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04/17/89 Harold Wallman, v. Zoning Board of Appeals


April 17, 1989

HAROLD WALLMAN, PLAINTIFF-APPELLEE

v.

ZONING BOARD OF APPEALS, CITY OF FAIRVIEW HEIGHTS, DEFENDANT-APPELLANT

APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

537 N.E.2d 422, 181 Ill. App. 3d 680, 130 Ill. Dec. 355 1989.IL.539

Appeal from the Circuit Court of St. Clair County; the Hon. Roger M. Scrivner, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE WELCH delivered the opinion of the court. HARRISON and LEWIS, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WELCH

This appeal is from a judgment entered in the circuit court of St. Clair County on July 16, 1987, vacating defendant's denial of plaintiff's application for an area-bulk variance and ordering defendant to issue the requested variance.

On June 21, 1985, Harold Wallman (hereinafter plaintiff) was ticketed for constructing an addition to an accessory structure which extended the accessory structure to less than 10 feet from the principal structure, in violation of the Fairview Heights municipal ordinance which requires that a minimum of 10 feet setback be maintained between primary structures and any accessory structures. (Fairview Heights, Ill., Development Code ch. 14, par. 14 -- 3 -- 7(c)(1) (1988).) He was also cited for failing to obtain a building permit; however, this is not made an issue in this appeal. Plaintiff entered pleas of guilty to the two charges and was granted time to petition the Zoning Board of Appeals, City of Fairview Heights, Illinois (hereinafter the Board), for an area-bulk variance which would relieve him from strict enforcement of the setback requirements.

On November 26, 1985, the Board heard testimony regarding plaintiff's request for a variance. Following the hearing, the Board voted unanimously to deny plaintiff's request for a variance. Pursuant to statutory sections providing for review of administrative decisions (Ill. Rev. Stat. 1987, ch. 110, par. 3-101 et seq.), plaintiff filed a complaint in the circuit court of St. Clair County seeking to have the Board's denial of his request for a variance set aside, and, ultimately, the approval of his request for a variance. The circuit court, in an order entered July 16, 1987, annulled and vacated the Board's denial of plaintiff's request for a variance and directed the Board to issue the variance as requested. The Board appeals from the decision of the circuit court.

Without expressing opinion as to the underlying merits, we must decline consideration of the Board's appeal. In accordance with Illinois law, as well as the holdings of the majority of jurisdictions, we hold that a board like the one in the instant case lacks standing to prosecute an appeal from a reversal of its own decision. (Speck v. Zoning Board of Appeals (1982), 89 Ill. 2d 482, 486-87, 433 N.E.2d 685, 687 (and cases cited therein).) In Speck, the supreme court ruled that a zoning board of appeals was not authorized to appeal the reversal of its decision by a circuit court because the board's duty was to conduct hearings and render decisions; thus, from this adjudicatory or quasijudicial capacity, the board was not a proper party to bring appeal from a reversal of its decision. To allow a board of appeals to assume the role of an advocate, the Speck court reasoned, would compromise the board's required duty of impartiality. (Speck, 89 Ill. 2d at 485, 433 N.E.2d at 687.) The Board not being a proper party to bring the instant appeal, we must refrain from entering judgment on the merits of such an appeal and dismiss the appeal.

Accordingly, the appeal from the judgment of the circuit court of St. Clair County is hereby dismissed.

Appeal dismissed.

CASE RESOLUTION

Appeal dismissed.

19890417

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