FIFTH DIVISION
FEBRUARY 8, 2002
No. 1-01-0447
| SONYA D. HAWTHORNE, Plaintiff-Appellee, v. VILLAGE OF OLYMPIA FIELDS, an Illinois Defendants-Appellants. | ) ) ) ) ) ) ) ) ) ) ) ) | APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE DOROTHY KIRIE KINNAIRD, JUDGE PRESIDING. |
PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:
Defendant, the Village of Olympia Fields (the Village), appeals from an order grantingpartial summary judgment in favor of plaintiff, Sonya D. Hawthorne (Hawthorne), in connectionwith plaintiff's complaint against the Village for prohibiting the operation of a day care facilityfrom her home.(1) On appeal, the Village contends that: (1) the Village's Zoning Ordinance, whichlimits commercial day care businesses in homes, is valid and not exclusionary; (2) The Village isnot pre-empted by State law from exercising land use control over home day care. The circuitcourt denied the Village's motion to stay judgment pending appeal. The Village filed an identicalmotion in the Appellate court pursuant to Supreme Court Rule 305(h); this motion was takenwith the case.(2) For the following reasons, we affirm the judgment of the trial court and deny themotion for stay.
BACKGROUND
The record reveals the following relevant facts. The Village of Olympia Fields (Village)is a non-home rule municipality located in southern Cook County. The Village has acomprehensive Zoning Ordinance (Zoning Ordinance) which establishes permitted and non-permitted uses of property within various zoning districts in the Village. "Home occupations"are permitted in zoning districts defined as R-1, R-2, and R-3. the Zoning Ordinance defines"home occupation" as follows:
"Home occupation means any gainful occupation or professionengaged in by an occupant of a dwelling unit as a use which isclearly incidental to the use of the dwelling unit for residentialpurposes. The 'home occupation' shall be carried on wholly withinthe principal building or within a building accessory thereto, andonly by members of the family occupying the premises * * *. There shall be no exterior display, no exterior sign except asallowed by the sign regulations for the district in which such 'homeoccupation' is located, no exterior storage of materials, no otherexterior indication of the 'home occupation,' or variation from theresidential character of the principal building, and no offensivenoise, vibration, smoke, dust, odors, heat or glare shall beproduced. Offices, clinics, doctors' offices, hospitals, barbershops,beauty parlors, dress shops, millinery shops, tearooms, restaurants,tourist homes, animal hospitals and kennels, among other things,shall not be deemed to be home occupations." Olympia FieldsMunicipal Code,