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U-haul Co. of Chicago v. Town of Cicero





APPEAL from the Circuit Court of Cook County; the Hon. RICHARD J. CURRY, Judge, presiding. MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:

Plaintiff, U-Haul Co. of Chicago Metroplex (U-Haul), sought a special use permit from defendant, town of Cicero, to allow the development of a U-Haul rental business on premises it had acquired in Cicero. Following a hearing, the board of trustees of Cicero denied U-Haul's permit application. U-Haul then filed a three-count complaint for declaratory judgment, mandamus and other relief in the circuit court of Cook County against Cicero, the zoning board of appeals and the building commissioner. The complaint sought reversal of Cicero's determination, approval of the special use and money damages. On May 3, 1979, on motion of defendants, the court dismissed U-Haul's complaint. U-Haul appeals.

The pertinent facts, as alleged in U-Haul's complaint follow: U-Haul's business is retail renting and leasing of utility trucks and trailers for moving household furniture and other belongings. U-Haul owned property located at 5027 West Cermak Road, Cicero, Illinois, which was zoned R-4 (an apartment-commercial district). This designation provides as special uses any permitted or special use in C-1 and C-2 commercial districts. The premises had been previously operated as a Jewel Food Store, and had been improved with a building and parking lot.

U-Haul filed its application for a special use and attended a public hearing before the zoning board of appeals of the town of Cicero (Board). The Board received evidence and recommended the approval of the special use to the Cicero board of trustees.

On September 26, 1978, the board of trustees held a hearing to consider passing an ordinance authorizing the special use requested by U-Haul. The ordinance failed to pass by a vote of three to two, one member abstaining.

U-Haul then filed its three-count complaint in the circuit court of Cook County for declaratory judgment, mandamus and other relief. Count I alleged that no special use was required for its business. Alternatively, it alleged that if a special use was required the board of trustee's decision was arbitrary, capricious and unreasonable, and confiscated its property without due process of law. U-Haul prayed (1) for a judgment declaring that the Cicero Zoning Ordinance did not prohibit its proposed use; (2) alternatively, that Cicero be permanently enjoined from enforcing the zoning ordinance so as to interfere with U-Haul's intended use of the premises; (3) that a writ of mandamus be issued compelling the building commissioner to issue all necessary business licenses; and (4) that the Cicero Zoning Ordinances be declared void as applied to U-Haul's property.

Count II sought administrative review of Cicero's determination. It alleged that the trustees acted as a quasi-judicial body and that their decision was subject to the Administrative Review Act (Ill. Rev. Stat. 1977, ch. 110, par. 264 et seq.). U-Haul alleged Cicero's determination was against the manifest weight of the evidence, contrary to law, arbitrary, capricious and unreasonable.

Count III realleged that U-Haul had an absolute right to have a license issued without a special use application. It was further alleged that the operation of its business had been delayed by Cicero's error, causing substantial money damages.

On Cicero's motion, the trial court dismissed U-Haul's petition, finding that:

(1) as to count I, U-Haul had failed to exhaust its administrative remedies and could have applied for a zoning map amendment;

(2) as to count II, U-Haul failed to comply with the zoning ordinance standards and Cicero's decision was not contrary to the manifest weight of the evidence; and

(3) Count III did not state a cause of action.

U-Haul raises three contentions upon review: (1) that its petition stated a cause of action on each count; (2) that it exhausted its administrative remedies and any additional administrative actions would be futile; and (3) that Cicero's denial of the special use may be reviewed by declaratory judgment and that a trial de novo is required.

Defendants have filed a motion to dismiss this appeal as moot which was taken with the case. The motion is supported by affidavits and states that U-Haul recently leased the subject property to Jewel Food Stores. Jewel has a seven-year lease and two five-year options to renew. Jewel will again use the property for a grocery store. Defendants maintain that since U-Haul's complaint only sought to have a "U-Haul moving center" declared a proper use, this appeal is moot.

U-Haul filed objections and argued that: (1) the lease with Jewel is not yet in effect because it is subject to Jewel acquiring necessary operating permits; and (2) assuming arguendo that the lease is in effect, U-Haul, as owner of the property, is entitled to a declaration of the validity of the ordinance as applied to its property and as to whether the proposed use is proper. U-Haul asserts an actual controversy exists because when Jewel's lease expires U-Haul has the right to use the ...

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