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No. 2--03--1262

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE BYRNE delivered the opinion of the court:

This case is a zoning dispute in which defendant, Lake County, denied plaintiffs a conditional use permit to construct a wastewater treatment facility (the facility) as part of a proposed 144-unittownhome development (the development) on plaintiffs' vacant 40-acre parcel (the property) inunincorporated Lake County. The property was held in trust, and plaintiff Tim Towne owns a 100%beneficial interest in the trust. Lake County successfully moved to dismiss plaintiffs' second-amendedeight-count complaint, and plaintiffs appeal. On appeal, plaintiffs argue only that counts I, IV, andV should be reinstated. Count I seeks a declaratory judgment that the facility is a permitted use underthe zoning regulations, and therefore, Lake County lacks the authority to require a conditional usepermit for the construction of the facility. Count IV seeks a declaratory judgment that plaintiffs havea vested right in constructing the development, and therefore, Lake County lacks the authority tochange the zoning classification of the property to prohibit construction of the facility and thedevelopment in general. Finally, count V seeks a declaratory judgment that the Illinois EnvironmentalProtection Act (the Act) (415 ILCS 5/1 et seq. (West 2000)) preempts Lake County's zoningregulations that govern private sewage treatment plants such as the facility. We affirm.

FACTS

The following facts are taken from plaintiff's second-amended complaint and variousdocuments submitted by the parties. Lake County has adopted a comprehensive plan known as the"Framework Plan," and in 1994, Lake County changed the designation of the property from"countryside" to "suburban." In 1996, Lake County granted plaintiffs' request to rezone the propertyfrom countryside to suburban to conform to the Framework Plan. The suburban classification permitsa variety of uses, such as industry, offices, residences, and retail.

In May 1998, plaintiffs contracted to sell the property to Concord Development Corporation(Concord) in anticipation of constructing the development. Plaintiffs and Concord submitted aproposed preliminary plat to Lake County. Because neither public sanitary sewer services nor septicsystems were available or practical, plaintiffs and Concord proposed the construction of a privatesewage treatment plant on the property. The record contains a 1994 letter from the IllinoisEnvironmental Protection Agency (IEPA) in which the IEPA granted conditional, preliminaryapproval of the proposed treatment plant. The IEPA approval letter stated that "[the developmentcompany] must obtain a written concurrence of the proposed project from the Lake CountyDepartment of Public Works and the Northern Illinois Planning Commission to amend the [IllinoisWater Quality Management Plan] through inclusion of the proposed sewage treatment plan." TheIEPA also conditioned its approval on its issuance of an operating permit for the ultimate disposalof sewage from the facility.

At Lake County's insistence, plaintiffs and Concord applied for a conditional use permit toauthorize construction of the facility. On April 16, 1999, the Lake County Board denied theapplication. After plaintiffs initiated the lawsuit on July 19, 1999, the Lake County Regional PlanningCommission changed the property's Framework Plan classification from suburban to estate, therebypermitting only single-family residences on lots that are no smaller than two acres. The Lake CountyBoard also returned the property's zoning classification from suburban to countryside, which allowsonly single-family residences on lots that are no smaller than five acres.

On May 3, 2000, Lake County moved to dismiss plaintiffs' second-amended complaintpursuant to sections 2--615 and 2--619 of the Code of Civil Procedure (Code) (735 ILCS 5/2--615,2--619 (West 2000)). We set forth only those portions of the motion that were directed to countsI, IV, and V. Lake County asserted that count I must be dismissed under section 2--619 of the Codebecause plaintiffs did not exhaust their administrative remedies in resolving the issue of whether thefacility was an "accessory use" permitted as a matter of right under the applicable zoning ordinance. Lake County also argued that count IV must be dismissed under sections 2--615 and 2--619 becauseplaintiffs could not have had a vested right in the development before the issuance of a conditionaluse permit. Finally, Lake County contended that count V must be dismissed under section 2--615because the Act does not preempt conflicting local zoning ordinances.

On September 21, 2000, the trial court dismissed count I with prejudice, concluding thatplaintiffs failed to exhaust their administrative remedies by requesting the Lake County Zoning Boardof Appeals to determine whether the facility was an "accessory use" that did not require a conditionaluse permit under the ordinance. The court dismissed count IV without prejudice, concluding thatplaintiffs had no vested right in constructing the development because plaintiffs failed to establish theprobability that a conditional use permit would be issued. The court noted that plaintiffs could revivecount IV if they exhausted their administrative remedies. Finally, the court dismissed count V withprejudice, citing Village of Carpentersville v. Pollution Control Board, 135 Ill. 2d 463 (1990), for theproposition that the Act does not preempt local zoning ordinances like the one at issue.

The court permitted the Village of Mundelein to intervene in March 2001. After the courtdenied plaintiffs' motion to reconsider the dismissal of count IV, it granted plaintiffs' request todismiss count IV with prejudice. On October 23, 2003, plaintiffs voluntarily dismissed count II, theonly remaining count, and this timely appeal followed.

ANALYSIS

On November 12, 2003, plaintiffs filed a notice of appeal in which they sought the reversalof the dismissal of count I and counts III through VIII. However, in their appellate brief, plaintiffsdirect their argument only toward counts I, IV, and V. We limit our analysis to those counts becausepoints not argued in an appellant's brief are waived. See 188 Ill. 2d R. 341(e)(7).

This appeal requires us to review the dismissal of counts I, IV, and V, which all seekdeclaratory relief. A declaratory judgment action requires (1) a plaintiff with a tangible, legal interest;(2) a defendant with an opposing interest; and (3) an actual controversy between the partiesconcerning such interests. 735 ILCS 5/2--701 (West 2002); Beahringer v. Page, 204 Ill. 2d 363, 372(2003). For an actual controversy to exist, the case must present a concrete dispute admitting of animmediate and definitive determination of the parties' rights, the resolution of which will aid in thetermination of the controversy or some part thereof. Howlett v. Scott, 69 Ill. 2d 135, 141-42 (1977),citing Underground Contractors Ass'n v. City of Chicago, 66 Ill. 2d 371, 375 (1977). Thedeclaratory judgment process exists so that the court may address a controversy after a dispute hasarisen but before steps are taken that would give rise to a claim for damages or other relief. Beahringer, 204 Ill. 2d at 372-73.

When ruling on a motion to dismiss filed under either section 2--615 or 2--619 of the Code,we must accept all well-pleaded facts as true and make all reasonable inferences therefrom. Villageof South Elgin v. Waste Management of Illinois, Inc., 348 Ill. App. 3d 929, 930 (2004). The recordmust be construed in the light most favorable to the nonmovant, but conclusions of law andconclusory factual allegations not supported by allegations of specific facts are not deemed admitted. Village of South Elgin, 348 Ill. App. 3d at 930-31. Moreover, it is well established that courts areto construe pleadings liberally with a view toward doing substantial justice between the parties. Village of South Elgin, 348 Ill. App. 3d at 931.

The parties dispute which standard of review applies to the dismissal. Plaintiffs cite the well-settled principle that we apply de novo review to a trial court's order dismissing a complaint undereither section 2--615 or section 2--619 of the Code. See Feltmeier v. Feltmeier, 207 Ill. 2d 263, 266(2003). However, Lake County cites Stone v. Omnicom Cable Television of Illinois Inc., 131 Ill.App. 3d 210 (1985), for the proposition that such dismissals are subject to the abuse-of-discretionstandard of review.

In Stone, the defendants moved to strike and dismiss the plaintiff's complaint, but the opiniondoes not indicate under what statutory authority the motion was filed. This court held that a trialcourt's decision to "grant or deny" a request for a declaratory judgment should not be disturbedabsent an abuse of discretion. Stone, 131 Ill. App. 3d at 215. Because "[t]he dismissal of a complaintfor declaratory judgment is a proper method of declining to grant the requested relief" (Stone, 131 Ill. App. 3d at 215), we reviewed the dismissal for an abuse of discretion. Stone, 131 Ill. App. 3d at218-19.

However, this court and others have recently answered the same question differently,concluding that the dismissal of a declaratory judgment action is subject to de novo review. See, e.g.,Beahringer, 204 Ill. 2d at 369 (section 2--615 motion to dismiss); Adkins Energy, LLC v. Delta-TCorp., 347 Ill. App. 3d 373, 377 (2004) (Second District) (section 2--615 motion to dismiss); AGFarms, Inc. v. American Premier Underwriters, Inc., 296 Ill. App. 3d 684, 688 (1998) (FourthDistrict) (section 2--619 motion to dismiss); Roland Machinery Co. v. Reed, 339 Ill. App. 3d 1093,1097 (2003) (Fourth District) (section 2--619 motion to dismiss). The Roland court noted asfollows:

" 'While it is true *** that the [trial] court in its discretion may refuse to grantdeclaratory relief, the court has no discretion to refuse to entertain the action as against amotion to dismiss where the complaint states a cause of action. [Citations.] Whenconfronted with a motion to dismiss, the trial court must sustain the complaint unless it clearlyappears that no set of facts could be proved under the pleadings which would entitle theplaintiff to some type of relief. [Citations.] A complaint for declaratory judgment whichrecites in sufficient detail an actual and legal controversy between the parties and prays fora declaration of rights and, if desired, other legal relief, states facts sufficient to state a goodcause of action. [Citations.]" Roland Machinery Co., 339 Ill. App. 3d at 1096-97, quotingAlderman Drugs, Inc. v. Metropolitan Life Insurance Co., 79 Ill. App. 3d 799, 803 (1979).

In light of this recent authority, we overturn our decision in Stone regarding the applicablestandard of review, and we hold that a trial court's decision to dismiss a declaratory judgment actionunder section 2--615 or section 2--619 of the Code is subject to de novo review.
 

1. Count I: Lake County's Authority to Require a Conditional Use Permit

Count I of the complaint asserted that the facility is a permitted "accessory use" under theapplicable zoning ordinance and, therefore, Lake County lacks the authority to require a conditionaluse permit for the construction of the facility. Lake County appended a copy of the relevantordinance to its brief. The ordinance governs "accessory uses" and provides in relevant part:

"Except as otherwise expressly provided or limited by this Chapter, accessorystructures and uses are permitted in any District in connection with any principal use lawfullyexisting within such District. Any question of whether a particular use is permitted as anaccessory use by the provisions of this Section shall be determined by the Zoning Officerpursuant to his or her authority to interpret the provisions of this Chapter." Lake CountyZoning Ordinance, ch. 1,