Appeal from the Circuit Court of Lake County. No. 01-MR-661 Honorable Stephen E. Walter, Judge, Presiding.
The opinion of the court was delivered by: Justice O'malley
Plaintiffs, William P. Gallik and Christine E. Martin-Gallik, own real estate in an unincorporated portion of Lake County. Plaintiffs wished to construct a single-family residence on their land. Owing to the fact that their land is partially located in a floodplain, in order to construct their home, plaintiffs were required to obtain a conditional use permit from defendant Lake County (County) so that they could fill in the floodplain. None of the agencies charged with overseeing such matters (Army Corps of Engineers, Lake County Stormwater Management Agency, Lake County Health Department, Lake County Planning and Development Department) voiced any objections to plaintiffs' plan to fill in the floodplain portion of their property and construct their residence.
As part of the approval process, plaintiffs were required to submit their application for a conditional use permit to the Lake County zoning board of appeals. After a hearing on plaintiffs' application, the zoning board of appeals recommended that it be denied. Plaintiffs' application made its way to the Lake County board for final action, and the board denied it.
On July 16, 2001, plaintiffs filed an eight-count complaint against the County, challenging the Lake County board's denial of their conditional use permit. Count I of the complaint sought administrative review (see 735 ILCS 5/3-101 et seq. (West 2000)) of the Lake County board's denial of plaintiffs' application for a conditional use permit. The County filed a motion to dismiss and, after briefing, the trial court granted the County's motion and dismissed count I of the complaint. Pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308), the trial court certified a question for appellate review and plaintiffs requested leave to appeal the certified question. This court denied plaintiffs' application for leave to appeal. On April 3, 2002, our supreme court entered a supervisory order directing this court to consider plaintiffs' certified question.
The certified question we are called upon to answer is:
"Whether the Illinois Administrative Review Act, 735 ILCS §5/3-101 et seq., is applicable for judicial review of County of Lake's denial of Plaintiff's [sic] conditional use application in this case, or whether the dismissal of Count I of the Complaint is warranted because the denial of a conditional use permit is a legislative action of the County Board so a declaratory judgment action is the appropriate avenue of review."
The supreme court discussed this issue recently in City of Chicago Heights v. Living Word Outreach Full Gospel Church & Ministries, Inc., 196 Ill. 2d 1 (2002). There, the court noted that the weight of authority throughout the country suggests that a legislative body acts administratively when it rules on an application for a special use permit. Living Word, 196 Ill. 2d at 14. The court also noted, however, that Illinois had repeatedly viewed such a decision to be a legislative act rather than an administrative act (Living Word, 196 Ill. 2d at 14), although some of those decisions had been criticized (Living Word, 196 Ill. 2d at 15). The characterization of the type of act undertaken by the legislative body controls the type of review to which that act is subject. If it is an administrative act, it will be subject to administrative review pursuant to the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2000)); if it is a legislative act, it is not subject to administrative review, but the action will be reviewed for arbitrariness as a matter of substantive due process. Living Word, 196 Ill. 2d at 14. Having set the stage, the court decided that Living Word did not present the issue squarely and left the issue unresolved, necessarily, therefore, leaving intact the line of cases holding that a ruling on a conditional use permit by a county or municipality is a legislative act. Living Word, 196 Ill. 2d at 16.
Very recently (and after the parties briefed this case), the supreme court addressed this issue in People ex rel. Klaeren v. Village of Lisle, No. 90537 (October 18, 2002). There the supreme court resolved the issue it had left open in Living Word, holding that "municipal bodies act in administrative or quasi-judicial capacities when those bodies conduct zoning hearings concerning a special use petition. *** To the extent any prior decisions of this court hold the contrary to be true, we now expressly overrule those decisions." Klaeren, slip op. at 16.
The supreme court would appear to have answered the certified question. The only remaining issue we can see is whether that answer, which has been supplied only in cases involving the Illinois Municipal Code (65 ILCS 5/1-1-1 et seq. (West 2000)), also applies to the Counties Code (55 ILCS 5/1-1001 et seq. (West 2000)).
Counties have long had the power to grant special uses. In Kotrich v. County of Du Page, 19 Ill. 2d 181 (1960), the court held that the granting of special use permits was within a county's general zoning power. Chief Justice House dissented because there was no specific statutory authorization regarding special uses and no standards pertaining to the granting of special uses had been promulgated. Kotrich, 19 Ill. 2d at 189-90 (House, C.J., dissenting).
Chief Justice House's concerns were reiterated and expanded in Ward v. Village of Skokie, 26 Ill. 2d 415 (1962). There, Justice Klingbiel stated, in his special concurrence:
"It is not a part of the legislative function to grant permits, make special exceptions, or decide particular cases. Such activities are not legislative but administrative, quasi-judicial, or judicial in character. To place them in the hands of legislative bodies, whose acts as such are not judicially reviewable, is to open the door completely to arbitrary government. I need not dwell at length on the obvious opportunity this affords for special privilege, for the granting of favors to political friends or financial benefactors, for the withholding of permits from those not in the good graces of the authorities, and so on. The rule is familiar enough that courts may not inquire into the motives or reasons on which the legislative body acted. [Citation.]
It is because of this immunity from review that legislative bodies must confine themselves to the prescribing of general rules. If they may undertake to confer upon themselves authority to decide what in fact amount to individual or particular ...