Rylatt v. Christensen

2025 IL App (4th) 240032-U

• Court: Appellate Court of Illinois
• Decided: April 10, 2025
• Docket: 4-24-0032
• Status: Unpublished

Opinion

NOTICE 2025 IL App (4th) 240032-U This Order was filed under FILED April 10, 2025 Supreme Court Rule 23 and is NO. 4-24-0032 Carla Bender not precedent except in the 4th District Appellate limited circumstances allowed IN THE APPELLATE COURT Court, IL under Rule 23(e)(1). OF ILLINOIS

FOURTH DISTRICT

SHAWN RYLATT, LISA RYLATT, ) Appeal from the JANET SAVAIANO, and AMIE LOTZER, ) Circuit Court of Plaintiffs-Appellants, ) Winnebago County v. ) No. 23MR38 DR. DENNIS D. CHRISTENSEN; ROCKFORD ) FAMILY PLANNING CENTER, LLC; THE CITY OF ) ROCKFORD; and THE ROCKFORD ZONING BOARD ) OF APPEALS, ) Honorable Defendants-Appellees. ) Ronald A. Barch, ) Judge Presiding.

JUSTICE DeARMOND delivered the judgment of the court. Presiding Justice Harris and Justice Steigmann concurred in the judgment.

ORDER ¶1 Held: The appellate court reversed, finding the Rockford Zoning Board of Appeals (Board) erred in finding two plaintiffs lacked standing; the Board clearly erred in determining the defendant doctor and clinic’s proposed use was consistent with a decades-old prior legal nonconforming use established by a special use permit; and subsequently, the trial court erred in affirming the Board and granting defendants’ motion to dismiss.

¶2 Plaintiffs, Shawn Rylatt, Lisa Rylatt, Janet Savaiano, and Amie Lotzer

(collectively, plaintiffs) appealed to the Rockford Zoning Board of Appeals (Board), challenging

the October 3, 2022, certificate of zoning compliance issued by Rockford’s zoning officer, Scott

Capovilla. Capovilla found defendants Dr. Dennis D. Christensen and Rockford Family Planning

Center, LLC’s (RFPC) proposed use of 611 Auburn Street in Rockford, Illinois (Property)

complied with a decades-old special use permit (SUP) and variance. The City of Rockford

(City), Dr. Christensen, and RFPC challenged plaintiffs’ standing before the Board and argued it should affirm Capovilla’s decision to issue the certificate of compliance. The Board found the

plaintiffs lacked standing and affirmed Capovilla’s decision.

¶3 Plaintiffs filed a two-count complaint in the trial court, naming as defendants Dr.

Christensen, RFPC, the City, and the Board (collectively, defendants) and seeking judicial

review and alleging a statutory claim. The court affirmed the Board on judicial review and

dismissed the remaining count.

¶4 On appeal, plaintiffs present three arguments: (1) the Board (and the trial court)

erred in finding plaintiffs lacked standing to challenge the certificate of zoning compliance

issued by Capovilla; (2) the Board erred in affirming Capovilla’s decision because Dr.

Christensen and the RFPC ’s proposed use did not conform to the prior legal nonconforming use

established by a prior SUP and variance; and (3) the court erred in dismissing count II, seeking

statutory relief.

¶5 I. BACKGROUND

¶6 A. Dr. Chin Obtained a SUP for the Property

¶7 This case began over five decades ago. In September 1981, Dr. Sam K. Chin,

D.C., filed an “Application For Registration For Home Occupation” with the City. Dr. Chin

listed his address as 611 Auburn Street in Rockford. He named his occupation as “chiropractic

physician.” He noted his proposed business would be confined to the first floor of his residence,

he would use a chiropractic adjustment table, and he would see patients “[b]y appointment only.”

¶8 In October 1981, Dr. Chin applied for a SUP and a variation for the Property. The

application noted the existing use of the Property included “chiropractic physician office and

home under ‘Home Occupation License.’ ” Dr. Chin’s original application was edited,

presumably by a Rockford zoning official, with red pencil. This revised application requested a

-2- SUP to “re-establish a non-conforming use [in R1],” specifically a “Home Occupation of a

medical type.” He requested four variations to the SUP relating to signage, landscaping, a fence,

setbacks, and “[e]mployment of a non member of household.”

¶9 The Board acted on Dr. Chin’s application in November 1981. It granted Dr. Chin

a SUP “to re-establish a non-conforming use (a Home Occupation of a medical nature), subject

to compliance with all provisions of the Home Occupation Ordinance.” The Board likewise

granted the variations relating to landscaping, the fence, and the existing setbacks. The Board

took no action on Dr. Chin’s “requested Variations pertaining to advertising signs or the

employment of persons NOT residing on the property because these two (2) items are covered by

the provisions of the Home Occupation Ordinance, and the Board has no authority to act on

exceptions or variations therefrom.” (Emphasis in original.)

¶ 10 The record indicates Dr. Chin appealed the Board’s actions and, in the course of

that appeal, Rockford’s public services committee considered the matter and submitted a report

to the Rockford City Council (City Council). On January 4, 1982, the matter came before the

City Council, and meeting minutes provided the following:

“Alderman Johnson moved the adoption of a Public

Services committee report recommending that the City Council

grant Appeal #81/23, thereby sustaining the Zoning Board of

Appeals/decision which was to grant a special use permit to

re-establish a home occupation as a non-conforming use *** and

allow the employment of a person not a member of the household.

Property located at 611 Auburn St.”

Dr. Chin later withdrew his remaining appeals.

-3- ¶ 11 Dr. Chin began operating a home business, namely his chiropractic practice, from

his residence at the Property, per the variations granted by the Board and City Council. However,

a letter from Rockford’s Department of Community Development to Dr. Chin, dated June 10,

1983, informed Dr. Chin he failed to renew his permit and license in September 1982. “Within

10 days of the receipt of [the] letter,” he needed to renew his “Home Occupation permit and

license” for September 1982. The letter also informed Dr. Chin he would still need to renew his

permit and license again in September “for the year 1983 to September 1984.” The record does

not document whether Dr. Chin complied with the letter’s directions and renewed the permit and

license. There is no documentation showing Dr. Chin renewed his permit for any of the years

spanning from 1982 to 2020. The record contains one renewal permit for Dr. Chin. Dated

February 4, 2022, the permit is labeled “Single Family Dwelling—Renew Home Occupation,”

and the description reads “2021 Home Occupation Renewal for Chiropractic.” There is one

document indicating the City inspected the Property in September 1981. The record does not

document any inspections past 1981.

¶ 12 B. Selling the Property and Continuing the SUP

¶ 13 In June 2020, the land use planner for the City mailed a letter to “the real estate

agent for Dr. Christensen,” which served as a zoning confirmation for the Property. The letter

read: “A [SUP] was granted to re-establish a home occupation as a non-conforming use, with

Variations to reduce the landscaping strips, permit a 5-foot fence and to allow the existing

setbacks to remain ‘as is.’ ” The letter noted the additional variations regarding signage and

“allow[ing] the employment of a person not a member of the household was approved on

January 4, 1982 with conditions.”

¶ 14 By July 2022, Dr. Chin had sold the Property to Dr. Christensen, evidenced by

-4- various permits issued to remodel the Property and one listing the owner as Dennis Christensen.

Later that summer, Dr. Christensen’s attorney contacted Capovilla, and requested “zoning

confirmation of the continued use of a [SUP] by a new owner *** of 611 Auburn Street.” The

letter described Dr. Christensen’s proposed use of the property “as a general medical office for

patients” with “two (2) staff persons and occasionally other medical personnel.” “All medical

services will be provided on the first floor of the building consistent with the past use,” and “[i]t

is anticipated there will be approximately one patient per hour.” The letter further noted, “There

is residential space on the second floor [that] will remain residential space,” which Dr.

Christensen “intends to use *** as his secondary residence which he will use on occasion.” The

letter requested “zoning confirmation that the proposed use conforms to the SUP and is

consistent with the past 40-year use of the Property.”

¶ 15 On August 25, 2022, Capovilla issued a letter noting the Property “was granted a

[SUP] to re-establish a non-conforming use (home occupation of a medical nature) in 1982.”

Capovilla noted the 1982 ordinance “outlined the required conditions which must be met in all

cases of home occupations,” including “Only members of the immediate family permanently

residing on the premises shall be employed in the home occupation.” He explained the 1982

ordinance was consistent with the current ordinance, “which only allows permanent residents of

the home to be employed in the conduct of a home business.” However, Capovilla noted “the

1982 [SUP] also allowed the employment of a person not a member of the household.” He

determined Dr. Christensen’s proposed “use of the property would not conform to the [SUP].”

He advised “that in order to allow continuation of this lawfully established non-conforming use

in the R-1, Single-family Zoning District, a resident of this home must live permanently and

work in this facility and only one person that is not a member of the household can be employed

-5- at this business.”

¶ 16 Dr. Christensen’s attorney responded with another letter, dated September 13,

2022. In that correspondence, Dr. Christensen proposed to use the Property as his “permanent

secondary residence” where “[h]e will reside *** on occasion when working at the Property.”

The letter identified the “employer” as the “Rockford Family Planning Center, LLC,” and noted

Dr. Christensen would be the employee who is also “a member of the household.” The letter

explained there would be one nonhousehold employee, as permitted by the SUP, namely “a

registered nurse who will be responsible for dispensing medication” and “will also meet with

patients when Dr. Christensen is not present.” The letter noted the home business would also

require services from an “independent consultant,” who would be “an independent contractor”

who “will set her own schedule and not be accountable to the [limited liability company (LLC)]

or Dr. Christensen for specific hours.” The letter stated the proposed home business/medical

clinic may use volunteers, who had already been identified, and “would be temporary and not

employed by the LLC.”

¶ 17 The record does not document Capovilla’s response, but the attorney sent another

letter on September 28, 2022, seeking to “withdraw” her prior letter “[a]s a result of additional

information.” The new letter stated, “There is a strong desire by one of the ‘employees’ to reside

at the Property as her permanent residence.” “This person will be providing administrative

services and basically all managerial and financial work to operate the business and comply with

all regulations.” This person will be a “permanent tenant resident, she will be residing at the

Property as her home.” The letter confirmed, “There will be a residential lease with the owner to

reflect the terms of her occupancy as a household.” This letter maintained the registered nurse

will still be the “additional person employed who is not a member of the household.” The nurse

-6- “will be responsible for all patient care at the Property including dispensing medication and

maintaining patient charts and records.” This letter did not describe Dr. Christensen’s role in this

proposed use.

¶ 18 In response to Dr. Christensen’s newest letter, Capovilla issued a zoning

determination on October 3, 2022. It read:

“As presented by your follow-up September 28 letter, the

description of the use of the property would conform to the [SUP],

as there would be one employee permanently residing at the

residence and no more than one non-household person employed at

this location. Once again, the property is located within the R-1,

Single-family District and was granted a [SUP] to re-establish a

non-conforming use (home occupation of a medical nature) in

1982. Based on the information provided within your September

28 letter, the business would be allowed to proceed and operate at

this location.”

Plaintiffs appealed this determination to the Board, per article 66, section 66-001 of the City’s

zoning ordinance (RZO) (Rockford Zoning Ordinance § 66-001 (eff. Apr. 3, 2008)). Plaintiffs

alleged the approved use for the Property conflicted with various zoning ordinances (i.e.,

Rockford Zoning Ordinance arts. 20, 53, 63 (eff. Apr. 3, 2008)) and argued “any permit,

certificate or license issued in conflict with the provisions of this Ordinance is void.” Plaintiffs

also argued Dr. Chin’s SUP had lapsed and was void and Dr. Christensen’s proposed use should

undergo independent review required for SUPs under section 63-001 of the RZO. See Rockford

Zoning Ordinance § 63-001 (eff. Apr. 3, 2008). Plaintiffs requested relief from the Board,

-7- including voiding the zoning determination, voiding the SUP, and requiring RFPC to go through

the process outlined in the RZO.

¶ 19 On December 16, 2022, Capovilla submitted a memorandum to the Board in

advance of the scheduled hearing. He recommended the Board find the plaintiffs had no standing

to bring the appeal. He also recommended the Board affirm his determination “that the proposed

legal non-conforming use is consistent with the previous use (home occupation of a medical

nature).” Capovilla explained, “The City has been operating as if a SUP existed for the last 40

years and believes the use dates back even years prior.” He attached several exhibits to the

memo, to wit, documents from the City’s file for the Property.

¶ 20 C. Hearing Before the Board

¶ 21 The Board conducted a hearing on December 20, 2022. Following opening

statements from plaintiffs’ counsel, Capovilla provided a statement explaining his process in

issuing the zoning determination. He noted Dr. Chin operated a chiropractic clinic at the Property

per a SUP for 40 years. Capovilla explained a chiropractic clinic “is classified as a medical

clinic” and “we do not distinguish by trades within the medical profession as to orthopedic or

cardiology or whatever—everything is lumped under one category for medical uses.” Capovilla

stated he believed Dr. Chin purchased the Property from Dr. Daub, who had been at that location

for at least 20 years and operated a home business of a medical nature before 1981: “So, Dr.

Daub lived there; Dr. Chin lived there. It was a home occupation of a medical nature.” He

described his back-and-forth correspondence with Dr. Christensen’s attorney, “explain[ing] to

her how this would have to operate in order for it to be a legal non-conforming use that would

then continue on.”

-8- ¶ 22 1. Capovilla’s Testimony

¶ 23 Plaintiffs called Capovilla as a witness for their appeal. While acknowledging he

was “not privy to what chiropractors can and cannot do” because he “do[es] not follow medical

law,” Capovilla, without identifying any source of his information, testified a chiropractic clinic

qualifies as a “medical clinic” under the zoning ordinances because chiropractors “are awarded a

doctorate for chiropractics. So, they are considered medical in nature.” Capovilla confirmed that

when the City Council granted Dr. Chin a SUP, it included language that Dr. Chin “remained

subject to all provisions of the home occupation ordinance.” He confirmed he did not understand

the home occupation ordinance to be “varied or exempted in any way on this property.”

¶ 24 Capovilla testified the Property is located in a “pretty dense residential area” that

was “[p]retty typical of the older areas of Rockford.” Similarly, he confirmed that Dr. Daub and

Dr. Chin previously owned the Property, and both lived there while they conducted their

respective practices as home businesses. He stated he rejected Dr. Christensen’s proposal to use

the Property as a secondary residence, explaining, “A home occupation has to have somebody

living on the site that actually is employed by that business. So, if the person is an employee and

they are actually the person that’s living there, that would be legal.” When asked if there were

“any other examples of that in the City of Rockford right now,” Capovilla testified, “No, because

this is a very unique situation that, once again, is a lawfully established nonconforming special

use that has been allowed to continue for over 50 years.”

¶ 25 Capovilla stated he would still find consistent use as a home occupation at the

Property if it were one medical clinic out of a larger group of medical clinics. He testified the

ordinance “doesn’t say that the owner of the property has to be the one living there.” When asked

how the person living there being a tenant who “can be thrown out on the street at any moment”

-9- affected his analysis, Capovilla responded, “We would deal with it if that ever happened.” In

fact, Capovilla, testified he had not seen the lease for the tenant-employee who planned to live at

the Property, but he said, “I am supposed to be receiving that very soon.” He acknowledged he

did not know what length of a lease term would make the tenant a permanent resident.

¶ 26 When asked to clarify section 53-001 of the RZO (Rockford Zoning Ordinance

§ 53-001 (eff. Apr. 3, 2008)), particularly the wording about the use as a business being

“incidental” to the residential use, Capovilla, said, “[T]his portion of the home occupation for a

home business ordinance doesn’t apply, because once again, we are talking about a lawfully

established, legal nonconforming use that existed prior to this ordinance.” When asked to clarify

the home business ordinance, specifically, whether the person permanently residing at the

Property must be conducting their own home-based business, Capovilla did not respond directly

to the question, and instead, the following colloquy occurred:

“[PLAINTIFFS’ COUNSEL:] But Mr. Capovilla, again, as

I read your ordinance, it’s the person’s business. They may be

leasing an apartment on your—a counseling business out of your

apartment. But its your counseling business; it’s not someone

else’s that you’ve got and you want a number of employees to do.

Isn’t that the way the ordinance should be read, that it is a

home-based business, being actually your business?

[CAPOVILLA:] This is not an apartment. This is a single

family home.”

¶ 27 Plaintiffs next asked about an LLC managed by Dr. Christensen. This exchange

followed:

- 10 - “[PLAINTIFFS’ COUNSEL:] Are you aware, Mr.

Capovilla, that the manager of the [RFPC], which is headquartered

at 611 Auburn is managed by Dr. Christensen, which is at the other

address 4236 Maray Drive?

[CAPOVILLA:] It’s irrelevant.

[PLAINTIFFS’ COUNSEL:] So, it’s irrelevant to you that

this 611 Auburn is part of a two-clinic medical practice that wants

to operate in Rockford. It’s irrelevant to your determination of

being a home-based business?

[CAPOVILLA:] Correct.”

¶ 28 Capovilla testified he did not receive any information about the patient volume at

the medical clinic on the Property going forward. He stated the Property is “a

lawfully-established location of a medical nature, and it’s allowed to continue as such,” “[n]o

matter the patient flow.”

¶ 29 When asked if “they” (presumably someone associated with the home business

like Dr. Christensen, the LLC, or the tenant-employee) will be “required to fill out a home

business application, Capovilla answered, “Yes. They have already done that” “[l]ast week.”

However, Capovilla could not say to whom the home-based business permit would be issued. He

did not know if it would be Dr. Christensen or the LLC, saying, “Once again, I know that an

application was submitted, and I will have to review the application.” When plaintiffs’ counsel

asked for a copy of the application, Capovilla said he would provide one in the future, but he

would not provide it during the hearing or after his testimony. He did not know exactly where the

application was located, noting he “possibly” had it in the building somewhere.

- 11 - ¶ 30 Capovilla acknowledged that article 80 of the RZO placed the burden of proving a

lawful, nonconforming use on the Property owner. He confirmed he could not locate the SUP, or

the “actual ordinance,” for the Property. He did not know the terms of the SUP, but “[b]ased on

the information that’s provided in the files from the City, that’s the determination that was

made.” Capovilla could not say if the SUP contained any conditions like limiting use of the

property to chiropractic clinics. He acknowledged Dr. Chin’s application for the SUP listed the

use as a chiropractic clinic but dismissed any suggestion the SUP, which he had never seen,

restricted the Property’s use to only chiropractic offices, saying, “Highly doubt that.”

¶ 31 Plaintiffs’ counsel next turned to employee capacity for the Property.

“[COUNSEL:] The statement that the home business can

have only one other employee outside of that home. Is that your

understanding of the home business?

[CAPOVILLA:] Only in this case. Most of the time, home

businesses are allowed to have outside employees and outside

addresses.

[COUNSEL:] And so, your understanding is that this

particular business, whatever business it is, *** that has the

employee living—well, it will have an employee who is a

permanent resident of the facility, and the one other employee. Is

that your understanding of how the business is structured?

[CAPOVILLA:] That would be correct.

[COUNSEL:] Okay. So, if there are more employees than

that, that would not meet the terms of your zoning ordinance?

- 12 - [CAPOVILLA:] Correct.”

Capovilla stated that under the proposed use, Dr. Christensen could not work at the Property, but

he could supervise the nurse under the SUP.

¶ 32 2. Shawn Rylatt

¶ 33 Plaintiffs next called Shawn Rylatt, who testified he lived “about a block away,”

or “about *** 550 feet” from the Property. He said he could see the Property from his driveway.

He testified he heard noise from “meetings” in front of the Property. He described the noise as

“Protests and cars go by, you know, colorful adjectives.” Rylatt testified he found the noise

“annoying,” “[c]onsidering the fact that I work from home and I’m on the phone 90 percent of

my day, I had to explain that to somebody, you know, what’s going on in the background.”

Rylatt stated the activity in the neighborhood since RFPC was announced as the owner of the

Property had disturbed his quiet enjoyment of his property. He testified he had a 12-year-old

daughter who likes to ride her bike to school, and he was worried about increased traffic in the

neighborhood. He acknowledged his daughter would hear expletives from the protestors when

riding her bike in the neighborhood. Rylatt testified the new clinic in the neighborhood caused

him to fear his home’s value would decrease. He explained his property value had not recovered

since 2008, and he expected this change to the neighborhood would exacerbate the decrease.

¶ 34 On cross-examination from the Board, Rylatt clarified he lived “a block and a

half” from the Property. When asked if noise from the protests compared to noise from the traffic

or construction on Auburn Street, Rylatt answered, “No, because *** the cars are kind of like

white noise. The language is not white noise.” Rylatt said he did not know who was protesting at

the Property, but he “assum[ed] the pro life initiative has been there.” When a board member

asked if Rylatt could have brought in “expert testimony as to the value of your property,” he

- 13 - answered, “I suppose it’s possible, but I’m only guessing that.” He explained he did not hire

anyone to value his property, but he speculated it would continue to go down. Rylatt emphasized

his concerns centered upon his property value, the traffic on his street, and “the general

atmosphere of the neighborhood.”

¶ 35 On cross-examination by Dr. Christensen’s counsel, Rylatt confirmed he is a

member of the Rockford Family Initiative (RFI). Rylatt testified he was not at the meeting as a

member of RFI, but for himself. He said he read in an article that RFI had organized protests at

the Property. When asked if he addressed his concerns about protests with RFI, Rylatt answered,

no, “because they weren’t the ones who were swearing.” Rylatt testified he was not familiar with

any website or social media scheduling or soliciting protests at the Property.

¶ 36 3. Meg Larkin

¶ 37 Plaintiffs next called Meg Larkin as a witness, who testified, “I’m the clinic

director at Auburn Street, 611 Auburn.” She said she moved into the Property on October 17,

2022, under a lease “starting at one year, with continuation after one year.” She could not recall

if employment was a term in the lease. Larkin testified she gave the lease to her attorney and she

anticipated the attorney would give the lease to the City. She stated she had not applied for a

home-based business permit. Larkin testified the business operating on the Property was RFPC.

She confirmed she did not own the business.

¶ 38 When describing RFPC’s operations, Larkin would not discuss whether the

business had another location on Maray Drive. Larkin testified Dr. Christensen lived in

Wisconsin and the other employee at the Property was “an RN, a nurse.” Larkin described the

nurse’s duties as taking blood pressure, educating the patient, having the patient sign consent

forms, doing the ultrasound, and dispensing medication. Larkin explained the nurse is licensed in

- 14 - Illinois and Dr. Christensen, who had a temporary Illinois license, supervises the nurse. Larkin

described her role in the business as “administrator,” explaining: “I pay the bills, make sure that

the company is open, and that the paperwork is all in order.” She elaborated she makes sure the

location “is clean and that we have all the proper regulations and everything is set up properly.”

On her professional experience, Larkin said, “I have spent my life being an administrator.”

¶ 39 4. Kevin Rilott

¶ 40 Plaintiffs next called Kevin Rilott. He testified he was a founding member of RFI.

He recalled protests at the Property. He said some protests attracted more people, while others

attracted a few. He testified a resident in the neighborhood “had some—I would say not very

kind words *** complaining that we were taking all their parking.” He said cars would drive by

and honk their horns at protestors or swerve at them.

¶ 41 Rilott described the protests as people there being present, praying, and

counselors on the sidewalk offering to help women get an ultrasound or support. He stated RFI

does not hold up graphic signs. His members hold up signs of Jesus and Mary. He said other

groups will sometimes show up and he cannot control what signs they display.

¶ 42 5. Public Comment and Decision

¶ 43 The City called no witnesses, and Capovilla informed the Board, “[S]taff is just

standing on the staff memo that was presented to the Board along with the exhibits.” The City’s

attorney added, “I don’t think any other party has any witnesses.” Dr. Christensen and RFPC

presented no evidence.

¶ 44 The hearing then proceeded to public comments, which were to be considered a

part of the record. Each speaker was sworn. Cathy Albrecht testified, “I’ve been a realtor in the

Rockford area for 20 years.” She stated:

- 15 - “I will attest that if we show properties in that neighborhood, it is

my professional opinion that there will be a lot of people that will

not want to move into that west side neighborhood, and it will have

a detrimental effect. And I have been a professional realtor in this

market for 20 years, and I think that is very relevant. It’s the only

thing that’s relevant to whether those neighbors have standing, and

they do.”

¶ 45 Following closing arguments from plaintiffs and the City, the Board expressed

confusion on what to do next, whether to discuss the case or make a motion. One board member,

Tom Fabiano, gave his “personal opinion” that the plaintiffs “don’t have standing.” Capovilla

instructed the Board it could make a motion on standing and consider each plaintiff individually

or “take it as a group.” He explained, “[A]nd the group would be whether or not the Petitioners

have established that they are an aggrieved party for purposes of the appeal.” By a unanimous

voice vote the Board passed a motion finding the plaintiffs did not have standing.

¶ 46 Capovilla then instructed, “[T]he Board can choose also to—notwithstanding the

issue of no standing, make a motion to either affirm or reverse the zoning officers’ determination

and vote on that as well.” Board member Maurice Redd asked Capovilla for an explanation of

why he could not locate the SUP. Capovilla responded:

“So based on information that was in the file, Mr. Redd, we

discovered that there may or may not have been a [SUP] at this

property. But we do know that somewhere along the way, the

zoning officer at the time, and I think it’s in your packet—that all

appeals were granted for Dr. Chin, and that he could proceed with

- 16 - his home occupation at that location.

So based on that information and based on fact that Mr. Chin for

40-plus years of home occupation, which requires occasional

inspections by the staff, you know, we determined that was, you

know, definitely a lawfully established use.”

Redd asked about the lease, and Capovilla again said he did not have it, but he would make it

part of the file once he received it. He explained again that the only people who can work at the

Property are the administrator and the nurse. The Board made a motion to affirm Capovilla’s

determination, and it passed by a unanimous voice vote.

¶ 47 D. Proceedings in the Trial Court

¶ 48 On January 30, 2023, plaintiffs filed a two-count complaint in the trial court.

Count I sought judicial review of an administrative decision pursuant to section 3-103 of the

Code of Civil Procedure (735 ILCS 5/3-103 (West 2022)). Citing various Rockford ordinances,

plaintiffs alleged the Board’s “decision that Dr. Christensen’s Medical Clinic use ‘is consistent

with the previously legally established non-conforming use’ is in error.” (Emphasis omitted.)

Count II challenged Dr. Christensen and RFPC’s proposed use of the property pursuant to

section 11-13-15 of the Illinois Municipal Code (65 ILCS 5/11-13-15 (West 2022)).

¶ 49 On April 3, 2023, Dr. Christensen and RFPC moved to dismiss count II pursuant

to section 2-619.1 of the Code of Civil Procedure (735 ILCS 5/2-619.1 (West 2022)). The

motion argued: (1) count II is preempted by count I, “which addresses the same zoning issue,”

(2) plaintiffs lack standing on count II because the Board “already ruled that Movants are

engaging in permitted activity on the property in accordance with applicable zoning regulations,”

and (3) plaintiffs have no standing for count II because their “alleged injury is not fairly traceable

- 17 - to the alleged violation of an ordinance.”

¶ 50 The next day, the City and the Board filed their motion to dismiss count II

pursuant to section 2-619.1 of the Code of Civil Procedure (735 ILCS 5/2-619.1 (West 2022)),

arguing the “municipality is not subject to suit under 65 ILCS 5/11-13-15 [(West 2022))],”

meaning first, “Plaintiffs cannot state a cause of action on which relief might be granted,” and,

second, “the claim is barred by that Section.”

¶ 51 On June 4, 2023, following a hearing on both motions to dismiss count II, the trial

court issued an order, stating, “It is agreed by the Parties, and hereby ordered that [the City] and

the Board] are not defendants in Count II, or if considered as such are dismissed.” The court’s

order provided, “The Motion to Dismiss count II by Defendants Dr. Christensen [and] RFPC

having been fully briefed and argued, said motion is stayed pending decision on Count I.” The

court set the schedule for briefing and the hearing on count I.

¶ 52 On September 11, 2023, the parties appeared before the trial court to argue the

merits of count I (judicial review). The court eventually issued an order denying plaintiffs relief

on November 6, 2023. The court determined the plaintiffs lacked standing, affirming the Board

even while noting it “did not offer much in the way of specifics regarding its decision.” The

court likewise affirmed the Board’s decision to affirm Capovilla’s zoning determination. The

court found the Board’s construction of the SUP was not clearly erroneous, nor was the Board’s

decision that Dr. Christensen’s proposed use proved consistent with the prior legal

nonconforming use under the SUP. Finally, the court rejected plaintiffs’ argument that Dr.

Christensen needed to begin the SUP process anew. Based upon its ruling on count I, the court

eventually granted Dr. Christensen and RFPC’s motion to dismiss count II.

¶ 53 This appeal followed.

- 18 - ¶ 54 II. ANALYSIS

¶ 55 Plaintiffs raise three arguments: (1) the Board erred in finding plaintiffs lacked

standing to appeal the zoning determination, (2) the Board’s decision to affirm the zoning

determination that a proposed use conformed with a prior legal nonconforming use was clearly

erroneous, and (3) the trial court erred in dismissing their claim under section 11-13-15 of the

Illinois Municipal Code. We will take each argument in turn.

¶ 56 A. Standing

¶ 57 Section 66-001 of the RZO provides: “An appeal to the Zoning Board of Appeals

may be taken by any person aggrieved or by any officer, department, board or bureau of the

City.” Rockford Zoning Ordinance § 66-001 (eff. Apr. 3, 2008). This ordinance mirrors section

11-13-12 of the Illinois Municipal Code (65 ILCS 5/11-13-12 (West 2022)) (“An appeal to the

board of appeals by any person aggrieved or by any officer, department, board, or bureau of the

municipality.”). A person’s standing to appeal a zoning decision in Rockford thus turns on

whether he has been “aggrieved”—a term left undefined by the local ordinance and state statute.

So we look to the common law.

¶ 58 In the simplest terms, “standing in Illinois requires only some injury in fact to a

legally cognizable interest.” Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462,

492 (1988). We have explained standing requires “an actual controversy between adverse

parties,” wherein “the plaintiff is not merely curious or concerned about the outcome, but

possesses some personal claim, status or right, a distinct and palpable injury which is fairly

traceable to the defendant’s conduct and substantially likely to be prevented or redressed by the

grant of such relief.” Westwood Forum, Inc. v. City of Springfield, 261 Ill. App. 3d 911, 921

(1994) (citing Greer, 122 Ill. 2d at 493). “In Illinois, lack of standing is an affirmative defense,”

- 19 - meaning defendants ordinarily bear the burden of raising and proving lack of standing. Greer,

122 Ill. 2d at 494.

¶ 59 In deciding the standing question below, the Board (and the trial court) considered

whether the plaintiffs proved they suffered (or will suffer) “special damage different from

damage sustained by the public generally.” (citing Treadway v. City of Rockford, 28 Ill. 2d 370,

376 (1963); Garner v. Du Page, 8 Ill. 2d 155, 158 (1956)). This “special damage” language

originated in two 1950s Illinois Supreme Court cases, Bullock v. City of Evanston, 5 Ill. 2d 22,

33 (1954) and Garner, 8 Ill. 2d at 158-59. Longevity notwithstanding, “special damage” remains

a vague concept in isolation.

¶ 60 1. Standing to Challenge Another’s Use of Their Property Is Not Qualitatively Different From Standing Law Applied in Other Contexts ¶ 61 In Garner, the county board rezoned a 120-acre tract of land from farming to

industrial. Garner, 8 Ill. 2d at 157. The plaintiffs filed a complaint in the trial court seeking, first,

to have the board’s decision “declared null and void,” and second, to “permanently enjoin [it]

from issuing a building permit for the construction of any industrial or business buildings on the”

land. Garner, 8 Ill. 2d at 157. The plaintiffs’ complaint alleged they were taxpayers and county

residents who owned “real estate in and about the city of Naperville that *** was located

contiguous to and in the vicinity of the tract rezoned.” Garner, 8 Ill. 2d at 157. The complaint

further alleged the rezoning would decrease property values and “be detrimental to the welfare of

the city of Naperville in that the influx of population expected to accompany the industrial use

*** would overtax the city’s facilities for housing, education, water, sewage disposal, traffic, and

the like.” Garner, 8 Ill. 2d at 157-58.

¶ 62 The evidence plaintiffs offered at trial did not support their allegations, however.

As for proximity to the land, two plaintiffs lived “three miles from the tract rezoned” and another

- 20 - owned a farm “one and one-half miles distant from the rezoned tract.” Garner, 8 Ill. 2d at 158.

None were contiguous or in the vicinity. As for property values, no plaintiff “nor any of the

witnesses appearing in their behalf gave any evidence whatsoever relating to the values of their

properties.” Garner, 8 Ill. 2d at 158. Defendants did, however, present evidence relating to

property value, offering testimony from “a real-estate expert who *** expressed the opinion that

[plaintiffs’] real estate was too far distant from the rezoned tract for any change in value to

result.” Garner, 8 Ill. 2d at 158. Ultimately, the plaintiffs offered no evidence “to establish the

existence of special injury or damage to [their] personal or property rights.” Garner, 8 Ill. 2d at

158. The trial court affirmed the county board’s decision and “dismissed, for want of equity,” the

plaintiffs’ complaint. Garner, 8 Ill. 2d at 156.

¶ 63 On appeal, the Garner court observed: “[W]e have held that for a party to have

standing in a court of equity to complain about the use of another’s property, he has the burden

of proving that he has suffered special damage by reason of such use which differs from that

suffered by the general public.” Garner, 8 Ill. 2d at 158-59 (citing Bullock, 5 Ill. 2d at 33-34).

The court justified the rule as a bulwark against “harassing and vexatious suits by persons not

aggrieved [that] would most certainly ensue.” Garner, 8 Ill. 2d at 159. Considering the facts

established in the trial court, the supreme court held, “[I]t is clear that [plaintiffs] have failed to

prove damage which is different from that suffered by the public generally and therefore have no

standing to maintain the action.” Garner, 8 Ill. 2d at 159. The court specifically observed, “the

total failure of any evidence showing that the rezoning would depreciate” property values and

“the fact that [plaintiffs’] properties are so far distant from the rezoned tract as to make it

doubtful that any prejudice or depreciation could result.” Garner, 8 Ill. 2d at 159. The Garner

court affirmed the trial court’s decision.

- 21 - ¶ 64 The Illinois Supreme Court has not cited Garner for more than six decades.

Notably, the court did not discuss Garner when it clarified Illinois’s standing law in 1988. See

Greer, 122 Ill. 2d at 488-95 (taking the “opportunity to review the law of standing in some

detail”). Garner’s omission from Greer caused the Second District, in Paul v. City of Ogle, 2018

IL App (2d) 170696, ¶ 13, a case on which defendants rely, to question whether Garner’s

“special damages” standard still applied. (“It is thus unclear whether a plaintiff challenging the

granting of a [SUP] for a neighboring property has a duty to plead special damages.”). We in the

Fourth District have never cited Garner. Nevertheless, we are not asked to rule on Garner’s

applicability here, as both parties cite it favorably. More importantly, though, we believe Greer

clarified Garner and the two apply the same standing requirements while using different

verbiage. Our colleagues in the Fifth District compared the two cases and reconciled the

language. We agree with their conclusions.

¶ 65 In Cedarhust of Bethalto Real Estate, LLC v. Village of Bethalto, 2018 IL App

(5th) 170309, ¶ 1, the plaintiff, who operated a local nursing home, sued the municipality,

mayor, and trustees, challenging their decision to grant another company permission to develop a

new senior citizen residential, nursing, and memory care facility. The defendant moved to

dismiss the complaint, “arguing that Cedarhurst lacked standing to bring any claim because it did

not plead special injury or individualized harm and, alternatively, that there was no actual

controversy between the parties.” Cedarhurst, 2018 IL App (5th) 170309, ¶ 6. The trial court

agreed the plaintiffs lacked standing and dismissed the case. Cedarhurst, 2018 IL App (5th)

170309, ¶ 7.

¶ 66 The appellate court affirmed and, in arriving at that decision, it carefully reviewed

the standing doctrine. It noted first that, as the plaintiff, “Cedarhurst was not obligated to

- 22 - establish its standing in its complaint,” but “once the defendants raised standing as an affirmative

defense *** the burden shifted to Cedarhurst to establish that it has standing.” Cedarhurst, 2018

IL App (5th) 170309, ¶ 14. The court observed the trial court relied on Garner to decide the

standing question. It then reviewed standing law from Garner to Greer as it pertained to

challenging another person’s use of his own property. “Based upon this careful analysis,” the

court “conclude[d] that Greer explained and outlined what is required to establish standing and

should be the standard used by courts.” Cedarhurst, 2018 IL App (5th) 170309, ¶ 19. The court

found “common ground” between Garner’s language of “special damage” or “special injuries”

and Greer’s “injury in fact to a legally cognizable interest” language. It observed Greer’s

wording “require[s] a distinct injury to the complaining party, even though the use of the term

‘special injury’ is no longer commonplace.” Cedarhurst, 2018 IL App (5th) 170309, ¶ 20.

Accordingly, the court determined, “[t]o establish standing, there needs to be a connection

between the complaining party and the defendant involving an injury to a legally cognizable

interest.” Cedarhurst, 2018 IL App (5th) 170309, ¶ 20.

¶ 67 Though we have never cited Garner’s “special damage” language, we understand

it to align with current standing law. The language in Garner and Greer differs, yet the principles

are the same. The standing requirements for challenging another person’s use of his property are

not qualitatively different from the standing criteria applied generally. Essentially, a “special

damage” is another way to allege an injury to a legally cognizable interest. See Greer, 122 Ill. 2d

at 493. We will evaluate the standing issue in this case using Greer’s language and lens, bearing

in mind, “the principle that standing in Illinois requires only some injury in fact to a legally

cognizable interest.” Greer, 122 Ill. 2d at 492. No matter if the injury is “actual or threatened,” it

“must be (1) distinct and palpable [citation]; (2) fairly traceable to the defendant’s actions

- 23 - [citation]; and (3) substantially likely to be prevented or redressed by the grant of the requested

relief.” (Internal quotation marks omitted.) Greer, 122 Ill. 2d at 492-93. Standing presents a legal

question we review de novo, meaning we pay no deference to the Board or the trial court. In re

Guardianship of K.R.J., 405 Ill. App. 3d 527, 535 (2010) (“Generally, the question of standing is

reviewed de novo.”). See Glisson v. City of Marion, 188 Ill. 2d 211, 221 (1999).

¶ 68 2. Standing in This Case

¶ 69 As we observed, supra ¶¶ 33-41, plaintiffs presented evidence to the Board

relating to standing, while defendants did not. Capovilla’s memorandum to the Board made a

conclusory recommendation on standing but offered no findings. The Board likewise made no

findings related to standing. Following Capovilla’s lead, the Board resolved the standing

question by voting unanimously that “the [Plaintiffs] have not established that they are an

aggrieved party, and the appeal does not have standing as such” The Board then issued three

preprinted decisions signed and dated by the chairman, wherein each petitioner was identified

and one of two options were circled: either “DOES/DOES NOT” or “DO/DO NOT” “have

standing as an aggrieved party to appeal the Zoning Officer’s October 3, 2022 Determination.”

The named petitioners before the Board included Amie Lotzer, RFI, and Shawn and Lisa Rylatt.

The Board circled “DOES NOT” or “DO NOT” have standing for each petitioner. We agree with

the Board’s conclusions as to Lotzer and RFI; however, we disagree with the Board’s conclusion

as to the Rylatts.

¶ 70 The record contains no evidence concerning Lotzer or any injury to a legally

cognizable interest she suffered (or will suffer) from Capovilla’s zoning determination.

Likewise, the record evidence does not show RFI suffered (or will suffer) an injury to a legally

recognizable interest. At best, RFI demonstrated a “self-proclaimed” interest in the proceedings,

- 24 - which made them “merely curious or concerned about the outcome.” Westwood, 261 Ill. App. 3d

at 921. This is not enough to establish standing for RFI or the members it represents. Westwood,

261 Ill. App. 3d at 921-22; see Landmarks Preservation Council of Illinois v. City of Chicago,

125 Ill. 2d 164, 175 (1988). We hold the Board, therefore, correctly determined Lotzer and RFI

lacked standing.

¶ 71 Nevertheless, based on the record below, we conclude Shawn and Lisa Rylatt had

standing to challenge Capovilla’s zoning determination. They alleged and established an “injury

in fact to a legally cognizable interest” (Greer, 122 Ill. 2d at 492), specifically, the interests in

their property value and their quiet enjoyment of property. Paul, 2018 IL App (2d) 170696, ¶ 12

(citing People ex rel. Klaeren v. Village of Lisle, 202 Ill.2d 164, 176 (2002)). See Yusuf v.

Village of Villa Park, 120 Ill. App. 3d 533, 538 (1983), overruled on other grounds by Gallik v.

County of Lake, 335 Ill. App. 3d 325 (2002) (holding allegations of adverse impact upon the

quiet enjoyment of property and property values near a subject property confer standing because

they constitute interests distinct from those of the general public can assert); see also Greer, 122

Ill. 2d at 493 (“There is no question that a diminution in the value of property is a legally

cognizable interest.”). And more importantly, once plaintiffs presented evidence of standing,

defendants did not prove the Rylatts did not have standing. Greer, 122 Ill. 2d at 494 (stating the

agency, as defendants-appellants, ultimately bore the burden to plead and prove lack of

standing); see Paul, 2018 IL App (2d) 170696, ¶ 10 (“Generally, a plaintiff need not allege facts

to establish his or her standing; rather, it is the defendant’s burden to plead and prove a lack of

standing.”); Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217, 252 (2010) (“Under Illinois

law, lack of standing is an affirmative defense, which is the defendant’s burden to plead and

prove.”).

- 25 - ¶ 72 a. Loss of Quiet Enjoyment

¶ 73 Shawn Rylatt testified he lived within a block-and-a-half, or approximately 550

feet from the Property. He could see the Property from his driveway. He testified the atmosphere

in the neighborhood changed when it became known RFPC would occupy the Property. He

identified noise as one change. He said he could hear noise from “meetings” and “protests”

outside the Property, including loud, “colorful adjectives.” Rylatt testified he worked from home

and was “on the phone 90 percent of [his] day” and the noise proved annoying and disruptive. He

recalled the noise even disturbed a work call, causing him to have to explain the background

noise. On cross-examination by the Board, Rylatt differentiated between traffic noise and protest

noise. He stated cars are like white noise to him, while language/talking is not. Rylatt testified

his 12-year-old daughter liked to ride her bike to school and around the neighborhood and he was

concerned the increased traffic posed a threat to her safety. He likewise stated his concern about

her hearing profane language and seeing graphic signs from protestors or counter-protestors.

¶ 74 Kevin Rilott’s testimony confirmed Rylatt’s concerns about changes to the

neighborhood and his daughter’s safety. Rilott testified about organizing protests at the property,

noting some protests attracted more people than others. He stated he could not control who

showed up to protest or what signs they displayed. Rilott likewise testified he could not control

how others responded to the protests. He acknowledged protestors used street parking in the

neighborhood. Riott testified nonprotestors would say “not very kind words” to those protesting.

He testified people would drive by and honk their horns or swerve their car towards protestors.

¶ 75 Increased traffic and noise can result in the loss of quiet enjoyment of one’s

property, which is adequate to confer standing. Klaeren, 202 Ill. 2d at 176 (citing Yusuf, 120 Ill.

App. 3d at 538). This testimony established an “actual or threatened” injury to the Rylatts’ quiet

- 26 - enjoyment of their property that is fairly traceable to the City and Board’s decision to allow the

RFPC to operate in a densely populated residential neighborhood.

¶ 76 b. Decreased Property Value

¶ 77 As for property value, Shawn Rylatt testified he was concerned the changed

atmosphere in the neighborhood would adversely affect his home’s value. Rylatt testified his

property lost value in 2008 and he worried the changes to the neighborhood would cause his

property’s value to further decrease. Rylatt acknowledged on cross-examination by the Board

that he did not hire an “expert” to appraise his home value or offer “expert testimony as to how

the value of [his] property would have been affected.” He said he was “speculating that [his]

property is going to devalue further than it already has.”

¶ 78 Rylatt’s testimony describing his concerns about property values was supported

during the public comment portion of the hearing. Each speaker was sworn, so it would appear

the comments were testimony. The Board heard from Cathy Albrecht, who testified under oath

she worked as a “realtor in the Rockford area for 20 years.” Albrecht attested to her

“professional opinion” that RFPC would “have a detrimental effect” on the neighborhood and

home values. She explained “that if we show properties in that neighborhood, *** there will be a

lot of people that will not want to move into that west side neighborhood.” If people do not want

to move into the neighborhood, it stands to reason property values will decrease.

¶ 79 The Board Rules of Procedure are devoid of any reference to public comments

but permit any “interested party” to appear on their own behalf or through a representative, as

well as “property owners entitled to notice,” “a property owner who is a legal objector,” and

“other persons as approved by the Chairman.” According to Capovilla at the outset of the hearing

on the appeal in this case, “the rules of [the Board] do allow any person to speak.” Once people

- 27 - asked to speak, they were sworn in as witnesses and were subject to objections being lodged to

their testimony and questioning by the Board. Indeed, the City objected to one person’s

testimony as irrelevant, the Chairman responded, and the Chairman questioned another speaker

about relevance. This has all the earmarks of “testimony.”

¶ 80 Rylatt’s and Albrecht’s testimony stood uncontradicted by the defendants.

Testimony about decreasing property values, even testimony that “could not quantify the

diminution in value,” is sufficient to find standing to challenge zoning decisions or property use.

Klaeren, 202 Ill. 2d 164, 172 (2002).

¶ 81 We find perplexing, if not vexing, defendants’ arguments (along with the Board’s

and trial court’s conclusions) that plaintiffs presented no evidence of standing. Testimony is

evidence. Common sense would tell us evidence that is corroborated and uncontradicted should

be persuasive. Even in the context of a criminal case, where the burden is substantially higher,

“[c]orroborative evidence by its nature makes it more probable than not that a fact to be

corroborated is true.” People v. Arcos, 282 Ill. App. 3d 870, 875 (1996). Once found to be

uncontradicted, unless the evidence appeared otherwise questionable, it would reasonably have

some probative value for the factfinder. Similarly, defendants’ briefing echoes the Board’s

observation that plaintiffs presented no expert testimony to support their standing claims,

particularly their claim relating to property values. Nowhere do the Board, the trial court, or

defendants cite a case where this court or our supreme court held expert testimony is necessary to

establish standing. Notably, at oral argument, Dr. Christensen’s counsel acknowledged Albrecht

offered expert testimony. The City’s attorney reluctantly agreed Albrecht offered testimony but

asked us to give it little weight. But we have nothing to weigh it against since the City offered

nothing to refute it besides Capovilla’s conclusory memo.

- 28 - ¶ 82 Defendants also attack Shawn Rylatt’s position as “disingenuous” because he is

simultaneously a member of RFI and complaining about the protests’ impact on his

neighborhood. Again, defendants cite no case supporting their argument or desired outcome. But

notably, Rylatt testified he appeared at the hearing on his own behalf and not as an RFI member.

The record does not indicate he participated in the protests at the Property. Instead, he

“assum[ed] the pro life initiative has been there,” and he was not aware of the social media

accounts that organized the protests.

¶ 83 Our conclusion in this case comports with other cases considering standing in

these contexts. For example, in Klaeren, the supreme court found standing because testimony

from the plaintiffs and a real estate appraiser “supported” their allegations relating to loss of

quiet enjoyment and decreased property value. That testimony was “sufficient to confer plaintiffs

with standing to pursue injunctive relief.” Klaeren, 202 Ill. 2d at 176. We come to the same

conclusion here—testimony from Rylatt, Rilott, and Albrecht was sufficient to confer standing

for the Rylatts.

¶ 84 In opposing standing, defendants cling to Garner, but the differences between this

case and Garner warrant different outcomes and reinforce our conclusion the Rylatts have

standing. Unlike in Garner, there is no “total failure of any evidence” here. See Garner, 8 Ill. 2d

at 159. Recall, none of the Garner plaintiffs, nor any witness on their behalf, “gave any evidence

whatsoever relating to the values of their property.” Garner, 8 Ill. 2d at 158. Not so here. The

Rylatts produced some evidence relating to their property value, and Albrecht, a local realtor,

provided opinion testimony property values will diminish with RFPC in the neighborhood. We

find it noteworthy that the Garner defendants relied on opinion testimony as evidence property

values would not be affected there. Why shouldn’t such opinion testimony from Albrecht be

- 29 - valuable here? Especially where Albrecht’s opinion stands unrefuted. Further, no Garner

plaintiff lived (or owned property) in close proximity to the rezoned tract of land. The closest

plaintiffs lived more than three miles from the land, and one plaintiff owned a farm more than

one mile from the land. Not so here. Unlike the Garner plaintiffs, the Rylatts live in the same

neighborhood as the Property. They live approximately 550 feet from it and can see RFPC from

their driveway. They do not rely upon taxpayer status.

¶ 85 Finally, we note the Paul court, in another case relied upon by defendants, found

the plaintiffs had standing to challenge the grant of a [SUP] “based upon proximity alone.” Paul,

2018 IL App (2d) 170696, ¶ 14. There, the plaintiffs alleged the proposed use under the special

use permit would devalue their properties, cause run-off, and create increased noise, odors, and

traffic. Paul, 2018 IL App (2d) 170696, ¶ 4. One plaintiff’s property was “immediately adjacent

to the subject tract and” another plaintiff’s “property [was] within 1250 feet of it.” Paul, 2018 IL

App (2d) 170696, ¶ 14. The court found “common sense dictates” that the effects of the proposed

use, like increased noise, odors, or traffic would “be felt more acutely on plaintiffs’ properties”

compared to those not in close proximity. Paul, 2018 IL App (2d) 170696, ¶ 14. The same

common sense leads us to conclude the Rylatts have standing here.

¶ 86 Illinois’s standing doctrine is not “meant to preclude a valid controversy from

being litigated.” Westwood, 261 Ill. App. 3d at 921. The Greer court observed: “Elementary

justice requires that one who is hurt by illegal action should have a remedy. The central principle

that grows out of this is very simple: One who is adversely affected in fact by governmental

action has standing to challenge its legality.” (Emphasis omitted and internal quotation marks

omitted.) Greer, 122 Ill. 2d at 488. The Rylatts should be able to challenge a government action

that changes their neighborhood’s atmosphere and potentially affects their home’s value. The

- 30 - Rylatts are not “merely curious or concerned” about the zoning determination—there is an

“actual controversy” here. See Westwood, 261 Ill. App. 3d at 921. They have a stake in this

matter. Consequently, their challenge cannot be classified as a purely “harassing and vexatious

suit[ ]” brought by an uninterested party. See Garner, 8 Ill. 2d at 159.

¶ 87 We find the Rylatts had standing to challenge Capovilla’s October 3, 2022,

zoning determination. They alleged and sufficiently supported injuries in fact to legally

cognizable interests, namely their quiet enjoyment of property and their property value. The

Rylatts’ injuries are distinct and palpable, meaning they “differ[ ] from that suffered by the

general public.” Garner, 8 Ill. 2d at 158-59; see Greer, 122 Ill. 2d at 493. They live in close

proximity to the Property. This is their neighborhood, where they now must deal with protests

and the increased traffic and decreased parking those protests bring. Their neighborhood is now

noisier than before and a place where one hears “swearing” or “colorful adjectives.” The noise

has disrupted Shawn’s work. He is concerned his daughter will hear profanity, see graphic signs,

or have to dodge increased traffic while riding her bike to and from school and around the

neighborhood. The Rylatts’ investment in their property could suffer if people do not want to

move into the neighborhood, which a longtime Rockford realtor predicted. These are “special

damages” not shared by the public at large. See Garner, 8 Ill. 2d at 158-59. Moreover, these

injuries are fairly traceable to the defendants—RFPC’s decision to place its business in a

residential neighborhood and the City and Board’s decision to approve the proposed use at the

Property based solely on grandfathering principles, without considering whether the use would

be “detrimental to or endanger the public health, safety, morals, comfort, or general welfare,” or

whether it would be “injurious to the use and enjoyment of other property in the immediate

vicinity for the purposes already permitted, nor substantially diminish and impair property value

- 31 - within the neighborhood.” See Rockford Zoning Ordinance § 63-005-A, B (eff. Apr. 3, 2008);

Rockford Zoning Ordinance § 1503.5 (eff. Aug. 8, 1980); Greer, 122 Ill. 2d at 493 (noting

alleged decreased property values were fairly traceable to the agency’s approval of a

development). Capovilla acknowledged the Property sits in a densely residential area but also

testified he did not investigate patient flow or traffic or other impact to the neighborhood.

Finally, there is a substantial likelihood the Rylatts’ injuries could be prevented or remedied by

their requested relief to void either the October 2022 Certificate of Zoning Compliance or the

original SUP issued to Dr. Chin. Alternatively, they asked the Board to prevent the proposed use

at the Property until independent review of a SUP application was completed. Had they been

given a proper, unbiased forum, and had they not been met with hostility from the City,

Capovilla, and the Board, which we find patently obvious even from a cold transcript, then

perhaps they could have received such relief. We hold the Rylatts had standing, and the Board

and trial court erred in finding otherwise.

¶ 88 B. The Board Clearly Erred in Affirming the Zoning Determination ¶ 89 Plaintiffs next argue the Board (and the trial court) erred in determining Dr.

Christensen and RFPC’s proposed use of the Property conformed with the prior legally

established nonconforming use under the SUP issued to Dr. Chin. We agree.

¶ 90 “On appeal from an administrative case, we review the administrative agency’s

decision and not the trial court’s determination.” City of East Peoria v. Melton, 2023 IL App

(4th) 220281, ¶ 50. So, in deciding this issue, we review the Board’s decision, not the trial

court’s order. The Board affirmed Capovilla’s zoning determination “that the proposed legal

non-conforming us is consistent with the previous use (home occupation of a medical nature)”

under the SUP. The issue of whether a proposed use comports with a zoning ordinance, like a

SUP, presents a mixed question of law and fact. Platform I Shore, LLC v. Village of

- 32 - Lincolnwood, 2014 IL App (1st) 133923, ¶ 8. “A mixed question of fact and law examines the

legal effect of a given set of facts.” Beggs v. Board of Education of Murphysboro Community

Unit School District No. 186, 2016 IL 120236, ¶ 50. In other words, “a mixed question asks

whether the facts satisfy the statutory standard or whether the rule of law as applied to the

established facts is or is not violated.” Beggs, 2016 IL 120236, ¶ 50. We review a mixed question

of law and fact like this under the clearly erroneous standard of review. Platform I Shore LLC,

2014 IL App (1st) 133923, ¶ 8.

¶ 91 “An administrative decision is clearly erroneous when although there is evidence

to support it, the reviewing court on the entire evidence is left with the definite and firm

conviction that a mistake has been committed.” (Internal quotation marks omitted.) Beggs, 2016

IL 120236, ¶ 50. The clearly erroneous standard sits on the standard-of-review spectrum

somewhere “between the manifest weight standard and de novo standard, so as to provide ‘some

deference’ to the agency decision.” AFM Messenger, 198 Ill. 2d at 392 (quoting City of Belvidere

v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 205 (1998)). However, we will not

“blindly defer to the agency’s decision.” AFM Messenger, 198 Ill. 2d at 395.

¶ 92 Looking at the whole record and considering the “entire evidence,” we are left

with the “definite and firm” conviction the Board committed a mistake in affirming Capovilla’s

zoning determination. Accordingly, we hold the Board’s decision is clearly erroneous.

¶ 93 1. Overview

¶ 94 “In general, a ‘special use’ is a type of property use that is expressly permitted

within a zoning district by the controlling zoning 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). Under the zoning law in Rockford, a SUP is a part of a

- 33 - local zoning ordinance. Under Section 63-009 of the RZO, “Every approval of a [SUP] shall be

made by ordinance and shall be accompanied by written finding of fact based on the factors

listed in Section 63-005.” Rockford Zoning Ordinance § 63-009 (eff. Apr. 3, 2008). Furthermore,

a “[SUP] shall be effective upon the passage, approval, and publication of the Ordinance

approving it, as provided by law.” Rockford Zoning Ordinance § 63-009 (eff. Apr. 3, 2008).

Anecdotally, Capovilla called the SUP here the “actual ordinance” when explaining he could not

locate it.

¶ 95 When interpreting or applying a SUP, “administrative zoning agencies must

adhere to the intent of the zoning ordinance.” Chicago Heights, 196 Ill. 2d at 20. “Municipal

ordinances *** are interpreted under the general rules of statutory construction and

interpretation.” Platform I Shore LLC, 2014 IL App (1st) 133923, ¶ 8. As with interpreting

statues, the aim “is to determine the legislative intent,” looking to the language and giving words

their plain and ordinary meaning. Platform I Shore LLC, 2014 IL App (1st) 133923, ¶ 8.

¶ 96 2. This SUP

¶ 97 To quote Capovilla, this is a “very unique situation.” According to Capovilla’s

testimony, there is no other SUP like this in Rockford. Making this case even more exceptional,

there is no physical copy of the SUP issued to Dr. Chin. No one knows the SUP’s specific

provisions. Neither we nor the Board have any idea what terms, conditions, or restrictions may

have been written into the SUP issued to Dr. Chin, or even Dr. Daub before him. Since Capovilla

“was not able to find the SUP in the City’s archived files, he based his determination on the

totality of the circumstances with the information he had in order to draw a conclusion that the

City has been operating as if an SUP existed for the last 40 years.” We assume we have been

provided with the same information since no one sought to supplement the record on appeal.

- 34 - There is little, if any, evidence in this record to support the conclusion of continued

nonconforming use; we are left to take Capovilla’s word for it. For all the reasons we outline

below, we find that clearly erroneous.

¶ 98 We are compelled to comment on the holes in the information Capovilla had at

his disposal. In his memo to the Board, Capovilla said, “Dr. Chin bought the property from

another doctor who the zoning officer believes was also operating a home occupation of a

medical nature at the Property, for years prior.” (Emphasis added.) But we know very little of

Dr. Daub, only he owned the Property in 1981, used it as his home and chiropractic office, and

requested an inspection in 1981. Despite Capovilla’s memo stating the City “has records of

annual home occupation permits for the Property which also indicates that the legal non-

conforming use (home occupation of a medical nature) continued for decades,” such “permits”

are not part of the record. As evidence of the “records of annual home occupation permits”

issued, the memo cited “Exhibit 15,” which is part of the record before this court and contains a

half-page of paper and half of a receipt. The half-page reads, “2021 Home Occupation,” “Permit

#: HOC19-004,” and lists Dr. Chin’s “Company Name” and contact information. Though

different, this appears duplicative of the other permit in the record, which is a full page on

letterhead and expressly says it is a “PERMIT” for “Single Family Dwelling—Renew Home

Occupation” and describes the work as “2021 Home Occupation Renewal for Chiropractic.”

Likewise, we recall Capovilla told the Board that based on information he had of Dr. Chin’s “40-

plus years of home occupation, which requires occasional inspections by the staff, you know, we

determined that was, you know, definitely a lawfully established use.” There is evidence of one

request for a building inspection by Dr. Daub in July 1981. There is evidence of one city-

inspection of the Property in the 40 years Dr. Chin owned the property—in September 1981. The

- 35 - record does not document any other inspections from 1982 to 2022, which would provide

information about Dr. Chin’s use of the Property.

¶ 99 In fact, the entire record reveals the large holes in the history of this SUP. For

example, the exhibits the City and Capovilla submitted to the Board and this court reveal a

37-year gap in documentation relating to this SUP. The City did not submit a single document

from the file for this SUP dated between June 10, 1983, and June 12, 2020. Saddled with a sparse

file, Capovilla, nonetheless, determined Dr. Christensen and RFPC’s proposed legal

nonconforming use of the Property as a “private practice medical clinic” proved consistent with

Dr. Chin’s previous use as a home occupation chiropractic office under the broad umbrella of

home occupation of a medical nature.

¶ 100 a. Dr. Chin’s Use of the Property Under the SUP

¶ 101 Even though the record indicates Capovilla had little information on which to

form his final determination, the record clearly shows the Board granted Dr. Chin a SUP “to

re-establish a non-conforming use (a Home occupation of a medical nature), subject to

compliance with all provisions of the Home Occupation Ordinance.” Furthermore, the City

Council sustained the Board’s decision and approved a variance allowing “the employment of a

person not a member of the household.”

¶ 102 Dr. Chin lived and worked at the Property for 40 years, yet there are few details of

how he used the Property. In his initial application for the SUP, he noted the “existing uses on

the property” included “chiropractic physician office and home under ‘Home Occupation

License.’ ” Dr. Chin proposed using the Property as his home and chiropractic physician’s office.

He specified he would operate the chiropractic practice on the first floor, “[b]y appointment

only.” Capovilla determined (and eventually testified) Dr. Chin lived and operated his practice at

- 36 - the Property for decades. He stated, “Dr. Chin indicated to City Staff that during the 40[-]year

time period he operated his medical office on the Property, he had 2 different non-resident

employees working for him at separate times.”

¶ 103 From the record, we can surmise Dr. Chin was continuing the prior use by Dr.

Daub, who owned the Property, lived there, and operated his chiropractic practice there.

Critically, the formal action of the Board on November 17, 1981 was “to GRANT a [SUP] to re-

establish a non-conforming use (a Home Occupation of a medical nature), subject to compliance

with all provisions of the Home Occupation Ordinance.” (Emphasis in original.) This clearly

indicates they were approving the continued use of the property as a solo chiropractic practice

and home owned, occupied, and operated by the doctor.

¶ 104 b. Dr. Christensen/RFPC’s Proposed Use of the Property Under the SUP

¶ 105 To start, we note we do not know to whom we should properly refer when

discussing activity on the Property. The current home occupation application or permit is not part

of the record, even though Capovilla said he would provide it to plaintiffs. We recall he had not

reviewed the application before approving the proposed use and so he did not know what name

would be on the permit or who would receive it. We will use Dr. Christensen and RFPC

interchangeably, believing they are one and the same without evidence to the contrary.

¶ 106 After purchasing the Property, Dr. Christensen proposed to use it “as a general

medical office for patients” that “will dispense medication and provide basic medical treatment.”

RFPC noted the office would be open from 8 a.m. to 4:30 p.m. or 9 a.m. to 5 p.m. Monday

through Friday. The office would sometimes be open on Saturdays from 9 a.m. to 12 p.m. RFPC

anticipated it would see one patient per hour. After several proposals, wherein RFPC noted Dr.

Christensen would use the Property as a secondary residence when in Rockford and suggested

- 37 - various employment scenarios, RFPC decided one employee, the office administrator, would

“reside at the Property as her permanent residence,” although it was actually through a

“residential lease” of an unknown duration. RFPC noted “one additional person employed who is

not a member of the household” would work at the Property. This “person will be a registered

nurse who will be responsible for all patient care at the Property including dispensing medication

and maintaining patient charts and records.” Larkin testified she is the resident employee at the

Property, having moved in on October 17, 2022. She does not own the property. She signed a

one-year lease, with potential continuation after a year. Larkin testified she does not own RFPC.

She had not filed the application for a home occupation permit for the Property, but someone had

done so in December 2022.

¶ 107 Besides owning the Property, Dr. Christensen’s role in this proposed use remains

vague. There was testimony indicating he would supervise the nurse, but it was unclear what his

responsibilities were and whether he would ever be at the Property. In his initial letters to the

City, particularly the September 13, 2022, letter, Dr. Christensen indicated he intended to be at

the Property at least occasionally. Capovilla testified if the doctor was also there, along with the

two employees, that would be a violation of the permit. Interestingly, rather than being a basis

for denial, Capovilla said “if” it happened, “we would deal with that.” This means the Board

would approve the permit, knowing the permit-holder could not operate his “home occupation of

a medical nature” personally, and if he did, they would then deal with any violations, as if

compliance with the strict requirements of a [SUP] and municipal zoning laws was a fluid

concept.

¶ 108 Capovilla’s memo to the Board explained this matter was governed by Article 80

of the RZO, which pertains to “Nonconformities” and provides that “[n]on-conforming status

- 38 - runs with the land.” Rockford Zoning Ordinance § 80-001-D (eff. Apr. 3, 2008). Capovilla

reasoned “that a home occupation of a medical nature was in existence for a minimum of 40

years and possibly 60 years, and that a continued use of that property then would be allowable

per the zoning ordinance, as it was a lawfully, legally established, non-conforming use. You have

to respect the property rights when people are granted something and they continue it.” Skirting

the need to reapply, Capovilla concluded the multilocation, corporate-owned medical clinic, with

no doctor owner even working at the residence, somehow continued the prior use by a one-

person home-office of a chiropractic physician with one nonresident employee. He determined

Dr. Christensen’s proposed use was consistent with Dr. Chin’s prior legally established

nonconforming use because there would be one employee permanently residing at the Property

and working for the home business, there would be just one nonhousehold employee working at

the Property, and the home business would be of a “medical nature.”

¶ 109 We examine each point in reverse order.

¶ 110 c. Medical Nature

¶ 111 The term “medical nature” is not adequately defined anywhere in the record.

None of the RZOs in the record mention the term, let alone define it. Interestingly, the term was

not included in Dr. Chin’s application to register his home occupation. The City added “medical

type” to the application for a SUP and variance. The 1981 zoning recommendation for the SUP

labeled it as a “Home Occupation for a medical office.” The term “medical nature” was added to

the SUP as a parenthetical description when the Board granted the permit in November 1981.

When the City Council sustained the SUP in January 1982, the decision did not refer to “medical

nature.” The City’s June 1983 letter to Dr. Chin referred to the “Home Occupation permit,” but it

omitted “medical nature.” What is more, the only home occupation permit for Dr. Chin in the

- 39 - record, the one issued and paid for in 2022 that was for the 2021 year, does not include “medical

nature.” It described Dr. Chin’s home occupation as “Chiropractic.” Based on the record

evidence, we find the import of the “medical nature” classification is murky, at best. We do not

know if the actual SUP described Dr. Chin’s home occupation with “medical nature,” but we

have his application and his later renewed permit describing it as a home occupation chiropractic

office. Nevertheless, Capovilla emphasized only the “medical nature” classification, so we

presume it bears importance.

¶ 112 In his initial statement to the Board, Capovilla explained a “chiropractic clinic

*** is classified as a medical clinic per the zoning ordinance.” He went on to say, “[W]e do not

distinguish by trades within the medical profession as to orthopedic or cardiology or whatever—

everything is lumped under one category for medical uses.” The record is devoid of any source

of that conclusion. He later testified he “d[id] not follow medical law” and was “not privy to

what chiropractors can and cannot do,” but he stated chiropractors “are considered medical in

nature” because “[t]hey are awarded a doctorate for chiropractics.” Again, this appears to be

something Capovilla manufactured out of whole cloth, since there is nothing in the record to

support this, nor does he identify the source of this conclusion. Ultimately, Capovilla determined

Dr. Christensen and RFPC’s proposed use as “general medical office for patients” where patients

received medication proved consistent with Dr. Chin’s past use as a chiropractic clinic—even

though he did not define “medical nature” beyond having a doctorate degree. Significantly,

under RFPC’s proposed use, approved by Capovilla, no one holding a “doctorate” would be

working at the Property or rendering any care there. It would seem, based on the limited

definition Capovilla gave for “medical nature,” any professional with a “doctorate” could operate

a home occupation of a medical nature, no matter the actual use. A historian or a paleontologist

- 40 - who holds a doctorate could operate a home occupation of a “medical nature” at the Property

under Capovilla’s explanation, yet a therapist or a dietician or a masseuse who holds a bachelor’s

or master’s degree could not. Indeed, we notice that in a decision turning on consistency with a

prior legally established nonconforming use, Capovilla relied upon the “medical nature”

classification and not the actual use. Cf. Wechter v. Board of Appeals, 3 Ill.2d 13, 15 (1954) (“It

is the particular use, and not its general classification, that is contemplated by the ordinance.”).

¶ 113 Interestingly, section 80-003-B of the RZO contemplates different uses under the

same classification or category. A changed nonconforming use, even classified under the same

category of the prior legal nonconforming use, must go through the SUP procedures outlined in

Article 63. Rockford Zoning Ordinance § 80-003-B (eff. Apr. 3, 2008). This makes sense

because home businesses appear to be highly regulated by the old Home Occupation ordinances

and in the current Article 53 of the RZO, including the provision that a home business permit

may be revoked for “any change in the use for which the permit was issued.” Rockford Zoning

Ordinance § 53-007A(1) (eff. Apr. 3, 2008); see also Rockford Zoning Ordinance § 7-580

(IV)(A), (B) (eff. Dec. 8, 1970); Rockford Zoning Ordinance § 33-29(IV)(A)(B) (eff. Aug. 8,

1980); Rockford Zoning Ordinance § 1100.6 (A) (eff. July 1, 1993). We know the old Home

Occupation ordinances only allowed for “restricted occupational uses” that met certain criteria.

Rockford Zoning Ordinance § 7-580 (I) (eff. Dec. 8, 1970); Rockford Zoning Ordinance § 33-

29(I) (eff. Aug. 8, 1980). To that end, the RZO instructs SUPs “need to be carefully regulated in

terms of location and/or operation for purposes of protecting the community.” Rockford Zoning

Ordinance § 63-001 (eff. Apr. 3, 2008). Nevertheless, Capovilla elevates classification over use,

in direct opposition to the wording of applicable ordinances.

¶ 114 We doubt Capovilla’s simplistic explanation of “medical nature,” tying it to a

- 41 - “doctorate” degree, is correct. What is more, we question his decision not to distinguish between

particular uses within the “medical nature” classification in this case, especially when the RZO

distinguishes dentistry (where a dentist has a doctorate) from other practices. Critically, the only

permit in this record distinguishes Dr. Chin’s practice as “Chiropractic.” But Capovilla stated

before the Board it is customary for a zoning officer to not differentiate between practices in the

medical profession. Setting aside our skepticism, we defer to Capovilla’s conclusion the past and

proposed use share a “medical nature.”

¶ 115 d. A Nonhousehold Employee Under the SUP

¶ 116 Capovilla found Dr. Christensen and RFPC’s proposed use consistent with Dr.

Chin’s past use because there would be one nonhousehold employee working at the Property.

The evidence confirms this view. Dr. Chin requested and received this variation for his SUP. The

City Council approved it in the January 4, 1982, meeting minutes. Dr. Chin indicated to city staff

he employed a nonhousehold employee when operating his chiropractic clinic at the Property.

Dr. Christensen and RFPC employ one nonhousehold employee at the Property—the nurse who

sees patients and dispenses medication. We agree with Capovilla’s determination this is

consistent nonconforming use under the SUP.

¶ 117 e. The Proposed Use Does Not Qualify as a Home Occupation and is Not Consistent With Dr. Chin’s Past Use Under the SUP ¶ 118 We ultimately disagree with Capovilla’s zoning determination “that the proposed

legal non-conforming use is consistent with the previous use (home occupation of a medical

nature).” There are too many inconsistencies between the proposed use and Dr. Chin’s previous

use, so much so the proposed use bears no resemblance to a home business at all.

¶ 119 For example, under the proposed use, the property owner does not live there. The

home business owner (the one ultimately rendering medical care and prescribing medication)

- 42 - will never be at the Property, and cannot be there, per Capovilla’s zoning determination and

testimony. Dr. Christensen owns the Property. He is the doctor prescribing medication. He lives

in Wisconsin. He holds a temporary license to practice medicine in Illinois. Apparently, he will

supervise the medical clinic at the Property from afar. This is not consistent with a history of two

chiropractic physicians operating their chiropractic office out of their home. Regardless of the

classification, that was the use. By contrast, rather than being an owner-operator of the business,

Larkin lives there under a one-year lease, the terms of which even Capovilla did not know, and

could not say what might happen to the validity of the SUP if the only resident left. Larkin

testified she does not own the business but works as the administrator. These facts do not

compare to Dr. Chin’s use of owning the Property, living there, and operating his chiropractic

practice in person. Capovilla testified these differences were irrelevant because Larkin was an

RFPC employee permanently residing at the Property. He testified, “They live there. As long as

they are employed and there is one permanent resident of the home—it does not say that you

own the property—it does not say that—in order to operate the home business.” He essentially

reduced use to someone living there who also works there.

¶ 120 We have little confidence in Capovilla’s understanding and application of the

Home Occupation Ordinance. His testimony often contradicted the RZO’s plain text (both past

and present). For example, he testified the “portion of the home occupation for a home business

ordinance” that required the business use be incidental to residential use of the property doesn’t

apply because “we are talking about a lawfully established, legal non[-]conforming use that

existed prior to this ordinance.” But Capovilla failed to realize the “incidental use” language has

been in the Home Occupation Ordinance dating back to its inception in 1970 and most certainly

applied to the SUP that incorporated the 1980 version of the ordinance. See § 33-29(I), (II)(A)(1)

- 43 - (eff. Dec. 8, 1980). The “incidental” language most certainly applied here. Merriam-Webster

defines “incidental” as “minor consequence.” Merriam-Webster’s Online Dictionary,

https://www.merriam-webster.com/dictionary/incidental (last visited on Mar. 5, 2025). Black’s

defines “incidental” as “Subordinate to something of greater importance; having a minor role.”

Black’s Law Dictionary 392 (5th pocket ed. 2016). There is no way to look at this proposed use,

and the sudden “strong desire” of the administrator to live there after other proposed uses were

rejected, and conclude the business is incidental to the Property being used as a residence. Quite

the opposite. Even though plaintiffs’ counsel quoted the current Article 53, Capovilla did not

know the history of the home occupation ordinance or recall if the ordinance was incorporated

into the SUP he could not locate.

¶ 121 Capovilla also misstated the Home Occupation Ordinance when explaining this

unique SUP. Contrasting this SUP allowing a home business with one nonhousehold employee,

he testified, “Most of the time, home businesses are allowed to have outside employees and

outside addresses.” This statement flatly contradicts the Home Occupation Ordinance

requirements that “only permanent residents of the home may be employed in the conduct of the

business” and “Home business may be conducted only within the residence and not in accessory

structures.” (Emphasis omitted.) Rockford Zoning Ordinance § 53-003-A, 53-003-D (eff. Apr. 3,

2008); see Rockford Zoning Ordinance § 33-29 (II)(3), (7) (eff. Dec. 8, 1980). If there is another

authority for his view, he did not cite it. Likewise, Capovilla’s testimony that it would be

irrelevant if the home business at the Property “is part of a two-clinic medical practice”

contradicts the ordinance. We cannot follow Capovilla’s rationale on this one. If a home

occupation must confine itself to the principal building, it cannot operate as a part of a two-

location practice. The Home Occupation Ordinance contemplates one location for the business.

- 44 - Rockford Zoning Ordinance § 53-003-A (eff. Apr. 3, 2008); Rockford Zoning Ordinance § 33-

29(II)(7) (eff. Dec. 8, 1980).

¶ 122 Capovilla also testified RFPC’s proposed use would be consistent with the SUP

and the previous use, “[n]o matter the patient flow.” First, we note RFPC provided no evidence

of Dr. Chin’s patient flow. The record indicates it was by appointment only. Capovilla made no

finding as to Dr. Chin’s patient flow. Second, the 1980 Home Occupation Ordinance limited

congestion by providing that “no more than ten (10) people may avail themselves of the services

provided by the home occupation use at a given dwelling units at any given moment in time.”

Rockford Zoning Ordinance § 33-29(II)(A)(5) (eff. Dec. 8, 1980). It went on to say, “a home

occupation shall not create pedestrian, automobile, or truck traffic significantly in excess of the

normal amount in the district.” Rockford Zoning Ordinance § 33-29(II)(A)(5) (eff. Dec. 8, 1980).

Patient flow mattered.

¶ 123 Finally, we cannot agree with Capovilla’s implicit determination that one need not

own the business he conducts out of his home. When plaintiffs’ counsel asked him to clarify

whether a person had to be conducting their own business under the Home Occupation

Ordinance, Capovilla chose to give a nonresponsive answer.

“[PLAINTIFFS’COUNSEL:] But Mr. Capovilla, again, as

I read your ordinance, it’s the person’s business. They may be

leasing an apartment on your—a counseling business out of your

apartment. But it’s your counseling business; it’s not someone

else’s that you’ve got and you want a number of employees to do.

Isn’t that the way the ordinance should be read, that it is a

- 45 - [CAPOVILLA:] This is not an apartment. This is a single

Capovilla opted to provide no interpretation of the SUP or ordinance governing home businesses,

neither the 1980 nor current version. While we know little about this SUP, we do know it

incorporates the 1980 Home Occupation Ordinance. Capovilla testified the ordinance was not

“varied or exempted in any way on this property.” The proposed use must comply with the

ordinance.

¶ 124 We understand the 1980 Home Occupation Ordinance requires a person to own

the business. We note the Home Occupation Ordinance recognized “that certain limited home

occupational uses can be useful to both the general community as well as the resident-

proprietor.” (Emphasis added.) Rockford Zoning Ordinance § 33-29(I) (eff. Dec. 8, 1980). The

plain and ordinary meaning of “proprietor” is “owner”—“a person who has the legal right or

exclusive title to something.” Merriam-Webster’s Online Dictionary, https://www.merriam-

webster.com/dictionary/proprietor (last visited on Mar. 3, 2025). See Black’s Law Dictionary

635 (5th pocket ed. 2016) (defining “proprietor” as “An owner, esp. one who runs a business”).

By using the word “resident-proprietor,” the City expected and intended a person engaging in a

home occupation would own the business. This resonates with the ordinance’s stated intent of

only allowing “certain types of restricted occupational uses within residential districts.”

Rockford Zoning Ordinance § 33-29(1) (eff. Dec. 8, 1980). Anyone interpreting the ordinance,

from a zoning officer to a zoning board to a court, must defer to the intent of the ordinance.

Chicago Heights, 196 Ill. 2d at 20. Capovilla’s interpretation did not take into account the home

occupation ordinance’s intent, or even the past use, where Dr. Chin owned and operated his own

business at the Property.

- 46 - ¶ 125 Even if ownership was not required by the 1980 Home Occupation Ordinance, the

proposed use would still not comport with Dr. Chin’s previous use under the SUP, and Dr. Daub

before him. For decades, Dr. Chin owned and lived at the Property while operating his

chiropractic clinic on the first floor. Decades before that, Dr. Daub owned the Property and used

it as his residence and chiropractic clinic. Defendants’ proposed use departs from this standard.

Not only that, but this is also a marked change from the Property’s prior use—it is apples and

oranges. Based on the evidence before the Board, a multisite corporation, RFPC, proposed to

operate a “general practice medical clinic” in what is clearly a single-family dwelling within a

densely residential neighborhood. The only resident is a tenant-employee with no assurance of

permanency, living there under a one-year lease, “with continuation after one year.” The doctor,

registering under the aegis of a home occupation license, does not live there, and under the terms

of the SUP, according to Capovilla, he cannot even be there without violating the terms of the

SUP. We find it noteworthy Capovilla had not seen Larkin’s lease and had not reviewed the

home business permit application before finding the proposed use consistent with legally

established prior nonconforming use. As has been noted throughout, Capovilla found the

proposed use consistent with a SUP he could not find and could not confirm ever existed. He

based his conclusion on the totality of the circumstances, which did not amount to much. There

was a 37-year gap in the documents the City gave to the Board. The Board affirmed Capovilla

based on what appears to be blind deference. The Board yielded to Capovilla all the way, and

only one member ventured to inquire into how a SUP—an ordinance that was supposed to have

been published—had been missing for decades or whether Capovilla would actually review and

provide the lease. We cannot do that—we will not “blindly defer to the agency’s decision.” AFM

Messenger, 198 Ill. 2d at 395. Considering the “entire evidence,” we are “left with the definite

- 47 - and firm conviction that a mistake has been committed” here. Beggs, 2016 IL 120236, ¶ 50. We

reverse the Board’s decision to affirm Capovilla’s zoning determination.

¶ 126 C. The Trial Court Erred in Granting Defendants’ Motions to Dismiss

¶ 127 Count II in plaintiffs’ complaint challenged the proposed use of the Property

pursuant to section 11-13-15 of the Illinois Municipal Code (65 ILCS 5/11-13-15 (West 2022)),

which provides:

“In case any building or structure, *** including fixtures, or land,

is used in violation of an ordinance or ordinances adopted under

Division 13, 31, 31.1 of the Illinois Municipal Code, or of any

ordinance or other regulation made under the authority conferred

thereby, *** any owner or tenant of real property, within 1200 feet

in any direction of the property on which the building or structure

in question is located who shows that his property or person will be

substantially affected by the alleged violation, in addition to other

remedies, may institute any appropriate action or proceeding ***

to restrain, correct, or abate the violation.”

¶ 128 Defendants filed two motions to dismiss count II pursuant to section 2-619.1 of

the Code of Civil Procedure (735 ILCS 5/2-619.1 (West 2022)). Dr. Christensen and RFPC filed

their motion first, and the City and Board filed their motion shortly thereafter. A “court’s

dismissal of a complaint pursuant to section 2-619.1 is reviewed de novo.” Madison County v.

Illinois State Board of Elections, 2022 IL App (4th) 220169, ¶ 42. On June 4, 2023, the court

determined, and the parties agreed, the City and Board were not defendants on count II and, if

they ever were considered defendants on that count, they were dismissed. We agree because

- 48 - section 11-13-15 does not authorize suits by private landowners against municipalities or

administrative agencies. Dunlap v. Village of Schaumburg, 394 Ill. App. 3d 629, 639 (2009).

¶ 129 Dr. Christensen and RFPC moved to dismiss “Count II of Plaintiff’s Complaint

pursuant to 735 ILCS 5/2-619.1 [(West 2022)].” The motion argued count II was “barred by

other affirmative matters avoiding the legal effect of or defeating the claim” under section 2-

619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2022)), specifically,

count I (the request for judicial review) preempts count II and plaintiffs lack standing to bring

their statutory claim. The motion referenced section 2-615 of the Code of Civil Procedure (735

ILCS 5/2-615 (West 2022)) but failed to identify the points or grounds relied upon for relief from

that section. In fact, the motion does not fully cite section 2-615. Consequently, the motion did

not comply with the statutory requirements, and the trial court should not have considered it.

Reynolds v. Jimmy John’s Enterprises, LLC, 2013 IL App (4th) 120139, ¶ 21. Despite the

motion’s flaws, the trial court eventually granted it based on its determination on count I and

dismissed count II. The court reasoned that since it agreed with the “zoning decision *** [that]

there was a [SUP] that applied, that this use is conforming, and the [Board] approved of that,”

then “there isn’t a violation, a zoning ordinance violation upon which [plaintiffs] have a separate

right to proceed.” As we explained above, the Board (and the court) clearly erred in finding the

proposed use was consistent with the legally established prior nonconforming use. Consequently,

the court’s sole rationale for granting the motion to dismiss cannot stand. We remand for further

proceedings on count II.

¶ 130 III. CONCLUSION

¶ 131 For the reasons stated, we reverse the trial court’s judgment. We remand for

further proceedings consistent with this order.

- 49 - ¶ 132 Reversed and remanded.

- 50 -