Appeal from the Circuit Court of Clinton County. No. 05-MR-91 Honorable William J. Becker, Judge, presiding.
The opinion of the court was delivered by: Justice Wexstten
The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.
JUSTICE WEXSTTEN delivered the judgment of the court, with opinion. Justices Goldenhersh and Chapman concurred in the judgment and opinion.
¶ 1 In the circuit court of Clinton County, seeking a declaratory judgment that as a non-home-rule unit of government, the defendant, the City of Carlyle (the City), lacked the authority to prohibit the drilling or operation of an oil or gas well within its municipal limits, the plaintiff, Tri-Power Resources, Inc. (Tri-Power), filed a motion for summary judgment on the issue. The circuit court denied the motion for summary judgment but granted TriPower's motion to certify the underlying question for interlocutory appeal pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010). We granted Tri-Power's application for leave to appeal and for the following reasons conclude that the City can prohibit the drilling or operation of an oil or gas well within its municipal limits.
¶ 3 The relevant facts are not in dispute. In April 2005, Tri-Power entered into an oil and gas lease with the owners of the mineral interests in a 67-acre parcel of land located in unincorporated Clinton County. In June 2005, Tri-Power obtained a permit from the Illinois Department of Natural Resources (the Department) to drill for oil on the land. In September 2005, the City annexed the land, and by ordinance (see 65 ILCS 5/7-1-47 (West 2004)), the territory was automatically classified as a residential district pursuant to the City's zoning code, which does not allow for the drilling or operation of oil or gas wells within the City's municipal limits.
¶ 4 In December 2005, Tri-Power filed its initial complaint against the City. In November 2006, Tri-Power filed a three-count second-amended complaint. Count I of the second amended complaint sought a declaration that the City's annexation and classification of the land at issue resulted in an unconstitutional taking of Tri-Power's contracted property rights, count II sought just compensation for the taking, and count III sought a declaration that the City was not authorized to prohibit the drilling of an oil or gas well within its municipal limits.
¶ 5 In January 2007, the City filed a response to Tri-Power's second-amended complaint, admitting, inter alia, that the City's zoning ordinances and regulations do not permit the drilling or operation of oil or gas wells within municipal limits. In March 2008, Tri-Power filed a motion for summary judgment on count III of the complaint. In its memorandum of law in support of its motion for summary judgment, Tri-Power maintained that pursuant to section 11-56-1 of the Illinois Municipal Code (the Code) (65 ILCS 5/11-56-1 (West 2004)) and section 13 of the Illinois Oil and Gas Act (the Act) (225 ILCS 725/13 (West 2004)), the City had the "limited authority" to regulate the drilling or operation of an oil or gas well within its municipal limits, but it was not authorized to bar or prohibit such activity.
¶ 6 In June 2008, the circuit court held a hearing on Tri-Power's motion for summary judgment on count III of its second-amended complaint, and in July 2008, the court entered an order denying the motion. Specifically stating that it was not expressing an opinion as to whether Tri-Power was entitled to receive compensation from the City or whether the City could prohibit Tri-Power from drilling with the permit that the Department had issued before the City annexed the drilling site, the court interpreted section 13 of the Act as granting the City the authority to prohibit the operation of an oil or gas well within its municipal limits. The court subsequently granted Tri-Power's request for certification pursuant to Rule 308, and we, in turn, granted Tri-Power's application for leave to appeal.
¶ 8 At the outset, we note that the City's zoning code does not expressly prohibit the drilling or operation of an oil or gas well within its municipal limits. The parties agree, however, that the activity is precluded by exclusion, i.e., the City's zoning code does not list the drilling or operation of an oil or gas well as a "special" or "permitted" use and all "unlisted" uses are "deemed prohibited." In any event, the certified question on appeal is whether a non-home-rule unit such ...