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Ceresa v. City of Peru

AUGUST 17, 1971.




APPEAL from the Circuit Court of La Salle County; the Hon. HOBART W. GUNNING, Judge, presiding.


Peter Ceresa and Eugene Kolowski, Plaintiffs-Appellants, (referred to as the objectors) commenced this declaratory judgment action in the Circuit Court of La Salle County seeking a declaration that an action of the City of Peru, Defendant-Appellant, was invalid. The action complained of was the rezoning of the property of Benjamin Kaszynski, Defendant-Appellee, (referred to herein as the owner). The trial court held the rezoning ordinance valid and it is from such action that this appeal follows.

The facts are undisputed having been stipulated to as alleged in the pleadings. On May 29, 1969, the owner of property in Peru filed his petition with the City requesting a reclassification of the applicable zoning from residential to commercial to permit the construction and operation of a drive-in restaurant. The petition was referred to the Zoning Board of Appeals, due notice of a hearing was given and both the owner and objector participated in the hearing before the Board. The Zoning Board of Appeals after hearing testimony, voted unanimously to deny the request and so recommended to the City Council of Peru.

Action on the recommendation presented by the Zoning Board of Appeals first came before the City Council on July 14, 1969, when, at its regular meeting, the recommendation was tabled by the City Council. Two weeks later, at its next regular meeting on July 28, 1969, the Council took from the table the recommendation of the Zoning Board of Appeals and after discussion voted to accept the recommendation of the Zoning Board of Appeals that the rezoning be denied. A roll call vote with seven Aldermen voting aye, two Aldermen passing and one Alderman absent was recorded.

Two weeks later, at the regular meeting of the City Council on August 11, 1969, the owner presented a petition to the City Council specifically requesting that the City Council reconsider the Zoning Board of Appeals' recommendation. It asked that not only the recommendation be reconsidered, but that a motion be made and passed "holding said vote on said Zoning Board of Appeals' recommendation in abeyance" until a certain land use map, which was alleged to be in the process of preparation by a consultant to the Planning Commission of the City of Peru, was finalized and presented to the City Council.

At that meeting, Alderman Piano made a motion to "reconsider the recommendation as requested in the petition". By a six to three vote Alderman Piano's motion carried. Piano then made a further motion to table "the petition".

For the next thirteen regular meetings of the City Council of the City of Peru, the matter came up for consideration and was tabled at each meeting, covering a period of approximately six months. Then, at the next regular meeting of February 23, 1970, the petition of the owner was removed from the table for discussion. A motion was then made to overrule the decision of the Zoning Board and to grant a reclassification of the premises to a commercial classification "upon filing of the deeds concerning use of the premises and use of the premises conforming to the specifications and plan submitted". No deeds, specifications or plans were submitted in the original petition for reclassification. On a roll call vote the vote was unanimously in favor of the motion.

On April 7, 1970, plaintiffs filed a Complaint for Declaratory Judgment under the provisions of Section 57.1 of the Civil Practice Act praying that the City of Peru be restrained and enjoined from issuing a building permit for any use of the premises except those permitted under Single Family Residence District; that the owner be enjoined from using said premises except as under residential zoning and that the action of the City Council on February 23, 1970, be declared void.

On May 4, 1970, four weeks after the Complaint for Declaratory Judgment had been filed, and service of summons had upon each defendant, and after plaintiffs had called to the court's attention that no ordinance had ever been adopted by the City of Peru amending Ordinance No. 1497, an ordinance to amend the Peru Zoning Ordinance No. 1497 was presented to and passed by the City Council of the City of Peru changing the zoning classification from Single Family Residence District to a Commercial District in accordance with the petition of the owner filed on August 11, 1969.

After some amendments to the Complaint, Answers were filed essentially denying plaintiffs were entitled to the relief requested and stating that the reconsideration was made properly by the City Council and that the City Council abided by the provisions of Roberts Rules of Order in the conduct of its meetings. The Answer of the City of Peru stated that the reconsideration of the Zoning Board of Appeals' recommendation was granted for the purpose of awaiting a decision and recommendation of the Planning Commission of the City of Peru concerning the premises sought to be rezoned.

In a written memorandum the trial court approved the action of the City Council and it is from this judgment that this appeal follows.

The issue presented on this appeal is whether the procedural requirements for the adoption of an amendment to a zoning ordinance have been sufficiently complied with.

• 1 From the foregoing facts and from the briefs of the parties it appears that there is some confusion in the use of the term "reconsider". In one sense reconsider is a parliamentary term which in its strict sense enables a deliberative body by a favorable vote on such a motion, to vote again on a prior action of the deliberative body. (People v. Davis, 284 Ill. 439, 120 N.E. 326 and City of Kankakee v. Small, 317 Ill. 55, 147 N.E. 404.) In its general non-technical sense reconsider refers to the further or renewed opportunity to think again about a matter and take some action with regard thereto. In this latter sense a deliberative body such as a city council, has continuing power and authority to consider from time to time matters within its jurisdiction and generally speaking any such reconsideration or renewed consideration may be independent of any action which it has taken or not taken in the past. In Quernheim v. Asselmeier, 29 Ill. 494, 129 N.E. 828, a County Commission established the salary for a Truant Officer and two days later "revoked" its previous "order". Although there is some indication that "revocation" was deemed reconsideration the principal thrust of the decision illustrates the continuing authority of the Commission to set and change salary schedules where such changes are not contrary to constitutional provisions prohibiting increases or decreases in compensation for an officer during his term of office.

Chap. 24, Sec. 11-13-14, Ill. Rev. Stat. (1969), the legislative authorization for municipalities to amend zoning ordinances provides, "* * * no such amendment shall be made without a hearing before some commission or committee designated by the corporate authorities * * *." In 1963, the City of Peru adopted a comprehensive zoning ordinance, number 1497. Section 23 of the ordinance provides that the City Council on its own initiative or land owners by petition may seek amendment of the zoning ordinance but in any event notice and public hearing before the Zoning Board are required. There is no question but that the Peru City ordinance complies with the statutory authorization and it is equally undisputed that the procedure employed was regular through and including the ...

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