THIRD DIVISION

										May 8, 2002

No. 1-01-3110

CITY OF BURBANK,				)	Appeal from the 

a municipal corporation			)  	Circuit Court of 

							)	Cook County.

	Plaintiff-Appellant,		)  	

							)

		v.					)	

							)

JAN CZAJA, ZOFIA CZAJA, LUDWINA 	)	

CZAJA, and PNC MORTGAGE CORP. 	)

OF AMERICA,					)	The Honorable

							)	James F. Stack,

	Defendants-Appellees.		)	Judge Presiding.

	JUSTICE WOLFSON delivered the opinion of the court:

	Some pigeons race.  Some fly away and come home again.  Some

simply hang around and leave a mess.  The city of Burbank is not

fond of any pigeons who live in residential areas.  It passed one

ordinance that prohibited the raising of pigeons in residential

areas and another that excluded pigeon-raising as a proper

residential use.  On the other hand, the legislature for several

years created a safe roost for carrier pigeons, later lifting

that protection for pigeons who nest in Cook County.

	The feathers began flying in this case when Burbank

attempted to enforce its ordinance to stop Jan, Zofia, and

Ludwina Czaja (the "Czajas") from raising carrier pigeons on

their residential property.  It filed a lawsuit against the

Czajas, alleging in its first amended complaint that the Czajas had converted a garage on their residential property into a

pigeon coop and were raising pigeons in violation of city

ordinances.

	In their motion to dismiss, the Czajas contended there are

no such ordinances, that State law had repealed them.  Burbank

responded of course there are, they were lying dormant and were

brought back to life in August of 1996.  The trial court granted

the motion to dismiss.  We agree with Burbank.

	For that reason, we reverse the trial court's order granting

the Czajas' motion to dismiss and we remand this cause for

further proceedings.

FACTS

	Because the trial court dismissed Burbank's first amended

complaint after the Czajas brought a motion to strike and

dismiss, we take the following facts from that complaint and

accept them as true for the purpose of this appeal.  The facts

are not in dispute.

HISTORY OF STATUTES & ORDINANCES

	The City of Burbank is a home rule municipal corporation

located in Cook County, Illinois.  In 1972, Burbank adopted

section 7-101 of the Municipal Code of the City of Burbank.  That

section prohibited the raising of pigeons and other poultry for

domestic purposes:

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

prohibited.

	It shall be unlawful to keep, raise, sell, or offer for

sale, barter, or give away live baby chicks, ducklings,

goslings, pigeons, fowl or other poultry, domestic or otherwise, in the city except in stores or other commercial

establishments engaged in the business of selling baby

chicks, ducklings, goslings, pigeons, fowl or other poultry for commercial purposes, and not less than six (6) of each

of the aforementioned variety shall be sold to any one

person.  It shall by unlawful to raise for home or domestic

purposes poultry of any kind.  (Ord. No. 1-11-16-72, § 4-

10)."  (Emphasis added.)

	On July 1, 1985, the Carrier and Racing Pigeon Act of 1984

(the "Act of 1984") (510 ILCS 45/1 et seq. (West 1994)) was enacted.  Section 7 of the Act of 1984 said, "A municipality or

county shall not enact an ordinance which prohibits the orderly

keeping of carrier pigeons."  (Emphasis added.)  510 ILCS 45/7

(West 1994).  "Carrier pigeons" were defined as racing or homing

pigeons.  510 ILCS 45/2(a) (West 1994).

	Section 8 of the Act of 1984 said, "This Act applies to all

municipalities and counties and pursuant to paragraph (i) of

section 6 of article VII of the Illinois Constitution, this Act

is a limitation upon the power of home rule units to enact

ordinances contrary to this Act."  510 ILCS 45/8 (West 1994).

	Effective July 27, 1993, the Act of 1984 was amended -- no

changes relevant to this appeal were made.  The Act's new title

was the "Carrier, Racing, Hobby, and Show Pigeon Act of 1993"

(the "Act of 1993").  See 510 ILCS 45/1 et seq. (West 1998).

	On March 27, 1996, Burbank adopted the Burbank Zoning Code.

It comprehensively amended the prior zoning laws of the City of

Burbank -- previously known as the City of Burbank Zoning Ordinance of 1971.  Section 5-4 of the Burbank Zoning Code

provides for the allowed uses of property located in a single

family residence district:

	"Sec. 5-4		R-1 Single Family Residence District

					A.	Permitted Uses.  The following uses and no others are permitted as of right in the 'R-1'

Single Family District.

			1.	Single-family detached dwellings.

			2.	Public libraries.

					3.	Public and private elementary and high schools, not including preschool, nursery

schools or daycare facilities.

					4.	Public parks and recreational facilities.

					5.	Municipal-owned facilities.

					6.	Small community residences provided that they are located not less than 1,000 feet from

another community residence.

					7.	One garage and one storage shed per zoning lot, and the storage shedetdDet must be located to

the rear of the principal structure on the

zoning lot.

					8.	Home occupations."

	Effective August 14, 1996, the Act of 1993 was amended (the

"1996 Amendment") to allow certain municipalities to prohibit or

regulate the orderly keeping of certain pigeons:

					"45/7.	Ordinances

	§ 7.  A municipality located in a county with fewer than

3,000,000 inhabitants or a county shall not enact an

ordinance which prohibits the orderly keeping of carrier

pigeons, hobby, or show pigeons, except that any municipality located within a county having 3,000,000 or

more inhabitants may enact an ordinance to prohibit or regulate the orderly keeping of carrier, racing, hobby, or

show pigeons."  (Emphasis added.)  510 ILCS 45/7 (West 1998).

	The City of Burbank is located in Cook County -- a county

having 3 million or more inhabitants.

	Burbank concedes the Acts of 1984 and 1993 stopped it from

using section 7-101 of its municipal code or section 5-4(A) of

its zoning code to prohibit or regulate the keeping of carrier

pigeons on residential property -- before August 14, 1996.

BURBANK v. CZAJA

	In November 2000, Burbank sought to enforce section 5-4(A)

and section 7-101.  Specifically, Burbank sought, under the 1996

Amendment and under sections 5-4(A) and 7-101, to prohibit the

orderly keeping of all pigeons in residential areas.

	On November 20, 2000, Burbank filed its first amended

complaint, seeking a fine, an injunction, and other relief

against the Czajas for converting a detached garage on their

residential property into a pigeon coop, and for raising pigeons

in it, in violation of section 5-4(A) of the Burbank Zoning Code

and section 7-101 of the Municipal Code of the City of Burbank. 

The violations were alleged to have occurred on and after May 14,

1999.

	Burbank and the Czajas agree the pigeons the Czajas are

raising, and which Burbank seeks to prohibit them from raising,

are, in fact, carrier or racing pigeons as defined by the Act of

1993.  See 510 ILCS 45/2 (West 1998).

	In January 2001, the Czajas filed a motion to strike and

dismiss Burbank's first amended complaint.  They contended

Burbank could not enforce its ordinances against them because the

Acts of 1984 and 1993 repealed section 7-101 and prohibited use

of section 5-4(A) of the zoning ordinance to bar the raising of

pigeons.  The Czajas added that the 1996 Amendment, which removed

Cook County municipalities from the Act, did not allow Burbank to

enforce its ordinances because the ordinances were enacted before

the 1996 Amendment.  The 1996 Amendment did not "revive"

Burbank's ordinances after they were made unenforceable by the

Act of 1993, say the Czajas.

	In July 2001, the trial court granted the Czajas' motion to

strike and dismiss Burbank's first amended complaint.  This

appeal followed.

DECISION

	Burbank contends the trial court should not have dismissed

its suit to enforce its municipal and zoning ordinances.

STANDARD OF REVIEW

	A motion to dismiss brought under section 2-615 of the Code

of Civil Procedure (the "Code") (735 ILCS 5/2-615 (West 1998))

attacks the legal sufficiency of a complaint.  Lewis E. v. Spagnolo, 186 Ill. 2d 198, 710 N.E.2d 798 (1999). 

	We note the Czajas' motion to dismiss should have been

brought under section 2-619 of the Code (735 ILCS 5/2-619 (West

1998)).  That is because the Czajas rely on an "affirmative matter" -- the Acts of 1984 and 1993 -- to defeat Burbank's

claims.

	"A section 2-619 motion to dismiss admits the legal

sufficiency of the complaint, but asserts an affirmative defense

or other matter which avoids or defeats the claim."  Cosman v. Ford Motor Company, 285 Ill. App. 3d 250, 254, 674 N.E.2d 61 (1996), citing Joseph v. Collis, 272 Ill. App. 3d 200, 206, 649 N.E.2d 964 (1995). 

	We have held, however, "[d]esignating a motion under a

different paragraph of the Code is not fatal."  Cosman, 285 Ill. App. 3d at 254.  Burbank concedes it has not been prejudiced by

this error.  Thus, we treat the motion to dismiss as if it had

been filed under section 2-619 of the Code.  See Cosman, 285 Ill. App. 3d at 254.  

	Our review is de novo.  Vernon v. Schuster, 179 Ill. 2d 338, 344, 688 N.E.2d 1172 (1997).  

HOME RULE

	We are asked to determine whether and to what extent

Burbank's ordinances were affected by the legislature's enactment

of the Acts of 1984 and 1993 and of the 1996 Amendment.

	Construction of statutes requires identification of

legislative intent and the effect it should be given.  Crawford v. City of Chicago, 304 Ill. App. 3d 818, 823, 710 N.E.2d 91 (1999).  Legislative intent is ascertained by examining the

statute's language and considering each section in connection with every other section.  Crawford, 304 Ill. App. 3d at 823.  

	The most reliable indicator of legislative intent is the

statute's language.  Where it is clear and unambiguous, the plain

and ordinary meaning of the words will be given effect. 

Crawford, 304 Ill. App. 3d at 823.  The rules that govern the construction of statutes are also applied in the construction of

municipal ordinances.  Crawford, 304 Ill. App. 3d at 823.  

	The powers of home rule municipalities, those municipalities

with a population greater than 25,000, are derived from article

VII, section 6(a), of the Illinois Constitution of 1970: 

	"[A] home rule unit may exercise any power and perform any

function pertaining to its government and affairs including,

but not limited to, the power to regulate for protection of

the public health, safety, morals and welfare; to license;

to tax; and to incur debt."  Ill. Const. 1970, art. VII,

§6(a).

	"Home rule units are empowered to carry on activities that

relate to their communities ***."  Crawford, 304 Ill. App. 3d at 825.  The "powers and functions of home rule units shall be

construed liberally."  Ill. Const. 1970, art. VII, §6(m). 

Section 6(a) gives them "the broadest powers possible."  Scadron v. City of Des Plaines, 153 Ill. 2d 164, 174-75, 606 N.E.2d 1154 (1992).  

	Because the grant of home rule power is "broad and

imprecise" (Scadron, 153 Ill. 2d at 174), it imposes on the courts the duty of interpreting whether any power exercised by a

home rule unit exceeds its constitutional limitations (Crawford, 304 Ill. App. 3d at 825).

SECTION 7-101

	The parties agree that before the Act of 1984, Burbank had

the authority under its home rule powers to enact local zoning

ordinances prohibiting "Keeping, raising, selling live poultry." 

That is, Burbank had the authority to enact section 7-101, which,

among other things, made it "unlawful to keep, raise, sell, or

offer for sale, barter, or give away *** pigeons *** in the city

except in stores or other commercial establishments engaged in

the business of selling *** pigeons *** for commercial purposes

***."

	Before the Act of 1984, Burbank had the power to enact

section 7-101 under article VII, section 6(a), of the Illinois

Constitution of 1970.  Accord City of Desplaines v. Gacs, 65 Ill. App. 3d 44, 382 N.E.2d 402 (1978) (a city ordinance enacted to

protect the health and safety of its citizens by prohibiting the

raising of pigeons was presumptively valid).

	After July 1, 1985 (the effective date of the 1984 Act),

Burbank could not use the provisions of its Zoning Code to

prohibit or to regulate the keeping of carrier pigeons on

residential property.  The Act did not affect Burbank's power to

prohibit or to regulate "baby chicks, ducklings, goslings, ***

fowl or other poultry, domestic or otherwise."

	"The General Assembly can expressly limit the exercise of

home rule power."  Schillerstrom Homes, Inc. v. City of Naperville, 198 Ill. 2d 281, 762 N.E.2d 494 (2001), citing Ill. Const. 1970, art. VII, §6(h) ("The General Assembly may provide

specifically by law for the exclusive exercise by the State of

any power or function of a home rule unit").  

	To limit home rule powers, the legislature must specifically

say the "statute constitutes a limitation on home rule units'

power to enact ordinances that are contrary to or inconsistent

with the statute."  City of Chicago v. Roman, 184 Ill. 2d 504, 519-20, 705 N.E.2d 81 (1998).  Section 8 of the Act of 1984 did

that.  See 510 ILCS 45/8 (West 1994) entitled "Limitation on home

rule units."

	Against this background, we turn to the Czajas' first

contention: any authority granted by Burbank's home rule powers

to enact section 7-101 was repealed by implication when the

legislature enacted section 7 of the Act of 1984, and the

amendment in 1993.  Section 7-101 was void ab initio, say the Czajas.  After the 1996 Amendment, Burbank should have reenacted

section 7-101.  

	Maybe Burbank should have, but we find it did not have to. 

In Lily Lake Road Defenders, et al., v. County of McHenry, 156 Ill. 2d 1, 619 N.E.2d 137 (1993), the supreme court clarified the

doctrines of repeal by implication and of preemption:

	"The doctrine of repeal by implication is applied when two enactments of the same legislative body are irreconcilable ('horizontal inconsistency').  A statute which is repealed

by implication is legally eliminated.  Repeal of the

repealing statute does not revive the repealed law. 

([Citation omitted.])  The legislature must expressly

reenact a statute which has been repealed by implication to

render it valid and enforceable again.

		The doctrine of preemption, on the other hand, is

applied where enactments of two unequal legislative bodies

(e.g., Federal and State) are inconsistent.  Where a statute

is preempted, there is no repeal of that statute.  Rather,

the subordinate legislative body's enactment is suspended

and rendered unenforceable by the existence of the superior

legislative body's enactment.  This being so, the repeal of

the preempting statute revives or reinstates the preempted

statute without express reenactment by the legislature.

[Citation omitted.]"  156 Ill. 2d at 8.

	In Lily Lake, the supreme court reversed the trial court's holding that the Illinois Environmental Protection Act (the IEPA)

(Ill. Rev. Stat. 1987, ch. 1111/2, par. 1001 et seq.) repealed the County Zoning Act of 1935 (the Zoning Act) (Ill. Rev. Stat.

1979, ch. 34, par. 3151 et seq.) by implication, and held McHenry county (a non-home-rule unit) possessed the authority to regulate

by ordinance.  156 Ill. 2d at 12. 

	The court found the legislature did not intend to repeal the Zoning Act by implication when it enacted the IEPA.  Lily Lake, 156 Ill. 2d at 9.  The court said: 

	"[W]here a particular local zoning ordinance (as opposed to

the legislature's Zoning Act) purportedly interfered with

the legislative purpose of establishing a statewide

environmental program, this court has held that the IEPA

preempted the ordinance and rendered the ordinance unenforceable against a facility which had acquired a permit

pursuant to the IEPA."  (Emphasis in original.)  Lily Lake, 156 Ill. 2d at 12.

	"[R]epeals by implication are not favored," said the court. 

Lily Lake, 156 Ill. 2d at 9.

	Burbank's enactment of section 7-101 and the legislature's

enactment of the 1984 Act are not "two enactments of the same

legislative body."  Burbank's ordinances and the legislature's

Act are enactments of two unequal legislative bodies -- Burbank

being the subordinate legislative body.  See Ill. Const. 1970,

art. VII, §§6(g) and 6(h) (sections 6(g) and 6(h) provide the

exclusive methods by which the legislature may preempt a home

rule power).

	Under the Act of 1984, a home rule municipality could have

enacted ordinances which relate to the construction and

maintenance of a pigeon loft (510 ILCS 45/3 (West 1994)) or to

the issuance of a carrier pigeon permit (510 ILCS 45/4 (West

1994)), but it could not have enacted ordinances which prohibit the orderly keeping of carrier pigeons (510 ILCS 45/7 (West

1994)). 

	Because section 7-101 embraced more than carrier pigeons,

the Act did not affect Burbank's power under section 7-101 to

prohibit or to regulate "the keep[ing], rais[ing], sell[ing], or

offer[ing] for sale, barter, or give away live baby chicks,

ducklings, goslings, *** fowl or other poultry, domestic or

otherwise."  In House debate on the Act of 1984, Representative

Giorgi said: 

	"Now this bill only applies to carrier pigeons or racing

pigeons.  The zoning laws of a local municipality will

prevail.  The building restrictions of a local municipality

will prevail.  The Health Department restrictions will

prevail.  ***.  You can get rid of those pigeons that are

nuisances.  In this case, we're only trying to ask you to

recognize pigeons that are raised by people that take pride

in their sport, and are expensive birds and are accepted by

communities all over the country ***."  83rd Ill. Gen.

Assem., House Proceedings, May 10, 1984, at 123-24. 

	Certainly, the House of Representatives understood it was

enacting a preemption statute.  When the question was put to the

House on May 10, 1984, Speaker Greiman said:

	"I am advised that this Bill will require an extraordinary

majority because it preempts the power of a home rule community.  The question is, 'Shall this Bill pass?' " (Emphasis added.)  83rd Ill. Gen. Assem., House Proceedings,

May 10, 1984, at 124.

The Bill passed. 

	We are willing to say the Acts of 1984 and 1993 preempted

Burbank's authority to enforce its 1972 ordinance prohibiting the

raising and keeping of carrier pigeons.  But that is far

different from saying the City's 1972 ordinance somehow became

void and nonexistent.  It became dormant; it was not repealed. 

That is what preemption does:

	"An ordinance which is preempted is not null and void.  

Instead, the preempted ordinance is simply suspended or

rendered unenforceable as long as the conflicting

legislation of a superior legislative body remains in

effect.  Repeal of the preempting legislation, however,

revives or reinstates the preempted legislation without

express reenactment.  ([Citation omitted.])."  Lily Lake, 156 Ill. 2d at 15.

	Section 7-101 was enacted before the Act of 1984.  Section

7-101 was valid when enacted, and the legislature did not

specifically repeal any existing ordinance that, among other

things, prohibited the raising of carrier pigeons.  

	In short, preemption is not a declaration that the

preexisting ordinance is repealed.  It is a declaration that it

cannot be enforced.  That is what Lily Lake says -- "where a statute is preempted, there is no repeal of that statute."  156 Ill. 2d at 8.  It follows then, as said in Lily Lake, "repeal of the preempting statute [Acts of 1984 and 1993] revives or

reinstates the preempted statute without express reenactment by

the legislature."  156 Ill. 2d at 8.

	We take the clear words of the Acts of 1984 and 1993.  They

command that a "county shall not enact an ordinance which

prohibits the orderly keeping of carrier pigeons."  510 ILCS 45/7

(West 1994).  Once the Act of 1984 was enacted, Burbank did not

violate the prohibition.  Nor did it attempt to enforce section

7-101.  Instead, Burbank allowed section 7-101 to lie dormant,

like Dr. Frankenstein's creature, awaiting the legislative

lightning charge that would bring the ordinance to life.

	The preemption was lifted on August 14, 1996, when the

legislature amended the statute to permit cities like Burbank to

prohibit or regulate the orderly keeping of pigeons.  See 510

ILCS 45/7 (West 1998).

	When this amendment went into effect, municipalities located

in a county having at least 3 million inhabitants had the

authority to regulate the orderly keeping of all pigeons

concurrently with the State.  Thus, as Burbank contends, section

7-101 was valid and enforceable after August 14, 1996.  It was

enforceable against the Czajas in 1999.

	The Czajas did not convert their detached garage into a

pigeon coop, and raise pigeons in it, until May, 14, 1999.  This

was after all of section 7-101 once again became enforceable.  The Czajas were obligated to comply with that ordinance and to

maintain their residence in accord with the procedures set forth

in the ordinance.

SECTION 5-4(A)

	The parties agree Burbank had the authority under its home

rule powers to enact section 5-4(A), which listed the exclusive

uses Burbank permitted as of right in "R-1" Single Family

Districts.  

	They disagree as to whether section 5-4(A) of the Burbank

Municipal Code can be construed to prohibit or to regulate the

orderly keeping of carrier pigeons.  Although Burbank enacted

section 5-4(A) after the Act of 1993, Burbank did so before the

Act was amended on August 14, 1996.  The Czajas say the ordinance

cannot be construed to prohibit the use and keeping of racing

pigeons.  We do not understand the Czajas to say the entire

zoning ordinance was void on arrival.

	Generally, a zoning ordinance that specifies numerous

permissible uses, and which was intended to be specific with

respect to such uses, will be construed to prohibit uses not

otherwise specified in the ordinance.  Dottie Dress Shop, Inc. v. Village of Lyons, 313 Ill. App. 3d 70, 74, 729 N.E.2d 1 (2000); see also Williams v. City of Bloomington, McLean County, 108 Ill. App. 2d 307, 311, 247 N.E.2d 446 (19692000) ("If such and such a use

is not set forth, it is prohibited.  The express uses, of course,

must be read to include reasonably implied ones.")

	We do not believe section 5-4(A) of the Burbank Zoning Code,

enacted on March 27, 1996, violated the prohibition contained in

the Acts of 1984 and 1993.  True, raising carrier pigeons was not

a permitted use in residential areas, but the ordinance never was

used to ban the raising of carrier pigeons.  That self-restraint

by Burbank satisfied the statutes.

	The preemption was lifted in 1996 when the legislature

amended section 7 of the Act to specifically permit eligible

municipalities, like Burbank, to prohibit or regulate the orderly

keeping of pigeons.  Thus, after August 14, 1996, Burbank could

use section 5-4(A) to prohibit the orderly keeping of carrier

pigeons because it was not listed as a permitted use of a single

family residence.  See Williams, 108 Ill. App. 2d at 311.

CONCLUSION

	We reverse the trial court's order dismissing plaintiff's

first amended complaint with prejudice.  We remand this case for

further proceedings consistent with this opinion.

	Reversed and remanded.

	HALL, P.J., and SOUTH, J., concur.