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Kleidon v. City of Hickory Hills

OPINION FILED DECEMBER 16, 1983.

FREDERICK KLEIDON ET AL., PLAINTIFFS-APPELLANTS,

v.

THE CITY OF HICKORY HILLS ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. James C. Murray, Judge, presiding.

JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 26, 1984.

Plaintiffs, owners of three homes whose lots adjoin two residential lots (the subject property), appeal from an order which declared valid a use variation ordinance allowing defendants to develop the subject property for off-site parking and which order denied plaintiffs their attorney fees and awarded costs to defendants. Plaintiffs also appeal the denial of their motion for reconsideration and other relief. We affirm.

Plaintiffs raise the following issues on appeal: (1) whether Ordinance No. 81-14 was adopted in accordance with proper procedures; (2) whether the variation ordinance relates to practical difficulties or particular hardship within the statutory meaning; (3) whether the court's decision was against the manifest weight of the evidence; (4) whether the trial court abused its discretion in permitting an expert witness to testify and in allowing defendants' costs; and (5) whether the court erred in denying attorney fees to plaintiffs.

Defendants are the city of Hickory Hills; the Bank of Hickory Hills as trustee of Trust No. 397; and Alex Petrakos, Gus Makris and Ted Priovolo, beneficiaries of Trust No. 397 (owners). Defendant owners seek to develop the subject property as off-site parking for Greene's West Restaurant and Lounge (Greene's West or restaurant). Greene's West is owned by defendant Petrakos and is located at the northeast corner of 86th Court and 95th Street in the city of Hickory Hills.

The subject property consists of lots 4 and 5 located on the west side of 86th Court north of 95th Street, being northwesterly and across 86th Court from the restaurant premises. The lots have a combined frontage of 153.14 feet on 86th Court and a depth of 140.0 feet. The subject property is zoned R-2 single-family residential. Lot 4 is unimproved; lot 5 (located to the south of lot 4) is improved with a one-story brick single-family residence. To the north of the subject property is a two-story single-family residence. To the east, across 86th Court and north of the restaurant, is an apartment complex. Adjoining the subject property to the south, being the northwest corner of 86th Court and 95th Street, is the site of the city hall and its parking lot. Vacant land lies to the west of the city hall premises. To the west and northwest of the subject property are single-family residences. The residential-commercial line of demarcation has been established in the area of the subject property at 200 feet north of 95th Street; the city hall use, the restaurant use (Greene's West), and to the west of the city hall, across 87th Avenue, a professional arts building each extends 200 feet north of 95th Street.

In 1977 defendant owners sought a zoning amendment for the subject property from R-2 single-family residential to C-1 neighborhood commercial in order to utilize the existing residence as a professional building and the unimproved lot for accessory parking for the restaurant. The petition was denied by the Plan Commission.

On November 20, 1979, the Plan Commission recommended approval of the owners' request for a special use permit for accessory parking. The City Council granted the special use by ordinance on November 13, 1980, but rescinded the ordinance on December 11, 1980, after determining that it had lost jurisdiction for failure to act on the Plan Commission's recommendation in a timely manner.

On May 19, 1981, defendant owners requested a variance to permit the use of the property for "over-flow" and employee parking. Following public hearings the Zoning Board of Appeals (hereinafter Zoning Board) on September 1, 1981, reported to the City Council its findings of fact and recommendation in favor of the variation. The City Council on September 10, 1981, accepted the findings and recommendation, and on September 24, 1981, adopted Ordinance No. 81-14 granting the variation.

Plaintiffs filed a complaint for declaratory judgment and injunctive relief to invalidate the variation ordinance and to enjoin development of the subject property for parking. At trial conflicting evidence was presented regarding the present character of the area and the impact of the proposed parking lot upon the neighborhood, the public and the parties themselves. After hearing extensive testimony the court, by judgment order and memorandum decision, found in favor of defendants and against plaintiffs on all issues and declared Ordinance No. 81-14 valid and enforceable. Plaintiffs' motion for reconsideration was denied. Plaintiffs appeal.

OPINION

Decisions made by a city council are legislative, not administrative in nature. (Erlinger v. City Council (1975), 28 Ill. App.3d 324, 325, 328 N.E.2d 663.) As a legislative function, zoning is "subject to court review only for the purpose of determining whether the power, as exercised, involves an undue invasion of private constitutional rights without a reasonable justification in relation to the public welfare." (Thompson v. Cook County Zoning Board of Appeals (1981), 96 Ill. App.3d 561, 575-76, 421 N.E.2d 285.) "In ascertaining whether a particular zoning ordinance is in the interest of the public welfare, each case must be determined upon its own peculiar facts. [Citations.] Where there is room for a legitimate difference of opinion concerning the reasonableness of a particular zoning ordinance, the finding of the legislative body will not be disturbed." (Downey v. Grimshaw (1951), 410 Ill. 21, 28, 101 N.E.2d 275.) Our analysis of the instant case will be guided by these principles.

I

The first issue raised is whether Ordinance No. 81-14 was adopted in accordance with proper procedures. Plaintiffs maintain, generally, that the variation was not validly enacted by the City Council because of a failure to comply with the provisions of section 11-13-5 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 11-13-5) and of the city's ordinances. The statute provides, in pertinent part, that

"* * * the regulations * * * may provide that the board of appeals or corporate authorities may determine and vary their application in harmony with their general purpose and intent and in accordance with general or specific rules therein contained in cases where there are practical difficulties or particular hardship in the way of carrying out the strict letter of any of those regulations relating to the use, construction, or alteration of buildings or structures or the use of land. If the authority to determine and approve variations is vested in the board of appeals it shall be exercised in accordance with the conditions prescribed in Section 11-13-4 * * *. If the power to determine and approve variations is reserved to the corporate authorities, it shall be exercised only by the adoption of ordinances. However, no such variation shall be made by the corporate authorities as specified without a hearing before the board of appeals." Ill. Rev. Stat. 1981, ch. 24, par. 11-13-5.

The city of Hickory Hills Ordinance No. 80-22 (July 24, 1980) (hereinafter Ordinance No. 80-22) in pertinent part provides that

"[t]he power to determine and approve variations is reserved to the City Council and shall be exercised only by the adoption of ordinances"

and further provides that

"[t]he Board shall not decide or recommend variations in the provisions of the Zoning Ordinance, unless it shall have made findings based upon the evidence presented to it in the following cases:

(1) that the property in question cannot yield a reasonable return if permitted to be used only under the conditions allowed by the regulations governing the district in which it is located; and that the variation, if granted, ...


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