Thomas J. Homer

300 East Fifth Avenue -- Suite 300

Naperville, IL 60563

Phone: (630) 428-0361	  Fax: (630) 428-0362

March 16, 2000

Transmitted via Lotus Notes

Gist Fleshman, Clerk

Third District Appellate Court

1004 Columbus Street

Ottawa, IL  61350

RE:	No. 3-98-0107 -- County of Kankakee v. Anthony

Dear Gist:

Transmitted herewith please find the modified opinion upon denial of the petition for rehearing in the above-captioned cause to be filed and published in full.

Sincerely,

Thomas J. Homer

TJH/bkc

cc:	Justice Koehler

	Justice Breslin

	Justice Holdridge (n/m/p)

	No. 3--98--0107

IN THE 

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 1999

COUNTY OF KANKAKEE,			)	Appeal from the Circuit Court

						)	for the 21st Judicial Circuit 	 	Plaintiff-Appellee,	)	Kankakee County, Illinois 						)

	v.					)	No.	95--OV--973		 						)	

EUGENE ANTHONY and			)	

SHEILA ANTHONY,			)	Honorable				 						)	Sheldon W. Reagan,

	Defendants-Appellants.	)	Judge Presiding

Modified Upon Denial of Rehearing

	JUSTICE HOMER delivered the opinion of the court:		 	

	The County of Kankakee filed a complaint against Eugene and

Sheila Anthony alleging that they violated county zoning

ordinances by constructing and operating a private school in

their garage without obtaining the proper permits.  The county

sought imposition of a fine and a permanent injunction.  In

response, the Anthonys contended, inter alia, that the zoning ordinances were unconstitutional.  The trial court ruled in favor

of the county, and the Anthonys appealed.  After our careful

review, we affirm.

FACTS

	Pastor Eugene Anthony is an ordained minister of the

Seventh-day Adventist Church; his wife, Sheila, is an experienced

teacher with a masters degree in education.  Upon moving to the 

Kankakee area, the Anthonys decided to establish a parochial

school for their two children and the children of other Seventh-

day Adventists in the area.

	In April 1995, Pastor Anthony began to renovate a detached

garage located on his residential property into a one-room school

house.  Before construction was underway, Pastor Anthony spoke

with Robert Roach, a county building inspector.  Based upon this

conversation, Pastor Anthony believed it was unnecessary to

obtain any permits for his renovation project.  Although Pastor

Anthony testified that he spoke openly with Roach about his plans

to build the school, Roach testified that Pastor Anthony

explained that he only wanted to insulate his garage and said

nothing about a school.

 	The following month, Dan DeValk, another county building inspector, became aware of the extensive construction taking

place in the Anthonys' garage.  DeValk informed Pastor Anthony

that he could not continue the renovation without obtaining a

building permit.

	Pastor Anthony then met with DeValk and Vicki Senesac, a supervisor from the county building department, to inquire about

obtaining a building permit.  When Pastor Anthony explained that

he intended to operate a religious school in the garage once it

was renovated, he was advised that the zoning code prohibited him

from doing so without first obtaining a variance and a special

use permit from the Kankakee County Zoning Board of Appeals (the

zoning board).  The variance was required because Pastor

Anthony's property, which measured 100 feet by 168 feet, did not

meet the minimum acreage requirements for the proposed special

use. 

	On June 7, 1995, DeValk issued Pastor Anthony a building

permit for the stated purpose of converting his garage for

personal storage and use.  Pastor Anthony asserted that he

believed that the building permit was all he needed to create his

school.  However, he later testified that he knew that he needed

to obtain a variance and special use permit to legally operate

the school, but he believed that it was simply a formality.  He

began that process in July of 1995 when his attorney filed the

applications with the zoning board.

	Despite the fact that his applications for a variance and

special use permit had not been heard or decided by the zoning

board, Pastor Anthony began operating the school soon after the

renovation was complete late in August of 1995.  In October 1995, the County filed a two-count complaint alleging that the Anthonys

were in violation of section V.D.2.b.4 of the 1967 zoning code by

operating a school on their residential property without

obtaining a variance or special use permit.  Section V.D.2.b.4

provides that the following use of residential property is

considered a special use and allowable only by a special use

permit:

	"Schools, parochial, private or not for profit and

boarding schools, public or private--on a lot not less

than two (2) acres for a nursery school, eight (8)

acres for an elementary school, and thirty (30) acres

for a high school."

Count I sought imposition of a fine and count II sought issuance

of a permanent injunction against the operation of the school. 

In response, the Anthonys filed an answer, affirmative defenses,

and a nine-count counterclaim alleging that the ordinances

violated their rights under the state and federal constitutions,

namely, equal protection, free exercise of religion, freedom of

speech, and freedom of assembly.  The Anthonys also alleged that

the ordinances violated their rights under the Religious Freedom

Restoration Act of 1993 (42 U.S.C.A. §2000bb et seq. (West 1994)).1

	Because a new zoning code was implemented by the county in

May 1996 while this action was still pending, the county

subsequently amended its complaint to include allegations that

the operation of the school also violated section 8.02(F) of the

1996 zoning code.  Section 8.02(F) provides that the following is

a permitted use of residential property:  

	"Schools, non-boarding, elementary, junior high and high,

and accessory uses, buildings and structures on a lot not

less than 3 acres."

	After a bench trial, the judge made a written decision with respect to count I finding that (1) by their own admission, the

Anthonys constructed and operated the school with full knowledge

that they were not in compliance with zoning ordinances, and (2)

the 1996 county zoning code was properly enacted and passed

constitutional scrutiny.  In a subsequent order, the trial court

imposed a fine of $200 against the Anthonys based upon count I.

	After another hearing, the court rendered its decision on

count II, issuing a preliminary injunction against the Anthonys'

operation of the school in their garage.  The trial judge later made the injunction permanent.  During the pendency of this case,

the Anthonys' application for a variance and special use permit

was denied in a separate proceeding before the zoning board.  The

propriety of that zoning board decision is not a part of this

appeal. 

	On appeal, the Anthonys contend that the trial court erred

in: (1) applying the 1996 zoning code rather than the 1967

provisions, (2) finding that the Anthonys were in violation of

county zoning regulations, and (3) finding that the Anthonys'

constitutional claims had no merit.

ANALYSIS

I.	Applicability and Validity of the 1996 Zoning Code

	The Anthonys argue that the trial court erred in applying

the 1996 zoning code provisions in this case because:  (1) they

acquired a vested right under the 1967 zoning code since their

applications for a variance and special use permit were denied by

the zoning board under that code in a separate proceeding and the

county initially charged them with violating that code, and (2)

the 1996 zoning code is void because it was not properly enacted

in accordance with section 5/12014(b) of the Counties Code (55

ILCS 5/5--12014(b) (West 1996)).

	Resolution of this issue requires this court to analyze the construction and application of both statutes and ordinances.  An

appellate court need not defer to the decision of the trial judge

when reviewing such matters because they are considered questions

of law.  Constantine v. Village of Glen Ellyn, 217 Ill. App. 3d 4, 16, 575 N.E.2d 1363, 1371 (1991).  Consequently, in deciding

whether the trial court erred in finding the 1996 zoning code

validly enacted and applying it in the instant case, we will

conduct de novo review.  See County of Lake v. Zenko, 174 Ill. App. 3d 54, 60, 528 N.E.2d 414, 418 (1988).

	Well-settled Illinois law holds that a legislative body has

a continuing right to amend a statute or ordinance even while

litigation is pending involving the legislation.  Sagittarius, Inc. v. Village of Arlington Heights, 90 Ill. App. 3d 401, 404, 413 N.E.2d 90, 93 (1980).  In such instances, the court must

decide the case in accordance with the law in effect at the time

the court renders its decision (Sagittarius, Inc., 90 Ill. App. 3d at 404, 413 N.E.2d at 93), unless to do so would adversely

affect a vested right (Maiter v. Chicago Board of Education, 82 Ill. 2d 373, 390-91, 415 N.E.2d 1034, 1042 (1980)).

	However, the Anthonys argue that the 1996 zoning code was

not validly enacted because it did not receive a simple majority

of the votes of the county board as required by section 5--

12014(b) of the Counties Code.  55 ILCS 5/5--12014(b) (West 1996).  After our careful review, we agree.

	The power to regulate the use of land through zoning

ordinances is a legislative function conferred upon county boards

by statute.  See 55 ILCS 5/5--12001 et seq. (West 1996).  Courts are precluded from reviewing the propriety of a county board's

legislative enactment unless it was accomplished in violation of

a statute or constitutional provision.  Illinois Gasoline Dealers Association v. City of Chicago, 119 Ill. 2d 391, 404, 519 N.E.2d 447, 452-53 (1988).  In this regard, the General Assembly has

established certain procedures which govern the manner in which

county boards carry out their legislative function.  Compliance

with these statutory procedures is a prerequisite to the valid

enactment of an ordinance.  See Traders Development Corp. v. Zoning Board of Appeals of Peoria, 20 Ill. App. 2d 383, 156 N.E.2d 274 (1959).  When a county board has failed to follow

proper procedures in amending a zoning ordinance, the amendment

is void.  See Village of Southern View v. County of Sangamon, 228 Ill. App. 3d 468, 592 N.E.2d 639 (1992); Forestview Homeowners Association, Inc. v. Cook County, 18 Ill. App. 3d 230, 309 N.E.2d 763 (1974).

	Unless otherwise provided, matters before a county board may

be voted on and decided by a majority of the members present at a

meeting so long as there is a quorum.  55 ILCS 5/2--1005 (West 1996).  However, the parties agree, and a review of the

legislative history confirms, that section 5--12014(b) of the

Counties Code creates an exception to this general rule when a

county board seeks to amend the text of a zoning ordinance which

affects the whole county.  Section 5--12014(b) provides in

pertinent part: 

	"text amendments may be passed at a county board meeting by

a simple majority of the elected county board members, unless written protests against the proposed text amendment

are signed by 5% of the land owners of the county, in which

case such amendment shall not be passed except by the

favorable vote of 3/4 of all the members of the county

board."  (Emphasis added.)  55 ILCS 5/5--12014(b) (West

1996).

Therefore, under section 5--12014(b), text amendments, in the

absence of a protest, must pass by a simple majority vote of the

entire county board, not just a majority of the members attending the meeting.  There being no written protest against the proposed

amendment of the zoning code in the instant case, the amendment

required the approval of 15 of the 28 members of the county board

for it to prevail.

	The record of the roll call vote taken at the county board's

meeting shows that the vote on the 1996 zoning code was as follows:  14 "aye" votes, 11 "nay" votes, 1 "present" vote, and 2

members absent.  In deeming the ordinance passed, the "present"

vote was included with the fourteen "aye" votes to arrive at the

total of fifteen required for passage.  

	The Anthonys maintain that the county board erred in

considering the "present" vote as an "aye" vote; therefore, the

1996 zoning code, receiving only 14 affirmative votes when 15

were required, is invalid.  In response, the county contends that

it was proper for the county board to consider the member voting

"present" as acquiescing with the "aye" votes.  Interestingly,

each party argues that our supreme court's decision in Prosser v. Village of Fox Lake, 91 Ill. 2d 389, 438 N.E.2d 134 (1982), supports its position.

	In Prosser, the court in construing a municipal statutory provision made the following pronouncement:

 	"The effect of voting to 'abstain,' or to 'pass,' or voting 'present' or of refusing to vote when present at a meeting

depends on whether 'the affirmative vote' of a majority or 'the concurrence' of a majority, of either the quorum or of

all members then holding office, is required for passage.  If 'the affirmative vote' of a majority of either standard

is required ***, then nothing less than a majority of 'yea'

or 'aye' votes will result in passage.  An attempt to vote to 'abstain' or in any manner other than 'yea' or 'nay,' or

a failure to vote shall be considered to have the effect of

a 'nay' vote.  Where the 'concurrence' of a majority is

required for passage, the holding in most of the

jurisdictions where the issue has been considered is that a

vote of 'pass,' 'present,' or 'abstain' or a failure to vote

when present constitutes an acquiescence or concurrence with

the members of the majority who did vote on the question

involved."  (Emphasis added.)  Prosser, 91 Ill. 2d at 395, 438 N.E.2d at 136.

	We find Prosser of little assistance to us in the instant analysis.  In Prosser, the court was faced with the task of interpreting a statute that expressly required "the concurrence

of a majority of all the members."  It provides no direction

where, as in the instant case, the statute contains no such

language.

	Instead, we must follow traditional rules of statutory

construction to determine whether a "simple majority" includes

both present and aye votes.  The primary rule of statutory

construction is to ascertain and give effect to the true intent

of the legislature.  Advincula v. United Blood Services, 176 Ill. 2d 1, 16, 678 N.E.2d 1009, 1017 (1996).  In interpreting a

statute, we cannot read into it words which are not within the intention of the legislature as determined from the statute, nor

can we restrict or enlarge the meaning of the statute.  Trigg v. Sanders, 162 Ill. App. 3d 719, 727, 515 N.E.2d 1367, 1373 (1987).  Rather, we must look to the language of the statute and give the

words used their plain and ordinary meanings.  

	A "majority" is defined generally as "[t]he number greater

than half of any total."  Black's Law Dictionary 955 (6th ed.

1990).  We conclude that the legislature's use of the term

"simple majority" in section 5--12014(b) was merely a manner of

referring to an amount equaling more than half.  The term "simple" was used to differentiate this type of majority vote

from other types of majority votes, including, "two-thirds

majority," "super-majority," and "extraordinary majority."  There

is nothing in section 5--12014(b) indicating that the use of the

term "simple majority" was intended to mean a "concurrence of the

majority" as defined in the Prosser case.

	Furthermore, common principles of parliamentary procedure

provide that when an individual votes "present" or "I abstain,"

that individual is indicating that he or she does not wish to

vote on a particular question.  See Robert's Rules of Order §44,

at 414 (9th ed. 1990).  We determine that in the absence of

express direction to the contrary in an applicable statute or

rule, such a response cannot be considered a vote in favor of the pending measure.  This principle is illustrated by the definition

of "majority vote" in Robert's Rules of Order which provides:

	"The word majority means 'more than half'; and when the term

majority vote is used without qualification *** it means

more than half of the votes cast by persons legally entitled

to vote, excluding blanks or abstentions, at a regular or properly called meeting at which a quorum [ ] is present."  

(Emphasis added.)  Robert's Rules of Order §43, at 395 (9th

ed. 1990). 

	Based upon the forgoing analysis, we hold that the phrase

"simple majority of the elected county board members" in section

5--12014(b) requires the affirmative votes of more than half of

all the members of the county board.  Because the 1996 zoning

code was not approved by a simple majority of the elected county

board members, it must be considered void; and the 1967 zoning

code governs this case.

	Although we determine that the trial court erred in applying

the 1996 zoning code, we are not bound by the reasoning set forth

by the trial court in rendering its decision.  Heepke v. Heepke Farms, Inc., 271 Ill. App. 3d 935, 940, 649 N.E.2d 958, 962 (1995).  Rather, we may reverse or affirm on any grounds

supported by the record.  Marriage of McFarlane, 160 Ill. App. 3d 721, 726, 513 N.E.2d 1146, 1149 (1987).  The parties proceeded to trial based upon both the 1967 and 1996 zoning codes; therefore,

we must determine whether the Anthonys' school violated the 1967

zoning code.

II.	Violation of the 1967 Zoning Code

	Proceedings for enforcement of an ordinance are quasi-

criminal in nature.  In such cases, the ordinance violation must

be proven by a clear preponderance of the evidence.  City of Peoria v. Heim, 229 Ill. App. 3d 1016, 1017, 594 N.E.2d 778, 780 (1992).  On review, a trial court's factual determinations

regarding the violation of an ordinance will not be reversed

unless they are contrary to the manifest weight of the evidence. 

American National Bank & Trust Co. of Chicago v. Village of Skokie, 181 Ill. App. 3d 189, 196, 536 N.E.2d 926, 930 (1989).  After our careful review of the record, we determine that the

trial court's determination that the Anthonys' school constituted

an illegal use of their property was supported by the evidence.

	The 1967 zoning code defines "principal use" as follows:

	"The main use of land or buildings as distinguished

from a subordinate or accessory use.  It may either be

a permitted or special use." 

From the plain language of this provision, it is clear that a

property may have only one principal use, although it may have subordinate uses.  Therefore, the concurrent use of the property

as a single-family residence and a school is permissible only if

one of these uses can be considered as subordinate to the other.

	The 1967 zoning code defines an "accessory use," in

pertinent part as:

	"A subordinate use which is clearly and customarily

incidental to the principal use of a main building or

premises and which is located on the same lot as the

principal building or use ***."

	It is clear from the record that the principal use of the

Anthonys' property was as a single-family dwelling.  Because a

school is not something customarily found as incidental to a

single-family home, such use cannot be considered an accessory

use of the property.  Therefore, the Anthonys' use of their

garage as a school was an impermissible use of their residential

property under the 1967 zoning code.

III.	Constitutional Claims

	The final series of issues raised by the Anthonys involve

the trial court's decision to deny them relief on their

contentions that the 1967 zoning ordinance is unconstitutional.2

	It is well settled that courts should avoid declaring

legislation unconstitutional if the case does not require it. 

East St. Louis Federation of Teachers, Local 1220 et al. v. East St. Louis School District No. 189 Financial Oversight Panel, 178 Ill. 2d 399, 408, 687 N.E.2d 1050, 1056-057 (1997). 

Consequently, reviewing courts will decide constitutional

questions only where resolution of those questions is essential

to disposition of the appeal.  Werner v. Botti, Marinaccio & DeSalvo, 205 Ill. App. 3d 673, 677, 563 N.E.2d 1147, 1151 (1990).  If the case may be decided on other grounds, the

constitutionality of the statute should not be addressed.

	In this case, we have determined that irrespective of their 

constitutional contentions, the Anthonys' use of their property

as a school violated the zoning code because there can be only

one principal use of their residential property and a school does

not qualify as an accessory use.  Having decided the case on this

basis, there is no need to address the constitutional challenges

raised by the Anthonys in this appeal.

	The Anthonys have also sought leave to cite additional

authority, namely, the recently enacted Illinois Religious

Freedom Restoration Act (Pub. Act 90--806, eff. July 1, 1998).  Although we acknowledge the significance of this enactment, we

find it unnecessary to consider it in the instant case in light

of our decision to resolve the case on grounds unrelated to the

constitutional claims. 

CONCLUSION

	For the foregoing reasons, the judgment of the circuit court

of Kankakee County is affirmed.

	Judgment affirmed.

	BRESLIN and KOEHLER, J.J., concur.