APPEAL from the Circuit Court of Kane County; the Hon. PAUL
SCHNAKE, Judge, presiding.
MR. JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:
This declaratory judgment action was brought by plaintiffs as adjoining landowners to challenge the validity of a Geneva ordinance granting the application of defendant James C. Pankow for a special use permit. The city's action allowed defendant Pankow to operate a restaurant in an area zoned for specialty shops and professional offices. The trial court entered judgment for defendants and plaintiffs have appealed.
Two main issues are presented for review. First, whether the trial court erred in dismissing counts I, II, and III of plaintiffs' original complaint for failure to state a cause of action; and second, whether the trial court's decision that the Geneva ordinance was not unconstitutional as arbitrary, unreasonable, and without substantial relation to the public safety, morals, or welfare is against the manifest weight of the evidence. For the reasons stated more fully within this opinion, we hold that: (1) counts I and II of the original complaint properly alleged that the ordinance granting the special use was invalid due to noncompliance with statutorily mandated procedures; (2) the subject matter of count III is non-justiciable; and (3) the trial court's decision on the amended complaint was supported by the evidence and was not manifestly against the weight of the evidence.
1 The area involved in this case is that part of Geneva south of the courthouse and west of Third Street. As we have previously stated in Johnston v. City of Geneva (1976), 37 Ill. App.3d 578, 579, 346 N.E.2d 444:
"It is common knowledge that the area west of the Fox River in the City of Geneva extends through a coterie of specialty shops immediately to a fine residential area of beautifully maintained older homes."
The property for which the special use permit was granted is located on Fourth Street at the southeast corner of the intersection of Fourth and Campbell streets in Geneva's unique specialty shop area. (See exhibit 2.) It was purchased by defendant James C. Pankow in 1975 for $108,000. A building, formerly a residence, faces Fourth Street. The structure has not been substantially altered and retains its original residential appearance. The northern corner of the parcel consists of a gravel parking for 18 cars, with ingress and egress to the parking lot on Campbell Street. At the time of purchase, the building contained a camera store in the basement, a beauty shop on the first floor, and apartment tenants on the second floor. Initially, defendant Pankow intended to operate a book store on the premises.
The Pankow property is zoned B-3, which requires architectural review of plans and approval by the city council before any new buildings can be erected or before existing buildings can be structurally altered or extended. The use of property in a B-3 zone is restricted, generally speaking, to specialty shops, professional offices, and residential homes. (See exhibit 2, zoning map of Geneva.)
The area north and northwest of the subject property is zoned B-3 but the land is presently devoted to public use. The block directly north is the courthouse grounds. To the northeast is the courthouse parking lot and public defender's office.
To the east of the Pankow parking lot on Campbell are three residences which have been converted to specialty shops and professional offices. Each has an office or apartment on the second floor. None of the residences appear to have any substantial exterior structure changes from their original residence configuration. All are zoned B-3 and are regular B-3 uses.
The property directly west and south of the Pankow property is zoned R-1 (residential). The Haskell residence is located at the corner of Fourth and Franklin and is contiguous to the Pankow parcel on the south. It is zoned R-1 and used as a single-family residence.
The Loomis property fronts on Franklin just east of the Haskells. The Loomis home is set in a large landscaped and wooded lot which extends from Franklin Street north, taking up most of the center of the block. The Loomis backyard is contiguous to both the east and south boundaries of the Pankow lot. Dr. Loomis has an in-ground swimming pool on the northerly end of his deep lot. The pool is located about 50 feet directly east of the existing Pankow structure. There is a fence on the lot line between Pankow and Loomis.
Across Franklin to the south of the Loomis and Haskell residences is a church and rectory presently zoned R-1.
The west side of Fourth between Campbell and Franklin is also zoned R-1. However, the building directly across the street from the Pankow property is used for offices. The record does not disclose how this nonconforming use came about. Next to it is a single-family residence used as two apartments.
Across Fourth Street and just south of the Pankow structure in R-1 zoning is the Culley residence which fronts on Franklin. The Culley backyard is across the street and just south of the front entrance to the Pankow structure.
On the Third Street side of the block are two large residences which are being used as specialty shops. Each has apartments on the second floor. No substantial structural changes have been made to these residential structures. There is also a women's dress store and an upstairs apartment in what was originally the coach house for the home now owned by Dr. Loomis. This structure located to the east of the Loomis house is on Franklin.
On December 15, 1976, defendant Pankow filed an application for issuance of a special use permit for the subject property. The application itself was a short, two-page document. It requested permission to operate a 156-seat restaurant and to build a single-story addition to the north and east portion of the existing structure. The proposed restaurant would be open during the evening hours. Because of limited parking available in the gravel lot on the Pankow property, employees and customers would have to seek street parking during the day and night. The proposed addition would place the new kitchen about 20 feet from the Pankow-Loomis lot line, and the exhaust for the cooking facilities would be directed toward the Loomis swimming pool.
The Geneva Plan Commission then began consideration of the special use application filed by defendant. The procedures for approval of a special use are set forth in appendix D, article XIII, sections 31.2701-2706 of the Geneva Municipal Code. These sections state, in pertinent part:
An application for a special use shall be filed with the building commissioner on a form prescribed by the building commissioner. The application shall be accompanied by such plans and data prescribed by the plan commission, and shall include a statement in writing by the application and adequate evidence showing that the proposed special use will conform to the standards set forth hereinafter. Such application shall be forwarded from the building commissioner to the plan commission with a request for a public hearing and report relative thereto."
For each application for a special use, the plan commission shall report to the city council its findings and recommendations, including the stipulations of additional conditions and guarantees that such conditions will be complied with when they are deemed necessary for the protection of the public interest. * * *"
No special use shall be recommended by the plan commission unless such commission shall find:
A. That the establishment, maintenance, or operation of the special use will not be detrimental to or endanger the public health, safety, or general welfare;
B. That the special use will not be injurious to the use and enjoyment of other property in the immediate vicinity for the purposes already permitted, nor substantially diminish and impair property values within the neighborhood;
C. That the establishment of the special use will not impede the normal and orderly development and improvement of the surrounding property for uses permitted in the district;
D. That the exterior architectural appeal and functional plan of any proposed structure will not be so at variance with either the exterior architectural appeal and functional plan of the structures already constructed or in the course of construction in the immediate neighborhood or the character of the applicable district, as ...