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Traders Development Corp. v. Zoning Board

FEBRUARY 17, 1959.

TRADERS DEVELOPMENT CORPORATION, PLAINTIFF-APPELLANT,

v.

ZONING BOARD OF APPEALS OF PEORIA COUNTY, ILLINOIS, ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Peoria county; the Hon. HENRY J. INGRAM, Judge, presiding. Affirmed.

PRESIDING JUSTICE SPIVEY DELIVERED THE OPINION OF THE COURT.

The Circuit Court of Peoria County on defendants' motion dismissed plaintiff's complaint filed under the provisions of the Administrative Review Act, Chap. 110, Sect. 264 et seq., Ill. Rev. Stat. 1957. Plaintiff elected to stand by its complaint, and an appropriate order was entered dismissing the cause of action at plaintiff's costs. From this order plaintiff appeals.

One of the defendants, John P. Wichmann, filed a petition with the defendant, The Zoning Board of Appeals of Peoria County, Illinois, to rezone certain premises in Peoria County owned by him from Class "C" Residential District to Class "D" Commercial District under the provisions of the Peoria County Zoning Ordinance. Plaintiff and others filed objections to the rezoning.

On June 14, 1957, a full hearing was had, and on August 1, 1957, the Zoning Board rendered its findings of fact and recommended to the Peoria County Board of Supervisors that the tract be rezoned pursuant to Article 21 of the Peoria County Zoning Ordinance and Section 5 of the County Zoning Act, Chap. 34, Sect. 152m, Ill. Rev. Stat. 1957. The instant suit was filed to review this decision of the Zoning Board through the medium of the Administrative Review Act.

Plaintiff for reversal contends that decisions rendered by a county Zoning Board of Appeals pursuant to its functions specified in Section 5 of the County Zoning Act are reviewable as final administrative decisions under the Administrative Review Act. Defendant contends to the contrary.

Section 1 of the Administrative Review Act, Chap. 110, Sect. 264, Ill. Rev. Stat. 1957, provides in part,

"`Administrative decision' or `decision' means any decision, order, or determination of any administrative agency rendered in a particular case, which affects the legal rights, duties or privileges of parties and which terminates the proceedings before the administrative agency."

A county's authority to regulate zoning is derived from statute. Chap. 34, Sects. 152i through 152p, Ill. Rev. Stat. 1957. The act permits the county board by ordinance or resolution to district and regulate the use of lands within the purposes therein expressed and to enforce the provisions of the ordinance or resolution.

Section 3.2 of the Act, Chap. 34, Sect. 152k.2, provides for the appointment of the Board of Appeals consisting of five members. Section 3.1, Chap. 34, Sect. 152k.1, authorizes the application of the ordinance or resolution to be varied in harmony with its general purpose and intent in either of two manners, (1) by the Board of Appeals or (2) by the County Board by ordinance or resolution. If by the latter method this section requires that a hearing first be had before the Board of Appeals, and if the proposed variation fails to receive the approval of the Board of Appeals, the variation ordinance or resolution must receive a favorable vote of three-fourths of all the members of the County Board.

Section 3.3 of the Act, Chap. 34, Sect. 152k.3 provides:

"The board of appeals shall also hear and decide appeals from and review any order, requirement, decision or determination made by an administrative official charged with the enforcement of any ordinance or resolution adopted pursuant to this Act.

"It shall also hear and decide all matters referred to it or upon which it is required to pass under any such ordinance or resolution or under the terms of this Act. The concurring vote of four members of the board shall be necessary to reverse any order, requirement, decision or determination of any such administrative official or to decide in favor of the applicant any matter upon which it is required to pass under any such ordinance or resolution, or to effect any variation in such ordinance or resolution, or to recommend any variation or modification in such ordinance or resolution to the county board. An appeal may be taken by any person aggrieved or by any officer, department, board or bureau of the county. Such appeal shall be taken within such time as shall be prescribed by the board of appeals by general rule by filing with the officer from whom the appeal is taken and with the board of appeals a notice of appeal, specifying the grounds thereof. The officer from whom the appeal is taken shall forthwith transmit to the board all the papers constituting the record upon which the action appealed from was taken.

Section 3.4 of the Act, Chap. 34, Sect. 152k.4, provides:

"All final administrative decisions of the board of appeals hereunder shall be subject to judicial review pursuant to the provisions of the `Administrative Review Act,' approved May 8, 1945, and all amendments and modifications thereof, and the rules adopted pursuant thereto. The term ...


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