Miller v. Hill
Case Date: 02/06/2003
Court: 3rd District Appellate
Docket No: 3-00-0673, 3-00-1002,
3-01-0940, 3-01
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JUSTICE BOWMAN delivered the opinion of the court: Plaintiffs, Joseph and Pamela Miller, bring these consolidatedappeals contesting the results of two separate actions relating tothe operation of a commercial trapshooting range in Fulton County. The firearm range, owned and operated by defendant, David Hill(Hill), is adjacent to plaintiffs' residence. It operates pursuantto a conditional use permit issued by the Fulton County ZoningBoard of Appeals (Board) on August 27, 1998. Plaintiffs challengethe issuance and continued viability of Hill's conditional usepermit. They also appeal the results of their chancery action inwhich the court rejected plaintiffs' request to enjoin Hill from further operation of the firearm range. A hearing was held before the Board on August 26, 1998,addressing Hill's request to build and operate a firearm range onhis property. Notice of the hearing was issued on August 12, 1998,to the local property owners. The notice stated that the hearingpertained to Hill's request "for a conditional use permit toconstruct a metal building for the purpose of operating a privatelyoperated for profit outdoor recreational facility and to alsooperate a radiator repair shop" on his property. The notice wasreceived by plaintiffs but they failed to attend the hearing. The conditional use permit was unanimously approved by theBoard. The permit established the following nine conditions: "1. The establishment, maintenance, or operation of theconditional use will not be substantially detrimental to, orsubstantially endanger the public health, safety, morals,comfort, general welfare or the environment. 2. The conditional use will not be substantiallyinjurious to the use and enjoyment of other property in theimmediate vicinity for the purposes already permitted, norsubstantially diminish and impair property values within theneighborhood. 3. The establishment of the conditional use permit willnot substantially impede the normal an [sic] orderlydevelopment and improvement of the surrounding property foruses permitted in the district. 4. Adequate utilities, access roads, drainage, and/orother necessary facilities will be provided. 5. Adequate measures will be taken to provide ingress andegress so designed as to minimize traffic congestion in thepublic streets. 6. The applicant shall have one year from the date ofissuance to implement the conditional use or the permit shallbecome null and void. 7. If at any time after the conditional use has beenestablished, the use is discontinued for a period of one yearor more, the conditional use permit shall become null andvoid. 8. The conditional use shall, in all other respects,conform to the applicable regulations of the district in whichit is located. 9. Days and hours of operation for the trap Shooting Clubwill be Tuesday and Thursday from 5 p.m. to 9 p.m.; Saturdaysfrom 9 a.m. to 5 p.m. and Sundays from 1 p.m. to 6 p.m." During the fall of 1998, the range began operating and plaintiffs immediately became upset about the noise level. Afterseveral unsuccessful attempts at addressing the problem directlywith Hill, plaintiffs filed a request with the Board seeking tovoid the permit on the grounds that the original notice wasinadequate and, alternatively, to find the range in violation ofthe conditional use permit. In response to plaintiffs' request, the Board held hearingproceedings on February 24, 1999, and April 29, 1999. At theproceedings, the Board allowed testimony from plaintiffs and Hill and also accepted a packet of information from plaintiffscontaining various exhibits, maps, and opinions concerning theeffects of the range on plaintiffs' property. On May 11, 1999, theBoard ruled in favor of Hill and found the range to be incompliance with the terms of the conditional use permit. After the Board's May 11 ruling, plaintiffs filed anadministrative review action with the circuit court. On November11, 1999, the court remanded the matter to the Board. The courtdirected the Board to conduct a full hearing on the matter andgrant all interested parties an opportunity to testify. On remand, the Board held a hearing in compliance with thecourt's directive. At the conclusion of the evidence, the Boardfound Hill to be in compliance with the terms of the conditionaluse permit. The plaintiffs then filed another review action withthe circuit court. The court then remanded the matter to the Board withdirections to vote on specific questions regarding the Board'sconclusions. The four specific questions voted on by the Boardwere as follows: "(1) Is the establishment, maintenance, or operation ofthe conditional use substantially detrimental to, or does itsubstantially endanger the public health, safety, morals,comfort, general welfare or the environment? (2) Is the conditional use substantially injurious to theuse and enjoyment of other property in the immediate vicinityfor the purpose already permitted, or does it substantiallydiminish and impair values in the neighborhood? (3) Does the establishment of the conditional usesubstantially impede the normal or orderly development andimprovement of surrounding property for uses permitted in thedistrict? (4) Does the conditional use, in all other respects,conform to the applicable regulations of the district in whichit is located?" On each of the specific questions, the Board voted in favor of Hilland affirmed its earlier finding that Hill was in compliance withthe terms of the conditional use permit. In the court's October 16, 2001, memorandum opinion, it held,inter alia, that plaintiffs had waived their claim that the noticewas defective by failing to contest its adequacy within 35 days ofits issuance on August 12, 1998. The court further stated, "thisCourt cannot say the lack of the word trap shooting in the noticemakes it a sham or nullity." Then, on the matter of the proprietyof the Board's conclusions regarding Hill's compliance with thepermit, the court stated, "the Court rules that the actions of the[Board] were conducted in good faith and were not contrary to themanifest weight of the evidence. The decision of the [Board] isaffirmed." Following the court's ruling, plaintiffs promptly filedtheir notice of appeal. In a concurrent chancery action, on August 17, 1999,plaintiffs filed a complaint against Hill alleging that the firearmrange created a noise nuisance and posed substantial safetyconcerns. The action sought monetary damages and to enjoin Hill'soperation of the range. On May 12, 2000, the court granted Hillpartial summary judgment on the matter. The court dismissed theportions of plaintiffs' complaint that asserted the range createda noise nuisance. The dismissal was premised on the court'sfinding that section 5 of the Premises Liability Act (740 ILCS130/5 (West 2000)) barred any action against a firearm range basedon excessive sound emissions. Administrative Review On two separate occasions the Board affirmed its decision toallow Hill to continue the operation of his firearm range. Onreview, plaintiffs challenge the decisions of the Board. Theyassert that Hill violated the following conditions of his permit: "1. The establishment, maintenance, or operation of theconditional use will not be substantially detrimental to, orsubstantially endanger the public health, safety, morals,comfort, general welfare or the environment. 2. The conditional use will not be substantiallyinjurious to the use and enjoyment of other property in theimmediate vicinity for the purposes already permitted, norsubstantially diminish and impair property values within theneighborhood. 3. The establishment of the conditional use permit willnot substantially impede the normal an [sic] orderlydevelopment and improvement of the surrounding property foruses permitted in the district." As an initial matter, the parties dispute the proper standardof review. Plaintiffs maintain that our review should be de novobecause the facts are not in dispute and only one conclusion can bedrawn from them. We, however, do not accept that the facts areonly subject to one interpretation. The Administrative Review Law (735 ILCS 5/3-101 et seq. (West2000)) governs the review of all final decisions of a zoning boardof appeals. See Masterson v. Highlands, 188 Ill. 2d 546, 550(1999). Section 3-110 of the Administrative Review Law expresslyprovides that "[t]he findings and conclusions of the administrativeagency on questions of fact shall be held to be prima facie trueand correct." 735 ILCS 5/3-110 (West 2000). As the courtexplained in Hale v. First National Bank of Mount Prospect, 57 Ill.App. 3d 310, 314 (1978), "[o]n administrative review, the court'sfunction is limited to ascertaining if the findings and decision ofthe administrative agency are against the manifest weight of theevidence. [Citations.] If there is substantial competent evidenceto support an agency's action, the court will not disturb theagency's decision. [Citation.] Thus, a court will neithersubstitute its judgment for that of an administrative agency, noroverturn administrative findings unless they are withoutsubstantial foundation in the record." In the present case, wewill overturn the decisions of the Board only if they are againstthe manifest weight of the evidence. When a full hearing on the matter was held on January 26,2000, over 30 witnesses testified. Plaintiffs contend that "noneof the witnesses supporting the range's continued operationcontradicted the testimony that the Millers' property had lostvalue due to the presence of the shooting range, nor did theycounter the testimony from the Millers, Mohr, Mason, and Duree thatthe noise from the facility was interfering with the normal use oftheir property." Plaintiffs, fearing the consequences of anerrantly fired gun, further expressed concern that the rangeconstituted a serious safety hazard. However, several witnesses' testimony from the January 26hearing addressed the noise and safety concerns. John Sigler, arange patron, testified that in his opinion the noise created bythe range was not substantial. Robert Mathis, a neighbor who livesapproximately the same distance away from the range as plaintiffs,testified that the noise did not bother him. Jeff Parson, aneighbor with property bordering plaintiffs' property, stated that,while he could certainly hear the range, the noise was not loudenough to interfere with the enjoyment of his property. Inaddition, Don St. Clair, Fred Scope, and Wade Haynes, allexperienced hunters and frequent patrons of the range, opined thatthe range did not pose any safety concerns to plaintiffs and thatpatrons followed gun safety procedures. At the hearing, Hill failed to make a concerted effort torebut plaintiffs' submission of real estate appraisals opining adecrease in the marketability of the Millers' property. Nonetheless, a plaintiff to an administrative proceeding holds theburden of proof, and relief will be denied if he or she fails tosustain that burden. Iwanski v. Streamwood Police Pension Board,232 Ill. App. 3d 180, 184 (1992). Plaintiffs in their brief pointto the submission of two opinions from real estate appraisersstating that the firearm range negatively impacted themarketability of their property. While the appraisal letters opinea loss in market value, they lack detail. For instance, theappraisal letters do not provide dollar figures or conform with theusual standards for admission of appraisal evidence (see, e.g.,Department of Transportation v. Beeson, 137 Ill. App. 3d 908(1985)). Here, the Board was required to make a determination ifthe firearms range "substantially diminish[ed] and impair[ed]property values within the neighborhood." While plaintiffs assertthat they submitted uncontradicted evidence that the firearm rangedecreased the value of their property, we believe that theappraisal letters offered limited help to the Board in its quest todetermine if the firearm range "substantially diminish[ed] andimpair[ed] property values within the neighborhood." Moreover, the purpose of a conditional use permit is toprovide for infrequent types of land use which are necessary anddesirable, but which may be incompatible with the uses usuallypermitted in residential, commercial, and industrial zones. Pioneer Trust & Savings Bank v. County of McHenry, 89 Ill. App. 2d257, 264 (1967). The conditional use permit allows for a use thatotherwise might be prohibited in certain zones where the adverseeffect on the surrounding area is too great and public need for thespecific use at the particular location warrants it. Pioneer Trust& Savings Bank, 89 Ill. App. 2d at 264. In making itsdetermination concerning the grant of a conditional use permit, theBoard was not only considering plaintiffs' circumstances but theneeds of the whole community. "It [was] the Board's duty to weighthe evidence and 'there need only be some competent evidence in therecord to support its findings.' " Danko v. Board of Trustees ofthe City of Harvey Pension Board, 240 Ill. App. 3d 633, 645 (1992),quoting Hahn v. Police Pension Fund of the City of Woodstock, 138Ill. App. 3d 206, 207 (1985). We believe that the Board reasonablyconsidered the needs of the community and made a decision withinthe scope of its discretion that Hill's range did not violate theterms of the conditional use permit. In light of the properstandard of review, we believe that the decisions of the Board arenot against the manifest weight of the evidence. As an incidental matter, plaintiffs have requested that wefind Hill's conditional use permit void. They assert that thenotice for the initial hearing for the range was defective becauseit failed to specify that Hill sought to open a trapshooting range. Generally speaking, we would agree with plaintiffs that the failureto give proper notice constitutes a violation of due process andvoids a conditional use permit granted under the suspectproceedings. See, e.g., Grotto v. Little Friends, Inc., 104 Ill.App. 3d 105 (1982). However, the essence of due process is toensure parties a meaningful opportunity to present their case. Petersen v. Plan Comm'n of the City of Chicago, 302 Ill. App. 3d461, 466 (1998). Here, plaintiffs were given two subsequentopportunities to present their case. At the hearing on January 26,2000, over 30 witnesses were heard. In accordance with thedirections of the circuit court, plaintiffs received a complete andmeaningful opportunity to present their case. We believe by thispoint in the litigation of this case, the defective notice from thefirst proceeding has been rendered harmless. Chancery Action On August 17, 1999, plaintiffs filed a concurrent chanceryaction against Hill. Plaintiffs sought monetary damages and toenjoin Hill's operation of the firearm range on the basis that itcreated a noise nuisance and safety concern. The court dismissedthe portions of plaintiffs' complaint that alleged the firearmrange constituted a noise nuisance. The court held that a nuisanceaction based on the sound emissions created by a firearm range wasbarred by section 5 of the Premises Liability Act (740 ILCS 130/5(West 2000)). Plaintiffs argue that the court wrongly interpreted thestatute when it dismissed the portions of their complaint. Onappeal, the parties dispute the proper construction of section 5. Section 5 was added as an amendment to the Premises LiabilityAct (740 ILCS 130/1 et seq. (West 2000)) in 1994. It acts to limitthe liability imposed upon an owner or operator of a firearm rangefor sound emissions arising from the normal use of a firearm range. However, because of the absence of case law interpreting section 5,the scope of immunity available to an owner or operator is indispute. Thus, we are left to determine the scope of immunityavailable under section 5. More precisely stated, we mustdetermine if section 5 bars a court from enjoining an owner oroperator of a firearm range for emitting excessive sound. Section5 reads as follows: "Firearm ranges; liability. (a) As used in this Section, firearm range means arifle, pistol, silhouette, skeet, trap, black powder, or othersimilar range in this State used for discharging firearms ina sporting event, for practice or instruction in the use of afirearm, or for the testing of a firearm. 'Firearm range' alsoincludes licensed shooting preserves and public hunting areasoperated or licensed by the Department of Natural Resources. (c) An owner or operator of a firearm range placed inoperation after January 1, 1994, is immune from any criminalliability and is not subject to any action for public orprivate nuisance or trespass arising out of or as aconsequence of noise or sound emissions resulting from thenormal use of the firearm range, if the firearm range conformsto any one of the following requirements: In the present case, because Hill's range did not beginoperation until 1998, section 5(c) is the applicable section forconsideration. 740 ILCS 130/5(c) (West 2000). Plaintiffs arguethat section 5(c) does not preclude a court from issuing aninjunction. In making this argument, plaintiffs look to section5(b), which states in part, "An owner or operator of a firearmrange is not subject to any action for public or private nuisanceor trespass and no court in this State shall enjoin the use oroperation of a firearm range ***." (Emphasis added.) 740 ILCS130/5(b) (West 2000). Plaintiffs maintain that this portion ofsection 5(b) serves to define the phrase "any action" as excludingan action seeking an injunction. Thus, when section 5(c) repeatsthe same language, "[an owner or operator] is not subject to anyaction for public or private nuisance or trespass," withoutincluding the phrase from section 5(b) that states "no court inthis State shall enjoin," it results in the conclusion that section5(c) does not provide immunity from a court-issued injunction. (Emphasis added.) 740 ILCS 130/5(c). In rebuttal, Hill argues that the plain language of section5(c) provides that an owner or operator is immune from "any action"for nuisance or trespass arising from sound emissions. He statesthat the language of section 5(c) is clear and does not require asearch beyond its own words to properly give it meaning. Hemaintains that the language from section 5(b) stating "no court inthis State shall enjoin" only acts to overrule old case law thatpermitted injunctions under similar circumstances. Thus, in no waywas this language intended to exclude injunctive relief fromfalling within the ambit of the phrase "any action" from section5(c). We agree with Hill on this matter. Our review of statutory construction is de novo. Davis v.Toshiba Machine Co., America, 186 Ill. 2d 181, 183 (1999). Wefirst attempt to give effect to the legislative intent by lookingat the plain language of the statute. Davis, 186 Ill. 2d at 184. If the plain language is clear, the court need not delve into therules of statutory construction. Davis, 186 Ill. 2d at 184.Moreover, " '[w]here the language of a statute is clear andunambiguous, a court must give it effect as written, without"reading into it exceptions, limitations or conditions that thelegislature did not express." ' " Davis, 186 Ill. 2d at 184-85,quoting Garza v. Navistar International Transportation Corp., 172Ill. 2d 373, 378 (1996), quoting Solich v. George & Anna PortesCancer Prevention Center of Chicago, Inc., 158 Ill. 2d 76, 83(1994). "It is not within the province of an administrative agencyor court to take from or enlarge the meaning of a statute byreading into it language which will, in the opinion of either,correct any supposed omissions or defects." American SteelFoundries v. Gordon, 404 Ill. 174, 180-81 (1949). Here, plaintiff would have us infer from section 5(c) ameaning that would allow a court to enter an injunction against afirearm range owner or operator. Such a reading of section 5(c) iscontrary to its plain meaning and legislative intent. Clearly, the"any action" language of section 5(c) does not make any exceptionsfor a nuisance suit for injunctive relief or any other particularform of relief. Rather, section 5(c) provides for broad immunityfrom "any action for public or private nuisance or trespass." 740ILCS 130/5(c) (West 2000). While plaintiffs argue that the phrase "any action" is definedin section 5(b) as excluding injunctive relief, we believe that thephrase "no court in this State shall enjoin the use" is actually aconsequential statement. The phrase serves to limit the effect ofcase law applicable to firearm ranges that was in existence at thetime of the enactment of the statute. Thus, we conclude thatsection 5(c) does bar an action seeking injunctive relief. However, we also note that section 5(c) does not grantabsolute immunity. First, it applies only to nuisance or trespassfrom sound emissions. 740 ILCS 130/5(c) (West 2000). Second, theowner or operator must meet one of the section 5(c) requirements toqualify for its protections. 740 ILCS 130/5(c) (West 2000). Finally, section 5(c) protects only firearm ranges operating withinnormal use. 740 ILCS 130/5(c) (West 2000). For these reasons, weaffirm the circuit court's interpretation of section 5(c). Next, plaintiffs assert that Hill has waived his right toimmunity under section 5 by agreeing to comply with the conditionsset forth by the Board. We find this argument is without merit andcontrary to language of section 5(c). Section 5(c) expresslymandates that a firearm range must conform to one of therequirements of the statute before an owner or operator gains itsprotection. Under section 5(c)(3) (740 ILCS 130/5(c)(3) (West2000)), a person qualifies for immunity if his firearm range is incompliance with the requirements of the local zoning authority. Inthe present case, Hill has gained the protection of section 5because he is compliant with the local zoning authority. Thus, tosuggest that Hill somehow waives his immunity by complying with thevery same statute that grants the immunity is obviously a flawedargument. As a final matter, plaintiffs contend that section 5 isunconstitutional. First, they assert it violates the Illinoisconstitutional requirement of a separation of powers between thelegislative branch of government and the judicial branch ofgovernment. Second, they maintain it violates their right to equalprotection under the law. In making their assertion that section 5 violates the IllinoisConstitution's separation of powers principles, plaintiffs cite the1970 Illinois Constitution, which provides, in part, that "[e]veryperson shall find a certain remedy in the laws for all injuries andwrongs which he receives to his person, privacy, property orreputation." Ill. Const. 1970, art. I, |
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