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Schroeder v. County of Winnebago

OPINION FILED MARCH 13, 1978.

CLEMENT SCHROEDER ET AL., PLAINTIFFS-APPELLANTS,

v.

THE COUNTY OF WINNEBAGO ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Winnebago County; the Hon. JOHN C. LAYNG, Judge, presiding.

MR. JUSTICE BOYLE DELIVERED THE OPINION OF THE COURT:

Plaintiffs appeal from the dismissal of their declaratory judgment action in the circuit court of Winnebago County whereby they sought to declare invalid a "special use permit" granted by the Winnebago County Board of Supervisors (hereinafter the Board of Supervisors) to Robert Appelgren for the purpose of constructing a commercial campsite.

The sole issue presented for review is whether the trial court committed reversible error where it upheld the Board of Supervisors' authority to issue a special use permit in the absence of findings of fact which were required by Winnebago County ordinance to be made and submitted by the Zoning Board of Appeals to the Board of Supervisors, who then had the sole and ultimate authority to grant or deny the permit independently of the Zoning Board of Appeals' action.

The parties are basically in agreement that section 16-70(3)(d) of the Winnebago County Zoning Ordinance (hereinafter the ordinance) required the Zoning Board of Appeals to make written findings of fact and submit these with its recommendations to the Board of Supervisors. If the Zoning Board of Appeals made an affirmative recommendation on any special use permit, it was required under this ordinance to make the following findings of fact, which briefly summarized were:

(1) That the special use is not detrimental to the public's welfare;

(2) That the special use does not substantially diminish or impair property values within the neighborhood;

(3) That the special use does not impede the normal and orderly development of other property uses permitted in the district;

(4) That adequate utilities, access roads, drainage, and other necessary facilities will be provided;

(5) That adequate measures are taken to minimize traffic congestion; and

(6) That the specific use conforms to all applicable regulations in its district.

There is also no dispute that these six specific findings were not made by the Zoning Board of Appeals prior to the Board of Supervisors' reaching its own independent determination.

Plaintiffs contend, however, that the issuance of this special use permit by the Board of Supervisors, in the absence of findings of fact by the Zoning Board of Appeals as required by section 16-70(3)(d) of the ordinance, was invalid. In this regard it is important to note what is not at issue here. First, in no way do plaintiffs attack the constitutionality of this ordinance. Second, plaintiffs do not argue that the order of the Board of Supervisors, which has operative legal significance, is in any way arbitrary, capricious, or confiscatory as applied to the subject property nor that the Board of Supervisors should have denied the special use permit because it did not bear a real or substantial relationship to the public health, safety, morals or general welfare. Pioneer Trust & Savings Bank v. County of McHenry (1968), 41 Ill.2d 77, 241 N.E.2d 454; American National Bank & Trust Co. v. City of Rockford (1977), 55 Ill. App.3d 806, 371 N.E.2d 337.

Plaintiffs place principal reliance upon Lindburg v. Zoning Board of Appeals (1956), 8 Ill.2d 254, 133 N.E.2d 266, wherein our supreme court, in reviewing an order of a zoning board of appeals which had the final authority to grant a variance, specifically found that the action of the zoning board of appeals was improper because it did not make findings of fact as required by statute specifying the reasons for its order. Plaintiff also cites various other appellate court decisions which have held that statutorily mandated findings of fact must be specifically set forth by the various zoning boards of appeals in reaching their decisions.

While we agree with plaintiff's general propositions, we feel there is one distinguishing factor in these cases which is controlling. In each instance the reviewing zoning body, statutorily required by the courts> to make specific findings of fact, had the ultimate authority to grant or deny the special use or variance requested, whereas in the instant case, the Zoning Board of Appeals, which has made improper findings of fact, did not have the final authority to grant or deny Appelgren's request for a special use permit. This power was vested only in the Board of Supervisors, which by ordinance was not even bound by the Zoning Board of Appeals' findings (section 16-70(4) of the Winnebago County Zoning Ordinance). Further, by a particular quirk in this ordinance, under section 16-70(3)(d), no findings of fact were required, and a special use was deemed to be ...


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