The opinion of the court was delivered by: Justice Rarick
Docket No. 93462-Agenda 35-September 2002.
The issue we are asked to resolve in this case is whether a non-home-rule unit of local government may use its statutory zoning authority to prevent operation of a home day-care facility licensed by the State of Illinois. On cross-motions for partial summary judgment, the circuit court held that it may not. The appellate court affirmed. 328 Ill. App. 3d 301. For the reasons that follow, we now affirm the judgment of the appellate court.
Under Illinois law, the operation of child-care facilities is regulated by the state. The governing statute is the Child Care Act of 1969 (225 ILCS 10/1 et seq. (West 2000)). Under the Act, "[a]ny person, group of persons or corporation who or which receives children or arranges for care or placement of one or more children unrelated to the operator" must apply for and obtain a license from the Department of Children and Family Services (DCFS). 225 ILCS 10/4(a) (West 2000). Unless certain exemptions apply, operation of a child-care facility without the requisite state license is prohibited. 225 ILCS 10/3(a) (West 2000). Violators are subject to criminal prosecution. 225 ILCS 10/11, 18 (West 2000).
One type of child-care facility for which licensure is authorized by the Child Care Act is a "day care home." A day-care home is a family home that receives "more than 3 up to a maximum of 12 children for less than 24 hours per day." 225 ILCS 10/2.18 (West 2000). The specified number of children includes the family's own natural or adopted children and all other persons under the age of 12. 225 ILCS 10/2.18 (West 2000).
In 1999, plaintiff, Sonia Hawthorne, and her husband, Marcus, purchased a single family home at 3509 Ionia Avenue in the Village of Olympia Fields. The home was located across the street from a local school. The Hawthornes bought the property in the hope that they could provide home day care there. After moving into the residence, plaintiff applied to DCFS for licensure under the Child Care Act as a day-care home. Her application was approved. DCFS issued a license to plaintiff to operate a day-care home at the Ionia Avenue property beginning October 28, 1999.
Once she moved in and obtained her license from DCFS, plaintiff contacted Olympia Fields to obtain a building permit so that she could remodel portions of the premises. The purpose of the remodeling was to facilitate the operation of the day-care home. The precise nature of the proposed remodeling is unclear from the record, but appears to have included installation of a second kitchen. By letter dated December 16, 1999, Olympia Fields advised plaintiff and her husband that operation of a day-care home at the Ionia Avenue location did not comply with the village's zoning ordinance and that they would have to obtain a zoning variance before their application for a building permit could proceed.
Plaintiff's home on Ionia Avenue is zoned residential. Although Olympia Fields' zoning ordinance permits "home occupations" in residential zones (Olympia Fields Municipal Code §§22-187, 22-207, 22-227 (Ord. No. 17, as revised May 11, 1981)), the village did not believe that a licensed day-care home was such a use.
A "home occupation" is defined by Olympia Fields' zoning ordinance as
"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 §22-3 (Ord. No. 17, as revised May 11, 1981).
Olympia Fields did not think that plaintiff's use of her home met the foregoing definition of "home occupation" for three reasons. First, it would not be carried out "only by members of the family occupying the premises." Plaintiff planned to hire someone from outside the family to assist her. Second, parents would be picking up and dropping off children at the house, an activity the village believed would contravene the requirement that there be no "exterior indication of the `home occupation.' " Finally, the proposed addition of a second kitchen would, in the village's view, be a "variation from the residential character of the principal building."
Because Olympia Fields believed that plaintiff's licensed day-care home did not meet the requirements of a "home occupation" and did not otherwise qualify as a permissible use under the village's zoning ordinance, plaintiff applied to the village for a zoning variance. Her application, dated January 5, 2000, requested two forms of relief: permission to operate a day-care home as a home occupation and a variance to allow her to employ at the facility someone other than a family member who resided at the home.
A public hearing on plaintiff's application for the zoning variance was conducted by Olympia Fields' board of trustees on January 24, 2000. At the conclusion of the hearing, which included statements from various neighbors and relatives of plaintiff, the board of trustees unanimously denied plaintiff's application.
Plaintiff subsequently initiated this civil action in the circuit court of Cook County against Olympia Fields and the village administrator in her official capacity. Plaintiff's complaint, as amended, contained eight counts. Count I alleged that Olympia Fields' determination that plaintiff's day-care home did not constitute a "home occupation" within the meaning of the village's zoning ordinance was erroneous, arbitrary, capricious, unreasonable and contrary to state law. Count II averred that Olympia Fields' interpretation of the "home occupations" provision of its zoning ordinance had the effect of wholly excluding home day care from the village and that such action is beyond the village's power. Count III claimed the Child Care Act and the DCFS regulations promulgated thereunder preempted Olympia Fields' authority to use its zoning ordinance to impede the operation of day-care homes authorized by the state.
In count IV, plaintiff charged that the license issued to her by the state is a type of property entitled to protection by the fifth amendment of the United States Constitution (U.S. Const., amend. V) and that defendants' interpretation of the village zoning ordinance to deny her permission to operate a day-care home pursuant to that license constituted an unconstitutional taking without just compensation. Count V made a parallel claim under article I, section 15, of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, §15). Counts VI and VII alleged, respectively, denials of equal protection and due process in violation of article I, section 2, of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, §2). Count VIII claimed that defendants' action denied plaintiff her due process rights under the fourteenth amendment to the United States Constitution (U.S. Const., amend. XIV).
In each count, plaintiff sought declaratory and injunctive relief and damages. Counts IV and VIII, which alleged violations of plaintiff's federal constitutional rights and invoked the provisions of 42 U.S.C. §1983, also included a request for an award of plaintiff's attorney fees pursuant to 42 U.S.C. §1988. Following an unsuccessful effort by defendants to remove the cause to federal court, plaintiff moved for partial summary judgment as to counts I through V. Defendants opposed that motion and filed a cross-motion for summary judgment against plaintiff on counts II through V.
A hearing was held on the parties' cross-motions. In the course of that hearing, count I of the complaint was dismissed as moot. Following various developments not relevant here, the circuit court entered a detailed written order addressing the merits of the parties' respective requests for summary judgment. It granted summary judgment in favor of plaintiff and against defendants on count II of her complaint, declaring that the "home occupations" provision of Olympia Fields' zoning ordinance was null and void to the extent that it excludes or has the effect of excluding the operation of licensed day-care homes in the village.
With respect to count III, the court granted the parties' respective motions for summary judgment in part and denied them in part. The court declared that Olympia Fields could regulate day-care homes, but only if its regulations did not conflict with the Child Care Act or the DCFS regulations promulgated thereunder. To the extent that its zoning ordinance was interpreted to regulate day-care homes "in a manner that conflicts in any way with the *** Child Care Act or the DCFS regulations," the court held that it was preempted by state law and was "null and void." *fn1 Accordingly, the court ruled that Olympia Fields could not invoke its zoning regulations to limit the number of children that may be cared for in a day-care home, ...