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Geneva Residential Ass'n v. City of Geneva

OPINION FILED SEPTEMBER 8, 1981.

GENEVA RESIDENTIAL ASSOCIATION, LTD., ET AL., PLAINTIFFS-APPELLANTS,

v.

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



APPEAL from the Circuit Court of Kane County; the Hon. MARVIN D. DUNN, Judge, presiding.

MR. JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:

The plaintiffs appeal from the judgment of the circuit court of Kane County granting summary judgment in favor of the defendants in a case involving the validity of a city ordinance granting a special use permit for the operation of a restaurant.

In Geneva Residential Association, Ltd. v. City of Geneva (1979), 77 Ill. App.3d 744, this court reversed the trial court's order dismissing counts I and II of the complaint and remanded the cause to the trial court.

Count I alleged that the Geneva Plan Commission had failed to make the finding that the granting of the requested special use permit for the operation of a restaurant would not be injurious to surrounding properties. Count II alleged that the applicant James Pankow failed to adduce evidence in favor of the special use permit sufficient to warrant the plan commission granting such permit. At the original trial the city contended that since the plan commission was only an advisory body, its failure to make certain findings set forth in the city's zoning ordinance pertaining to special permits was not material since the city council by passing the ordinance granting the special use had in effect "cured" the plan commission's inadequate consideration of the question. In the original case this court did not agree with that contention, holding that the city was bound by its own ordinance to make certain findings before granting a special use permit. The pertinent part of the Geneva Zoning Ordinance reads as follows:

"31.2705. Standards.

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 to cause a substantial depreciation in the property values within the neighborhood;

E. That adequate utilities, access roads, drainage and/or necessary facilities have been or are being provided;

F. That adequate measures have been or will be taken to provide ingress and egress so designed as to minimize traffic congestion in the public streets; and

G. That the special use shall, in all other respects, conform to the applicable regulations of the district in which it is located, except as such regulations may, in each instances, be modified by the council pursuant to the recommendations of the plan commission."

On January 10, 1977, the plan commission held a public hearing on the granting of a permit to operate a restaurant on the property owned by James Pankow. The minutes of that meeting reveal that at the beginning of the meeting all of the members of the plan commission were of the opinion, in varying degrees, that the granting of a permit to operate a restaurant at that location might infringe on at least paragraph B of section 31.2705 of the zoning ordinance and possibly would infringe on other paragraphs as well. After further discussion, however, the chairman stated that he felt that it would be appropriate for the commission to "propose anything to make this use more ...


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