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01/31/89 Kim Dyer Et Al., v. Zoning Board of Appeals of

January 31, 1989

KIM DYER ET AL., PLAINTIFFS-APPELLANTS

v.

ZONING BOARD OF APPEALS OF ARLINGTON HEIGHTS ET AL., DEFENDANTS-APPELLEES. -- KIM DYER ET AL., PLAINTIFFS-APPELLEES,

v.

WILLIAM FARRINGTON ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

534 N.E.2d 506, 179 Ill. App. 3d 294, 128 Ill. Dec. 324 1989.IL.95

Appeal from the Circuit Court of Cook County; the Hon. Albert Green, Judge, presiding.

APPELLATE Judges:

JUSTICE SCARIANO delivered the opinion of the court. JOHNSON and McMORROW, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO

In this consolidated action plaintiffs appeal the dismissal of their amended complaint, in which they sought to reverse a certain zoning variation granted to defendants William and Susan Farrington. Additionally, the Farringtons appeal the denial of their motion for sanctions against plaintiffs.

The issues raised in this appeal are as follows: (1) whether the trial court erred in dismissing plaintiffs' amended complaint for lack of standing and in denying their motion for reconsideration, motion for rehearing and request for leave to file a second amended complaint; (2) whether the trial court erred in denying plaintiffs' motion to strike the pleadings of the Zoning Board of Appeals of Arlington Heights as being those of a nominal defendant with no interest in the proceedings; and (3) whether the trial court erred in denying the Farringtons' motion for sanctions against plaintiffs.

The Farringtons lived in a home on a 78-foot lot contiguous to the vacant 50-foot lot which is the subject of this appeal. Sometime prior to September 1985, plaintiffs Kim and John Dyer purchased the Farrington home. At that time they declined to exercise their option to buy the adjacent lot, which was under contract to a builder for the construction of a single-family residence. The Farringtons' agreement with the builder allowed them to cancel their contract with him if they found someone willing to buy both their home and the vacant lot. The Witts live adjacent to the Farringtons' lot (the exact location of their property is not specified in the record), and James Jarvis is an attorney who lives in the subdivision.

In September 1985 ZBA denied the contract buyer's petition for a variation on the vacant lot, i.e., to reduce its size for building purposes from the zoning requirement of 70 feet to 50 feet, but in February 1986 the Farringtons' petition for the same variance was granted. Plaintiffs then filed a complaint in administrative review in the circuit court of Cook County. The Farringtons' and ZBA's motions to dismiss plaintiffs' complaint were granted; accordingly, plaintiffs filed an amended complaint, alleging that the granting of the variance would alter the essential character of the neighborhood, result in a decrease in the value of the property of adjacent landowners, cause flooding problems for adjacent landowners and that "the plight of the Farringtons was not due to unique circumstances." Plaintiffs sought an order reversing the ZBA's decision granting a variance, as well as an order directing the ZBA to file with the court the transcript of the two meetings at which the variation was discussed. Plaintiffs attached as exhibits to their amended complaint a letter written by Mrs. Farrington to the Arlington Heights planning commissioner and the "findings" of the ZBA. (Plaintiffs attached a more detailed "findings" statement and the minutes of the ZBA hearing at which the variance was granted to their original complaint but did not include these in their amended complaint.)

In her letter, Mrs. Farrington explained that their house was on a 78-foot lot with some 15 to 20 feet between it and the boundary line of the adjoining vacant 50-foot lot; that because Mr. Farrington's work required it, they moved out of State, thus putting them under some time pressure to complete the sale of their home; that they had originally hoped to sell their house and vacant lot as one parcel, but after a few weeks they took the advice of their realtor and listed the lots separately; and that if a variance were not permitted for the 50-foot lot, that property would be worthless to them. The ZBA found as follows:

"The petitioner, upon advice of a realtor, sold the house located on 78' of frontage in 1985, and attempted to sell a 50' vacant lot to a builder at the same time. The builder has subsequently defaulted on the contract and the Zoning Board of Appeals has previously denied a request by the developer for a variance to construct a single family residence.

Testimony was introduced that the petitioner would suffer a financial hardship if the variation were not granted and that his property would not yield a reasonable rate of return. . . .

Testimony was introduced that a significant portion of the lots and the homes in the area were built on 50' lots and that the granting of the variation would not alter the property value."

Defendants' motion to dismiss the amended complaint with prejudice on the basis of lack of standing was granted, and thereafter the trial court denied plaintiffs' motion for rehearing which pleaded, in the alternative, for leave to file a second amended complaint. (Transcripts of the hearings on these motions are not included in the record on appeal.) The trial court also denied the Farringtons' motion for sanctions. (A transcript of this hearing, but not ...


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