Wortham v. Vill. of Barrington Hills

2022 IL App (1st) 210888

202 N.E.3d 987

460 Ill.Dec. 967

Clay WORTHAM and Anita Wortham, Plaintiffs-Appellants,

v.The VILLAGE OF BARRINGTON HILLS, a Municipal Corporation, Defendant-Appellee.

No. 1-21-0888

Appellate Court of Illinois, First District, FOURTH DIVISION.

Filed: March 17, 2022

Matthew M. Vasconcellos, of Vasconcellos Law Group LLC, of Chicago, for appellants.

Sean Conway, Bond, Dickson & Conway, of Wheaton, for appellee.

JUSTICE ROCHFORD delivered the judgment of the court, with opinion.

¶ 1 Plaintiffs, Clay and Anita Wortham, filed complaints for administrative review of two final decisions of the Village of Barrington Hills (Village), fining them a total of $32,250 for committing 52 separate violations of section 5-5-2 of the Barrington Hills Village Code (Barrington Hills Village Code § 5-5-2 (amended Dec. 7, 2016)) by repeatedly providing short-term vacation rentals of their single-family residential home through the website Vrbo.com (Vrbo). The circuit court consolidated the administrative review actions and affirmed. Plaintiffs appealed to this court. The primary issue on appeal is whether plaintiffs’ act of renting out their home on Vrbo constituted a permitted residential use under the applicable provisions of Title 5 of the Barrington Hills Village Code (hereinafter, Zoning Code) (Barrington Hills Village Code, tit. 5) or an impermissible business use. For the reasons that follow, we find that plaintiffs’ rentals of their home constituted an impermissible business use and affirm the circuit court.

¶ 2 The Zoning Code provides zoning regulations for the Village. Section 5-5-2 permits single-family detached dwellings in R1 residential zoning districts (R1 districts). Barrington Hills Village Code § 5-5-2 (amended Dec. 7, 2016). Section 5-2-1 defines a "dwelling" as "[a] building *** designed or used exclusively for residential occupancy, including single-family dwellings *** but not including hotels or lodging houses."¹ Id. § 5-2-1. Section 5-2-1 defines "hotel" as "[a]n establishment which is open to transient guests, in contradistinction to a boarding house or lodging house, and is commonly known as a hotel in the community in which it is located and which provides customary hotel services." Id. "Lodging house" is not defined in Title 5.

¶ 3 Section 5-5-2(A) also permits "[h]ome occupations, as accessory only to single-family detached dwellings" in R1 districts. Id. § 5-5-2(A). Home occupation is defined in section 5-3-4(D)(2) as:

"any lawful business, profession, occupation or trade conducted from a principal building or an accessory building in a residential district that:

a. Is conducted for gain or support by a full time occupant of a dwelling unit; and

b. Is incidental and secondary to the principal use of such dwelling unit for residential occupancy purposes; and

c. Does not change the essential residential character of such dwelling unit or the surrounding neighborhood." Barrington Hills Village Code § 5-3-4(D)(2) (amended Oct. 28, 2019).

¶ 4 Section 5-3-4(D) further states:

"Home Occupation: The intent of this subsection is to provide peace, quiet and domestic tranquility within all residential neighborhoods within the village and in order to guarantee to all residents freedom from nuisances, fire hazards, excessive noise, light and traffic, and other possible effects of business or commercial uses being conducted in residential districts. It is further the intent of this subsection to regulate the operation of a home occupation so that the general public will be unaware of its existence. A home occupation shall be conducted in a manner which does not give an outward appearance nor manifest characteristics of a business which would infringe upon the right of neighboring residents to enjoy the peaceful occupancy of their dwelling units or infringe upon or change the intent or character of the residential district." Id. § 5-3-4(D).

¶ 5 Plaintiffs are the owners of a single-family home (the Property) located at 366 Overlook Road in the Village's R1 district, and they also own and operate two farms in Kentucky. When spending time at their farms in Kentucky, plaintiffs list the Property on Vrbo, a vacation rental online marketplace, for $299 per night. According to their Vrbo listing, occupancy is limited to eight guests, with a minimum three-night stay. Parties are not permitted. The entire home is listed, so that the guests have exclusive access to the Property during their stay and do not share the Property with plaintiffs.

¶ 6 Prior to March 1, 2020, plaintiffs rented the Property through Vrbo on at least 27 occasions.

¶ 7 On March 10, 2020, the Village messaged plaintiffs on Vrbo and informed them that "short-term rental use of your Property for lodging or other commercial purposes is strictly prohibited" by sections 5-5-2 and 5-2-1 of the Zoning Code, which only permit single-family detached dwelling use in the R1 district and do not permit hotels or lodging houses. The Village told plaintiffs to "immediately cease and desist from any use of your Property for commercial short-term rental purposes."

¶ 8 Plaintiffs ignored the cease and desist order and continued to rent the Property through Vrbo at least 14 more times.

¶ 9 On September 15, 2020, the Village sent plaintiffs a cease and desist letter again informing them that their use of the Property "for short-term rental for lodging or special events" in the R1 district is prohibited under sections 5-5-2 and 5-2-1 of the Zoning Code and that each violation carries a penalty of $750 per day "for every day such violation has remained existing."

¶ 10 On September 16, 2020, the Village again messaged plaintiffs through Vrbo informing them that the short-term rental of the Property violated sections 5-5-2 and 5-2-1 and "must immediately cease."

¶ 11 Due to plaintiffs’ refusal to cease the short-term rental of the Property through Vrbo, the Village served a notice to plaintiffs on September 24, 2020, to appear before a hearing officer for an administrative adjudication on the alleged Zoning Code violations.

¶ 12 The parties appeared before the Village hearing officer and submitted a joint stipulation of facts and written arguments. The joint stipulation of facts set forth plaintiffs’ ownership of the Property in the R1 district, their numerous vacation rentals of the Property through Vrbo, and the Village's multiple communications to plaintiff informing them that the rentals were in violation of the Zoning Code. The joint stipulation also attached a copy of plaintiffs’ listing of the Property on Vrbo along with 53 customer reviews. One such review indicated that the renters accessed the Property by means of a keypad on the door with an access code.

¶ 13 In its written argument, the Village asserted that plaintiffs’ repeated short-term vacation rentals of the Property through Vrbo constituted commercial uses of the Property as a lodging house for transient renters in violation of sections 5-5-2 and 5-2-1 of the Zoning Code, which allow for only residential (not commercial) use of properties in the R1 district except for certain home occupations not applicable here. Section 5-2-1 also specifically excludes lodging houses from the definition of the "dwellings" allowed in the R1 district.

¶ 14 Plaintiffs responded in their written argument that their rentals of the Property through Vrbo did not constitute commercial use thereof because the renters used the Property for ordinary living purposes and, as such, that the Property maintained its residential character.

¶ 15 Plaintiffs also argued that their rentals of the Property did not transform it into a lodging house, which is excluded from the R1 district. Plaintiffs noted that "lodging house" is not explicitly defined in the Zoning Code but that it is defined by the International Code Council in the 2015 International Building Code (IBC) (Int'l Code Council, Inc., International Building Code § 202 (2015)), which was adopted in the Barrington Hills Village Code. See Barrington Hills Village Code § 4-2-2 (amended Jan. 1, 2019) (adopting the 2015 edition of the IBC). Section 4-2-2(A) of the Barrington Hills Village Code provides that the IBC is "hereby adopted by reference as the Building Code of the Village." Id. § 4-2-2(A). Section 202 of the IBC defines a lodging house as "[a] one-family dwelling where one or more occupants are primarily permanent in nature and rent is paid for guest rooms." Int'l Code Council, Inc., International Building Code § 202 (2015). Plaintiffs construed section 202 of the IBC as requiring that a lodging house have at least one permanent occupant who lives on the premises and rents out spare rooms. Plaintiffs contended that since they do not live on the premises during the rental periods, but instead exit the premises while renting out the entire home, the use of the Property does not fall within the IBC's definition of a lodging house and is not excluded from the R1 district.

¶ 16 Plaintiffs also argued that the Zoning Code's definition of "hotel" lends further credence to their claim that renting out the Property under Vrbo did not transform it into a lodging house. The Zoning Code defines "hotel" as "[a]n establishment which is open to transient guests, in contradistinction to a boarding house or lodging house , and is commonly known as a hotel in the community in which it is located and which provides customary hotel services." (Emphasis added.) Barrington Hills Village Code § 5-2-1 (amended Dec. 7, 2016). Plaintiffs argued that by defining a hotel as catering to transient guests, in express "contradistinction" to a lodging house, the Zoning Code was necessarily stating that a lodging house only caters to non-transient guests. "Transient" is defined in the IBC as "Occupancy of a dwelling unit or sleeping unit for not more than 30 days" (emphases omitted) (Int'l Code Council, Inc., International Building Code § 202 (2015)), meaning (according to plaintiffs) that "non-transient"...