Pumilla v. City of Rockford

2021 IL App (2d) 200681-U

• Court: Appellate Court of Illinois
• Decided: July 26, 2021
• Docket: 2-20-0681
• Status: Unpublished

Opinion

2021 IL App (2d) 200681-U No. 2-20-0681 Order filed July 26, 2021

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

CHRISTOPHER D. PUMILIA, ) Appeal from the Circuit Court ) of Winnebago County. Plaintiff-Appellee, ) ) v. ) No. 19-MR-679 ) CITY OF ROCKFORD, ) Honorable ) Donna R. Honzel, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE SCHOSTOK delivered the judgment of the court. Justice Zenoff and Justice Jorgensen concurred in the judgment.

ORDER

¶1 Held: (1) Trial court properly granted the plaintiff summary judgment because the plaintiff complied with the City ordinance to reestablish the special use of his property; (2) trial court erred in awarding the plaintiff damages because the actions of the City’s staff were afforded immunity under the Tort Immunity Act.

¶2 The plaintiff, Christopher Pumilia, sought to sell used cars at a former used car lot in

Rockford. The defendant, the City of Rockford (the City), refused to allow him to sell cars, finding

that a special use permit to sell cars at the property had lapsed. The plaintiff subsequently filed a

complaint in the circuit court of Winnebago County seeking a declaration that he had the right to

sell cars at the property. The trial court granted the plaintiff summary judgment on his complaint 2021 IL App (2d) 200681-U

and awarded him some damages. On appeal, the City argues that the trial court’s ruling was

erroneous. For the reasons that follow, we affirm the trial court’s order awarding the plaintiff

summary judgment, but we vacate its award of damages.

¶3 I. BACKGROUND

¶4 The property at issue is located at 1621, 1627 and 1629 Rural Street in Rockford. In 1960,

Gary Carlson began using the property as a used car dealership. In 1988, he obtained a special use

permit from Rockford to use the 1621 Rural Street lot for the used car dealership. That special use

permit did not have an expiration date. Carlson closed his business on December 31, 2017.

¶5 In September 2018, the plaintiff expressed interest in buying the property and using it as a

used car dealership. On November 16, 2018, the plaintiff closed on the property. As he believed

that the office needed some work prior to re-opening, he began working on it in mid-December.

At that same time, he obtained commercial insurance coverage for the property as well as liability

coverage for vehicles which would be held for sale there. He also had the parking lot painted and

sealed.

¶6 On December 15, 2018, the plaintiff paid the business bond for 2018-2019 in the name of

K & C’s Auto Sales and opened a business checking account. Also that month, he contacted a

sign company (Got Signs on 7th Street) to replace the plastic placards/name inserts for Carlson

Motors with signs for K & C’s Auto Sales. As part of obtaining his dealer’s license, he had to

have commercial insurance, a business bond, and signs indicating a used car business.

¶7 On January 23, 2019, the sign company filed for the sign permit. Brenda Muniz, a land

use planner for the City, reviewed the sign permit application. She reviewed aerial photos which

indicated that the number of vehicles had decreased over time. She also checked water usage

records which showed little water had been used over the last 11 months. She therefore determined

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that the property had been vacant for over a year and not used as a car dealership for over a year.

As such, she believed that the special use permit had expired. On February 4, 2019, Muniz

informed the sign company that its permit application was denied based on the expiration of the

special use permit.

¶8 On February 11, 2019, Carlson informed the plaintiff that there was a problem with the

City as Carlson had received a violation notice for not removing his signage within four months

of ceasing business. The plaintiff thereafter contacted the City for the first time and talked with

Muniz. In that conversation, Muniz told him the special use permit that Carlson had was expired

because Carlson’s business had been closed for over a year and that the plaintiff could not touch

the signs until he had filled out a special use permit application.

¶9 Sometime in February 2019, the City’s Zoning Officer, Scott Capovilla, reviewed the

special use permit for the property and decided that it had lapsed. He also determined that the

property failed to meet all six “findings of fact” criteria as set forth in section 63-005 of the

Rockford Zoning Code (the Code) (Rockford Zoning Code, § 63-005 (adopted Apr. 4, 2006)) and

as required by section 63-012-C of the Code (Rockford Zoning Code, § 63-012-C (adopted Apr.

4, 2006)).

¶ 10 On March 8, 2019, the plaintiff personally spoke with Muniz, and she helped him fill out

the application for a special use permit. She told him that an additional reason for requiring his

permit application was that he was a new owner and as such he was required to seek a new special

use permit. Around the same time he spoke to Muniz, City employee Samuel Bellone also told

the plaintiff that because he was a new owner he had to get a special use permit. On April 12,

2019, the plaintiff applied for a special use permit.

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¶ 11 On May 19, 2019, the City staff made six positive findings of fact pursuant to section 63-

005 of the Code and recommended to the Zoning Board of Appeals (ZBA) that the plaintiff’s

application for a special use permit be approved. On June 18, 2019, however, the ZBA denied the

plaintiff’s application for a special use permit. After further review, on July 15, 2019, the City

Council denied the plaintiff’s application for a special use permit as well.

¶ 12 On July 23, 2019, the plaintiff filed a complaint in the circuit court for administrative

review of the ZBA’s decision denying his application for a special use permit. The plaintiff

subsequently amended his complaint three times, seeking the additional relief of restraining the

City from interfering with his efforts to use the property as a used car dealership and also monetary

damages for the “arbitrary and capricious restrictions imposed” on the property by the City. On

March 4, 2020, the plaintiff filed a motion for summary judgment on his third amended complaint.

¶ 13 On June 4, 2020, the City filed a response to the plaintiff’s motion for summary judgment.

The City argued that (1) the plaintiff’s claims should be dismissed because he had failed to exhaust

his administrative remedies by not appealing the zoning officer’s decision; (2) the special use

permit had lapsed because the property was not being used as a used car lot; and (3) the plaintiff

was not entitled to any damages under the Illinois Local Governmental and Local Governmental

Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/2-201 (West 2018)) and

because none of the City’s employees’ actions constituted willful and wanton conduct.

Alternatively, the City argued that if the trial court found that the City was liable, the plaintiff’s

damages should be limited to his special use permit application fee, the bond premium, and his

court filing fees.

¶ 14 On June 10, 2020, the City filed a cross-motion for summary judgment based on the same

reasons it had set forth in opposing the plaintiff’s motion for summary judgment.

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¶ 15 On September 1, 2020, following a hearing, the trial court granted summary judgment for

the plaintiff. The trial court found that the City staff, in determining that the special use permit for

the property had lapsed, disregarded all the evidence which indicated that it had not. The trial

court further found that the City staff had not complied with the applicable ordinance as it

conducted a six “findings of fact” review before the plaintiff had even requested such a review.

The trial court rejected the City’s argument that the plaintiff had failed to exhaust his

administrative remedies by not appealing Muniz’s “decision” that the special use permit had lapsed

because a reasonable person would not view her comments as a decision, only as information.

¶ 16 The trial court then noted that the plaintiff “took Ms. Muniz at her word and filled out the

application and pursuant to that application staff conducted the review and issued the positive

findings of fact.” The trial court found that the plaintiff’s application “was akin to requesting the

staff to conduct this review required by [section] 63-012-C [of the Code] since it was clearly within

the [time frame] the ordinance refers to.” Once the City staff issued the positive findings of fact,

the ordinance required the zoning clearance “shall be issued to reestablish special use.” As such,

based on the City staff issuing the positive findings of fact, there was no need for the ZBA to

review the application.

¶ 17 The trial court further noted that the plaintiff had requested damages due to the actions of

the City’s staff. The trial court found that the City staff’s actions were subject to immunity under

the Tort Immunity Act. The trial court explained that although “[t]he City employees could

certainly have been more willing to work with one of their citizens and more active in listening to

the information plaintiff and Carlson were trying to present, but ultimately they did not act

willfully, maliciously or with reckless disregard.” Although the trial court found that the Tort

Immunity Act applied, it nonetheless awarded the plaintiff his court costs, the $2500 business bond

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he paid but which went unused, and the $5868 cost of coverage for vehicles garaged on the

property for sale that also went unused. The trial court explained that the City had acknowledged

those costs as appropriate.

¶ 18 Following the denial of its motion to reconsider, the City filed a timely notice of appeal.

¶ 19 II. ANALYSIS

¶ 20 On appeal, the City raises three arguments. First, it claims that the trial court should have

awarded it summary judgment because the plaintiff failed to exhaust his administrative remedies.

Second, it contends that the facts clearly show that the original special use permit had lapsed and

the plaintiff was required to file a new application. Third, the City argues that the Tort Immunity

Act precluded an award of any damages to the plaintiff.

¶ 21 The purpose of a motion for summary judgment is to determine whether a genuine issue of

triable fact exists (People ex rel. Barsanti v. Scarpelli, 371 Ill. App. 3d 226, 231 (2007)), and such

a motion should be granted only when “the pleadings, depositions, and admissions on file, together

with the affidavits, if any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law” (735 ILCS 5/2-1005(c) (West 2018)). An

order granting summary judgment should be reversed if the evidence shows that a genuine issue

of material fact exists or if the judgment is incorrect as a matter of law. Clausen v. Carroll, 291

Ill. App. 3d 530, 536 (1997). We review de novo the trial court’s grant of a motion for summary

judgment. AUI Construction Group, LLC v. Vaessen, 2016 IL App (2d) 160009, ¶ 16.

¶ 22 A “special use” is one that is expressly permitted within a zoning district by the controlling

ordinance so long as the use meets certain criteria or conditions. City of Chicago Heights v. Living

Word Outreach Full Gospel Church & Ministries, Inc., 196 Ill. 2d 1, 16 (2001). “ ‘The purpose

of special uses is to provide for those uses that are either necessary or generally appropriate for a

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community but may require special regulation because of unique or unusual impacts associated

with them.’ ” Id. (quoting S. Connor, Zoning, in Municipal Law & Practice § 13.17 (Ill. Inst. for

Cont. Legal Educ. 2000)).

¶ 23 Because of the nature of a special use and the special findings and conditions typically

required, it may be desirable to provide a time limit within which the use must be commenced.

This allows the local authorities to maintain a certain degree of control over the special use. See

Rockford Blacktop Construction Co. v. County of Boone, 263 Ill. App. 3d 274, 282 (1994).

¶ 24 The applicable ordinance here provides:

“If the use of the property as authorized by the special use permit, or modification or

renewal, is commenced and, at a later date, is discontinued for a period of 24 consecutive

months or there is evidence of a clear intent on the part of the owner to abandon the special

use on the property prior to the 24-month discontinuance, then the special use permit shall

lapse. If the use of the property as authorized by the special use permit, or modification or

renewal, is commenced and, at a later date, discontinued for a period of 12 to 23

consecutive months, the special use permit, including a modification or renewal of such

special use permit will require staff review and a “finding of fact” by the Zoning Officer

before the special use can be reestablished. In this case, staff shall perform a review using

the six standard “findings of fact” criteria listed in Section 63-05 of this Ordinance. If a

positive review is made to all six criteria and there is evidence that all conditions on the

approval have been or will be satisfied, a zoning clearance shall be issued to reestablish the

special use. If a negative review is made for one or more of the six criteria, the Zoning

Officer shall deny the request to reestablish the special use and the special use permit shall

lapse. In this event, the applicant may appeal the Zoning Officer’s decision and/or file an

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application for a special use permit. Anytime within the 24 month period provided for in

this Section an applicant may apply for the renewal of a special use permit from the Zoning

Officer; after the 24 month period a new application must be submitted to the Zoning Board

of Appeals.” Rockford Zoning Code, § 63-012-C (adopted Apr. 4, 2006).

¶ 25 The parties’ compliance, or lack thereof, with the above ordinance is at the crux of this

appeal. The fundamental rule of statutory construction is to ascertain and give effect to the intent

of the legislature. King v. First Capital Financial Services Corp., 215 Ill. 2d 1, 26 (2005). The

best indicator of the legislature’s intent is the language in the statute, which must be accorded its

plain and ordinary meaning. Id. at 26. Where the language in the statute is clear and unambiguous,

this court will apply the statute as written without resort to extrinsic aids of statutory construction.

In re R.L.S., 218 Ill. 2d 428, 433 (2006). Municipal ordinances are interpreted using the same

general rules of statutory interpretation. Landis v. Marc Realty, L.L.C., 235 Ill. 2d 1, 7 (2009).

¶ 26 The plain language of section 63-012-C of the Code sets forth the following procedure to

determine if a special use permit has lapsed and how that special use can be reestablished: (1) the

special use permit will lapse if the special use of the property has been discontinued for 24

consecutive months or the owner has demonstrated a clear intent to abandon the special use on the

property; (2) if the City staff determines that the special use of the property has been discontinued

for between 12 and 23 months, then the special use permit needs to be reestablished; (3) the owner

may request to reestablish the special use permit; (4) the City staff then conducts a review using

the six standard “findings of fact” criteria listed in section 63-005 of the ordinance; (5) if the City

staff, or Zoning Officer, makes a positive review, then a zoning clearance shall be issued to

reestablish the special use; (6) if the zoning officer makes a negative review, then the special use

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permit lapses; (7) the owner may appeal the zoning officer’s decision or file a new application for

a special use permit.

¶ 27 Here, the first part of section 63-012-C of the Code is not at issue because the use of the

property was not discontinued for 24 months nor did the plaintiff demonstrate a clear intent to

abandon the special use on the property. Indeed, all the evidence in the record indicates that the

plaintiff intended to sell used cars at the property.

¶ 28 The second part of section 63-012-C of the Code is applicable because the City staff

determined that the use of the property as authorized by the special use permit had been

discontinued for more than 12 consecutive months. The trial court determined that the City staff’s

finding was wrong because the plaintiff’s getting the property ready to sell cars constituted “use

of the property as authorized.” The City insists that the trial court’s determination was incorrect

as the special use of the property could only be maintained if the property was being used to sell

cars, not just getting the property ready to sell cars. We need not address this issue, however, as

it is not relevant to our ultimate determination of the correctness of the trial court’s decision.

¶ 29 Once the City determined that the special use of the property had been discontinued, the

next step was for the plaintiff to request that the special use be reestablished. The City disagrees,

arguing that at this point the plaintiff should have appealed to the ZBA the zoning officer’s

determination that the special use of the property had been discontinued for 12 consecutive months

and that the six findings of fact to reestablish the special use permit had not been met. The City

therefore argues that because the plaintiff did not timely appeal to the ZBA, he failed to exhaust

his administrative remedies, and therefore his appeal should be dismissed. See Canel v. Topinka,

212 Ill. 2d 311, 320 (2004) (generally a party aggrieved by an administrative action must first

pursue all available administrative remedies before resorting to the courts).

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¶ 30 The City’s argument is inconsistent with the procedures set forth in the ordinance. The

plain language refers to the owner making a “request to reestablish the special use and the special

use permit.” Although that language appears near the end of the ordinance, it is most logical to

read that as the next step which occurs after the owner learns from the City that the special use

needs to be “reestablished.” To hold otherwise would not only be illogical but would also require

us to ignore the language that the owner is to make a “request,” something we cannot do. See

Brucker v. Mercola, 227 Ill. 2d 502, 514 (2007) (statutes must be construed so that each word,

clause, and sentence is given meaning, and not rendered superfluous).

¶ 31 Moreover, contrary to the City’s argument, section 63-012-C of the Code did not require

the plaintiff to appeal to the ZBA before he filed his request to reestablish the special use. Section

63-012-C also does not provide for the City staff to conduct a six standard findings of fact analysis

at the same time it determines that the special use had been discontinued for more than 12 months.

Indeed, to do so would create the absurd situation where the City staff has determined that the

special use permit cannot be reestablished before the plaintiff even requests that it be reestablished.

¶ 32 As the next step in the process was for the owner to request that the special use be

reestablished, we believe he did that when he filed a special use permit application. We note that,

under the ordinance, filing a special use permit application is something that is to occur after the

zoning officer denies the request to reestablish the special use. However, the reason that the

plaintiff filed the document that he did was based on misinformation that he received from the City

staff. The City staff told the plaintiff he needed to file an application for a new permit because (1)

the permit had expired due to a lack of use for more than one year; and (2) he was the new owner

of the property. The first reason the City staff gave was wrong because the special use permit did

not lapse due to non-use until 24 months had passed. Rockford Zoning Code, § 63-012-C (eff.

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Apr. 3, 2008). The second reason was equally flawed because the City ordinances provides that

special use permits run with the land. Rockford Zoning Code, § 63-010 (eff. Apr. 3, 2008) (“A

special use permit granted pursuant to the provisions of this Article shall run with the land and

shall continue to be valid upon a change of ownership of the site or structure which is the subject

of the special use permit application”). Based on the misinformation he received, we agree with

the trial court that it was equitable to treat the special use permit application the plaintiff filed as

his request to reestablish the special use.

¶ 33 In so ruling, we reject the City’s argument that the plaintiff should be bound by the

improper document he filed because “ignorance of the law is no excuse.” The City points to no

case, however, where that doctrine has been applied when the plaintiff’s mistake of law was based

on wrong information he received from the City’s own employees. As we believe it would be

unjust to apply that doctrine based on the circumstances of this case, we decline to do so. See

Halleck v. County of Cook, 264 Ill. App. 3d 887, 893 (1994) (equitable estoppel will be applied

against municipal bodies if it is necessary to prevent fraud and injustice).

¶ 34 Having determined that the plaintiff made a request to reestablish the special use permit,

the next part of the procedure under section 63-012-C of the Code was for the City staff to conduct

a review using the six standard “findings of fact” criteria listed in section 63-005 of the Code. The

City staff did that and made a positive review. Based on this positive review, section 63-012-C

required that “a zoning clearance shall be issued to reestablish the special use.” Section 63-012-

C’s use of the term “shall” mandates that the special use be reestablished. See Rockford Zoning

Code, § 11-002-C (eff. Apr. 3, 2008) (“The words ‘must,’ ‘will,’ ‘shall,’ and ‘may not’ are

mandatory”). Accordingly, the trial court properly granted summary judgment to the plaintiff and

ordered that the special use for the property be reestablished.

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¶ 35 We next turn to the City’s argument that the trial court erred in awarding the plaintiff any

damages because such damages were barred by the Tort Immunity Act (745 ILCS 10/2-201 (West

2018)). The purpose of the Tort Immunity Act is to protect local public entities and their

employees from liability arising from the operation of government. Coleman v. East Joliet Fire

Protection District, 2016 IL 117952, ¶ 34. “ ‘The Tort Immunity Act adopted the general principle

that local governmental units are liable in tort, but limited this liability with an extensive list of

immunities based on specific government functions.’ ” Id. (quoting In re Chicago Flood

Litigation, 176 Ill. 2d 179, 192 (1997)). By restricting the class of claims that may be brought

against local authorities, “the legislature sought to prevent the diversion of public funds from their

intended purpose to the payment of damage claims.” (Internal quotation marks omitted.) Prorok

v. Winnebago County, 2017 IL App (2d) 161032, ¶ 7.

¶ 36 Section 2-201 of the Act provides that “a public employee serving in a position involving

the determination of policy or the exercise of discretion is not liable for an injury resulting from

his act or omission in determining policy when acting in the exercise of such discretion even

though abused.” 745 ILCS 10/2-201 (West 2018); In re Chicago Flood Litigation, 176 Ill. 2d at

193-94. As such, section 2-201 immunity protects against both negligent and willful and wanton

conduct. Nichols v. City of Chicago Heights, 2015 IL App (1st) 122994, ¶ 27. Section 2-209 of

the Act extends immunity granted to public employees to municipalities. 745 ILCS 10/2-109

(West 2018) (“A local public entity is not liable for an injury resulting from an act or omission of

its employee where the employee is not liable”). Where an official’s conduct requires deliberation

or the exercise of judgment, his or her actions are discretionary and are subject to immunity.

Donovan v. County. of Lake, 2011 IL App (2d) 100390, ¶ 62.

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¶ 37 Here, the trial court found that the City’s staff were entitled to immunity under section 2-

201 of the Tort Immunity Act. Nonetheless, the trial court awarded the plaintiff his “court costs,

the $2500 business bond he paid but which went unused, and the $5868 cost of coverage for

vehicles garaged on the property for sale that also went unused.” The trial court’s determination,

that the Tort Immunity Act applied to the plaintiff’s action and yet he was still entitled to some

damages, was erroneous. See Prorok, 2017 IL App (2d) 161032, ¶ 7. We therefore vacate that

portion of the trial court’s judgment awarding the plaintiff damages.

¶ 38 In so ruling, we reject the plaintiff’s argument that the City waived its argument that the

amount of damages awarded was improper. The plaintiff points to the City’s response to its motion

for summary judgment where it argued that, if the trial court did find the City liable, the plaintiff’s

damages should be limited to his special use permit application fee, the bond premium and the

court filing fees. In making this argument, however, the plaintiff ignores that the City’s primary

argument was that the Tort Immunity Act barred the plaintiff from receiving any damages. The

City’s suggestion that the plaintiff receive some limited damages was its alternate argument in the

event the trial court rejected its primary argument. The fact that a party raises an alternative

argument in the trial court does not prevent it from maintaining the correctness of its primary

argument on appeal. See Gaffney v. Board of Trustees of Orland Fire Protection District, 2012

IL 110012, ¶ 36 (plaintiff’s raising of an alternative argument in the trial court did not prevent the

reviewing court from considering the merits of his primary argument on appeal).

¶ 39 The plaintiff further argues that the damages the trial court awarded were justified because

the City’s wrong actions were done willfully, maliciously, and with reckless disregard. Based on

the City’s malicious actions, the plaintiff insists that this court should award him more damages

than the trial court did.

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¶ 40 Because the plaintiff did not file a cross-appeal, we cannot award him more relief than the

trial court did. See People ex rel. Wray v. Brassard, 226 Ill. App. 3d 1007, 1011 (1992) (in the

absence of a cross-appeal, an appellee will not be permitted to challenge or ask the reviewing court

to modify a portion of the trial court’s order). As to the damages the trial court did award, there

was no basis for them even if the trial court found that the City staff acted willfully or maliciously.

The City’s alleged malicious act was its determination that the property had not been used for 12

consecutive months. That was a discretionary determination that did not affect the immunity

afforded to the City staff from the legislature. See Nichols, 2015 IL App (1st) 122994, ¶ 27;

Donovan, 2011 IL App (2d) 100390, ¶ 62.

¶ 41 III. CONCLUSION

¶ 42 For the foregoing reasons, we affirm the judgment of the circuit court of Winnebago

County granting the plaintiff summary judgment on his complaint; we vacate the award of

damages to the plaintiff.

¶ 43 Affirmed in part and vacated in part.

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