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Judicial Rulings



Zoning restrictions on 'adult' businesses don't violate free speech

Restrictions on the location of "adult uses" (adult bookstores, theatres, cabarets etc.) in unincorporated Cook County were upheld as purely zoning matters rather than censorship by the Illinois Supreme Court's decision on March 30. A 1981 zoning ordinance made these businesses "permitted uses" in industrially zoned areas and "special uses" in commercially zoned areas. Restrictions governed the granting of a permit for location in a commercial zone, including a final decision by the commissioners of the zoning board of appeals. The latter step was ruled unconstitutional, but this did not invalidate the rest of the ordinance.

The court relied on a decision by the U.S. Supreme Court, City of Renton v. Playtime Theatres, Inc. ((1986), 475 U.S. 41, 89 L. Ed. 2d 29, 106 S. Ct. 925). The Illinois court said that Renton permits ordinances such as the present one because they are not aimed at content but are "clearly based on a substantial interest in preventing crime, protecting retail trade, and maintaining property values." It further held that the opening of industrial zones to such businesses made it possible for them to operate.

Since there already were adult businesses in the newly restricted areas of Cook County, the plaintiffs argued that the ordinance should have contained a grandfather clause permitting them to continue. The ordinance did give existing businesses six months in which to relocate, plus six additional months upon application for a certificate of nonconformance. The court held that this was adequate when the public benefit is balanced against difficulties for the owners.

Giving the commissioners authority for a final decision on application to locate in a commercial zone was held unconstitutional: "Such a scheme gives the board the right to discriminate among adult uses on the basis of content and any other selective and subjective factors it deems relevant. Such authority violates the defendants' first amendment rights."

Justice Ben Miller wrote the opinion for the unanimous decision in County of Cook v. Renaissance Arcade (122 Ill. 2d 123).


Miranda rights: when 'yes' means 'yes'

A person being questioned in "custodial surroundings" — i.e., a police station — must be allowed to have an attorney present when he or she requests one. An Illinois Supreme Court decision of March 30 reaffirmed this Miranda right, causing reversal of a murder conviction and order for a new trial.

Police read the defendant his rights at the time of arrest, but he later complained that the officer was walking around and that other officers were making noise. At the police station an assistant state's attorney read him his rights. He appeared confused, but at one point clearly said that he wished a court-appointed attorney. After further evidence of confusion, brought on by continued raising of the issue by the assistant state's attorney, questioning proceeded and the defendant made incriminating statements. Pretrial motions to exclude these were made and denied.

The court said, "Statements by an accused following a clear request for counsel. . . are irrelevant in determining whether there has been an effective invocation of that right." Only if he had initiated further discussion could he have waived the right. The decision was unanimous, with the opinion written by Justice Daniel P. Ward, in People v. St. Pierre (122 Ill. 2d 95).


Local control of the garbage pile

Local governments must approve expansion of a landfill even when the expansion is vertical, according to a decision of the Illinois Supreme Court filed April 25. In this case the plaintiffs wished to add 42 feet to the height of an existing landfill. Both the Illinois Environmental Protection Agency (IEPA), which grants permits, and the Pollution Control Board, which heard the appeal from the IEPA decision, ruled that this pileup would constitute a new facility requiring local approval under section 39(c) of the Environmental Protection Act (Ill. Rev. Stat. 1985, ch. 111 1/2).

Section 3(x)(2) of the act defines "a new regional pollution control facility" as "the area of expansion beyond the boundary of a currently permitted regional pollution control facility," and the court, relying on legalese rather than common sense, said that "there is nothing in the language of the statute which limits the term 'boundary' to the lateral dimensions of an existing facility."

Chief Justice Thomas J. Moran and Justice Ben Miller did not participate in M.I.G. Investments v. Environmental Protection Agency (122 Ill. 2d 392). Justice Daniel P. Ward wrote the opinion.


Grandparents' visitation rights

When both biological parents agree to the adoption of a child by others, the grandparents have no visitation rights under section 607(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1985, ch. 40). In this case the adoptive mother, one of the defendants, and the maternal grandmother, one of the plaintiffs, are sisters, but the Illinois Supreme Court ruled on April 25 that this does not constitute a special case under the act.

The court agreed unanimously in Bush et al v. Squellati et al (122 Ill. 2d 153). Justice Joseph F. Cunningham wrote the opinion.

F. Mark Siebert


July 1988 | Illinois Issues | 34



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