7 of the Act of 1984 said, "A municipality or county shall not enact an ordinance which prohibits the orderly keeping of carrier pigeons." (Emphasis added.) 510 ILCS 45/7 (West 1994). "Carrier pigeons" were defined as racing or homing pigeons. 510 ILCS 45/2(a) (West 1994).
Section 8 of the Act of 1984 said, "This Act applies to all municipalities and counties and pursuant to paragraph (i) of section 6 of article VII of the Illinois Constitution, this Act is a limitation upon the power of home rule units to enact ordinances contrary to this Act." 510 ILCS 45/8 (West 1994).
Effective July 27, 1993, the Act of 1984 was amended -- no changes relevant to this appeal were made. The Act's new title was the "Carrier, Racing, Hobby, and Show Pigeon Act of 1993" (the "Act of 1993"). See 510 ILCS 45/1 et seq. (West 1998).
On March 27, 1996, Burbank adopted the Burbank Zoning Code. It comprehensively amended the prior zoning laws of the City of Burbank --previously known as the City of Burbank Zoning Ordinance of 1971. Section 5-4 of the Burbank Zoning Code provides for the allowed uses of property located in a single family residence district:
"Sec. 5-4 R-1 Single Family Residence District
A. Permitted Uses. The following uses and no others are permitted as of right in the 'R-1' Single Family District.
1. Single-family detached dwellings.
3. Public and private elementary and high schools, not including preschool, nursery schools or daycare facilities.
4. Public parks and recreational facilities.
5. Municipal-owned facilities.
6. Small community residences provided that they are located not less than 1,000 feet from another community residence.
7. One garage and one storage shed per zoning lot, and the storage shed must be located to the rear of the principal structure on the zoning lot.
Effective August 14, 1996, the Act of 1993 was amended (the "1996 Amendment") to allow certain municipalities to prohibit or regulate the ...