                                No. 2--06--0238                   filed: 12-20-06
______________________________________________________________________________

                                               IN THE

                               APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE CITY OF ELGIN,                     ) Appeal from the Circuit Court
                                       ) of Kane County.
      Plaintiff and Counterdefendant-  )
      Appellee,                        )
                                       )
v.                                     ) No. 04--OV--1418
                                       )
ALL NATIONS WORSHIP CENTER,            )
                                       ) Honorable
      Defendant and Counterplaintiff-  ) Michael J. Colwell,
      Appellant.                       ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE CALLUM delivered the opinion of the court:

       In 2003, defendant, All Nations Worship Center (All Nations), began conducting worship

services in Elgin. The city filed a complaint in the circuit court alleging that, under title 19 of the

Municipal Code (the zoning ordinance), a church was not a permitted use in the district where All

Nations was operating. All Nations responded with a counterclaim alleging that the zoning ordinance

was unconstitutional and violated the Religious Land Use and Institutionalized Persons Act of 2000

(RLUIPA) (42 U.S.C. §2000cc et seq. (2000)). The trial court dismissed the counterclaim and All

Nations appeals, contending that its counterclaim stated causes of action under the constitution and

RLUIPA. We affirm.

       In August 2003, All Nations began conducting services on property it leased in Elgin. Its use

of the property included weekly worship services and preaching, counseling, prayer meetings, musical
No. 2--06--0238


performances, religious rites such as weddings and baptisms, Bible studies, youth activities, social

gatherings, and service projects.

       All Nations' property was located in an AB area business district where churches were not

allowed as either a permitted or a conditional use pursuant to the zoning ordinance. In an attempt

to comply with the ordinance, All Nations applied for a planned unit development permit. However,

the city denied its application. The city then filed a complaint in the circuit court alleging that All

Nations was violating the ordinance. All Nations answered the complaint and filed a counterclaim

alleging that the ordinance was unconstitutional and violated RLUIPA.

       All Nations' counterclaim alleged that the zoning ordinance denied it equal protection (U.S.

Const., amend. XIV) because the ordinance excluded churches from the AB district but permitted

similar, nonreligious uses such as "membership organizations," sports and recreation clubs, motion

picture theaters, and funeral services. All Nations also alleged that the ordinance violated RLUIPA,

which requires that municipal zoning not discriminate against church uses (42 U.S.C. §§2000cc(b)(1),

(b)(2) (2000)) and not unreasonably limit religious assemblies within a jurisdiction (42 U.S.C.

§2000cc(b)(3)(B) (2000)). All Nations alleged that the ordinance permitted various types of non-

religious assemblies in the AB zoning district but excluded churches, thus discriminating against

churches. Moreover, the ordinance permitted churches as a matter of right in only 1 of 30 zoning

categories, and as conditional uses in 2 more, thus unreasonably restricting churches from locating

within the city. After All Nations filed its counterclaim, the city dismissed its complaint.

       During this time, the city amended the zoning ordinance. After the amendment, a church can

be a conditional use in the RB residence business district, the NB neighborhood business district, and

the AB area business district. Elgin Ordinance No. G65--05, eff. July 27, 2005. Similar non-religious



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uses would also have to apply for conditional use permits in those districts. Elgin Ordinance No.

G65--05, eff. July 27, 2005. The city then moved to dismiss All Nations' counterclaim, contending

that the amendments cured any defects in the zoning ordinance. See 735 ILCS 5/2--619 (West 2004).

The trial court dismissed the counterclaim and All Nations timely appeals.

        All Nations does not appear to dispute that the amendment cured the perceived problems with

the zoning ordinance. However, it contends that the trial court nevertheless erred in dismissing its

counterclaim. All Nations argues that, prior to the amendment, it acquired a vested right to continue

to operate without obtaining a conditional use permit. According to All Nations, because the

ordinance was unconstitutional before it was amended, we should proceed as if the ordinance never

existed. Because no zoning ordinance ever existed, All Nations was entitled to use its property any

way it wished. Because it expended considerable amounts in making the property suitable for

worship services, it acquired a vested right to continue operating in that fashion even after the

ordinance was amended.

        The city first responds that the case is moot. According to the city, the amendment cured the

defects in the zoning ordinance that All Nations identified and, accordingly, All Nations can obtain

no further relief. An appeal is moot where it presents no actual controversy or where the issues

involved in the trial court no longer exist because intervening events have rendered it impossible for

the reviewing court to grant effectual relief to the complaining party. In re J.T., 221 Ill. 2d 338, 349-

50 (2006). Here, All Nations seeks, in essence, a declaration that it may continue to hold services

without the necessity of obtaining a conditional use permit from the city. A judgment in its favor

would mean that it does not have to obtain a conditional use permit. Because it is possible for All

Nations to receive effectual relief, the case is not moot.



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        The city further contends that the trial court properly dismissed All Nations' complaint

because All Nations did not acquire a vested right to continue its operations. The city contends that

All Nations cannot attack the preamendment zoning ordinance as void and at the same time claim a

vested right thereunder. The city appears to miss the point of All Nations' argument, but not by

much. All Nations argues that it acquired a vested right, not under the preamendment ordinance, but

under the "common law" of zoning, i.e., as if no zoning ordinance ever existed. Nevertheless, we

agree with the city's primary contention that All Nations did not acquire a vested right to continue

operating and, accordingly, the trial court properly dismissed its counterclaim.

        A complaint or, as here, a counterclaim should not be dismissed under section 2--619 of the

Code of Civil Procedure (735 ILCS 5/2--619 (West 2004)) unless it clearly appears that no set of

facts could be proved under the pleadings that would entitle the plaintiff to relief. Ogle v. Fuiten, 102

Ill. 2d 356, 360-61 (1984); Capitol Indemnity Corp. v. Stewart Smith Intermediaries, Inc., 229 Ill.

App. 3d 119, 123 (1992). We review de novo the dismissal of a pleading pursuant to section 2--619.

Hartshorn v. State Farm Insurance Co., 361 Ill. App. 3d 731, 735 (2005).

        Initially, we note that there are several parallels between this case and Civil Liberties for

Urban Believers v. City of Chicago, 342 F.3d 752 (7th Cir. 2003). There, an association of churches

and five of its individual members sued the city, claiming that its zoning ordinance violated the

constitution and RIULPA. The opinion describes the arduous processes that the member churches

endured to obtain suitable locations within the city for their facilities and to obtain zoning approval.

While the case was pending, the city amended its zoning ordinance. On appeal, the Seventh Circuit

held that the amended ordinance complied with the constitution and the statute. The court noted that

while the five churches had faced substantial burdens in opening their new facilities, they were the



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same burdens faced by any other individual or entity seeking to conduct business in the city. Civil

Liberties, 342 F.3d at 761. Accordingly, the new ordinance did not discriminate against churches.

       All Nations, seeking to avoid the fate of the Civil Liberties plaintiffs, argues that it may

proceed with its claims because it acquired a vested right to operate. Generally, there is no vested

right to the continuation of a zoning ordinance. 1350 Lake Shore Associates v. Casalino, 363 Ill.

App. 3d 806, 814 (2005). However, " 'where there has been a substantial change of position,

expenditures or incurrence of obligations made in good faith by an innocent party under a building

permit or in reliance upon the probability of its issuance, such party has a vested property right and

he may complete the construction and use the premises for the purposes originally authorized,

irrespective of subsequent zoning or a change in zoning classification.' " 1350 Lake Shore Associates,

363 Ill. App. 3d at 814, quoting People ex rel. Skokie Town House Builders, Inc. v. Village of

Morton Grove, 16 Ill. 2d 183, 191 (1959).

       Although it does not use this precise terminology, All Nations' argument is based on the

premise that the Elgin zoning ordinance was void ab initio.          It has been stated that "[a]n

unconstitutional law 'confers no right, imposes no duty and affords no protection. It is *** as though

no such law had ever been passed.' " People v. Gersch, 135 Ill. 2d 384, 399 (1990), quoting People

v. Schraeberg, 347 Ill. 392, 394 (1932). Thus, All Nations claims to have a vested right, not under

the ordinance itself, but under the law as it existed before the ordinance was passed. There are two

fatal flaws in this argument, however.

       First, the void ab initio doctrine applies only to statutes and ordinances that are

unconstitutional on their face. Hill v. Cowan, 202 Ill. 2d 151, 156 (2002). All Nations could not

plausibly claim that the Elgin zoning ordinance was facially unconstitutional. At most, All Nations'



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contention is that the ordinance was unconstitutional as applied to it. Therefore, the ordinance was

not void ab initio.

        Second, and perhaps more important, vested rights are acquired by attempting to comply with

an ordinance as written. As noted, when a party expends substantial time and effort attempting to

comply with an ordinance as it then exists and the legislative body amends the ordinance, the party

may acquire a vested right to proceed under the old ordinance. 1350 Lake Shore Associates, 363 Ill.

App. 3d at 814. Here, however, All Nations proceeded in violation of the zoning ordinance as

written. It is difficult to see how All Nations can claim a vested right to ignore the existing ordinance.

        The supreme court recently discussed the void ab initio doctrine in Perlstein v. Wolk, 218 Ill.

2d 448 (2006). The court noted that " '[t]he actual existence of a statute, prior to [a determination

of unconstitutionality], is an operative fact and may have consequences which cannot justly be

ignored.' " Perlstein, 218 Ill. 2d at 461, quoting Chicot County Drainage District v. Baxter State

Bank, 308 U.S. 371, 374, 84 L. Ed. 329, 332-33, 60 S. Ct. 317, 318 (1940). The court adopted an

equitable approach to application of the void ab initio doctrine, "tempered by considerations of

reasonableness and good-faith reliance on the purportedly valid statute." (Emphasis added.)

Perlstein, 218 Ill. 2d at 463. The court emphasized that individuals are not "required or empowered"

to determine whether a law is unconstitutional. Perlstein, 218 Ill. 2d at 459. The court quoted

extensively from a Delaware case:

                " 'The Delaware Landlord Distress Law has never been adjudged unconstitutional.

        Therefore, it is clothed by a presumption of constitutionality. [Citations.] The [defendants]

        in the instant case were entitled to rely upon that presumption of constitutionality and validity,

        and to act reasonably and in good faith under the provisions of the Law as it then existed.



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       Citizens and public officials have a right to accept the law as it is written until it is repealed

       or judicially condemned. They are not required to speculate upon the validity of a statute or

       to act under it at their peril. Until legislatively or judicially excised, a statute is an operative

       fact. Courts presume every legislative act constitutional and indulge every intendment in

       favor of validity. No penalty may be visited upon citizens for doing likewise.' " Perlstein, 218

       Ill. 2d at 463-64, quoting Downs v. Jacobs, 272 A.2d 706, 707 (Del. 1970).

       Perlstein holds that the existence of an ordinance is a historical fact that cannot simply be

ignored. While a party may have a right to assume that an ordinance is valid and proceed

accordingly, it has no corresponding right to do the contrary: to assume that the ordinance is invalid

and proceed in violation of it. As Perlstein put it, a party is not "empowered" to determine for itself

whether an ordinance is unconstitutional. Perlstein, 218 Ill. 2d at 459. That is what All Nations did

here: it proceeded in violation of the zoning ordinance as written on the assumption that it would be

found unconstitutional. However, no one had so found when All Nations began its operations. All

Nations simply could not acquire a vested right to conduct services in violation of the presumptively

valid ordinance.

       All Nations cites City of Marengo v. Pollack, 335 Ill. App. 3d 981 (2002), apparently for the

proposition that even an illegal use of property can create vested rights. However, Marengo does

not so hold. There, the defendant repaired and sold pallets, which was always a legal use. At some

point, the city amended its zoning ordinance, which had the effect of reducing the percentage of

property that could be devoted to outdoor storage. The defendant used a much greater percentage

of its property for storing pallets. The city later recodified its zoning ordinance, creating a new

industrial zone. The city then filed a complaint, alleging that because the defendant had continually



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violated the outdoor-storage restriction, its use of the property was not a legal nonconforming use.

This court rejected the argument, holding that it could easily separate the permitted use from the

prohibited use. Marengo, 335 Ill. App. 3d at 988. This court held that the defendant could continue

the permitted use, but did not hold that it could continue the prohibited use.

        Because All Nations did not have a vested right to continue operations in violation of the

zoning ordinance, the trial court properly dismissed its counterclaim. We note that All Nations is not

without a remedy. As the city points out, under the amended ordinance churches are now a

conditional use in the AB zone where All Nations' property is located. In its brief, the city states that

it would have no legitimate basis to oppose a conditional use permit for the subject property. While

this statement is not binding on the city should All Nations choose to apply for a permit, it is at least

some indication that the city is not prepared to close the door on the All Nations facility.

        The judgment of the circuit court of Kane County is affirmed.

        Affirmed.

        GROMETER, P.J., and HUTCHINSON, J., concur.




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