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05/02/89 Richard Hahnenkamp Et Al., v. Madison County Et Al.

May 2, 1989





538 N.E.2d 1204, 183 Ill. App. 3d 76, 131 Ill. Dec. 648 1989.IL.646

Appeal from the Circuit Court of Madison County; the Hon. Michael J. Meehan, Judge, presiding.


JUSTICE GOLDENHERSH delivered the opinion of the court. CHAPMAN and HOWERTON, JJ., concur.


Plaintiffs, Richard and Janet Hahnenkamp, appeal from a declaratory judgment of the circuit court of Madison County granting plaintiffs' request for a special use permit against defendants, Madison County, a body politic, Nelson Hagnauer, in his capacity as chairman, Madison County board (county board), and Roy Fruit in his capacity as chairman, Madison County zoning board of appeals (zoning board), but imposing restrictions on plaintiffs' use of the property under the special use permit. Plaintiffs also appeal from the order of the circuit court which found the zoning ordinance in question constitutional. We affirm as to the constitutionality of the zoning ordinance. We reverse as to the imposition of restrictions on the special use permit.

Plaintiff, Richard Hahnenkamp, is a businessman. He and his wife, Janet, reside in Madison County and own property located at 3034 Godfrey Road, Godfrey, in Madison County, which is the subject of this suit. Said property is zoned B-2, general business use, under the Madison County zoning ordinance (ordinance). Any permitted use in a B-1 zone, limited business use, is also permitted in a B-2 zone pursuant to section 210.3 of the ordinance. A restaurant is a permitted use under a B-1 zone, and is, therefore, permitted in a B-2 zone. Under section 210.4 of the ordinance, bars/nightclubs are permitted uses and require a special use permit for operation.

Plaintiffs intended to open a gourmet Italian restaurant on the property and spoke to Manuel Romaro about managing the restaurant. Mr. Romaro already operates an Italian restaurant in Alton, and the plan between plaintiffs and Mr. Romaro was to open the same type of restaurant. Plaintiffs desired to serve alcohol at their restaurant, intending to serve drinks to diners who were seated. Additionally, plaintiffs planned a waiting area with a bar, five bar stools, and a bartender. Plaintiffs requested the issuance of a liquor license from the liquor commissioner of Madison County, Nelson Hagnauer. Plaintiffs were given an application and told to go to the Madison County zoning office to ascertain the zoning of the property. At the zoning office, plaintiffs were told by the zoning administrator, Paul Hawkins, that a special use permit would be required under section 210.4 of the ordinance before a liquor license could be issued.

Plaintiffs applied for a special use permit. In conjunction with plaintiffs' application, a hearing was conducted on the site of plaintiffs' property on November 5, 1986, by the zoning board. The zoning board then presented their findings to the county board. On November 19, 1986, the county board voted to deny plaintiffs' application for a special use permit under section 210.4 of the ordinance. On December 17, 1986, plaintiffs filed a complaint for declaratory judgment seeking to overturn the action of the county board and to obtain an injunction to rezone plaintiffs' property. At trial, the following facts were adduced.

Plaintiffs' first witness was Nelson Hagnauer, chairman of the Madison County board for 16 years. Mr. Hagnauer is also the liquor commissioner. He was called as an adverse witness pursuant to section 2-1102 of the Illinois Code of Civil Procedure (Code) (Ill. Rev. Stat. 1985, ch. 110, par. 2-1102). As the liquor commissioner, he is the ultimate authority on the issuance or non-issuance of liquor licenses. Mr. Hagnauer testified that there is a liquor code in force in Madison County, but no empirical studies have been done to determine the number of licenses to be issued, and at this time, there is no limitation on the number of liquor licenses which will be issued. Further, Madison County has no comprehensive zoning plan.

According to Mr. Hagnauer, the cost for a liquor license to sell package liquor and the cost for a license to sell liquor by the drink are the same. Mr. Hagnauer granted plaintiffs a license to sell package liquor, which does not allow plaintiffs to sell liquor by the drink because plaintiffs' land was not zoned correctly. There is no written authority to differentiate between package liquor licenses and by-the-drink liquor licenses, but it has been the practice of the liquor commission to grant these licenses separately. Mr. Hagnauer also testified that the requirements to obtain a liquor license are twofold: first, applicant can have no prior felony convictions, and, second, applicant must be, or the manager must be, a resident of Madison County. If these two requirements are met, the applicant is automatically granted a liquor license.

Plaintiff Richard Hahnenkamp was the next to testify. He testified that the land in question already had a building in place that was approximately 4,300 square feet. Plaintiff planned to use 3,000 square feet for his Italian restaurant. A travel agency was renting the rest of the building, and plaintiff expected the travel agency would renew its lease. The building has a 10,000-square-foot parking lot in front, with paved parking on the side and potential parking in the back. Plaintiff estimated he would need to add $40,000 to $50,000 worth of improvements to the building in order to convert it into the type of business he desired. Further, plaintiff testified that he planned to work out an arrangement with Manuel Romaro to be the chief chef and to manage the restaurant. Plaintiff and Mr. Romaro would share in the profits. The expected times of operation of the restaurant are 11 a.m. to 2 p.m. for lunch and 5 p.m. to midnight for dinner. Plaintiff testified that he desires to serve alcohol on the premises in order to make the business more profitable. Plaintiff said he wanted to have a bar which would seat five people and also make alcohol available by the glass to diners. Plaintiff said when he applied for a liquor license and received it, he did not know that he had a package liquor license. It was not until six months later that he realized he had a package liquor license, but he had no intention of serving package liquor.

Plaintiff also testified as to the businesses operating in the surrounding area of his proposed restaurant. There is a Pizza Hut on the south side of plaintiff's building. The Pizza Hut has a liquor license and serves beer and wine. There is a bowling alley on the north side of plaintiff's building that has a full-service liquor license. Patrons of the bowling alley can get food and alcoholic beverages by the drink. Across from plaintiff's property is the Highway House Hotel and Restaurant. The Highway House Restaurant has a full-service liquor license. There is a bar, Wicks, approximately 200 feet down the road from plaintiff's property. Wicks is a small bar with a full liquor license. On cross-examination, plaintiff testified he intended to hire a bartender. Patrons would be able to drink at the bar without ordering food.

Mr. Roy Fruit, chairman of the zoning board, was called next as an adverse witness pursuant to the Code (Ill. Rev. Stat. 1985, ch. 110, par. 2-1102). Mr. Fruit has been a member of the board for approximately 17 years and chairman for 10 years. The board conducts hearings and makes decisions on zoning matters. Members are appointed by the county board to make determinations on zoning hearings. Mr. Fruit testified that the zoning board relies on the county zoning code to make its decisions along with the members' best judgment. Board members have no special training in the area of zoning matters.

Mr. Fruit chaired the hearing on plaintiffs' application for a special use permit. According to Mr. Fruit, plaintiffs' request was denied by the zoning board because the zoning board felt the liquor licenses had reached a "saturation point" in Godfrey in the particular area where plaintiffs wanted to operate their business. No studies were conducted prior to the hearing to determine that there were too many liquor licenses in the area. Mr. Fruit could not say how far the "saturation point" extended into that particular area. Mr. Fruit testified that if there were a hearing held on a different piece of property 100 yards up the road, it could be determined that the saturation point did not extend that far and a special use permit could be granted. In addition to the saturation point, Mr. Fruit testified that the zoning board denied plaintiffs' application for a special use permit because the zoning board believed that any additional business in the area would add to traffic congestion. The witness agreed that a restaurant with a liquor license would not necessarily increase traffic more than other uses allowed under the B-2 classification. According to Mr. Fruit, the position of the zoning board is that there are enough liquor and food licenses in the area.

Mr. Fruit participates in approximately 500 hearings per year. A hearing can last between five minutes and one hour. After a hearing, the zoning board members go to the back office to discuss the evidence and make a decision the same day. Then the zoning board's secretary, who is not a member, drafts the findings based on the Discussions. No transcript or recordings are made of the zoning board's Discussions. After the zoning board's initial determination, there is never another vote. No vote is taken on the written findings. The report of findings on plaintiffs' application drafted and typed by the zoning board's secretary does not mention a "saturation point." The written findings state that plaintiff's application "would be in conflict with the aims and goals of the ordinance in that we are trying to orderly develop land and add to the growth pattern in the area." Mr. Fruit acknowledged that the aims and goals of the zoning board are not written or published in any form. In order to determine the aims and goals, one must ask the zoning board.

David Brammeier, an engineer with a firm specializing in traffic and transportation engineering, was the next witness to testify. In addition to being an engineer, Mr. Brammeier is a city council member in Glen Carbon and deals with zoning ordinances and problems in that capacity. Mr. Brammeier inspected the property in question, reviewed the zoning ordinance, and completed a study on plaintiffs' property. As part of the study, he concluded that the greatest traffic flow and worst traffic conditions in the area in question occur on Friday. Without plaintiffs' business, there are 23 cars that pass plaintiffs' property during the peak evening hour on Friday. With the addition of plaintiffs' business, Mr. Brammeier gave an estimate that 18 to 30 cars would pass plaintiffs' property during the peak evening hours of Friday. On Saturday, the peak evening hour would have an increase from 20 vehicles to 30 vehicles. This is an insignificant increase in Mr. Brammeier's opinion. It is an addition of less than one car every two minutes. Mr. Brammeier testified that there would be no difference in these rates whether or not alcohol was available at plaintiffs' establishment. Additionally, Mr. Brammeier testified that the 10,000 feet of parking space at plaintiffs' building was adequate for plaintiffs' proposed use of the building and there is no evidence of a greater risk of accidents in front or around a restaurant which serves liquor. Mr. Brammeier also concluded that several other B-1 and B-2 uses would create more traffic than plaintiffs' proposed eating and drinking establishment.

Paul Hawkins, the building, zoning, and environmental official for Madison County, was the next witness. Mr. Hawkins stated that it is the position of his office that plaintiffs needed a special use permit because the county takes the position that, under the B classifications 1 through 4, in order to get a liquor license, the licensee must have a special use permit. While this is not written anywhere specifically, Mr. Hawkins stated that the language he was ultimately depending on was section 210.4, which requires bars and restaurants to obtain a special use permit. It is the county's position, according to Mr. Hawkins, that a bar or nightclub includes a restaurant serving liquor by the glass. Mr. Hawkins agreed that Pizza Hut and Wicks are both operating through special use permits. The bowling alley and the Highway House Restaurant were both in operation prior to the 1974 zoning ordinance, and therefore they are nonconforming uses. The zoning ordinance was changed in 1974 because Madison County was having problems with certain establishments allowing gambling and prostitution. The county liquor commission revised the ordinance in order to make special use permits necessary for bars and nightclubs in an attempt to stop gambling and prostitution. Taverns also require special use permits. Mr. Hawkins could not remember if plaintiffs told the zoning board whether the restaurant would have a bar with a bartender, but he knew that there was some type of bar proposed. On cross-examination, Mr. Hawkins agreed that there is a difference between nightclubs and restaurants that serve liquor. Mr. Hawkins agreed that these two are now lumped together by the ordinance, but he would like to see them given separate consideration. Mr. Hawkins does not believe there is a gambling or prostitution problem in the area of plaintiffs' proposed restaurant. Mr. Hawkins further testified that he had not heard about a "saturation point" in liquor licenses in the area of plaintiffs' proposed restaurant. Finally, Mr. Hawkins testified that if plaintiffs are granted a special use permit and over the years the character of the establishment should change from a restaurant with incidental sales of alcohol to a bar primarily serving alcohol, the county could revoke plaintiffs' liquor license after a hearing. The court then questioned Mr. Hawkins about businesses that change their characteristics over the years and about the limitations which may be placed on a special use permit to prohibit such changes. The witness agreed that stipulations, such as requiring a certain percentage of gross sales of food, can be made in the special use permit.

Mr. Edwin Roller, a real estate appraiser in the Alton-Godfrey area, testified that he inspected plaintiffs' property. Sixty to seventy percent of the buildings in this area are zoned commercial. He also testified that while zoning classifications do have an effect on property values, he sees no adverse effects on the surrounding property values should plaintiffs be given a special use permit. On cross-examination, the witness agreed that certain types of bars or restaurants could cause property values, especially residential properties, to diminish. However, he does not see any diminution in value of surrounding properties by the addition of plaintiffs' proposed establishment.

Carl Lossau was the next witness to testify. He testified as an expert. Mr. Lossau has a Ph.D. with his specialization in urban geography. Additionally, he was an alderman in Edwardsville for eight years, a member and chairman of the Edwardsville city planning commission, and project director of the development of the regional land use plan for the East-West Gateway Coordinating Council. He also taught graduate courses in city and regional planning at Southern Illinois University at Edwardsville. Mr. Lossau testified that he is familiar with zoning ordinances. The purpose of a definition section of a zoning ordinance, according to Mr. Lossau, is to reduce to the greatest extent possible any kind of ambiguity that might arise out of language which is used in the rest of the text. In the Madison County Zoning Ordinance, Mr. Lossau believes that a significant ambiguity arises because the words "restaurant" and "bar" are not defined, while "tavern or lounge" is defined.

In the instant case, a restaurant is a permitted use in a B-2 area. If a use is permitted, then whatever other permits are necessary should be automatically administered, i.e., a building permit. Mr. Lossau testified that he could find no references in the zoning ordinance that a restaurant that desired to serve liquor required a special use permit. After looking at the area in question, Mr. Lossau believed that there was no real conflict between the planned restaurant serving liquor and the existing uses of property located near plaintiffs' land. Further, according to Mr. Lossau, the proposed use of plaintiffs' property does not have any deteriorating effect on the health, welfare, safety, or morals of the people of that area. Mr. Lossau bases this opinion on the premise that there has been no deterioration as a result of Wicks bar or the bowling alley. Further, the proposed restaurant serving alcohol is not much different than the uses already existing in that area. Madison County does not have a comprehensive plan and Mr. Lossau believes that causes problems because the county has to control land use through zoning without determining in advance how much land is going to be used for each particular type of use. There is a land use plan for Madison County which has never been adopted. Mr. Lossau testified that preparing a plan without adopting it poses problems because without adoption there is no commitment to the plan. Consequently, decisions can be made with guidance by the plan when it is convenient to use the comprehensive or land use plan, but when it's inconvenient, the plan can be ignored. This leads to inconsistency in development. Mr. Lossau believes that the better way to limit the use of property to serve liquor is through the issuance or non-issuance of liquor licenses, not through zoning laws.

The court then asked this expert to give a ratio of food to liquor sales that would serve as a definition for a restaurant serving liquor. Mr. Lossau testified that the range would be somewhere between 80% to 90% for food sales. One way municipalities could enforce this imposed ratio would be to require that the owner ring up sales for the bar separate from sales for food. In order for a licensee to maintain his special use permit, the dollar sales of food could be equal to 80% to 90% of total revenue. Mr. Lossau then testified on redirect that looking at revenue is only one way to impose restrictions. Another way which many restaurants figure this ratio is in terms of total space. With this method, 80% to 90% of the floor space of the building would be devoted to food service with 10% to 20% devoted to alcohol sales.

At the close of the evidence, the trial court found the Madison County zoning ordinance constitutional. Plaintiffs were granted a special use permit for their proposed eating and drinking establishment because the trial court found that the denial of the permit was arbitrary and unreasonable and bore no substantial relation to the public health, safety, welfare or morals. The court imposed a ...

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