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Melrose Park Nat'l Bk. v. Zoning Bd. of Appeals

OPINION FILED DECEMBER 3, 1979.

MELROSE PARK NATIONAL BANK, TRUSTEE, PLAINTIFF-APPELLANT,

v.

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



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR L. DUNNE, Judge, presiding.

MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:

Plaintiff, Melrose Park National Bank, as trustee under trust agreement dated February 1, 1978, and known as Trust No. 2320 (Bank), sought a special-use permit to develop a sanitary landfill from defendant the Zoning Board of Appeals of the City of Chicago (Board), pursuant to the Municipal Code of Chicago (1977), ch. 194A, §§ 11.10-1 through 11.10-3 (Chicago Zoning Ordinance). The Board denied plaintiff's application because it did not receive three affirmative votes as required by Chicago Zoning Ordinance § 11.7-4. The vote was 2 to 1 in favor. On administrative review, the circuit court of Cook County affirmed, and plaintiff appeals.

Plaintiff raises three contentions: (1) the circuit court erred in view of evidence supporting the granting of a special use permit; (2) despite voting against the Bank's proposal, the Board made findings of fact in favor of the permit; these findings were binding on the circuit court; and (3) denial of plaintiff's permit for lack of one single affirmative vote was arbitrary, capricious and constituted a denial of due process.

This controversy concerns property held by the Bank as trustee zoned M3-3 and M3-2 heavy manufacturing. The property is located in Chicago and is bounded by Torrence Avenue on the east, 130th Street on the north, and the Calumet River on the west. The property is contiguous on its eastern border to a residential neighborhood of about 14,000 people, on its north to a heavy industry development zoned M3-3, and on its west and south to vacant land zoned M3-3.

Plaintiff sought to use the land from Torrence Avenue westward 350 feet for industrial development and parking. No special-use permit is required for this part of the proposal. Westward, the land would be used for a sanitary landfill and sand rmoval. The westernmost end of the property would be used for a metal recycling facility. These proposed developments require special-use permits.

On April 21, 1978, the Board held a public hearing on the Bank's application. The commissioner of the Department of Planning, City and Community Development recommended the proposed use. Plaintiff also relied upon the supportive testimony of five experts: a consulting industrial engineer, a traffic engineer, an accoustical engineer, a zoning consultant and a real estate appraiser.

Residents of the Hegewisch community, located one-half mile from the site, submitted a petition and testified in opposition to the proposed use. The "Avalon Trails Improvement Association" and the Calumet Area Industrial Commission submitted written statements. Finally, counsel for the neighboring village of Burnham argued against the landfill proposal.

Following the hearing, the acting chairman of the Board recommended that plaintiff's application be approved provided that the sanitary landfill and metal scrap yard only be operated from 6 a.m. to 8 p.m. Mondays through Saturdays, and with a termination date of April 21, 1981.

Thereafter, a resolution concerning plaintiff's application was written and presented to the Board for a vote. A portion of that resolution, as reported in the Board's official minutes, states:

"That the proposed use is to be located in M3-2 and M3-3 heavy manufacturing districts; that the proof presented indicated that the subject site is vacant and unimproved and consists of a site of approximately 100 acres; that the subject site is bounded on all sides by M3 zoned property with the Calumet River and land fill operations directly to the west of the site and a railroad directly to the north of the site; that the subject site in its present condition is not capable of development for a permitted use in its applied zoning classification of M3 heavy manufacturing; that the applicant proposes to utilize this site for a scrap metal yard, including the recycling of metals, in the area along the Calumet River, an industrial complex in the 350 foot strip along South Torrence Avenue, and a sanitary landfill for the deposit of organic and inorganic solid waste materials in the intervening area to serve both private scavengers and the City of Chicago; that the proposed use is subject to the approval of and regulation of the Department of Environmental Control of the City of Chicago and the Environmental Protection Agency of the State of Illinois, thus insuring that the proposed use will be so designed, located and proposed to be operated in a manner that the public health, safety and welfare will be protected; that the proposed use will not cause substantial injury to the value of other property in the neighborhood in which it is to be located in that the proposed development along Torrence Avenue is totally consistent with the land use and zoning pattern in the area, the sanitary landfill and the metal scrap yard are consistent with the land use and zoning in the area and do not introduce a type of use foreign to the area, that it will be essentially a land reclamation area which will lend itself to land development; that it will stabilize a large area of 100 acres in close proximity to a residential area and which is presently uncontrolled and subject to skip dumping."

The Bank alleges that this statement constitutes findings of fact. Two Board members concurred in the resolution, one member voted against it, one member was absent, and there was one vacancy on the five-member Board. Because the concurring vote of three Board members is required to grant a special-use permit (Chicago Zoning Ordinance § 11.7-4), plaintiff's application was denied.

• 1 Plaintiff filed a complaint for administrative review in the circuit court. (Ill. Rev. Stat. 1977, ch. 110, par. 267.) In affirming the Board's determination, the court commented upon the "alleged findings" contained in the acting chairman's recommendation:

"* * * I did consider the findings of fact contained in the order of the Commission [sic]. However, in light of the nature of the parties present, and the nature of the vote, I only gave it such weight as I felt it was entitled to by reason of the fact ...


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