                              Illinois Official Reports

                                      Appellate Court



         Platform I Shore, LLC v. Village of Lincolnwood, 2014 IL App (1st) 133923



Appellate Court          PLATFORM I SHORE, LLC, and 3318 W. DEVON, LLC,
Caption                  Plaintiffs-Appellants, v. THE VILLAGE OF LINCOLNWOOD, THE
                         VILLAGE OF LINCOLNWOOD ZONING BOARD OF APPEALS,
                         SHERWIN J. MALKIN, Chairman of the Village of Lincolnwood
                         Zoning Board of Appeals, and AARON COOK, Zoning Officer for
                         the Village of Lincolnwood, Defendants-Appellees.



District & No.           First District, First Division
                         Docket No. 1-13-3923



Filed                    August 18, 2014



Held                       Defendant village’s denial of plaintiffs’ zoning application for the
(Note: This syllabus development and operation of a firearms shooting range on their
constitutes no part of the property was reversed, since a shooting range was a permitted use
opinion of the court but under the plain and unambiguous language of the zoning ordinance in
has been prepared by the existence at the time of plaintiffs’ application.
Reporter of Decisions
for the convenience of
the reader.)



Decision Under           Appeal from the Circuit Court of Cook County, No. 13-CH-6635; the
Review                   Hon. Mary Mikva, Judge, presiding.




Judgment                 Reversed and remanded.
     Counsel on                Stewart T. Kusper and Paul C. Mallon, Jr., both of Kusper Law
     Appeal                    Group, Ltd., of Chicago, for appellants.

                               Steven M. Elrod, Peter M. Friedman, and Hart M. Passman, all of
                               Holland & Knight, LLP, of Chicago, for appellees.




     Panel                     JUSTICE HOFFMAN delivered the judgment of the court, with
                               opinion.
                               Presiding Justice Connors and Justice Cunningham concurred in the
                               judgment and opinion.




                                                  OPINION

¶1         The plaintiffs, Platform I Shore, LLC, and 3318 W. Devon, LLC, appeal from the circuit
       court judgment which affirmed the decision of the defendants, the Village of Lincolnwood
       (Village), the Village of Lincolnwood Zoning Board of Appeals, Sherwin J. Malkin, 1
       chairman of the Village of Lincolnwood Zoning Board of Appeals (collectively referred
       hereinafter as the Board), and Aaron Cook, zoning officer for the Village of Lincolnwood,
       denying their zoning application for the development and operation of a firearms shooting
       range on their existing property. For the reasons that follow, we reverse the judgment of the
       circuit court and remand the cause for further proceedings.
¶2         On March 8, 2013, the plaintiffs filed a complaint for administrative review of the
       Board’s decision in the circuit court, alleging the following facts. Platform I Shore, LLC
       (Platform), leased the second floor of a Lincolnwood property owned by 3318 W. Devon,
       LLC, in order to operate a shooting range above the existing firearms dealership operated on
       the first floor of the property. The property is located in a “B-2 zone district” according to the
       Village’s zoning district map. Pursuant to the “health club and private recreation”
       permitted-use provision for B-2 zoned properties, Platform submitted its application for a
       business license on October 1, 2012, and on October 2, 2012, 3318 W. Devon, LLC, filed an
       application to obtain a building permit for Platform’s intended renovations and planned
       shooting range. The plaintiffs, through counsel, sent a letter on October 24, 2012, demanding
       a decision on their zoning application as promised by the Village’s website, which provides
       that decisions shall be rendered within 11 days of submission. A second demand letter was
       sent on October 29, 2012.
¶3         On November 1, 2012, zoning officer Cook denied the plaintiffs’ application, stating that
       a shooting range did not fall within the zoning ordinance’s permitted-use provision for
       “health club or private recreation.” In the letter, Cook referenced a prior decision made in

             1
           After the plaintiffs filed their notice of appeal, Sherwin J. Malkin died, and Herbert Theisen was
       appointed as the new chairman of the Village of Lincolnwood Zoning Board of Appeals.

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     May 2012 in which the plaintiffs were allegedly told that a shooting range did not fall within
     the permitted uses for the property. The plaintiffs appealed from Cook’s denial to the Board.
¶4       On December 19, 2012, the Board conducted a hearing on the plaintiffs’ appeal at which
     the following evidence was adduced. The plaintiffs submitted evidence of the plain
     definitions of “recreation” and contended that Cook read into the ordinance a nonexistent
     exception. They also pointed to another shooting range located within the Village, namely, in
     an area designated as the more restrictive B-1 zone district. The plaintiffs further refuted that
     any decision on this issue had been rendered in May 2012, and the record is void of any
     documentation of an application or previous decision from that date. Scott Krone, an
     architect involved in the planning of the plaintiffs’ proposed new firearms store, testified that
     the May 2012 decision concerned a different approval process for the construction of a
     different structure in a different zoning district. He denied that he was ever informed by the
     Village at that time that a shooting range was an impermissible use of a B-2 zoned property.
¶5       Village Trustee Thomas Heidtke testified for the Board that, when the zoning ordinance
     was rewritten in 2008, the Village did not intend to reverse its policy opposing firearms
     dealers and shooting ranges in the B-2 zone district. Further, on November 9, 2012, the
     Village adopted resolution No. R2012-1710, initiating amendments to the ordinance which
     would formally codify the Village’s determination that the provision for “health club or
     private recreation” excluded shooting ranges. The Village also submitted evidence that the
     plaintiffs had applied for permits on three prior occasions. In 1989, the plaintiffs applied for a
     special use permit to operate a shooting range on the second floor of its current location, and
     that application was denied. In 1993, the plaintiffs applied for a special use permit, but they
     withdrew that application before a decision was rendered. In 1997, the plaintiffs sought to
     relocate their firearms store to a location at 3310 West Devon, but that application was
     denied.
¶6       On February 6, 2013, the Board affirmed Cook’s denial of the plaintiffs’ application,
     finding that a shooting range did not fall into the intended meaning of the ordinance’s
     definition of “health club or private recreation.” The Board, with one member dissenting,
     opined that the Village clearly showed its legislative intent to exclude shooting ranges within
     the definition of “private recreation” by virtue of its previous denials of the plaintiffs’
     applications for a shooting range and the testimony of Heidtke. The dissenting Board
     member stated that, under the plain language of the current ordinance, a shooting range fell
     within the definition of “private recreation” and was a permitted use. Acknowledging that the
     Board had denied the plaintiffs’ application for a shooting range in the past under a different
     ordinance, the dissenting Board member noted that there was also no evidence refuting that
     another shooting range had been permitted in a more restrictive zoning area of the Village in
     the past.
¶7       The plaintiffs thereafter sought judicial review of the Board’s decision in the circuit
     court. See 735 ILCS 5/3-101 et seq. (West 2012) (providing for judicial review of
     administrative agency decisions). On November 18, 2013, the circuit court affirmed the
     Board’s decision, stating that it deferred to the Board’s expertise in interpreting its own
     ordinances and agreed that the “health club or private recreation” provision did not include a
     shooting range within its meaning. The court specifically stated that it did not need to
     determine whether the zoning ordinance was ambiguous in making its ruling. The plaintiffs
     timely appealed.

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¶8         At the outset, we note that this court reviews the decision of the administrative agency,
       not the decision of the trial court. Lombard Public Facilities Corp. v. Department of Revenue,
       378 Ill. App. 3d 921, 927-28 (2008). When reviewing the administrative agency’s decision,
       the applicable standard of review depends on whether the question presented on appeal is one
       of fact, of law, or of both. Id. Our review of an agency’s factual findings is limited to
       determining whether such findings are against the manifest weight of the evidence, and our
       review of agency rulings on questions of law are reviewed de novo. Id. at 928. However,
       when the issue presented contains mixed questions of law and fact, the standard of review is
       whether the decision was clearly erroneous. Id. The clearly-erroneous standard applies to
       administrative cases involving mixed questions of law and fact, rather than a bifurcated
       standard, in part because of the deference given to the agency’s experience and expertise in
       interpreting its statutes. Id. “A mixed question of law and fact is whether the facts satisfy a
       statutory standard or whether the rule of law, as applied to the established facts, is violated.”
       Id. While the agency is awarded deference, a reviewing court will reverse the agency
       decision when there is evidence supporting reversal and the reviewing court is “ ‘left with the
       definite and firm conviction that a mistake has been committed.’ ” AFM Messenger Service,
       Inc. v. Department of Employment Security, 198 Ill. 2d 380, 393 (2001) (quoting United
       States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). Here, the question of whether
       the proposed use of the plaintiffs’ property as a shooting range comports with the language of
       the zoning ordinance is a mixed question of law and fact, triggering our application of the
       clearly-erroneous standard of review.
¶9         On appeal, the plaintiffs contend that the zoning ordinance in effect at the time of their
       application unambiguously provided that a shooting range was permissible under the “health
       club or private recreation” permitted-use provision and that their zoning application should
       not have been denied. We agree.
¶ 10       Municipal ordinances, such as the zoning ordinance at issue here, are interpreted under
       the general rules of statutory construction and interpretation. LeCompte v. Zoning Board of
       Appeals, 2011 IL App (1st) 100423, ¶ 22; Puss N Boots, Inc. v. Mayor’s License Comm’n,
       232 Ill. App. 3d 984, 986 (1992). The aim of statutory interpretation is to determine the
       legislative intent, which is best indicated by the statutory language, given its plain and
       ordinary meaning. Nowak v. City of Country Club Hills, 2011 IL 111838, ¶ 11. Where the
       statutory language is clear and unambiguous, we enforce it as written without reading into it
       exceptions, conditions, or limitations not expressed by the legislature. Martin v. Office of the
       State’s Attorney, 2011 IL App (1st) 102718, ¶ 10. “Where a statute is ambiguous, however,
       courts will give substantial weight and deference to an interpretation by the agency charged
       with the administration and enforcement of the statute.” Commonwealth Edison Co. v. Illinois
       Commerce Comm’n, 2014 IL App (1st) 132011, ¶ 20. However, a statute is not ambiguous
       simply because the parties disagree as to its meaning. Commonwealth Edison, 2014 IL App
       (1st) 132011, ¶ 21. “A statute is ambiguous if its meaning cannot be interpreted from its plain
       language or if it is capable of being understood by reasonably well-informed persons in more
       than one manner.” Id. Where a statute is capable of more than one reasonable interpretation,
       the statute is ambiguous and we may consider extrinsic aids to construction, such as the
       legislative history. Martin, 2011 IL App (1st) 102718, ¶ 10.
¶ 11       It is undisputed that the plaintiffs’ property rests in the B-2 zoning district, which is
       defined by the ordinance in effect at the time of their application as follows:


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               “The B-2 District is established to provide areas for a wide variety of retail, services
               and commercial uses, and allows for the highest intensity of such uses. Unlike the B-1
               Traditional Business District–where pedestrian travel to and from the commercial
               activity is encouraged–virtually all patrons will arrive by automobile.” Lincolnwood
               Zoning Ordinance art. 4.01 (adopted Nov. 6, 2008).
¶ 12       One of the stated permitted uses of a B-2 zone property is for a “[h]ealth club or
       recreation facility, private.” Lincolnwood Zoning Ordinance art. 4.05 (adopted Nov. 6,
       2008). A “permitted use” is defined as a use “permitted as of right” provided that uses
       comply with all other applicable standards of the ordinance. Lincolnwood Zoning Ordinance
       art. 4.04 (adopted Nov. 6, 2008). The ordinance further defines “health club or private
       recreation” as:
               “A building or portion of a building designed and equipped for the conduct of sports,
               exercise, leisure time activities, or other customary or usual recreational activities,
               operated for profit or not-for-profit and which can be open only to members and
               guests of the organization or open to the public for a fee.” Lincolnwood Zoning
               Ordinance art. 2.02 (adopted Nov. 6, 2008).
¶ 13       “Recreation” is defined as “the act of recreating or the state of being recreated:
       refreshment of the strength and spirits after toil: DIVERSION, PLAY” or a “means of getting
       diversion or entertainment” or “one that provides recreation or amusement.” Webster’s Third
       New International Dictionary 1899 (1993). Article 2.02 of the Lincolnwood Zoning
       Ordinance further defines the phrase “health club or private recreation” to include a building
       designed for sports, exercise, leisure time activities, or other customary and usual
       recreational activities. Shooting ranges for pistol and rifle shooting and target practice have
       been held to constitute a recreational activity, even though not specifically enumerated in the
       statute at issue (McNames v. Rockford Park District, 185 Ill. App. 3d 291, 295 (1989)).
¶ 14       Here, we find that the plain language of the Lincolnwood Zoning Ordinance is
       unambiguous. We, therefore, need not consider the extrinsic evidence submitted at the
       Board’s hearing on the plaintiffs’ appeal, but rely solely on the plain language of the
       ordinance itself to conclude that the proposed shooting range is a permitted use as of right
       under the ordinance’s provision related to “health club or private recreation.” Like in
       McNames, in this case, we find that the proposed shooting range falls squarely within the
       broad language used in the ordinance, namely “recreation.” Moreover, as the plaintiffs point
       out, common sense dictates that target shooting is also considered a sport as it is an Olympic
       sporting event and a recognized sporting activity within our national college associations and
       4-H clubs. See People v. Chicago Title & Trust Co., 75 Ill. 2d 479, 493 (1979) (stating that
       the words of a statute “must be read to reach a common-sense result”).
¶ 15       We acknowledge that the zoning ordinance has since been amended to specially address
       shooting ranges, but our duty here is only to interpret the statute in effect at the time of the
       plaintiffs’ application, and we cannot read exceptions into the statute that simply are not
       there. Our decision further does not address whether the application for this permitted use
       complies with all other applicable standards of the ordinance as that issue is not present
       before us today. See Lincolnwood Zoning Ordinance art. 4.04 (adopted Nov. 6, 2008)
       (stating a permitted use is a use permitted as of right provided that uses comply with all other
       applicable standards of the ordinance).


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¶ 16      For the reasons stated, we reverse the judgment of the circuit court of Cook County and
       remand the cause for further proceedings consistent with this opinion.

¶ 17      Reversed and remanded.




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