JUSTICE ELLIS delivered the judgment of the court, with opinion.
Appeal from the Circuit Court of Cook County. No. 15 CH 3461 Honorable David B. Atkins, Judge Presiding. JUSTICE ELLIS delivered the judgment of the court, with opinion.
Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the judgment and opinion.
OPINION
¶ 1 Forty miles northwest of Chicago sits the Village of Barrington Hills, which prides itself on its "equestrian heritage," consisting in large part of sizeable lots amenable to the breeding, training, and raising of horses, and with miles of interwoven trails suitable for horseback riding. remand for further proceedings.
¶ 11 BACKGROUND
¶ 12 The following facts are taken from Drury's first amended verified complaint (the complaint), as well as two related cases decided by this court to which Drury's complaint repeatedly refers. See LeCompte v. Zoning Board of Appeals, 2011 IL App (1st) 100423 (LeCompte I); Drury v. LeCompte, 2014 IL App (1st) 121894-U (LeCompte II). Additional background regarding the intervenors has been taken from their complaints in intervention. ¶ 13 Plaintiff James Drury III is a resident of Barrington Hills whose property sits adjacent to LeCompte's property, upon which LeCompte is operating an "unlawful large scale commercial horse boarding operation." Plaintiffs Jack Reich and James T. O'Donnell are both residents of Barrington Hills. Defendant Village of Barrington Hills is an Illinois municipal corporation with home rule authority. (For ease, we refer to plaintiffs in the singular as "Drury.") ¶ 14 The intervenors are all residents of Barrington Hills. John J. Pappas Sr. resides on a 14-acre tract of land known as "Shamrock Farms" that has two barns with 18 horse stalls, an indoor riding arena, two outdoor arenas, and 10 fenced paddocks. When Pappas intervened, he had 12 horses stabled on his property, including horses owned by "others." LeCompte and his wife, Cathleen, reside at a property known as "Oakwood Farms," which has a polo field and a "large barn" with 60 horse stalls. Barrington Hills Polo Club, Inc., is an Illinois not-for-profit corporation with 45 members, "many of whom live in the Village of Barrington Hills as well as board and stable their horses in the Village of Barrington Hills." The club's main playing field is located at Oakwood Farms. Barbara McMorris maintains a barn on her property, which she uses to stable "up to 6 horses." ¶ 15 In June 2006, the Village amended its zoning code to permit residential horse boarding as meetings to discuss a text amendment to the zoning code that would permit large-scale horse boarding operations on residential property. ¶ 24 In June 2011, we filed our decision in LeCompte I. We affirmed the ZBA's decision upholding the cease-and-desist order, which found LeCompte to be in violation of the 2006 Ordinance. We specifically found that (1) LeCompte's commercial horse boarding operation violated the 2006 Ordinance, (2) the use of land for commercial horse boarding operations did not qualify as "agriculture" under section 5-2-1 of the Village code, and (3) because commercial horse boarding did not qualify as agriculture, it was not a permitted use in an R-1 zone. See LeCompte I, 2011 IL App (1st) 100423, ¶¶ 39, 53. ¶ 25 In July 2011, Judith Freeman, chairman of the ZBA, sent a letter to the Board. The letter indicated that the ZBA recommended that the Village address problems with the horse boarding provisions of its zoning code by adopting a special-use approach:
"As you are aware, this issue has been under consideration for several years and numerous meetings and discussions have taken place with regard to it. We have had various 'white papers' submitted to us by the Equestrian Commission and a number of proposals that have been made by the Legal Committee, and Equestrian Commission and others. We are aware of the situation with Oakwood Farms and the recent holding by the Illinois Appellate Court denying the claim by Oakwood Farms that horse boarding is agriculture and therefore a permitted use.
In 2005, the ZBA recommended and the Board of Trustees approved changes to the Home Occupation Ordinance, which allowed horse boarding as a home occupation. While we considered simply allowing all boarding operations
to operate as home occupations,
we felt that was not the best approach. Larger boarding operations can have negative impacts on the surrounding properties. In these circumstances, we are recommending that larger boarding operations should be required to obtain a Special Use Permit. The special use permit requirement would allow the community to have some involvement in whether such operations are appropriate at that particular location and, if so, under what conditions they should operate." (Emphasis added.)
¶ 26 But then nothing happened. According to Drury's complaint, Freeman's proposal to adopt a special-use approach "languished," and "[n]o further actions or initiative on a text amendment concerning large scale commercial horse boarding operation was undertaken by the Village" for nearly three years—until Drury's lawsuit against LeCompte was reinstated by this court in
LeCompte II. ¶ 27 In
LeCompte II, we reversed the circuit court's order dismissing Drury's complaint against LeCompte under section 11-13-15 of the Illinois Municipal Code. As Drury notes in his complaint, in the course of rendering our decision, we emphasized that LeCompte only solicited the Schuman letter after Drury sued LeCompte, and we observed that the clear purpose of the letter was to "derail" Drury's suit against LeCompte.
LeCompte II, 2014 IL App (1st) 121894-U, ¶¶ 45, 54. ¶ 28 According to Drury, after our decision in
LeCompte II, LeCompte began fresh efforts to utilize the text amendment process that mysteriously stalled after Freeman published her July 2011 letter reporting the ZBA's recommendation to pursue a special-use approach. Specifically, on June 17, 2014, LeCompte petitioned the ZBA to adopt a text amendment to the Village's zoning code that would (1) permit large-scale commercial horse boarding operations on
residential property
as a matter of right and (2) apply retroactively. On July 21, 2014, the ZBA held a public hearing on the LeCompte text amendment. ¶ 29 Around the same time, Drury and James Hammon, another resident, filed petitions for text amendments incorporating the special-use approach first devised by Freeman in 2011. The Village Board conducted a public hearing on Drury's and Hammon's text amendments on September 9, 2014. ¶ 30 On September 11, 2014, the ZBA voted 5 to 2 to recommend approving the LeCompte text amendment. On September 22, the Board met to consider the LeCompte text amendment. During the meeting, several objections were made, including: (1) the ZBA's recommendation "was not accompanied by any findings of fact or evidence to support its recommendation," (2) the ZBA failed to "gather essential baseline information in order to make a reasoned decision," and (3) on the night the LeCompte text amendment was submitted to the ZBA, ZBA member Kurt Anderson made a "substantial amendment" to the text amendment's language, which "was not subject of preview, review, and public comment." ¶ 31 In response, the Board postponed consideration of the LeCompte text amendment and "directed the Village Administrator and the [ZBA]" to engage in extensive fact-finding "before considering any further amendments" to the horse boarding ordinance. On October 17, the Board requested answers to the following questions within 90 days:
"1. HUSBANDRY: What is the allowed number of horses per area?
Comment. Information on density of horses has been examined by other jurisdictions but the underlying value has not reference the source [
sic]. To that end, qualifying academic individuals in the area of equestrian husbandry may be consulted for their opinion on the subject.
2. PROPERTY TAX ASSESSMENT: If horse boarding is an allowed agricultural use, what is the potential property tax impact? Comment. The assessment value of property is that which is set by township assessor *** according to adopted guidelines by the Illinois Department of Revenue. A local assessor may be consulted for an opinion.
3. PLANNING:
[3.1] If horse boarding is an allowed commercial activity, does this create the potential for additional commercial activities in the Village?
[3.2] What is the effect of a permitted use of this type versus making it a special use?
Comment. Both questions go to the basic elements of planning meaning the identification of the trend of development and techniques of zoning regulations. The land use consultant who assisted the Village in the uses and revision of the Comprehensive Plan may be consulted for an opinion.
4. ENGINEERING: What is the potential cause/effect on the Village roads by allowance of commercial boarding (trailers/disposal/hay)? Comment. Traffic loads and volumes are subjects presently address [sic] through the duties of the Village Engineer, and may be consulted for an opinion.
5. ENVIRONMENT: What is the effect on the aquifer of large scale commercial boarding? Comment. Ground water is a subject reviewed and opined by BACOG including availability of its consultant to specific geographically and land use concerns. An opinion on this subject may be requested.
6. ENFORCEMENT: What would be the role of the building department if the text amendment is adopted? Comment. The Building Department is the general
enforcement entity of either the Zoning or Building Code.
7. CLARIFICATION: What are the allowed hours of operation? Comment. Hours of activity are set by the Village dependent on the use."
¶ 32 Three days later, on October 20, 2014, Kurt Anderson—the same Kurt Anderson who made the last-minute changes to the LeCompte text amendment immediately before the ZBA was to vote on it—initiated his own text amendment. According to Drury's complaint, the Anderson text amendment was "remarkably similar to the LeCompte Text Amendment" and, "[w]hile nominally introduced by Anderson, [was] the rebirth of the LeCompte Text Amendment." Among their similarities, both text amendments (1) permitted large-scale boarding operations in residential property as a matter of right and (2) contained provisions making them retroactive to June 26, 2006. ¶ 33 On December 2, 2014, the ZBA held a public hearing on the Anderson text amendment. At the hearing, none of the witnesses presented by the Village testified that the Anderson text amendment promoted the public welfare. Konstantine Savoy, an "expert land planning witness," testified that (1) he "had no opinion on whether the Anderson Text Amendment satisfied the standards in the Village Code," (2) he was not asked to render such an opinion, and (3) it would take "much further study involving *** an interdisciplinary team to render such an opinion." In addition, Savoy testified that "[i]n his 30+ years as a professional land planner involved in assisting in the drafting of zoning regulations, he could not recall a single instance of an ordinance ever having been adopted that contained a retroactivity provision like the Anderson Text Amendment." Testifying further, Savoy stated that he "could not identify any community that permits large scale commercial horse boarding as a matter of right," and that based on a survey of five communities—Mettawa, Wayne, Bull Valley, Homer Glenn, and Wadsworth—
each community that "provided for commercial horse boarding adopted the special use approach." ¶ 34 Schuman testified in support of a permit approach rather than a permitted-as-a-matter-of-right approach, and he stated that "[i]n all of his years with the Village," he had "never seen the Village adopt an ordinance with a retroactivity provision." ¶ 35 Village Administrator Robert Kosin testified that he "could not identify any other property but Oakwood Farm[s] which was in violation of the Village's Home Occupation restrictions," and he explained that, "[i]n his tenure at the Village which dates back to 1982, nearly 32 years," he could not "recall an ordinance adopted by the Village with a retroactivity provision included in it." ¶ 36 On December 3, 2014—more than a month before the fact-finding that the Board ordered on October 17 was due—the ZBA voted 4 to 3 to recommend approving the Anderson text amendment. According to Drury's complaint, the ZBA's recommendation "was not accompanied by Findings of Fact which meaningfully addressed the standards and criteria that the [ZBA] is obliged to consider in passing on such a recommendation." ¶ 37 Thereafter, Selman and another Board member called a special meeting for December 15, 2014—a date that Village President Martin McLaughlin, a vocal opponent of the Anderson text amendment—could not attend. At the meeting, the Board approved the Anderson text amendment 5 to 1. Messer, Meroni, and Selman all voted in favor of the amendment. ¶ 38 On January 8, 2015, President McLaughlin vetoed the Anderson text amendment. He explained the basis for his decision in a letter to the Board:
"My opposition to this Text Amendment is well known, and I believe supported by a majority of the residents of the Village of Barrington Hills as evidenced by
testimony and written submission to the clerk. I join my fellow residents in being suspect about the reasons for the speed at which the majority of the [ZBA] and the Board of Trustees determined to adopt the Text Amendment at issue—particularly when this issue had been the subject of lengthy debate in 2011, but never formally addressed. I believe the only change in circumstance which forced the series of special meetings to adopt the Text Amendment was a change in legal circumstances for one property owner in the Village. This is not a good reason to change the Village Code and its effect on all residents of the Village. The fact that the Text Amendment is to serve only one resident is brutally apparent given the retroactive nature of the Text Amendment."
¶ 39 On February 23, 2015, the Village Board voted 5-2 to override the President's veto and enacted the Anderson text amendment as "Ordinance 14-19, AN ORDINANCE AMENDING TITLE 5, ZONING REGULATIONS SET FORTH IN CHAPTERS 2, 3, AND 5 REGARDING HORSE BOARDING." See Barrington Hills Ordinance No. 14-19 (approved Feb. 23, 2015), https://barringtonhills-il.gov/records/ordinances/2014Ordinances/Ord_14_19.pdf [https://perma.cc/9XHB-2Y4Z]. Three of the five votes to override President McLaughlin's veto were supplied by Messer, Meroni, and Selman. ¶ 40 Among other things, as enacted, Ordinance 14-19 (1) abrogated our decision in
LeCompte I by amending the definition of agriculture in the Village code to include breeding, boarding, and training horses as a permitted home occupation as a matter of right and (2) made the amended definition of agriculture retroactive to June 26, 2006. ¶ 41 On February 27, 2015, Drury filed this lawsuit against the Village. The gist of his claim was that Ordinance 14-19 violated substantive due process and was thus facially unconstitutional, because the ordinance was enacted to benefit LeCompte, not to promote the
¶ 47 In a memorandum opinion and order dated May 3, 2016, the circuit court (1) dismissed Drury's complaint without prejudice and (2) denied Drury and the Village's joint motion to approve the settlement. As to the latter, the court reasoned:
"Settlement of disputed claims is encouraged by law.
Martin v.
Greenville, 54 Ill. App. 3d 42, 44 (1977). However, in order to accomplish the disposal of a case by settlement 'all of the parties and intervenors must agree to the settlement.' [
Business & Professional People for Public Interest v.
Commerce Commission],
136 Ill. 2d 192, 209 (1989).
***
Absent additional evidence, the court cannot definitively determine whether Defendant Village adequately represented the interests of the Intervenors, parties to the current litigation. However, the substantial and ongoing objections to the Agreement made by Intervenors indicate that Intervenors' interests do not align with the resolution proposed in the Agreement. Intervenors were not privy to settlement negotiation sessions and currently object to the result, so it is reasonable to conclude the Agreement currently does not represent their interests. Despite the court's preference for settlement, it is impractical to adopt a settlement agreement to which all parties involved in the dispute do not consent. For all of the foregoing reasons, the current Agreement cannot be adopted."
¶ 48 Thereafter, Drury filed an amended complaint, which the intervenors moved to dismiss pursuant to section 2-615 of the Code of Civil Procedure (
735 ILCS 5/2-615 (West 2016)). ¶ 49 While those motions were pending, the Village filed a verified answer to Drury's complaint. In response to Drury's allegation that "the Text Amendment is an invalid exercise of the Village's police power authority" because the text amendment "does not promote the general
welfare but instead was adopted to benefit one property owner," the Village answered: "The Village admits that the Text Amendment does not promote the general public welfare and admits that the Text Amendment benefits a property owner who is engaged in a commercial horse boarding operation within the Village." In addition, at several points in its answer, the Village responded to an allegation by stating:
"[T]he Village Board, after careful analysis and upon closer scrutiny determined that the Commercial Horse Boarding Text Amendment approved by the Village Board, over the veto of the President, bears no rational relationship to the public health, safety, comfort, morals or general welfare and is otherwise unlawful, in that it alters the residential character of the Village, does not take into consideration the impact of large scale commercial horse boarding on the character of the Village, it does not consider the effect of such on the residential roadways within the Village, relative to traffic in residential areas and the detrimental effect of large trucks on Village roadways, does not take into consideration the potential noise implications of large scale commercial horse boarding on the residential character of the Village, does not impose a limitation on the number of commercial horse boarding facilities within the Village and has a potentially negative impact upon property values within the Village."
¶ 50 On April 27, 2017, the circuit court dismissed Drury's amended complaint with prejudice. The court found that "a substantial portion" of Drury's complaint was "simply inapposite." The court noted, for instance, that the plaintiffs "argue at length that their properties have been harmed by the Text Amendment and that it was enacted solely for the purpose of benefitting one of the intervenors (Benjamin LeCompte) at their expense," but it found that those arguments "sound as
as applied challenges to a statute, not as
facial challenges, which as
discussed above require pleading that the statute is void on its face in any context, regardless of how it was applied or what impacts it had." And the court found "unpersuasive" Drury's allegations that Ordinance 14-19 was not rationally related to a "valid public goal," explaining, "[r]egulation of this sort of local business is squarely within the rational interests of local governments such as the Village, and the court can see no persuasive reason to declare one policy on the subject over others to be facially invalid." ¶ 51 On May 26, 2017, Drury filed a motion to reconsider, arguing, among other things, that the court erred by failing to consider the Village's answer. On November 9, 2017, the court denied Drury's motion. The court rejected Drury's argument that it should have considered the Village's answer, explaining that, when ruling on a section 2-615 motion, it could "only consider the 'four corners' of the complaint, and that in any event, all allegations are deemed admitted for purposes of a 2-615 motion." This appeal followed.
While this fact was not pleaded in Drury's complaint, we may judicially notice election results. Ahmad v. Board of Election Commissioners, 2016 IL App (1st) 162811, ¶ 7.
¶ 52 ANALYSIS
¶ 53 On appeal, Drury challenges the circuit court's orders (1) rejecting the settlement, (2) granting the intervenors' motions to dismiss, and (3) denying his motion to reconsider.
¶ 54 I. Jurisdiction
¶ 55 Before we can proceed to the merits, we must assure ourselves of our jurisdiction. The jurisdictional question before us concerns whether this appeal is moot. Illinois courts' subject-matter jurisdiction extends only to cases that present an actual controversy (McCormick v. Robertson, 2015 IL 118230, ¶ 21), and moot cases do not present actual controversies(Ferguson v. Patton, 2013 IL 112488, ¶ 23). "A case on appeal becomes moot where the issues presented in the trial court no longer exist because events subsequent to the filing of the appeal render it impossible for the reviewing court to grant the complaining party effectual relief." Bettis v. litigation with Drury, as we noted above. But if Drury is correct that the ordinance is void ab initio—it was invalid the moment it passed—then LeCompte cannot even plausibly claim a vested right based on the ordinance. Drury is thus capable of obtaining "effectual relief" from us. See Bettis, 2014 IL 117050, ¶ 8. This appeal is not moot.
¶ 59 II. Settlement Agreement
¶ 60 Assured of our jurisdiction, we turn to the merits, beginning with Drury's appeal of the circuit court's order refusing to enter judgment on his settlement agreement with the Village. Drury maintains that the circuit court erred by rejecting the settlement because (1) the Village had no duty to represent the intervenors' interests and (2) the intervenors' consent was not necessary for the court to approve the settlement. ¶ 61 The parties disagree over our standard of review. The intervenors suggest that the abuse-of-discretion standard applies. Drury, on the other hand, says that we should review the circuit court's order refusing to enter the settlement agreement de novo because the intervenors did not request an evidentiary hearing. We need not resolve this issue, however, because we would affirm the circuit court's ruling under any standard of review. ¶ 62 Drury and the Village asked the court to enter an agreed final judgment in which the Village agreed, among other things, that the ordinance at issue, "at the time of its adoption, [bore] no rational relationship to the public health, safety, comfort, morals or general welfare and [was] otherwise unlawful," and that the ordinance "was at the time of its adoption unreasonable, unlawful, null and void ab initio." ¶ 63 There are two distinct reasons why we agree with the circuit court's rejection of the settlement agreement. The first is that the Village's purported agreement with Drury crossed the line when it declared that the ordinance, though duly and lawfully adopted, was "at the time of intervenors were granted to leave to appear as party-defendants, they had the same rights as the Village. See In re Marriage of Johnson, 97 Ill. App. 3d 634, 635 (1981) ("[A]n intervenor has all of the rights of an original party."). And they were defending precisely the same claim—that the ordinance was unconstitutional. ¶ 68 It would be a different story if multiple defendants faced separate claims and the settlement of one of the claims with one of the defendants had no impact on the other defendants and the other claims. Take a simple example: A plaintiff sues two different newspapers for defamation, each for a separate act of publishing the defamatory statement. A plaintiff could settle with one defendant without the other's consent, because the settlement with one defendant did not affect the interests of the codefendant in any way. ¶ 69 But here, the intervenors and the Village were defending precisely the same claim of unconstitutionality. The Village could not settle the case over the objection of the intervenors, any more than the intervenors could have done so without the Village's consent. See, e.g., Wheeling Trust and Savings Bank v. Village of Mount Prospect, 29 Ill. App. 3d 539, 541-42 (1975) (reversing entry of agreed zoning order between plaintiff and village and permitting neighboring landowners to intervene to contest settlement); Freesen, Inc. v. County of McLean, 277 Ill. App. 3d 68, 74 (1995) (reversing denial of petition to intervene, ordering that intervenors be "allowed to present evidence attacking the purported settlement order" between county and plaintiff regarding zoning of plaintiff's property). ¶ 70 We uphold the circuit court's order sustaining the intervenors' objections to the settlement.
¶ 71 III. Dismissal of Complaint
¶ 72 We next consider Drury's argument that the circuit court erred by dismissing his deemed an ordinance denied if not acted upon within six months (the 1958 ordinance languished for eight months before adoption). Id. Our supreme court held that the ordinance was not sufficiently related to the public welfare. Among other things, the court noted the city's violation of its own procedures regarding the six-month limit and the notice-and-hearing procedures. Id. at 583. The court continued:
"The evidence shows there was no change in either the general character or the existing uses in the neighborhood in the interim between the passage of the comprehensive amendatory ordinance of 1957 and the 1958 amendment rezoning plaintiffs' land, which in any manner relates the change of zoning to the public need or demand. Instead, the only affirmative showing is that the proposal to change the zoning of the property from its B4-1 classification emanated from the desires of certain individuals that such a change be effected. We have consistently held, however, that the power to zone or rezone cannot be exercised to satisfy the individual desires of a few. [Citations.] Considering all the facts and circumstances, they do not show such a demand for the public need or good which would serve to justify the change of the B4-1 classification of plaintiffs' property."
Id. at 584-85.
¶ 81 In
Trust Co.
of Chicago, 408 Ill. at 94-95, the plaintiff bought property in Chicago that, since 1923, had been zoned as an "apartment district" and on which he intended to build an apartment building. In 1942, the city amended its zoning code to change the zoning classification for half a block of territory, which included the plaintiff's property, from apartment use to single-family residential.
Id. at 95. The circuit court found the amendatory ordinance unconstitutional as applied to the plaintiff's property.
¶ 82 Our supreme court affirmed. The court found "no actual or reasonable connection between the rezoning of plaintiffs' property from apartment to single-family residence and the public health, safety, comfort, morals or welfare."
Id. at 101. The court noted that "undisputed testimony contained in the record" showed that
"the erection of a multistoried apartment building on plaintiff's property would in no way injure or detract from the general welfare of the city or the general welfare of the community wherein the property is situated or from the general welfare of any community or neighborhood adjacent to said property, when the city or any such community is considered as a whole; and it is as a whole that a municipality or a community must be considered when zoning laws and ordinances are involved."
Id. at 101-02.
The court then delivered its punch line:
"The conclusion in this case is inescapable *** that the city, in rezoning the properties here affected and also in defending such rezoning in this court, was not seeking to promote or preserve the general welfare but was seeking to bestow upon the individual residents of the rezoned properties special benefits in that they might continue in their 'oasis of gracious family living,' free from what they might regard as the nuisance of apartment buildings in the block. This action of the city under the rezoning ordinance of 1942 finds no justification in any aspect of the police power asserted for the public good. The public good means more than the special benefits from a zoning ordinance which are conferred only upon a few. It is not the purpose of the zoning law to permit special privileges to a few property owners."
Id. at 103-04.
¶ 101 The complaint alleges procedural irregularities in the Village's adoption of Ordinance 14-19—namely that the Village adopted the ordinance without obtaining sufficient facts from the ZBA that were required by law and that the Village, itself, had specifically requested from the ZBA. ¶ 102 Recall that when the LeCompte text amendment first came before the Board in September 2014, the Board postponed consideration of the amendment in response to a number of objections raised at the public hearing—namely that the ZBA failed to gather enough information and properly review the amendment before approving it. On October 17, 2014, the Village Board ordered the ZBA, within 90 days, to answer a detailed series of questions about allowing commercial horse boarding as a matter of right village-wide, including:
— the number of horses that should be allowed, with a recommendation to consult experts on equestrian husbandry;
— the property tax impact, with a recommendation to consult a local assessor;
— whether allowing commercial horse boarding would create the potential for additional commercial activities in the Village, with a recommendation to consult the Village's land-use consultant;
— the effect of a village-wide permit versus an individualized special-use permit as previously advocated by the chairman of the ZBA in 2011, another question to be asked of the land-use consultant;
— the effect of traffic loads and volume on the Village's roads, with a suggestion to consult the Village engineer;
— the effect on the aquifer of large-scale commercial boarding, with a recommendation to consult the Barrington Area Council of Governments;
— the role of the Village's building department in implementing the ordinance; and
— the hours of operation that would be allowed and whether they should be uniform.
¶ 103 These appear to be reasonable and important issues that a responsible municipality would want to consider before making a significant change to its zoning laws. Yet only three days later, on October 20, 2014, ZBA member Kurt Anderson introduced his own text amendment that was all but identical to the LeCompte text amendment—the same village-wide permit for commercial boarding, the same 8½-year retroactivity provision. ¶ 104 Then, on December 2, 2014, the ZBA held a hearing on the Anderson text amendment, at which (according to the complaint) no witness testified that the amendment promoted the public welfare. The expert land planner testified that he had no opinion, that it would be premature to offer such an opinion absent "much further study involving *** an interdisciplinary team." He also testified that he was unaware of any community that permitted large-scale commercial horse boarding as a matter of right and that five similar municipalities with which he was familiar—Mettawa, Wayne, Bull Valley, Homer Glenn, and Wadsworth—all used the more individualized special-use approach. Nevertheless, the ZBA voted to recommend the Anderson text amendment the next day. ¶ 105 Less than a week later, on December 8, the ZBA issued this document along with its recommendation:
"The ZBA, after having examined the Application for Text Amendment, with revisions proposed by Member Anderson, and taking into consideration the testimony heard in the public hearing for horse boarding, adopted the following findings as to the Text Amendment:
That the text amendment, as proposed, addresses the concerns of the health, safety, and Welfare of the community arising out of the breeding, boarding, and training of horses and riders within the village. It's designed to eliminate or address the issues of nuisance as well as traffic and safety for residences of the village."
¶ 106 That document was apparently an attempt to comply with section 5-10-6 of the Village code, which provides:
"Findings of Fact and Recommendations of the Zoning Board of Appeals: Within a reasonable time after the close of the hearing on a proposed amendment, the Zoning Board of Appeals
shall make written findings of fact and shall submit same together with its recommendation to the Board of Trustees of the Village." (Emphasis added.)
¶ 107 The "findings of fact" issued by the ZBA in regard to the Anderson text amendment are, to say the least, quite short on the required "facts." It would be more accurate to say that this document was nothing but a curt conclusion designed to satisfy the constitutional requirement that zoning ordinances bear a rational relationship to the public welfare. It was a conclusion without any facts. It did not comply with the Village code's requirement for "findings of fact." ¶ 108 Regardless, two members of the Board then called for a special meeting to vote on the Anderson text amendment on December 15, 2014. Though a month still remained on the Board's request for the ZBA to answer its series of questions regarding commercial horse boarding, with none of them yet answered, and despite the fact that the ZBA had not provided anything close to what could be described as "findings of fact" to support its recommendation, the Board adopted the Anderson text amendment that night. ¶ 109 The complaint thus alleges that the Village ignored its own procedural requirements and ignored even its own independent request for more detailed study of the question and rushed
invalidation of the statute in all respects. See
id.;
Citizens United v.
Federal Election Commission, 558 U.S. 310, 331 (2010);
Paul v.
County of Ogle, 2018 IL App (2d) 170696, ¶ 28. So any notion that Drury is unable to present evidence that Ordinance 14-19 bore no substantial relation to the public welfare, based on the allegations we have discussed above—LeCompte being the sole beneficiary of at least part of the ordinance, the background leading up to the ordinance's passage, the legislative and procedural machinations, etc.—simply because his challenge is a "facial" one, is incorrect.
Although our discussion of the Village's reasons for adopting Ordinance 14-19, divined by reference to the legislative background and procedures, is drawn primarily from the Illinois Supreme Court cases we have discussed throughout this opinion, we would further note that these considerations are consistent with Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977). There, the Supreme Court acknowledged the difficulty of ascertaining a legislative body's impermissible motivation and explained that the determination of whether a legislative body acts for a certain (impermissible) reason "demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available." Id. at 266. The "subjects of proper inquiry in determining whether" the legislature acted with a certain purpose include: (1) "[t]he historical background of the decision ***, particularly if it reveals a series of official actions taken for invidious purposes;" (2) "[d]epartures from the normal procedural sequence;" (3) "[s]ubstantive departures" from the normally accepted decisional criteria, "particularly if the factors usually considered important by the decision-maker strongly favor a decision contrary to the one reached;" and (4) "[t]he specific sequence of events leading up the challenged decision," such as, for example, a change to a longstanding zoning policy immediately after a disfavored group attempts to avail itself of the existing policy. Id. at 267-68. Arlington Heights was an equal protection case alleging racial discrimination in zoning, not a substantive due process claim alleging arbitrary zoning action. We base our analysis on the Illinois Supreme Court cases we have discussed, but Arlington Heights nevertheless supports our inquiry as well. See Gamble v. City of Escondido, 104 F.3d 300, 307 (9th Cir. 1997) (explaining, in course of resolving due process and equal protection challenges to city's refusal to grant building permit to plaintiff, that " '[t]he rational basis test is identical under the two rubrics [of equal protection and due process].' " (quoting Munoz v. Sullivan, 930 F.2d 1400, 1404 (9th Cir. 1991)).
¶ 117 CONCLUSION
¶ 118 The trial court's order sustaining the intervenors' objection to the agreed settlement order is affirmed. The dismissal of the substantive due process challenge is reversed. This cause is remanded for further proceedings consistent with this opinion. ¶ 119 Affirmed in part, reversed in part, and remanded.