No. 2--01--1387

_________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

_________________________________________________________________

		WILLIAM P. GALLIK and		)  Appeal from the Circuit

CHRISTINE E. MARTIN-GALLIK,		)  Court of Lake County.

		)

	Plaintiffs-Appellants,		)	

		)

v.		)  No. 01--MR--661	

		)

THE COUNTY OF LAKE; SUZI SCHMIDT	)

Indiv. and as Chairman of the	 	) 

Lake County Board; JUDI MARTINI,	)	

Indiv. and as Vice Chairman			)	

of the Lake County Board;	  	) 

LORETTA McCARLEY, BRENT PAXTON,	 	) 

BONNIE THOMSON CARTER, LARRY    	)

LEAFBLAD, AL WESTERMAN, ROBERT  	)

SABONJIAN, PEGGY SHORTS, DIANA	 	) 

O'KELLY, SANDY COLE, ANGELO	 	) 

D. KYLE, JOHN SCHULIEN, AUDREY		)

NIXON, CAROL CALABRESA, MARY		)

BEATTIE, STEVENSON MOUNTSIER,		)

PAMELA O. NEWTON, MICHAEL 		)

TALBETT, DAVID B. STOLMAN,		)

MARTHA MARKS, CAROL SPIELMAN,		)

ROBERT BUHAI, Each Indiv. and		)

as a Lake	County Board Member;		) 

and PHILIP ROVANG, Director,		)

Lake County Planning,	 	) 

Building, and Development,		)

		)

	Defendants-Appellees.		)

		)

(The Township of Cuba; David F.	 	) 

Nelson, Cuba Township Supervisor;	 	) 

the Cuba Township Road District,	 	) 

Kermit Smiddy, Indiv. amnd as Cuba	)

Township Highway Commissioner;	 	) 

and Thomas W. Gooch III, Indiv.	 	)  Honorable

and as Acting Cuba Township Highway Highway		)  Stephen E. Walter,	

Commissioner, Defendants).		)  Judge, POresiding.				

_________________________________________________________________

	JUSTICE O’MALLEY delivered the opinion of the court:

	Plaintiffs, William P. Gallik and Christine E. Martin-Gallik, own real estate in an unincorporated portion of Lake County. 

Plaintiffs wished to construct a single-family residence on their

land.  Owing to the fact that their land is partially located in a

floodplain, in order to construct their home, plaintiffs were

required to obtain a conditional use permit from defendant Lake

County (County) so that they could fill in the floodplain.  None of

the agencies charged with overseeing such matters (Army Corps of

Engineers, Lake County Stormwater Management Agency, Lake County

Health Department, Lake County Planning and Development Department)

voiced any objections to plaintiffs’ plan to fill in the floodplain

portion of their property and construct their residence.

	As part of the approval process, plaintiffs were required to

submit their application for a conditional use permit to the Lake

County zoning board of appeals.  After a hearing on plaintiffs’

application, the zoning board of appeals recommended that it be

denied.  Plaintiffs’ application made its way to the Lake County

board for final action, and the board denied it.  

	On July 16, 2001, plaintiffs filed an eight-count complaint

against the County, challenging the Lake County board’s denial of

their conditional use permit.  Count I of the complaint sought

administrative review (see 735 ILCS 5/3--101 et seq. (West 2000)) of the Lake County board’s denial of plaintiffs’ application for a

conditional use permit.  The County filed a motion to dismiss and,

after briefing, the trial court granted the County’s motion and

dismissed count I of the complaint.  Pursuant to Supreme Court Rule

308 (155 Ill. 2d R. 308), the trial court certified a question for appellate review and plaintiffs requested leave to appeal the

certified question.  This court denied plaintiffs’ application for

leave to appeal.  On April 3, 2002, our supreme court entered a

supervisory order directing this court to consider plaintiffs’

certified question.

	The certified question we are called upon to answer is:

	"Whether the Illinois Administrative Review Act, 735 ILCS

§5/3--101 et seq., is applicable for judicial review of County

of Lake’s denial of Plaintiff’s [sic] conditional use application in this case, or whether the dismissal of Count I

of the Complaint is warranted because the denial of a

conditional use permit is a legislative action of the County

Board so a declaratory judgment action is the appropriate

avenue of review."

	The supreme court discussed this issue recently in City of Chicago Heights v. Living Word Outreach Full Gospel Church &

Ministries, Inc., 196 Ill. 2d 1 (2002).  There, the court noted that the weight of authority throughout the country suggests that

a legislative body acts administratively when it rules on an

application for a special use permit.  Living Word, 196 Ill. 2d at 14.  The court also noted, however, that Illinois had repeatedly

viewed such a decision to be a legislative act rather than an

administrative act (Living Word, 196 Ill. 2d at 14), although some of those decisions had been criticized (Living Word, 196 Ill. 2d at 15).  The characterization of the type of act undertaken by the

legislative body controls the type of review to which that act is

subject.  If it is an administrative act, it will be subject to administrative review pursuant to the Administrative Review Law

(735 ILCS 5/3--101 et seq. (West 2000)); if it is a legislative act, it is not subject to administrative review, but the action

will be reviewed for arbitrariness as a matter of substantive due

process.  Living Word, 196 Ill. 2d at 14.  Having set the stage, the court decided that Living Word did not present the issue squarely and left the issue unresolved, necessarily, therefore,

leaving intact the line of cases holding that a ruling on a

conditional use permit by a county or municipality is a legislative

act.  Living Word, 196 Ill. 2d at 16.

	Very recently (and after the parties briefed this case), the

supreme court addressed this issue in People ex rel. Klaeren v. Village of Lisle, No. 90537 (October 18, 2002).  There the supreme court resolved the issue it had left open in Living Word, holding that "municipal bodies act in administrative or quasi-judicial

capacities when those bodies conduct zoning hearings concerning a

special use petition.  ***  To the extent any prior decisions of

this court hold the contrary to be true, we now expressly overrule

those decisions."  Klaeren, slip op. at 16.

	The supreme court would appear to have answered the certified

question.  The only remaining issue we can see is whether that

answer, which has been supplied only in cases involving the

Illinois Municipal Code (65 ILCS 5/1--1--1 et seq. (West 2000)), also applies to the Counties Code (55 ILCS 5/1--1001 et seq. (West 2000)).

	Counties have long had the power to grant special uses.  In

Kotrich v. County of Du Page, 19 Ill. 2d 181 (1960), the court held that the granting of special use permits was within a county’s

general zoning power.  Chief Justice House dissented because there

was no specific statutory authorization regarding special uses and

no standards pertaining to the granting of special uses had been

promulgated.  Kotrich, 19 Ill. 2d at 189-90 (House, C.J., dissenting).  

	Chief Justice House’s concerns were reiterated and expanded in

Ward v. Village of Skokie, 26 Ill. 2d 415 (1962).  There, Justice Klingbiel stated, in his special concurrence:

		"It is not a part of the legislative function to grant

permits, make special exceptions, or decide particular cases. 

Such activities are not legislative but administrative, quasi-

judicial, or judicial in character.  To place them in the

hands of legislative bodies, whose acts as such are not

judicially reviewable, is to open the door completely to

arbitrary government.  I need not dwell at length on the

obvious opportunity this affords for special privilege, for

the granting of favors to political friends or financial

benefactors, for the withholding of permits from those not in

the good graces of the authorities, and so on.  The rule is

familiar enough that courts may not inquire into the motives

or reasons on which the legislative body acted. [Citation.]

		It is because of this immunity from review that

legislative bodies must confine themselves to the prescribing

of general rules.  If they may undertake to confer upon

themselves authority to decide what in fact amount to individual or particular cases, the foundations of our legal

system will fast disappear.

		*** Legislation is essentially prohibitory, operating by

laying down general rules.  It does not consist in the

permitting of conduct or the granting of individual relief.  Legislative bodies are not equipped, except in a very broad

and general way, to ascertain factual questions which depend

upon evidence of individual circumstances.  Their function is

not to grant permits but to say what facts and conditions

should warrant the granting of permits. [Citation.]

		What is an application for special permit but a

particular case?  The granting or refusal of the permit does

not lay down a rule or prescribe any conditions.  It is simply

a decision on a concrete set of facts, affecting the property

of particular parties only.  It is the nature of the

proceeding, not the identity of the body assuming to act in

the matter, which should determine the necessity for

standards.  Otherwise basic constitutional protections can

readily be circumvented by the simple expedient of placing

quasi-judicial functions in a legislative body."  (Emphasis in

original.) Ward, 26 Ill. 2d at 424-25 (Klingbiel, J., specially concurring).

	Responding to the concerns raised by Justices House and

Klingbiel, the legislature amended the Municipal Code in 1967 and

1969 to include provisions applying specifically to special uses

and requiring factual findings to be promulgated regarding the

decision on the special use.  See 65 ILCS 5/11--13--1.1, 11--13--11 (West 2000).  This court held that the legislative amendment

revealed that the legislature intended to divest the municipal

board of the fact-finding process.  Geneva Residential Ass’n, Ltd. v. City of Geneva, 77 Ill. App. 3d 744, 754 (1979).  Because the local legislative body was no longer involved in determining the

facts of the specific case requesting a special use, the amendments

to the Municipal Code effectively rendered the special use process

an administrative process.  See Living Word, 196 Ill. 2d at 15.

	In 1998, the Counties Code also was amended to include a

parallel provision regarding the special use process.  See 55 ILCS

5/5--12009.5 (West 2000).  As the Counties Code now parallels the

Municipal Code in requiring fact finding by an entity other than

the county board and specifying the process of applying for a

special use, it follows that the reasoning of Geneva Residential Ass’n now also applies to a special use decision made by a county board.  Clark v. Han, 272 Ill. App. 3d 981, 989 (1995) (legislature knows state of law when enacting an amendment to a statute).

	We therefore determine, based on the supreme court’s express

holding, the legislative intent in amending the Counties Code and

the Municipal Code, and the general weight of authority regarding

whether the granting of a special use constitutes an administrative

act, that the County in this case, by denying plaintiffs’

application for a conditional use, performed an administrative act

subject to administrative review. 

	Turning to the County’s specific contentions, we acknowledge

that the courts of Illinois have repeatedly held that action taken

by a local legislative body is a legislative action.  The County cites first to Kotrich, 19 Ill. 2d 181.  Kotrich, however, is no longer a correct statement of the law in light of Klaeren.  The County also cites to Peterson v. City of Highland Park, 153 Ill. App. 3d 826 (1987), Knor v. County of Madison, 151 Ill. App. 3d 767 (1986), Yusuf v. Village of Villa Park, 120 Ill. App. 3d 533 (1983), Flowers v. Village of Indian Creek, 22 Ill. App. 3d 6 (1974), and Artz v. Commercial National Bank of Peoria, 125 Ill. App. 2d 86 (1970).  Those cases are also overruled by Klaeren.  To the extent that they present questions solely under the Counties

Code, we also note that they fail to perform any analysis regarding

the effect of the amendments to the Counties Code in light of those

to the Municipal Code.  Rather, without considering this issue,

these cases merely presume such action to be legislative and not

susceptible to administrative review.  As a result of their lack of

analysis, we also find these cases not to be controlling here.

	We also note that this court recently passed upon the issue of

whether the grant of a special use permit was a legislative act. 

In Oak Grove Jubilee Center, Inc.  v. City of Genoa, 331 Ill. App. 3d 102, 107 (2002), this court considered the long-standing rule

that a local legislative body’s action on a special use application

constituted a legislative action.  The defendant in that case urged

this court to find that Living Word represented a change in position by the supreme court.  This court analyzed the Living Word case and determined that the supreme court dicta did not effect a change in the established case law.  This court therefore held

that, because Living Word "expressly left the traditional rule intact, *** we [were] bound to follow it."  Oak Grove, 331 Ill. App. 3d at 108.  Klaeren also resolves any inconsistency with Oak Grove that our holding here may have by overruling Oak Grove to the extent it conflicts with Klaeren. 

	The County argues that section 1--6007 of the Counties Code

(55 ILCS 5/1--6007 (West 2000)) does not support our conclusion

that the grant or denial of a conditional use permit is an

administrative act subject to administrative review.  The County

argues that in the approximately 20 years section 1--6007 has been

part of the Counties Code, it has not been applied to the judicial

review of a conditional use permit.  While we agree that the County

has made a factually accurate statement, we find its reasoning to

be flawed.  The fact that section 1--6007 previously has not been

given its proper force and effect does not mean that it cannot be

when the proper circumstances arise.  After all, our purpose in

construing a statute is to give full effect to the intent of the

legislature and to make sure that all parts of a statute are given

full effect and not ignored.  In re Application of County Treasurer, 305 Ill. App. 3d 995, 999 (1999).  Here, mindful of our duty to give effect to section 1--6007, we find that it supports

our conclusion that the grant or denial of a special use permit is

an administrative action because it requires that the decisions of

a county board be subject to administrative review.  This

conclusion is particularly appropriate where, as here, the county

board action is administrative or quasi-judicial.  See Klaeren,  slip op. at 16.  We therefore reject the County’s argument.

	The County also contends that section 11--13--11 of the

Municipal Code (65 ILCS 5/11--13--11 (West 2000)) requires factual findings to be made while section 5--12009.5 of the Counties Code

(55 ILCS 5/5--12009.5 (West 2000)) does not.  Specifically, the

Municipal Code requires that "[e]very variation or special use,

whether made by the board of appeals directly, or by an ordinance

after a hearing before the board of appeals, shall be accompanied

by findings of facts."  65 ILCS 5/11--13--11 (West 2000).  The

County argues that the Counties Code does not require a finding of

fact to accompany the final decision.  We disagree.  The Counties

Code provides:

		"The board of appeals shall report to the county board a

finding of fact and a recommendation as to whether the county

board should deny, grant, or grant subject to conditions the

special use.  The county board may, by ordinance and without

a further public hearing, adopt any proposed special use on

receiving the report."  55 ILCS 5/5--12009.5(d) (West 2000).

When the county board adopts the report, it necessarily adopts the

findings of fact transmitted by the board of appeals.  Therefore,

both the Counties Code and the Municipal Code mandate that findings

of fact be made to resolve the particular special use case.  As a

result, the reasoning in Geneva Residential Ass'n also fully applies to the Counties Code.  The County’s argument is

unpersuasive.

	The County next argues that section 5--12009.5 of the Counties

Code (55 ILCS 5/5--12009.5 (West 2000)) is more specific than

either section 5--12012 of the Counties Code (55 ILCS 5/5--12012

(West 2000)) (which does not apply to a county board) or the

Administrative Review Law.  The County’s argument fails, however, because it overlooks the application of section 1--6007 of the

Counties Code (55 ILCS 5/1--6007 (West 2000)), which renders

decisions by the county board, such as whether to grant or deny a

special use permit, reviewable under the Administrative Review Law.

	The County last argues that this ruling should be prospective

in its application.  However, the County makes this argument in an

attempt to avoid the effect of any adverse outcome.  The County

argues that the rule announced in this case should not actually be

applied in this case.  Instead, although we determine that the

County has undertaken an administrative act subject to

administrative review, we should nevertheless foreclose plaintiffs

from pursuing such administrative review in this case.  We

disagree.  

	The County’s argument misconceives the meaning of prospective

application of the rule of the case.  Prospective application means

that, on the date of filing, the new rule will affect pending cases

and all cases brought after the date of filing.  In addition, the

parties to the subject case will also be affected by the new rule. 

See Darling v. Charleston Community Memorial Hospital, 33 Ill. 2d 326, 337-38 (1965).  The prospective application of our rule in

this case will not, therefore, exempt the County from its

operation.  We do not address whether this case can be applied only

prospectively because the County did not properly present the

argument for our consideration.

	For the foregoing reasons, we answer the certified question as

follows:  the denial of a conditional use permit by the county

board of Lake County is an administrative action and is subject to administrative review under the Administrative Review Law (735 ILCS

5/3--101 et seq. (West 2000)), and the dismissal of count I of plaintiffs’ complaint is not warranted.  

	Certified question answered.

	GROMETER and BYRNE, JJ., concur.