Appeal from the Circuit Court of De Kalb County. No. 99-MR-119 Honorable Leonard J. Wojtecki, Judge, Presiding.
The opinion of the court was delivered by: Justice Grometer
Plaintiff, Oak Grove Jubilee Center, Inc., appeals from an order of the circuit court of De Kalb County dismissing its action against defendant, the City of Genoa. Plaintiff had filed a three-count first amended complaint alleging facial and as-applied violations of the Religious Freedom Restoration Act (Act) (775 ILCS 35/1 et seq. (West 1998)) as well as a violation of the equal protection clauses of the state and federal constitutions (Ill. Const. 1970, art. I, §2; U.S. Const., amend. XIV). The latter claim was brought pursuant to section 1983 of the Civil Rights Act (42 U.S.C.A. §1983 (West 1996)). Plaintiff filed a motion seeking summary judgment as to these counts. The trial court, however, did not address plaintiff's summary judgment motion and dismissed the action, sua sponte, on grounds that the trial court itself raised. Plaintiff now appeals, requesting that we reverse the trial court's dismissal order and grant its motion for summary judgment. For the reasons that follow, we reverse and remand.
Plaintiff is a church and is organized as an Illinois nonprofit corporation. It is operated primarily for the purpose of engaging in religious worship and promoting spiritual development for the people residing in Genoa. The church is pastored by Reverend Bill Myers. Defendant is a municipal corporation. Plaintiff desired to operate a church at 527 West Main Street (the subject property) in the City of Genoa (the city). Plaintiff had possession of the subject property by virtue of an oral month-to-month lease. The lease has since been terminated. In the area in which the subject property is located, churches are classed as a special use by the Genoa zoning ordinance. Accordingly, plaintiff sought to obtain a special use permit.
Plaintiff submitted an application for a special use permit to the city, and the city plan commission recommended that defendant grant a permit. Nevertheless, the city denied plaintiff's application. Plaintiff challenged this denial in the circuit court. Plaintiff's original complaint was one for administrative review. Defendant moved to dismiss, contending that the actions of the city council were not subject to administrative review. Plaintiff then filed an amended complaint for declaratory judgment, asserting violations of the Act and equal protection violations. Plaintiff moved for summary judgment as to the three counts.
The trial court did not rule on plaintiff's summary judgment motion. Instead, the trial court dismissed plaintiff's action. The court raised three issues sua sponte, which it articulated as the bases for the dismissal. First, the trial court ruled that there was no indication in the application for the special use permit that plaintiff was a corporation or other entity with a capacity to bring a suit. Second, the trial court held that there was similarly no indication that Reverend Myers had the authority to represent the church in any capacity. Finally, the trial court held that any document Myers filed on behalf of the church in the special use proceedings was a void ab initio because Myers was not licensed to practice law. Plaintiff appeals.
Before turning to the merits of this appeal, we note that defendant has renewed its argument that this appeal is moot. Defendant previously filed with this court a motion to dismiss the appeal citing this ground. We denied the motion. Defendant bases its argument on the fact that plaintiff no longer holds an interest in the subject property, since its oral month-to-month lease was terminated. Defendant points out that the grant or denial of a special use permit turns on "whether there are facts and circumstances that show that the particular use proposed at the particular location proposed would have any adverse effects above and beyond those inherently associated with such a special exception use irrespective of its location within the zone." (Emphasis omitted.) City of Chicago Heights v. Living Word Outreach Full Gospel Church & Ministries, Inc., 196 Ill. 2d 1, 22 (2001). Thus, defendant concludes, since plaintiff no longer has an interest in the subject property, and since the propriety of the denial of a special use permit depends on the particular property involved, this appeal is moot.
We adhere to our prior ruling. It is well recognized that "[a]ppellate jurisdiction is contingent upon the existence of a real controversy, and where only moot questions are involved, [a] court will dismiss the appeal." Midwest Central Education Ass'n, IEA-NEA v. Illinois Educational Labor Relations Board, 277 Ill. App. 3d 440, 448 (1995). When the resolution of an issue will have no practical effect on the existing controversy, it is moot. La Salle National Bank, N.A. v. City of Lake Forest, 297 Ill. App. 3d 36, 43 (1998). Matters dehors the record may be considered in determining whether a claim is moot. In re Marriage of Dowd, 214 Ill. App. 3d 156, 157 (1991).
None of the counts set forth in plaintiff's complaint are moot. Regarding the facial challenge to defendant's zoning ordinance based on the Act, we observe that the ordinance excludes churches from locating anywhere in the city as a matter of right. If we were to find the ordinance violative of the Act, plaintiff could then locate a church anywhere it wished without seeking defendant's approval. Hence, we can order effective relief regarding this count. Similarly, plaintiff challenges the constitutionality of the ordinance on equal protection grounds. Again, if we were to hold the ordinance unconstitutional, we would be granting plaintiff effective relief. Moreover, plaintiff is seeking damages in this count; hence, even though defendant cannot be ordered to permit plaintiff to operate a church on the subject property, monetary relief for the loss of the opportunity to use the subject property in such a manner may be appropriate.
Plaintiff's as-applied challenge presents a closer question. It is true that, so far, the ordinance has been applied to plaintiff only to deny it a special use permit for the subject property. However, the current action is one for declaratory judgment. In a declaratory judgment action, a party may seek relief where "he or she pleads both facts demonstrating a protected interest that clearly falls within the ambit of the enactment and that his or her rights will be affected adversely by its enforcement." Stone v. Omnicom Cable Television of Illinois, Inc., 131 Ill. App. 3d 210, 214 (1985). Recalling that pleadings are to be construed liberally so as to do substantial justice between the parties (A.J. Maggio Co. v. Willis, 316 Ill. App. 3d 1043, 1050 (2000)), and further recalling that we may consider matters dehors the record (Dowd, 214 Ill. App. 3d at 157), we conclude that this count is not moot.
First, we note that plaintiff, in the as-applied count, has pleaded that defendant has excluded plaintiff from all zoned districts within the city and has made it unlawful for the church's members to exercise their religion within the city without first seeking permission to do so. Second, plaintiff has filed an affidavit stating that it is currently conducting religious services at the house of Reverend Myers. The zoning ordinance prohibits the "[u]se of a building" in certain manners. (Emphasis added.) Genoa Municipal Code, art. 5.3. Plaintiff is using Myers's house as a church. The immediate enforcement of the ordinance would prevent it from doing so. Moreover, the complaint, liberally construed, encompasses the use of Myers's house as a church by alleging that the ordinance excludes plaintiff from every zoned district of the city. Hence, plaintiff is entitled to seek declaratory relief.
We will now turn to the merits of the trial court's decision. This appeal comes to us following a dismissal of plaintiff's complaint. Accordingly, we conduct de novo review. Mars, Inc. v. Heritage Builders of Effingham, Inc., 327 Ill. App. 3d 346, 350 (2002).
Plaintiff first argues that the manner in which the trial court dismissed its complaint violated due process. While plaintiff's summary judgment motion was pending, the trial court dismissed the complaint sua sponte. Plaintiff was given neither notice nor an opportunity to be heard on the issues upon which the trial court based its dismissal. In People v. Kitchen, 189 Ill. 2d 424, 434-35 (1999), our supreme court vacated an order of a trial court denying a criminal defendant's petition for post-conviction relief. The order was vacated because "[t]he decision to deny the petition was made without notice to the parties and without the benefit of argument from either defendant or the State." Kitchen, 189 Ill. 2d at 435. In Peterson v. Randhava, 313 Ill. App. 3d 1, 11-12 (2000), the trial court granted summary judgment sua sponte. Peterson, 313 Ill. App. 3d at 11-12. The Peterson court observed that proceeding in this manner "not only may waste judicial resources, through producing unnecessary appeals and remands that may have been avoided, but it deprives the plaintiff of an opportunity to conduct discovery on the relevant issues, present evidence and argue against dismissal." Peterson, 313 Ill. App. 3d at 12. We face a ...