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Armour v. Mueller

OPINION FILED FEBRUARY 4, 1976.

CLIFFORD ARMOUR ET AL., PLAINTIFFS-APPELLEES,

v.

ROBERT A. MUELLER, ZONING ADMINISTRATOR, ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of St. Clair County; the Hon. ALVIN H. MAEYS, JR., Judge, presiding.

MR. JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:

The several defendants in this case appeal the order of the circuit court of St. Clair County, setting aside the decision of the Fairview Heights Zoning Board of Appeals granting Roy and Kathleen Shoemaker a variance for the erection of a mobile "modular home."

On March 17, 1974, the Shoemakers filed an application with Robert Mueller, Zoning Administrator of the City of Fairview Heights for a building permit to enable them to place a "modular home" on a parcel of land at 32 South Ruby Lane. The lot has 100-foot frontage on Ruby Lane and is 260 feet deep. On March 29, Mueller refused to issue the permit. The Shoemakers filed an application for a variance with the defendant Zoning Board of Appeals on April 1. On April 3 the Board published a notice in the Fairview Heights Journal of a public hearing to be held April 23 to consider the variance request of the Shoemakers. Written notice of the hearing was sent to Mr. and Mrs. Shoemaker on April 4.

At the hearing on April 23, the Board stated that it could not take final action on Shoemakers' request. The Board had received an advisory report on the application from the Fairview Heights Planning Commission but expected another report and had not yet received it. However, notice had been sent to the Shoemakers and in addition, although not sent by the Board, Shoemaker testified that he had, in compliance with an informal Board rule, notified property owners surrounding his lot of the hearing and its subject. He received written approval of his proposal from those neighbors not present. Those who opposed the issuance of the variance, including the appellees, were in attendance.

The Shoemakers wanted to place the "modular home" on the rear of their property at 32 South Ruby Lane. The problem giving rise to this appeal was that another building, the residence of Mr. Shoemaker's mother, was already located on the lot. Shoemaker testified that he had first sought approval from the defendant, Mueller. Apparently on his advice and that of other city officials, Roy Shoemaker subdivided the lot by jointly, with his mother, conveying part of the property to himself and his wife and then sought a variance from the city's zoning requirement that lots so zoned have a minimum of thirty feet frontage. The frontage requirement was the Board's main concern.

Several neighboring property owners testified on behalf of the Shoemakers. They said he had lived with his mother on the property for some time and was generally liked. The "modular home" was described as being good-looking when assembled, indistinguishable from a standard house. One of the neighbors noted that a prior resident in the area had apparently violated the zoning ordinance by establishing a commercial auto body repair shop. The city had not complained then and the neighbor urged that the Board should grant the variance to Shoemaker who at all times attempted to follow the law. For some time prior to the hearing, Mr. Shoemaker had helped take care of his mother and the property. The Shoemakers, Mr. Shoemaker's mother, and a few other witnesses thought this was a strong reason for the Board to grant a variance.

The opponents, surrounding property owners, as well, did not contradict the proponents' testimony regarding Mr. Shoemaker's popularity, the appearance of the "modular home," or his motivation for moving to the lot. Their sole objection was that even though the lot had been "subdivided," there would be two principal buildings on one lot, contrary to the Zoning Ordinance. They felt that if this were allowed in one case, it would be allowed elsewhere in the neighborhood.

At the conclusion of testimony, the case was continued for a week to await the Planning Commission's advisory report. The Board's secretary was directed to make sure the Shoemakers and their neighbors were notified.

The second hearing, a special meeting, was held on April 30. Testimony both for and against the proposed variance was taken, but the record on appeal does not contain a transcript of the proceedings. In his brief, the appellant Mueller lists the witnesses who he says testified. Among them was Clifford Armour. The appellees do not dispute the fact that a hearing was held on April 30.

On May 28, the Board held a regular meeting. The Planning Commission's advisory report was read, recommending that the proposed variance be denied. The reasons given were the Shoemakers' failure to complete a standard questionnaire, two principal buildings would be on one lot in violation of an ordinance, the lot was allegedly subdivided without city approval in violation of an ordinance, the subdivided lot would not have sufficient frontage in violation of an ordinance, the proposed use was not compatible with the neighborhood and no proper connection with the city sewer was shown. The Board chose to ignore the report, stating that its sole concern was whether a variance from the frontage requirement should be granted. On that issue, the Board voted four in favor with one abstention to grant the variance for so long as Mr. Shoemaker needed to use the lot as his home. There was a brief discussion of the "hardship" to the Shoemakers caused by the frontage requirement, but there were no formal findings of fact with regard to this issue or any other surrounding the granting of the variance.

Following the allowance of the variance, the plaintiffs sought judicial review of the Board's determination. The court, after a hearing, issued an order setting aside the Board's action.

The court first found that the Zoning Board of Appeals failed to comply with sections 7.03 and 7.05(c) of the Zoning Ordinance of Fairview Heights in that notice was not given to all interested parties and the plaintiffs of the April 23 meeting. Section 7.03 provides that "The Board shall select a reasonable time and place for the hearing of the appeal and give due notice thereof to the parties * * *." The specific type of notice required in the instant case where a use variance is sought is described in section 7.05(c):

"Notice and Hearing. No action of the Board of Zoning Appeals shall be taken on any case until after notice has been given that public hearing has been held as follows:

(1) A notice of the time and date of said hearing and a brief summary of explanation of the subject matter of the hearing shall be posted in three prominent places within the city or shall be published in the newspaper of general circulation within the ...


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