APPEAL from the Circuit Court of Du Page County; the Hon.
PHILLIP F. LOCKE, Judge, presiding.
MR. PRESIDING JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT:
This appeal arises out of a zoning dispute between the plaintiff, record owner of the property in question, and defendant, the City of Wheaton. Defendant denied plaintiff's sought rezoning and plaintiff filed for declaratory judgment on the basis that defendant's current zoning was unconstitutional and void as to the subject property. The petition was granted and the defendant appeals.
The property, a single 1.84-acre parcel comprised of nine 55-foot lots, is located on County Farm Road, north of Roosevelt Road, in a sparsely developed area of the defendant city. The property is zoned R-1 (single-family residential) although the lots are smaller than R-1 zoning presently requires. A drainage problem in the southwest portion of the property led the defendant (through its Director of Development, Thomas Murphy) to inform the property owner that only four or five building permits could be issued for the property in its present condition. The defendant did not, however, oppose giving permits for all the lots if and when the drainage inadequacies were rectified.
Apparently, no attempt was made to correct the drainage problem in an attempt to secure the nine single-family-residence permits. Instead, Mr. Hitzeman, the beneficial owner of the subject land (held by plaintiff as trustee), drew up plans to develop the property for multifamily use. These plans included the construction of three 13-unit, two-story buildings in the northern segment, with 68 parking spaces, a single entrance for traffic on County Farm Road, and drainage-retention areas in the southern portion.
Application was made to rezone the property from R-1 to R-7 (multiple-family dwellings and limited business uses) and to classify it as a planned unit development (P.U.D.) of more than one building. Although defendant's zoning ordinance requires that certain plans and exhibits be submitted at the time an application is made for a P.U.D., plaintiff did not submit such documents at that time. The rezoning and reclassification application was appropriately noticed for public hearing and, prior to the hearing, Murphy reminded Hitzeman to bring the plans to the hearing. At the hearing, the Board of Zoning Appeals heard evidence, and plaintiff submitted the required plans and exhibits for the P.U.D. After considering the evidence, the Board recommended denial of the request and the defendant followed its recommendation.
Subsequently, plaintiff filed suit for a declaratory judgment. Defendant petitioned for a change of venue, alleging, as a basis, prejudice of the circuit court judge then hearing zoning cases. The trial court denied defendant's petition, and this appellate court denied defendant's application for interlocutory relief from the trial court's order. Inasmuch as the chief judge had changed the assignments of trial judges in the circuit, the cause proceeded to trial on the merits before a circuit judge other than the one complained of in defendant's petition.
The circuit court decreed that defendant's R-1 zoning, as applied to the subject property, bears no reasonable relationship to public health, safety, morals, and welfare, and, as applied to that property, is unreasonable, arbitrary, confiscatory, unconstitutional, and void; that plaintiff's proposed use of the property was suitable and reasonable and should be permitted; and that the defendant is enjoined from preventing plaintiff's proposed use of the property.
Defendant appeals asserting that the trial court erred in denying the defendant's petition for a change of venue on the ground of prejudice; that plaintiff failed to exhuast its administrative remedies; that defendant did not receive a fair and impartial trial due to the prejudice of the trial judge; and that the findings of the court were against the manifest weight of the evidence adduced.
1 The first issue is moot, as trial on the merits was had before a judge other than the one to whom defendant took objection. It is clear that a court will consider only actual controversies and will not declare rules of law which cannot affect the matter at issue in the case before it. Chicago City Bank & Trust Co. v. Board of Education, 386 Ill. 508, 519-21 (1944); Board of Trustees v. Cook County College Teachers Union, Local 1600, 22 Ill. App.3d 1057, 1059 (1974).
As an affirmative defense, defendant, prior to trial, alleged that plaintiff did not exhaust its administrative remedies before seeking relief in the courts and was therefore barred from such relief. Defendant did not, there or here, specify what further administrative remedy plaintiff was required, but failed, to seek. Defendant's argument is based on plaintiff's failure to comply with a zoning ordinance requirement in that he did not, at the time of making application, supply the plans and exhibits necessary for a P.U.D. permit. This is not properly a question of "failure to exhaust administrative remedies," as plaintiff did appear and did present the required exhibits for consideration by the administrative tribunal.
2 Defendant could have demanded strict conformity to procedure as a precondition to a hearing on the R-7, P.U.D. application. It did not. Through its representative, Murphy, defendant invited plaintiff to present the exhibits at the time of the hearing before the Zoning Board of Appeals, and the exhibits were so presented. Approximately two months later, defendant denied plaintiff's application. In its brief, defendant admits that this decision was reached "after considering the evidence submitted," and during oral argument defendant agreed that the exhibit requirement in question could be waived. We find that defendant, by its actions, waived strict compliance with its requirement. Defendant's appeal to the doctrine of exhaustion of administrative remedies is misapplied and does not alter the waiver.
Defendant complains that the trial judge displayed prejudice and recurrently acted as an advocate in this case, denying defendant a fair and impartial hearing. Many of the instances pointed to by defendant are merely examples of the trial court's privilege, expanded in a bench trial, to interrogate witnesses in order to obtain a fuller understanding of the case before it. Defendant contends that the court in its questions displayed bias against the Wheaton Land Clearance Commission, which, defendant claims, the court erroneously believed to be an arm of the defendant and a force obstructing development of the subject property. Defendant asserts that such questioning occurred prior to the introduction of evidence regarding the Land Clearance Commission (hereinafter L.C.C.). The record, however, reveals that the court understood the L.C.C. to be a separate municipal corporation with an independent governing board and powers. The record also reveals a statement by appellant's counsel that there had been direct testimony regarding the L.C.C. and this statement occurred before the objected-to question from the court regarding the L.C.C.
3 In exploring the possible reasons for this parcel not having been developed, the court initiated certain questions regarding the L.C.C.'s power of eminent domain over the subject parcel and nearby lands, and asked whether the L.C.C. had acquired lands near the subject property. Murphy responded that it had not and was not likely to because the L.C.C. has no taxing power, and the Federal "seed money" (formerly available from urban renewal funds) had either been closed down or impounded. The court asked whether the L.C.C.'s power of eminent domain did not therefore have a depressing effect on the valuation of the property in that area which would hinder its development. Murphy's response indicated that, to the contrary, the L.C.C. had encouraged private developers to accumulate, into larger parcels for economic development, properties with hitherto scattered ownership. The court asked how permitting a proposal such as Hitzeman's would controvert the L.C.C. plans since it was not apparent to the court how the Hitzeman goals and the L.C.C. plans were inconsistent. According to the evidence at this point in the proceedings, we believe that the court's query was reasonable and that it was framed in a manner acceptable to elicit further explanation.
4 Thereafter, during its inquiry of Murphy, the court observed that the Wheaton Comprehensive Plan for the area designates the subject area for multiple-family or commercial uses. At the conclusion of its inquiry of this witness, the court once again expressed some bewilderment as to how Mr. ...