{ "id": 1281437, "name": "BYRON DRAGWAY, INC., Plaintiff-Appellant, v. THE COUNTY OF OGLE, Defendant-Appellee", "name_abbreviation": "Byron Dragway, Inc. v. County of Ogle", "decision_date": "2001-11-14", "docket_number": "No. 2-00-0934", "first_page": "70", "last_page": "76", "citations": [ { "type": "official", "cite": "326 Ill. App. 3d 70" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "268 Ill. App. 3d 409", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 381838 ], "year": 1994, "pin_cites": [ { "page": "414", "parenthetical": "section 2 - 619 motion cannot merely deny essential allegations of plaintiffs case" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/268/0409-01" ] }, { "cite": "306 Ill. App. 3d 822", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1336045 ], "year": 1999, "pin_cites": [ { "page": "824" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/306/0822-01" ] }, { "cite": "826 F.2d 1547", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1741277 ], "year": 1987, "pin_cites": [ { "page": "1549", "parenthetical": "recognizing in dicta that a system of licensing businesses could effect a taking" } ], "opinion_index": 0, "case_paths": [ "/f2d/826/1547-01" ] }, { "cite": "281 Ill. App. 3d 643", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 150173 ], "year": 1996, "pin_cites": [ { "page": "647" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/281/0643-01" ] }, { "cite": "167 Ill. App. 3d 54", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3473512 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ill-app-3d/167/0054-01" ] }, { "cite": "260 U.S. 393", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11926101 ], "weight": 3, "year": 1922, "pin_cites": [ { "page": "415" }, { "page": "326" }, { "page": "160" } ], "opinion_index": 0, "case_paths": [ "/us/260/0393-01" ] }, { "cite": "505 U.S. 1003", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1481136 ], "weight": 24, "year": 1992, "pin_cites": [ { "page": "1014" }, { "page": "812" }, { "page": "2893" }, { "page": "1015" }, { "page": "812" }, { "page": "2893" }, { "page": "1015" }, { "page": "812" }, { "page": "2893" }, { "page": "1015" }, { "page": "813" }, { "page": "2893" }, { "page": "1027" }, { "page": "820" }, { "page": "2899" }, { "page": "1029" }, { "page": "821" }, { "page": "2900" }, { "page": "1030-31" }, { "page": "822" }, { "page": "2901" }, { "page": "1031" }, { "page": "822" }, { "page": "2901" } ], "opinion_index": 0, "case_paths": [ "/us/505/1003-01" ] }, { "cite": "483 U.S. 825", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 28053 ], "weight": 3, "year": 1987, "pin_cites": [ { "page": "834" }, { "page": "687" }, { "page": "3147" } ], "opinion_index": 0, "case_paths": [ "/us/483/0825-01" ] }, { "cite": "247 Ill. App. 3d 863", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2928583 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "884" }, { "page": "886-87" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/247/0863-01" ] }, { "cite": "285 Ill. App. 3d 745", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1295547 ], "year": 1996, "pin_cites": [ { "page": "750" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/285/0745-01" ] }, { "cite": "176 Ill. 2d 179", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 544917 ], "year": 1997, "pin_cites": [ { "page": "189" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/176/0179-01" ] }, { "cite": "302 Ill. App. 3d 308", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1352867 ], "year": 1998, "pin_cites": [ { "page": "311" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/302/0308-01" ] } ], "analysis": { "cardinality": 770, "char_count": 14491, "ocr_confidence": 0.824, "pagerank": { "raw": 1.017457992170352e-07, "percentile": 0.5438577693139639 }, "sha256": "ae309c66aecaca59d260d70e5ef16848ea1bf740b64bc452280d529a0361bc76", "simhash": "1:840f952ebb4a1e52", "word_count": 2341 }, "last_updated": "2023-07-14T21:10:13.053989+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "BYRON DRAGWAY, INC., Plaintiff-Appellant, v. THE COUNTY OF OGLE, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE CALLUM\ndelivered the opinion of the court:\nPlaintiff, Byron Dragway, Inc., sought a declaratory judgment against defendant, the County of Ogle. Plaintiff asserted that an ordinance amendment reducing the days and hours that plaintiffs raceway could be open for business resulted in a taking of its property without compensation. The trial court granted defendant\u2019s motion to dismiss pursuant to section 2 \u2014 619(a)(9) of the Code of Civil Procedure (the Code) (735 ILCS 5/2 \u2014 619(a)(9) (West 1998)). We reverse and remand.\nThe complaint contains the following relevant allegations. Since 1964, plaintiff and its predecessors in interest have operated the only commercial racing dragstrip in Ogle County. Plaintiff obtained from defendant annual licenses and permits to conduct its business. These licenses were subject to certain operating requirements in the Ogle County Code. Section 4 \u2014 ID\u20144 of the Ogle County Code governed the operating hours for all business. Ogle County Code \u00a7 4 \u2014 ID\u20144(B) (1982). That section established the permissible operating hours for three categories of businesses: outdoor movie theaters, vehicle racing businesses, and all other businesses.\nBefore November 18, 1997, section 4 \u2014 ID\u20144 provided that vehicle racing businesses could (1) open at 3 p.m. Friday and close at 12:15 a.m. Saturday; (2) open at 8 a.m. Saturday and close at 12:15 a.m. Sunday; (3) be open from 8 a.m. to 6 p.m. on Sunday; and (4) be open from 8 a.m. to 9 p.m. on Memorial Day and Labor Day. See Ogle County Code \u00a7 4 \u2014 ID\u20144(B) (1982). Plaintiff alleged that, relying on the ordinance, it spent hundreds of thousands of dollars to construct and improve the raceway to attract competitors and spectators to annual events between April and October.\nOn November 18, 1997, defendant amended the ordinance to reduce the permitted operating hours for vehicle racing businesses. The amendment eliminated racing on Fridays and established operating hours of 8:30 a.m. to 6 p.m. on Saturdays, Sundays, Memorial Day, and Labor Day. See Ogle County Code \u00a7 4 \u2014 ID\u20144(B) (amended November 18, 1997). In 1998, plaintiff obtained a license to conduct its racing business.\nPlaintiff further alleged that it competes with dragstrip racing businesses in Moline and Joliet, Illinois; Union Grove, Wisconsin; Morocco, Indiana; and Dubuque, Iowa. The economic viability of its business depends on conducting racing on Fridays and during the evenings on Saturdays, Sundays, Memorial Day, and Labor Day. Such hours are essential to attract sufficient regional and national competitors and spectators to provide the minimum income necessary to continue the business. If the amendment is enforced, races will have to be canceled or significantly restricted, substantially reducing plaintiffs income and permanently damaging its national reputation as a viable dragstrip raceway. Also, plaintiff alleged on information and belief that no similar business in the United States has maintained its economic viability without holding races on Fridays or during the evenings on Saturdays, Sundays, and holidays. Plaintiff sought a declaration that enforcing the amendment to section 4 \u2014 ID\u20144 would result in a taking of its property without just compensation in violation of federal and state constitutional law.\nDefendant moved to dismiss the complaint pursuant to section 2 \u2014 619(a)(9) of the Code. It argued that (1) because section 4 \u2014 ID\u2014 4(B) was a permissible nuisance-abatement measure, its enforcement could not result in a \u201ctaking\u201d; (2) res judicata barred the action because plaintiff could have raised its constitutional claim in an earlier action in which defendant alleged that in 1996 plaintiff violated section 4 \u2014 ID\u20144(B); (3) because section 4 \u2014 ID\u20144(B) was not a zoning ordinance but instead a part of a licensing scheme, the takings clause did not apply; and (4) section 4 \u2014 ID\u20144(B) was rationally related to the legitimate goal of noise reduction.\nThe trial court rejected defendant\u2019s first and second arguments. The court agreed with defendant, however, that section 4 \u2014 ID\u20144(B) was a part of a legitimate licensing scheme and was rationally related to defendant\u2019s legitimate interest in regulating the hours of a business that creates substantial noise and traffic. Accordingly, the trial court granted defendant\u2019s motion. Plaintiff timely appealed.\nDefendant\u2019s motion was based primarily on section 2 \u2014 619(a)(9), which provides for an involuntary dismissal on the ground that the claim is barred by other affirmative matter avoiding the legal effect of or defeating the claim. 735 ILCS 5/2 \u2014 619(a)(9) (West 1998). A section 2 \u2014 619(a)(9) motion admits the legal sufficiency of the complaint but asserts an affirmative defense or other matter that avoids or defeats the claim. Zimmerman v. Fasco Mills Co., 302 Ill. App. 3d 308, 311 (1998). In ruling on a section 2 \u2014 619(a)(9) motion, the trial court must interpret all pleadings and supporting documents in the light most favorable to the nonmoving party. In re Chicago Flood Litigation, 176 Ill. 2d 179, 189 (1997). We review de novo the trial court\u2019s ruling and consider whether a genuine issue of material fact precludes the dismissal and, if not, whether the dismissal is proper as a matter of law. Bainter v. Village of Algonquin, 285 Ill. App. 3d 745, 750 (1996).\nAlthough plaintiff alleged violations of both state and federal constitutional law, both here and below, plaintiff and defendant limited their arguments and supporting authority to considerations of federal constitutional law. Therefore, we focus only on that aspect of plaintiffs claim.\nOn appeal, defendant argues that the first and third contentions it raised in its motion support the trial court\u2019s ruling. Defendant\u2019s first contention was that, because section 4 \u2014 ID\u20144(B) was a permissible nuisance-abatement measure, its enforcement could not result in a taking of plaintiffs property.\nThe fifth amendment to the United States Constitution provides in relevant part that \u201cprivate property [shall not] be taken for public use, without just compensation.\u201d U.S. Const., amend. V Plaintiff asserts an inverse condemnation claim. As distinguished from eminent domain, inverse condemnation describes the manner in which a landowner recovers compensation for a taking of its property when condemnation proceedings have not been instituted. Tim Thompson, Inc. v. Village of Hinsdale, 247 Ill. App. 3d 863, 884 (1993). A land use regulation does not result in a taking if it substantially advances legitimate governmental interests and does not deny an owner an economically viable use of its land. Nollan v. California Coastal Comm\u2019n, 483 U.S. 825, 834, 97 L. Ed. 2d 677, 687, 107 S. Ct. 3141, 3147 (1987). Although property may be regulated to a certain extent, if the regulation \u201c \u2018goes too far,\u2019 \u201d it will be recognized as a taking. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1014, 120 L. Ed. 2d 798, 812, 112 S. Ct. 2886, 2893 (1992), quoting Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 67 L. Ed. 322, 326, 43 S. Ct. 158, 160 (1922). No set formula determines when a regulation goes too far. Lucas, 505 U.S. at 1015, 120 L. Ed. 2d at 812, 112 S. Ct. at 2893.\nLucas identified two categories of regulatory action as compensable without a case-specific inquiry into the public interest advanced to support the restraint. The first category includes regulations that compel the landowner to suffer a physical invasion of his property. Lucas, 505 U.S. at 1015, 120 L. Ed. 2d at 812, 112 S. Ct. at 2893. The second category includes regulations that deny all economically beneficial or productive use of land. Lucas, 505 U.S. at 1015, 120 L. Ed. 2d at 813, 112 S. Ct. at 2893. The complaint here asserts that defendant\u2019s regulation falls within the latter category. Also, this court has interpreted Lucas as leaving open the possibility that a landowner could state a regulatory takings claim based upon a deprivation of beneficial economic use that is less than 100%. Tim Thompson, Inc., 247 Ill. App. 3d at 886-87.\nDefendant\u2019s contention is based on the \u201cnuisance exception\u201d discussed in Lucas. The Court stated that, where \u201cthe State seeks to sustain regulation that deprives land of all economically beneficial use, we think it may resist compensation only if the logically antecedent inquiry into the nature of the owner\u2019s estate shows that the proscribed use interests were not part of his title to begin with.\u201d Lucas, 505 U.S. at 1027, 120 L. Ed. 2d at 820, 112 S. Ct. at 2899. To fall within this exception, a regulation that prohibits all economically beneficial use of land cannot be newly legislated but must inhere in the title itself. Thus, the law must \u201cdo no more than duplicate the result that could have been achieved in the courts \u2014 by adjacent landowners (or other uniquely affected persons) under the State\u2019s law of private nuisance, or by the State under its complementary power to abate nuisances that affect the public generally, or otherwise.\u201d Lucas, 505 U.S. at 1029, 120 L. Ed. 2d at 821, 112 S. Ct. at 2900. The inquiry ordinarily will entail reliance on the factors typically associated with nuisance law, including the degree of harm to public lands or adjacent private property, the social value of the activity, and the ease with which the harm can be avoided. Lucas, 505 U.S. at 1030-31, 120 L. Ed. 2d at 822, 112 S. Ct. at 2901.\nDefendant\u2019s motion did not address any of the nuisance-related factors discussed in Lucas. Instead, it relied solely on the general proposition that the ordinance \u201cis aimed at preventing a nuisance, in part, the noise and traffic which accompanies a vehicle racing business.\u201d Defendant introduced nothing addressing the factual elements of this issue. For example, the trial court had nothing before it regarding the nature of plaintiff\u2019s property and the surrounding properties. If there is nothing within miles of plaintiff\u2019s property, then the nuisance-abatement justification may not exist.\nAlso significant is the statement in Lucas that \u201c[t]he fact that a particular use has long been engaged in by similarly situated owners ordinarily imports a lack of any comm\u00f3n-law prohibition (though changed circumstances or new knowledge may make what was previously permissible no longer so [citation]).\u201d Lucas, 505 U.S. at 1031, 120 L. Ed. 2d at 822, 112 S. Ct. at 2901. Plaintiff alleged that, for many years, it operated its raceway under the more liberal ordinance in existence before the amendment. This was essentially the basis for the trial court\u2019s rejection of the nuisance exception. The record does not reveal the impetus for the amendment. Therefore, it is impossible to determine whether \u201cchanged circumstances or new knowledge\u201d existed. We do not imply that defendant\u2019s nuisance-based argument cannot succeed. We merely conclude that, at this stage of the proceedings, there are genuine issues of material fact as to whether the amendment to the ordinance is justified as a nuisance-abatement measure. We cannot say as a matter of law that defendant\u2019s contention requires the dismissal of plaintiffs complaint.\nNext, defendant contends that' the trial court correctly concluded that the ordinance is constitutional as a part of a legitimate business licensing scheme. Defendant and the trial court relied on David E. Shelton Productions, Inc. v. City of Chicago, 167 Ill. App. 3d 54 (1988). However, that decision is inapplicable.\nThe plaintiff in Shelton held a license to operate a juice bar. The defendant city amended the licensing scheme to limit the hours a juice bar could be open. The plaintiff did not challenge the ordinance as taking its property without compensation, Instead, it argued that the ordinance was an unconstitutional zoning restriction of purported nuisances because the ordinance did not have a substantial relationship to the public health, safety, morals, or general welfare.\nThe court held that the ordinance was a part of a licensing scheme because it regulated establishments based on the type of business they conduct irrespective of their location. As such, the law pertaining to nuisances did not apply. The court applied the constitutional standard governing the validity of licensing regulations: whether the regulation has a rational relationship to a legitimate governmental interest.\nBecause the plaintiff in Shelton did not raise a takings claim, that decision did not purport to exempt from the takings clause any law that was a part of a business licensing scheme. Indeed, in Blue Cat Lounge, Inc. v. License Appeal Comm\u2019n, 281 Ill. App. 3d 643, 647 (1996), the same court applied a takings analysis to the revocation of a liquor license and did not cite Shelton. Thus, in Shelton, the court merely concluded that the constitutional standard governing licensing regulations controlled over the standard governing zoning ordinances.\nThe issue here, whether the ordinance results in a taking, is entirely different. See American National Bank & Trust Co. v. City of Chicago, 826 F.2d 1547, 1549 (7th Cir. 1987) (recognizing in dicta that a system of licensing businesses could effect a taking). Although a part of a business licensing scheme, the ordinance has the practical effect of limiting plaintiffs use of its property. Therefore, Shelton does not require the dismissal of plaintiffs takings claim, and the trial court erred in relying on that decision.\nIn sum, section 2 \u2014 619 \u201callow[s] for a threshold disposition of questions of law and easily proved issues of fact.\u201d Mio v. AlbertoCulver Co., 306 Ill. App. 3d 822, 824 (1999). In its motion, however, defendant did nothing more than deny plaintiffs essential allegations, thereby raising complex factual issues that required a trial to resolve. See Johnson v. Du Page Airport Authority, 268 Ill. App. 3d 409, 414 (1994) (section 2 \u2014 619 motion cannot merely deny essential allegations of plaintiffs case). As a result, the court should not have granted the motion.\nFor these reasons, we reverse the judgment of the circuit court of Ogle County and remand the cause.\nReversed and remanded.\nMcLAREN and GEIGER, JJ., concur.", "type": "majority", "author": "JUSTICE CALLUM" } ], "attorneys": [ "Alan W. Cargerman, of Fearer, Nye, Ahlberg & Chadwick, of Oregon, for appellant.", "Douglas E Floski, State\u2019s Attorney, of Oregon (Deborah E. Ellis, Assistant State\u2019s Attorney, of counsel), for appellee." ], "corrections": "", "head_matter": "BYRON DRAGWAY, INC., Plaintiff-Appellant, v. THE COUNTY OF OGLE, Defendant-Appellee.\nSecond District\nNo. 2 \u2014 00\u20140934\nOpinion filed November 14, 2001.\nAlan W. Cargerman, of Fearer, Nye, Ahlberg & Chadwick, of Oregon, for appellant.\nDouglas E Floski, State\u2019s Attorney, of Oregon (Deborah E. Ellis, Assistant State\u2019s Attorney, of counsel), for appellee." }, "file_name": "0070-01", "first_page_order": 88, "last_page_order": 94 }