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Rode v. Village of Northbrook





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


Appellant village of Northbrook appeals from an order of the trial court requiring Northbrook to issue to appellees Paul Rode and Radio Station WVVX a permit for construction of a radio tower. The appellees had sought permission for construction of the tower by applying for a special use permit for a planned development and later by applying for a building permit (after appellees concluded that no special use permit was required). Northbrook contends that (1) certain provisions of the Northbrook Zoning Ordinance barred acceptance of either of the applications; (2) a new trial is required because the trial court considered certain inadmissible documentary evidence; (3) even assuming that Northbrook was not barred from accepting one of the applications, Northbrook acted reasonably in so doing.

Because we find that Northbrook's zoning ordinance did bar acceptance of either of the applications we reverse the judgment of the trial court without reaching Northbrook's other contentions.

The evidence at trial established the following pertinent facts. The subject property, a triangular-shaped parcel consisting of about 18,000 square feet, is located at 322 Skokie Boulevard in the village of Northbrook. Pursuant to the Northbrook Zoning Ordinance the property is zoned in a B-3 commercial zoning district. The front of the property, representing the base of the triangle, is currently developed with a building housing Allen Catering, a business owned and operated by appellant Rode, who is also the beneficial owner of the land. Rode testified that his gross income from the catering business in 1980 was approximately $500,000.

On January 21, 1980, Rode and WVVX filed with the village of Northbrook a petition for a special use permit for a planned development, consisting of a 245-foot radio tower and a supporting concrete structure, to be constructed within four feet of the rear of the property. Prior to this time Rode had contracted with William E. Paar, Jr., the general manager of WVVX, to lease space to WVVX for the construction, subject to Northbrook's approval. Both Rode and Paar testified that it was on the advice of Samuel Lee, a Northbrook staff planner, that they framed their application as one for a planned unit development. Lee had informed them this was the only way to avoid a bar on having buildings dedicated to more than one primary use on the property. Northbrook's village manager, Robert Wiedaw, testified that he had advised this approach in order to circumvent another problem, Northbrook's building height restriction of 35 feet in B-3 districts. The Northbrook Plan Commission recommended to the Northbrook Board of Trustees that this special use be granted, also recommending that a variance be granted to permit the rear yard depth to be four feet rather than the required 25 feet. While the application was still pending before the board, Rode filed with Northbrook a building permit application. He testified that he did so because, on the advice of counsel, he had determined that the proposed radio tower would comply with Northbrook's zoning requirements without the necessity of obtaining the exceptions permitted for a special use. The building permit application did not include plans for a supporting concrete structure and sought no rear yard variance.

On August 5, 1980, Rode received a letter from the Northbrook village manager, Robert Wiedaw, informing him that the board had informally determined that it would not grant the application for a special use permit for a planned development. On October 8, 1980, Wiedaw informed Rode that his building permit application for the radio tower would also probably be denied. Subsequently that application was returned to Rode.

This litigation was commenced in December 1980. At trial in addition to the evidence we have already summarized, there was a substantial amount of conflicting evidence presented concerning such matters as the adequacy of the radio tower's design, its effect on contemplated development in the area, and its effect on real estate values. Because of our disposition of this cause we need not evaluate that evidence.

On January 11, 1982, the trial court entered an order requiring Northbrook to issue a building permit "allowing for the construction of the radio tower and supporting concrete structure referred to in the building permit application filed by the Plaintiffs on July 17, 1980." On January 22 the trial court amended that order nunc pro tunc to also state that the issuance of the permit was subject to the relocation of the tower to meet the 25-foot rear-yard setback requirement. We cannot determine from this order or from the record which application the court found should be granted. Although the court referred to a building permit and to the July 17, 1980, date on which the application for a building permit was filed, the court also refers to the supporting concrete structure which was contemplated only in the original application for a special use permit for a planned development. Also the reference to the rear-yard setback requirement suggests that the court was referring to the special use application because only in that application was a variance sought from that restriction. Because of the confusion on this issue our review will be predicated on the assumption that the order can be construed to require granting either of the applications.

As we have already noted the first application filed by Rode was for a special use permit for a planned development. Rode contends that he was advised by a Northbrook planning official to apply for a planned development because only planned developments could have more than one principal building. (Defined in the ordinance as "a nonaccessory building in which a principal use of the lot on which it is located is conducted" (Art. III(B) (15) of the Northbrook Zoning Ordinance).) Northbrook concedes that it advised Rode to seek a special use permit for a planned development, but contends that this was in order to circumvent another restriction, the 35-foot limitation on building heights in areas zoned B-3. (An ordinance provision entitled "Building Bulk Limitations" provides that in a B-3 district "* * * in no case shall the building height exceed 3 stories or thirty-five (35) feet" (Art. IX(B)(4)(f))). Another ordinance provision permits the board of trustees, upon the recommendation of the plan commission, to authorize exceptions to the applicable bulk regulations in the case of planned development "* * * provided that the Plan Commission shall find * * * (5) That along the periphery of such planned development yards shall be provided as required by the regulations of the district." (Art. VI(7)(d)(5).) A third ordinance provision specifies that the rear yard depth should be 25 feet. Art. IX(B)(f)(e).

• 1 But in order to qualify as a special use for a planned development a proposal would in any event have to meet the zoning ordinance criteria established for that classification. (Ill. Rev. Stat. 1981, ch. 24, par. 11-13-1.1; Geneva Residential Association, Ltd. v. City of Geneva (1979), 77 Ill. App.3d 744, 397 N.E.2d 849.) The Northbrook criteria for a planned development are set out in the ordinance as follows:


(a) Defined: A planned development is a use of land containing two or more buildings which offer benefits to the general welfare beyond those required by this Ordinance or other law, and which use of land

(1) will contain or provide amenities not otherwise required by law, including but not limited to provisions for common open space, recreational facilities, or specific design, engineering, architectural, site planning or landscaping features; or

(2) will establish yards or other open space greater than the minimums required by law, and/or will provide for bulk of structures and density of development ...

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