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City of Burbank v. Czaja

Case Date: 05/08/2002
Court: 1st District Appellate
Docket No: 1-01-3110 Rel

THIRD DIVISION
May 8, 2002



No. 1-01-3110


CITY OF BURBANK, 
a municipal corporation

          Plaintiff-Appellant,

                   v.

JAN CZAJA, ZOFIA CZAJA, LUDWINA
CZAJA, and PNC MORTGAGE CORP.
OF AMERICAN,

          Defendants-Appellees.    

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) 		Appeal from the
Circuit Court of
Cook County.






The Honorable
James F. Stack,
Judge Presiding.


JUSTICE WOLFSON delivered the opinion of the court:

Some pigeons race. Some fly away and come home again. Somesimply hang around and leave a mess. The city of Burbank is notfond of any pigeons who live in residential areas. It passed oneordinance that prohibited the raising of pigeons in residentialareas and another that excluded pigeon-raising as a properresidential use. On the other hand, the legislature for severalyears created a safe roost for carrier pigeons, later liftingthat protection for pigeons who nest in Cook County.

The feathers began flying in this case when Burbankattempted to enforce its ordinance to stop Jan, Zofia, andLudwina Czaja (the "Czajas") from raising carrier pigeons ontheir residential property. It filed a lawsuit against theCzajas, alleging in its first amended complaint that the Czajashad converted a garage on their residential property into apigeon coop and were raising pigeons in violation of cityordinances.

In their motion to dismiss, the Czajas contended there areno such ordinances, that State law had repealed them. Burbankresponded of course there are, they were lying dormant and werebrought back to life in August of 1996. The trial court grantedthe motion to dismiss. We agree with Burbank.

For that reason, we reverse the trial court's order grantingthe Czajas' motion to dismiss and we remand this cause forfurther proceedings.

FACTS

Because the trial court dismissed Burbank's first amendedcomplaint after the Czajas brought a motion to strike anddismiss, we take the following facts from that complaint andaccept them as true for the purpose of this appeal. The factsare not in dispute.

HISTORY OF STATUTES & ORDINANCES

The City of Burbank is a home rule municipal corporationlocated in Cook County, Illinois. In 1972, Burbank adoptedsection 7-101 of the Municipal Code of the City of Burbank. Thatsection prohibited the raising of pigeons and other poultry fordomestic purposes:

"Sec. 7-101. Keeping, raising, selling live poultryprohibited.

It shall be unlawful to keep, raise, sell, or offer forsale, barter, or give away live baby chicks, ducklings,goslings, pigeons, fowl or other poultry, domestic orotherwise, in the city except in stores or other commercialestablishments engaged in the business of selling babychicks, ducklings, goslings, pigeons, fowl or other poultryfor commercial purposes, and not less than six (6) of eachof the aforementioned variety shall be sold to any oneperson. It shall by unlawful to raise for home or domesticpurposes poultry of any kind. (Ord. No. 1-11-16-72,