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Concerned Citizens v. City of Mchenry

OPINION FILED SEPTEMBER 19, 1979.

CONCERNED CITIZENS FOR MCHENRY, INC., ET AL., PLAINTIFFS-APPELLANTS,

v.

THE CITY OF MCHENRY ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of McHenry County; the Hon. MICHAEL J. SULLIVAN, Judge, presiding.

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

This matter concerns a challenge to the validity of the rezoning of an approximately 6-acre plot of undeveloped land located immediately east of Illinois Route 31 and immediately north of the southern limits of the city of McHenry. The property is rectangular in shape and fronts Route 31 for 817 feet and is 316 feet in depth. It was annexed to the city of McHenry in 1959 and has been undeveloped since that time.

In 1977 the present owners applied for the rezoning of the property from R-3 Single Family to B-1 Commercial Retail District, with such accompanying variation as would permit them to operate a retail auto dealership thereon. Concurrent with that application the owners also applied for the rezoning from R-3 to R-4 Multiple Family of other property owned by them which bordered the property in question to the east. As required by the ordinances of the city of McHenry, the zoning appeal board of that community held a public hearing on the owners' application. At the conclusion of the hearing the board voted 5-1, with one abstention, to deny the owners' application.

On May 2, 1977, the city council of the city of McHenry met and an oral motion was made and seconded to reject the recommendation of the zoning board of appeals and grant the zoning amendment and variation as requested by the owners. At the time of that motion no written ordinance was tendered for the inspection of the council. Despite this, the council voted 6-3 to disregard the recommendation of the zoning board of appeals and grant the amendment to the zoning ordinance and variation as requested insofar as the property in question here was concerned. The city council did not, however, reject the recommendation of the zoning board of appeals with regard to the petition by these owners for rezoning of the adjoining land from single to multiple-family use, and that property remained R-3 Single Family Residential.

Ten days after the city council's decision the petitioners' attorney transmitted a draft ordinance to the city for inclusion into the city records as and for the oral ordinance which was passed on May 2, 1977. On May 13, 1977, the mayor of the city of McHenry vetoed the amendment and variation. On May 16, 1977, the city council voted 6-1, with one abstention, to override the mayor's veto. Subsequently the plaintiffs, a not-for-profit corporation, and individual homeowners whose land adjoins the property in question, filed this action for declaratory judgment and mandatory injunction, alleging that the amendment to the ordinance and the variation were illegal and void. Subsequent to the filing of this action in the circuit court of McHenry County two circuit court judges recused themselves and on August 22, 1977, the plaintiffs filed a motion for a change of venue, alleging prejudice against them within McHenry County due to the alleged political influence of one of the owners of the property, Edward J. Buss. This motion was denied and subsequently, on October 28, 1977, this matter was brought to trial and extensive evidence was introduced by both the plaintiffs and the defendants. On December 30, 1977, the trial court issued a 19-page memorandum opinion which set forth the facts and applicable law in this matter and concluded that the plaintiffs had not overcome the presumption of validity of the ordinance by a preponderance of the evidence and found for the defendants on the merits. On January 13, 1978, a judgment order was filed which incorporated the findings of the memorandum opinion. The plaintiffs appeal from that order.

In the briefs submitted to this court the plaintiffs raise the following issues. First, whether the failure of the owners of the property to pay a fee with their application regarding the subject property submitted to the McHenry Soil & Water Conservation District caused the zoning amendment to be void. Second, whether various rulings of the trial court as to the admission of evidence constituted reversible error in that they denied the plaintiffs a fair trial. Third, whether the denial of the plaintiffs' petition for a change of venue constituted reversible error. Fourth, whether the procedure used by the city council in approving the rezoning and variation ordinance in question was unauthorized and improper. Fifth and finally, whether or not the rezoning by the city council of the property in question was an arbitrary and capricious exercise of the power to regulate the use and development of land under the law of the State of Illinois.

• 1 We turn now to the first issue raised by the plaintiffs in this appeal. That issue is whether the failure of the defendant Buss to pay a fee to the McHenry County Soil & Water Conservation District caused the rezoning of their land to be void. In support of their contention the plaintiffs rely upon sections 22.02a and 22.09 of the Soil and Water Conservation Districts Act (Ill. Rev. Stat. 1977, ch. 5, pars. 127.2a and 127.9). These statutory provisions require that any person who petitions for an alteration of his zoning shall furnish a copy of his petition to the appropriate soil and water conservation district. The district is then given 30 days from the time it receives that petition to issue a written opinion to the agency with jurisdiction over the zoning. It is further provided that the district may charge fees to any person who makes a request for services or receives benefits rendered by the district. It is agreed that the defendants Buss did not pay any fees which may have been required by the McHenry County Soil and Water Conservation District at the time they submitted their petition on the property in question. The plaintiffs contend that the payment of a fee to the district is a condition precedent to any rezoning and its absence voids any subsequent rezoning or variation. We do not agree. We have carefully examined the acts cited and we fail to find any provisions therein for the voiding of any legislative acts whatsoever. Furthermore, section 22.02a, which requires the filing of a copy of the petition with the appropriate district, does not give the district a veto power over such petition. Rather, it allows the district sufficient time to analyze the consequences of the proposed change and permits it to file its opinion concerning the water control and soil conservation aspects of the petition with the appropriate rezoning authority. In sum, it gives the district a voice in the rezoning but not the power of censor. Thus, if the district refuses to analyze a petition because a fee has not been paid, it appears to us that the district is ignoring its duty to the public to report on the water and soil conditions which may arise from the proposed use. In addition, the benefit, if any, which would flow from any report by the district would, in our opinion, most probably flow to the public rather than to the petitioner. Therefore, we find the plaintiffs' argument in this regard is without merit.

• 2 We now turn to the general contentions of the plaintiffs that various errors were committed by the trial court in its rulings upon the admission or refusal to admit evidence at trial. Although the plaintiffs list four alleged errors and cite their location in the record, their brief is totally devoid of any support for any contention of error with regard to these evidentiary rulings. It is not the role nor the duty of this court to support vague and general contentions of error made by an appellant. We, therefore, refuse to consider these particular contentions made by the plaintiffs.

• 3 The next issue is whether the trial court properly denied the plaintiffs' petition for change of venue filed under section 1(2) of the venue act (Ill. Rev. Stat. 1977, ch. 110, par. 501(2)). In support of their argument the plaintiffs contend that they filed a verified petition requesting that the court transfer this matter out of the county or to a circuit judge from another county, as allowed by section 2 of the venue act. They go on to state that the law in Illinois is well settled that when the requirements of the venue act are met, the right to change of venue is absolute. The defendants have countered by pointing out that the plaintiffs failed to accompany their verified petition with the affidavits of two other reputable persons resident in the county in support of the allegations in the petition as required by section 4 of the venue act. We have reviewed that particular section and find that without question the plaintiffs have failed to meet those requirements. Accordingly the contentions of the plaintiffs that the matter should be reversed and remanded for retrial are without merit.

• 4 The fourth area raised by the plaintiffs is whether the procedure used by the city council and approving the rezoning and variation ordinance in question was unauthorized and improper and that, therefore, the ordinance is void. Under this broad contention the plaintiffs first point to the provision of the city of McHenry Zoning Ordinance which provides that a petitioner must publish a notice of his petition and that the notice shall contain:

"* * * a simple description of the property as to area and location, of such nature as to enable the ordinary reader to accurately locate such parcel. This description shall be in addition to the required metes and bounds of the lot and block description."

The plaintiffs contend that the notices published in the McHenry Plain-dealer were insufficient and inaccurate because the simple description of the property in question differed by a number of feet from the plat of survey which was later filed with the city council. We have examined the notices which were published in this matter and are of the opinion that the plaintiffs are incorrect. The sole guideline stated in the ordinance is that the simple description must enable the ordinary reader to locate the property. That there may be a variation of a number of feet between the accurate survey of the land and the general description does not, in our opinion, create invalidity sufficient to void the effect of the subsequent ordinance. We thus reject this contention of the plaintiffs.

The next attack on the validity of the ordinance passed in this instance is the contention that the city council did not discuss nor find certain facts which are alleged to be conditions precedent to the passage of any rezoning or zoning variance ordinance. This argument is made in contradiction to the face of the ordinance of record, which contains statements of all the requisite findings which the plaintiffs contend are missing. However, in support of their argument the plaintiffs have quoted extensively from the zoning ordinance of the city of McHenry. That ordinance provides, in pertinent part, that:

"STANDARDS FOR VARIATIONS: Where an application for a variation of the regulations of the ordinance is made to the Board in which it is alleged that practical difficulties or particular hardship, not intended, or not common to the owners of property in the vicinity will be imposed in carrying out the strict letter of any such regulation, the Board may vary the application of such regulations in ...


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