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Mile Square Service v. Chicago Zoning Bd.

OPINION FILED SEPTEMBER 28, 1976.

MILE SQUARE SERVICE CORPORATION, PLAINTIFF-APPELLANT,

v.

CITY OF CHICAGO ZONING BOARD OF APPEALS ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. EDWARD F. HEALY, Judge, presiding.

MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Plaintiff, Mile Square Service Corporation, commenced this action for administrative review of a decision of the Chicago Zoning Board of Appeals (hereinafter referred to as "Zoning Board") denying plaintiff's application for a variation in the nature of a special use. (Ill. Rev. Stat. 1973, ch. 24, par. 11-13-13.) By its application, plaintiff sought approval of the use of certain property owned by it, located at 3319-21 West Fulton in Chicago, as a halfway house for former drug abusers participating in a therapeutic rehabilitation program. *fn1 Joined with the Zoning Board and its individual members as party defendants to this action were all persons and organizations who appeared in opposition to plaintiff's application at a public hearing conducted by the Zoning Board. This appeal was perfected following the circuit court's affirmance of the Zoning Board's decision. Plaintiff brings three issues to our attention: (1) whether the finding of fact made by the Zoning Board upon which its decision was predicated is contrary to the manifest weight of the evidence; (2) whether the Zoning Board erred by refusing to consider additional evidence submitted by plaintiff subsequent to the hearing on plaintiff's application; and (3) whether plaintiff was deprived of its right to a full review of the Zoning Board's decision owing to the conduct of the circuit court judge sitting in administrative review of that decision.

Mile Square Health Center, Inc. (hereinafter referred to as "Mile Square") is an Illinois not-for-profit corporation which operates a community-based and -controlled comprehensive health-care facility which provides medical, dental, and mental treatment. These services are subsidized in part by both State and Federal funding. Plaintiff is a wholly owned subsidiary of Mile Square; its function is to hold title to realty used by Mile Square in the latter's programs.

In 1971, the Federal government requested Mile Square to assume control of a drug rehabilitation program being conducted in Chicago. Mile Square's initial efforts with this program were unsuccessful. Since persons were treated on a walk-in basis, the staff retained no supervisory control over the patients after they had left the facility. Consequently, the momentary concern of many of the individuals who sought rehabilitative guidance would wane, once the pressures from their environment resumed. However, a complete turnaround of the program resulted when Mile Square established a residential therapeutic facility to house the participants in the rehabilitation program. The success of this innovation was directly attributable to the full-time supervision which each participant received and to their enhanced appreciation of the community due to the residential, as opposed to institutional, setting. As Federal funding increased with the success of the program, a desire to expand the program to involve more participants was manifested, thus necessitating a larger residential facility.

The site which is the subject of the instant action was selected for expansion purposes for two primary reasons. First, its residential location was only a short distance from the health center where the participants received and would continue to receive all medical treatment. Second, the building, which had formerly been utilized as a nursing home, was equipped with institutional kitchen and plumbing facilities, thereby decreasing the initial cost of expanding the program. Because this site is located in a general residence district which is zoned R4, plaintiff filed an application for a special use permit.

Although a special use permit may be granted so as to allow property located in a district zoned R4 to be utilized as a residential care home or halfway house (Chicago, Ill., Chicago Municipal Code (1974), ch. 194A, § 7.4-4(8)), plaintiff's application was not approved by the Zoning Administrator. Pursuant to the Chicago Zoning Ordinance (Chicago, Ill., Chicago Municipal Code (1974), ch. 194A, § 11.10-1 et seq.), plaintiff perfected an appeal from the Zoning Administrator's decision to the Zoning Board. The applicable ordinance requires that two prerequisites be satisfied before the Zoning Board can authorize a variation in the nature of a special use. (Chicago, Ill., Chicago Municipal Code (1974), ch. 194A, § 11.10-2.) First, upon due notice, a public hearing must be held before the Zoning Board. Second, a written report must be prepared and filed with the Board by the Commission of Development and Planning, such report to become a part of the record.

On May 13, 1974, the Department of Development and Planning submitted a written report to the Zoning Board recommending that plaintiff's application be denied. The Department objected to plaintiff's proposed use of its premises "as it may have a deleterious effect in the surrounding area."

On May 17, 1974, a public hearing was held before the Zoning Board. At that proceeding, several witnesses testified in support of plaintiff's application, and numerous other witnesses voiced their objections to the proposed use of the subject premises.

The parameters and goals of Mile Square's therapeutic program were explained. Applicants for the program are screened in an attempt to ascertain their sincerity in seeking rehabilitation. Those individuals who are admitted to the program are then detoxified under a methadone detoxification program. Thereafter, the participants reside at the residential center where they participate in various workshops and seminars structured to prepare them for a drug-free existence in society. Throughout the program, biweekly examinations are conducted to assure that the participants remain drug-free. As each person progresses through the program, they are allotted more opportunities to engage in activities outside of the residential center. At all times, records listing the activities of each resident are maintained to help prevent external pressures from encouraging a participant to abandon the program. A participant normally achieves outpatient status after residing at the residential center for five months. Then, during the next 12 months, the outpatient's adjustment to the community is evaluated so that any problems which might arise can be detected and, hopefully, resolved. An outpatient can then become a graduate of the program "when, after all phases have been therapeutically exhausted, the patient has demonstrated satisfactorily that in attitude, emotions and behaviour he can function in the community free of drugs." An estimated 24% of the persons admitted to the program attain graduate status.

In addition to this evidence, other witnesses called by plaintiff enumerated the benefits derived from establishing therapeutic centers for former drug abusers in residential areas. Such locations are deemed preferable because they offer the residents exposure to a home and a community environment, whereas an institutional atmosphere tends to be counterproductive since it fosters alienation and dependence. Although it was acknowledged that community opposition to such programs is commonplace when halfway houses are first opened in residential neighborhoods, it was the belief of these witnesses, either from personal experience or from analyzing the success of similar programs, that community hostility and apprehension subside as residents of the neighborhood become more knowledgeable about the program and recognize that additional problems have not been created by the existence of the therapeutic facility near their homes. It has been the experience of other similarly structured programs that drug addicts stay away from residents of a therapeutic center, even when such facilities are located in neighborhoods afflicted with a high volume of drug traffic. An example of community reaction to such programs after they have been in operation for a period of time is a petition signed by 60 residents of the neighborhood where the Mile Square residential facility was formerly located stating that the residents at the center "are fine neighbors and their property is well kept."

The last two witnesses called by plaintiff were qualified as real estate experts. The first expert witness was both a real estate broker and an appraiser. Although he had not sold real estate in the area of the subject property in over seven years, he had visited the subject property on several occasions and was familiar with the surrounding neighborhood. It was his opinion that the proposed use of the subject property would not cause injury to the value of other property located in the neighborhood. This opinion was predicated on three factors. First, prior to plaintiff's possession of the premises, the building located thereon had been vacant for over 1 1/2 years. Since vacant buildings are prone to dereliction and vandalism, it is a benefit to the neighborhood if the building is occupied. Second, it appeared that plaintiff would properly maintain the premises as evidenced by landscaping improvements which had already been made. Third, the proposed use of the premises would not bring additional people into the neighborhood and would cause less traffic in the area than was present when the building had been utilized as a nursing home.

Examination of this witness by a member of the Zoning Board revealed the following:

"Q. Do you think the fact that you had a house for sale next door to this building that is being used by [Mile Square], that you would have difficulty in selling it at market value?

A. With some buyers, yes. It would take a longer time to qualify a buyer for it because of the attitude that is ...


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