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Reiter v. Neilis





Appeal from the Circuit Court of Will County; the Hon. Bruce L. Falk, Judge, presiding.


The plaintiffs appeal from an order of the circuit court of Will County denying their request for a mandatory injunction requiring the defendants to cure building code, health code and zoning ordinance violations. The defendants cross-appeal from portions of that order.

The plaintiffs are the owners of three homes located on either side of and behind the defendants' residence. In the summer of 1980, the defendants constructed a room addition to the front of their home. The plaintiffs alleged that the addition was built on top of the defendants' septic field in violation of the Will County Health Code and actually cut off part of the drainage field, which made the defendants' septic system smaller than required by law.

In the fall of 1980, the defendants constructed a rear yard addition which extended beyond the 40-foot rear setback line and encroached upon plaintiff Johnsons' property by one foot. The defendants had not obtained a building permit for the second addition.

After the plaintiffs complained, the county building department red-tagged the premises. Since no permit could be issued due to the setback and property line encroachments, the defendant sought a zoning variance. The defendants proposed to eliminate the property line encroachment and requested that the zoning board authorize a 4-foot as opposed to a 40-foot setback line. This would require the defendants to remove a small part of the foundation and five feet of the structure. The remainder of the foundation and concrete floor would be left in place as a patio, which is not subject to the setback requirements. This request was denied.

The defendants filed for administrative review and also filed an amended request for a variance which proposed that the setback line be placed at 10 feet, which in turn required that more of the structure be removed. This request was granted, and the administrative review action was dismissed.

The plaintiffs filed this action for a declaratory judgment and injunctive relief asking the court to declare the variance void and order the defendants to comply with the original 40-foot setback line.

The trial court found that the amended variance was null and void but that Neilis had acted in good faith by removing the encroachment and 12 feet of the framework of the rear addition and that even though the addition still extended beyond the setback as varied that such violation was unintentional. The trial court also found that the addition as modified was not in compliance with a building permit issued pursuant to the amended variance, which described the addition as a one-story structure with one bedroom, a den and one bath. The rear addition as constructed is a two-story structure with four bedrooms and two baths.

Because the trial court found the violation of the amended variance unintentional, the judge refused not to balance the equities and went on to decide that plaintiffs had not shown substantial injury. Therefore, the trial court refused to grant the injunction.

• 1 The first issue is raised by the defendants' cross-appeal. They argue that the circuit court lacked jurisdiction because the plaintiffs had not sought review of the zoning board's decision under the exclusive provisions of the Administrative Review Act (Ill. Rev. Stat. 1981, ch. 110, par. 3-101 et seq.).

Section 3-102 of the Act provides that final decisions of agencies which operate under the Act (as does the Will County Zoning Board of Appeals) can only be reviewed according to the procedures set forth in the Act. Those procedures were not followed here.

• 2 If the plaintiffs had been seeking review of the merits of the board's decision to grant the variance, then the Administrative Review Act would have been the sole avenue of appeal. The plaintiffs did not do so. Instead, the plaintiffs challenged the jurisdiction of the board to review and change its previous decision and also raised matters having nothing to do with the board's action. These later issues were clearly within the court's jurisdiction. As to the question of the board's subject matter jurisdiction (the extent of which will be discussed later), the general rule is that subject matter jurisdiction can be challenged at any time. (Lawn Savings & Loan Association v. Quinn (1967), 81 Ill. App.2d 304, 225 N.E.2d 683.) Under the Administrative Review Act, a party is not required to exhaust all administrative remedies before seeking judicial review of an agency's subject matter jurisdiction. (Head-On Collision Line, Inc. v. Kirk (1976), 36 Ill. App.3d 263, 343 N.E.2d 534.) Therefore, the plaintiffs did not have to comply with the Administrative Review Act in order to challenge the subject matter jurisdiction of the zoning board of appeals.

• 3 The next issue is whether the board had authority to grant a rehearing and reverse its prior ruling. The defendants contend that the second application, as amended, was actually a new request for a variance. The trial court rejected this argument, noting that the amended application was not substantially different from the first application in either form or substance, the sole difference being a reduction of six feet in the requested setback line variance. No new case number was assigned, nor was a new filing fee required. In fact, the "new" application was only a copy of the original with two minor changes. Therefore, the trial court concluded that the second proceeding constituted a rehearing and reversal of the board's previous decision to deny the variance. We agree.

• 4 An agency, being a creation of statute, has only those powers specifically conferred upon it. It has no inherent power to amend or change a decision it has made. (Oliver v. Civil Service Com. (1967), 80 Ill. App.2d 329, 244 N.E.2d 671.) If a rule of the agency permits a petition for rehearing, the decision will not be final until the rehearing is completed or the petition denied. (Danison v. Paley (1976), 41 Ill. App.3d 1033, 355 N.E.2d 230.) The Will County zoning ordinance makes no provision for rehearing, nor did the procedural rules of the zoning board of appeals at the time in question. In the absence of a jurisdictional challenge, such as the one raised by the plaintiffs, the only means of appealing ...

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