### No. 2--06--0793 Filed: 5-9-07

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ THE CITY OF ELGIN, ) Appeal from the Circuit Court ) of Ka ne Co un ty. Plaintiff and Counte

rdefen dant- ) Appellee, ) ) v. ) No. 04--OV--1418 ) ALL NATI ONS WORSHI

P CENTER, )

) Honorab le Defendant and Counterplaintiff- ) Michael J. Colwell, Appellan t. ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE CALL UM delive

red the o pinion of t

he court : Defend ant, All Nation s Worship Ce nter, ap peals the ci rcuit court 's order deny ing its petition for attorney fe es pursuant to the Illinois Religious Free dom Res toration Act(the Act ) (775 I LCS 35/20 (West 2 004)). D efenda nt conten ds that it was entitle d to fees as a "pa rty who prevailed" in its litigation against plaintiff, the City of Elgin. Because defendant did not prevail in any sig

nificant sense in t he under lyin g litig ation, we

affirm. InAugust 2003, All Nations began conducting church services on property it lease d in Elgin. All Nations'

propert y was locat

ed in an AB Ar ea Busi ness Distr ict, where the city's zoning ordinance did not allowa church as either a permitted or a c onditional use. The city filed a complaint in the circuit court, a lleging that All Na

tions was v

iolatin g the ordinance. All Nations answered the complain t and file d a counte

rclaim a lleging that the ordinanc e was unc onstitutional.

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OnMay 23, 2005, the trial cour t entered an agreed or

de r, in which t he city

dismissed i

ts complaint withoutprejudice and agreed to a llow All Nation s to occupy the proper ty w hile the c ity considered

whether to amend its zoning ordinanc e. Ultima tely , the city

did amend

the ordinance to provide that a church can be a conditional use in sever al zon ing districts, including the AB Area Busines s District. Elgin Ordinance No. G65--05, eff . July 27, 2005. Under the amended ordinance, similar nonrelig ious u ses w ould also have to ap ply for cond itional use

permits in

those distr

icts. Elgin Ordinance No. G65--0 5, eff. Jul y 27 , 2005. The

trial cou rt then dismissed All Nations' counter claim, holding that

the amendment

cured any

defects in the zoning ordinance. All Nations appealed and thiscourt affirmed. City of Elgin v. All Nations Worship Center , 369 Ill. App. 3d 664 (2006). All Nations then filed a petition for attorney fe es under the Act, which provides that a " party who prevails in an action

to enforce this Act

against a government" is entitled to recover its attorney fees and costs. 775 IL CS 35/20 (West 2004). The trial court de nied the petition, f inding that All Nations di d not prevail in the u nderly ing litig ation. All

Nations a

ppeals. All Nations contends that it was a prevailing party for two reasons. First, theMay 23, 2005, order was a jud icially sanctioned settle

ment unde

r which th e city agreed to dismiss its complaint and allowAll Nation s to contin ue to oper

ate. Sec ond, in re sponse to t he counte

rclaim, t he city voluntar ily amended its zoning

ordinanc e to addr

ess All Na

tions' c oncerns . The city

responds that All Nations ultimately lost in the underly ing litigation and that the voluntary amendment of the ordinance was not the type of judicia lly sanctioned re lief that triggers the Act' s fee-shifting provision.

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We first add

ress the standard of review. The facts ar e undispute d. There fore, w hether All Nations was a prevailing party under the relevant statute is solely a n issue of statutory

construction, which we review de novo
. Melton v. Frigidaire , 346 Ill. App. 3d 331, 334-35 (2004). Under the "American Rule," parties g enerally pa y their own attorne

y fees a nd the winner is notentitled to collect those fees from the loser. Melton , 346 Ill. App. 3d at 335. Certain statutes, however, provide for an award of attorney fees to the prevailing party
. Melton , 346 Ill. App. 3d at 335. The question, then, becomes what ty pe of relief a party

must receive in order to be deemed a pr ev ai li ng pa rt y. Both parties d iscuss Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources , 532 U.S. 598, 149 L. Ed. 2d 855, 121 S. Ct. 183 5 (2001). There, in inte rpr eti ng the me aningof " preva ili ng part y" in f ee- shif ting provi sions of t

wo fe dera l st atut es, the Sup reme C ourt rej ected the "cata lyst theory," under w hich a party mayrec over attor neyfe es i f t

he lawsuit pro mpts the d efendant to v oluntarily change its con duct. The co urt held that a "pr evai ling pa rty" is one who has b een aw arded som e relief by the c ourt. Buckhannon , 532 U. S. a t 603, 149 L. Ed. 2d at862, 12 1 S. Ct . at 1839. Inaddit ion t o a ju dgment on the meri ts, a set

tle ment a gr eement enforced thr ough aconse nt dec ree mayals o be the basis for an at torney fee awa rd. Buckhannon , 532 U.S. at 60 4, 149 L . Ed. 2d at862, 12 1 S. Ct . at 1840. How ever, a private settlemen t does no t entail the judicial approval and oversight involved in a co nsen t decree
. Buckhannon , 532 U.S. at 60 4 n.7, 149 L. Ed. 2d at 8 63 n .7 , 121 S. Ct. at 1840 n.7. The catal yst t heory would allow an attorney f ee award where there is no judicial ly sancti oned change in the parties' legal r elationship. However, such
a volun tary change in cond uct " lacks the nec essary judicial impri matur on the ch ange." Buckhannon , 532 U.S. at 60 5, 149 L . Ed. 2d at863, 12 1 S. Ct . at 1840.

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Subseque nt cas es, typi fied by Melton , hav e int erpr ete d Buckhannon broad ly as i ncludi ng an y ty pe of judicial ly enf

orceable settl ement agreement as justi fy ing a fee award . Neve rthe less , the pla intiff must obtain som e type of permanen t and effectual relief. For example, the plain tiff in Melton receive d the re fund she w as seek ing. Melton , 346 Ill. App. 3d at 333. Inshort , a sett lement agr eement

must r epre sentan " 'alteration in the legal relationship of the parties.' " Melton , 346 Ill. Ap p. 3d at 337 , quo ting Buckhannon , 532 U. S. a t 605, 149 L. Ed. 2d at 86 3, 121 S . Ct . at

1840. On it s f ace, the May

23 orde r appe ars to f it into the c ate gory of

a jud ici all y a

ppr ov ed settlement. The problem is that the ch urc h's " vic tor y" wa s te mp ora ry an d, u ltim ate ly, pyr rhic . The order provi des that t

he city would dismiss its com plaint without prejudice and that the ch urch cou ld continue to occupy the premises while the city considered amending its zoning ordinance. Rather than an "a lte rat ion of t

he legal r elationship of the part ies," t he order appears to be just the opposite:
an agr eement

to pr eser ve the status quo . During protracted litigation, any party is li kel y t o win some tempo rary victory, be it the dismissal of the complaint without prejudice or the def eatof a moti on for summ ary judgment. To ho ld th at a pa rty who wins any t

ype of v ict ory

duri ng the cour se of lit ig ati on, no m atter how fl eeting, is e ntit led t o att orney fe es, would ex pand the def init ion of "pre vail ing pa rty" beyond all meaning. See Buckhannon , 532 U.S. at 60 5, 149 L . Ed. 2d at863, 12 1 S. Ct. at 18 40, q uotin g Hew itt v. Helm s , 482 U. S. 755, 760, 96 L. Ed. 2d 654, 66 1, 107 S. Ct . 2672, 2676 (1987 ) (reversalof order dismissingcomplaint for f ailure to st ate a cla im was " ' not the stuff of which legal victories are m ade' "). All Nations' argument that it prevai led be cause the city voluntarily

amended its ordinance also fails. This is virtually the same argument t hat Buckhannon rejected. Although cases such as M elt on have t ended t o expand Buckhannon 's definition of a prevailing party, they hold only tha t volun tary settlements inco rporated into judicial orders may support attorney fee awards. Here , the

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order provided only that the c ity would consider amendi ng the ordinance; the actual amendment was purely volunt ary , and

All Nati ons has not c ite d any case holdi ng tha t pure ly volunt ary

conduct by a def endant makes t he pla inti ff

a pre vail ing part

y s o as t o support an attor neyfe e awar d. Of cours e, Buckhannon was interpreting federal statutes an d is not binding on us. How ever,
even if this court wholeheartedly endorsed the cat alyst theory, it is not cl ear that the church would be entitled t o fees, because the city' s volun tary amendment of t he ord inanc e did not r eal ly make the church better of

f. I t was still operati ng illegally. After the amend ment, it merely had the right to appl y for

a spe cia l use permi t on t he same basi s as o ther , si milar use s. As with the previ ous argument, if su ch an in cre me nt al c ha ng e in a p art y's position were the basis of anatt orney fe e awar d, there would be no limit to who would b e entitled t o apply for one. 

### The judgment of the circuit court of Kane County is affirmed. Affirmed. GROMETER, P.J., and HUTCHINSON, J., concur.