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05/27/94 JAMES B. HEWETTE v. CARBONDALE ZONING

May 27, 1994

JAMES B. HEWETTE, PLAINTIFF-APPELLANT,
v.
CARBONDALE ZONING BOARD OF APPEALS, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Jackson County. No. 92-MR-3. Honorable E. Dan Kimmel, Judge Presiding.

Petition for Leave to Appeal Denied October 6, 1994.

Chapman, Lewis, Welch

The opinion of the court was delivered by: Chapman

JUSTICE CHAPMAN delivered the opinion of the court:

This is an appeal from an order which affirmed a decision of the Carbondale Zoning Board of Appeals and denied James Hewette a zoning variance. We affirm.

James Hewette owns a two-story frame building containing his residence and eight rental apartments. The use of the structure as an apartment conforms to the zoning district in which it is located, R-3, high-density residential. The dispute in this case involves the application of certain sections of the Carbondale zoning ordinances dealing with side-yard-setback requirements. Section 15-2-30(J) requires the support posts or exterior walls of structures in R-3 areas to be set back at least 10 feet from any property line. (Carbondale Revised Code, § 15-2-30(J) (1990).) Section 15-2-17(B)(14) permits certain projections, including roof eaves, to extend into the required setback. (Carbondale Revised Code, § 15-2-17(B)(14) (1990).) Section 15-2-17.B.14 permits a four-foot projection of the south side of a building or structure if a minimum of five feet six inches remains between the furthest extremity of that projection and the property line.

Prior to enactment of the current minimum-setback regulations, the post supporting the southeast corner of Hewette's building was located three feet three inches from the south property line. The building and the original porch do not meet the current setback requirement of 10 feet, but they do not violate the zoning ordinance because they are classified as nonconforming structures per section 15-2-78 of the Carbondale zoning ordinances. (Carbondale Revised Code, § 15-2-78 (1990).) Section 15-2-78 permits remodeling or an addition to a nonconforming structure, provided such remodeling or addition will not create a violation of the zoning regulations. Carbondale Revised Code, § 15-2-78(B) (1990).

[SEE DIAGRAM IN ORIGINAL]

In 1989, Hewette applied for a zoning certificate and building permit to construct a new porch on his property. The proposed porch was to have a supporting post three feet three inches from the existing property line. The eaves of the proposed porch were three feet from the property line. Hewette was informed by members of the Carbondale Zoning Board (the Board) that he needed to modify his plans in order to meet the setback requirements or, in the alternative, seek a variance. No further action was taken until October 23, 1991, when Linda Gladson, a planner with the City of Carbondale, noticed that the porch which Hewette had proposed in 1989 was under construction. Gladson noted that the support posts had been installed and were within the 10-foot minimum-setback area. On October 24, 1991, Hewette submitted his application for a variance. On October 28, 1991, Carbondale Building Inspector Steve Larson discussed the project with Hewette and advised him to obtain a building permit and zoning certificate for the portions of the porch not in violation of the setback requirements. On October 30, 1991, Larson issued a stop-work order because construction had continued in spite of the absence of a building permit and zoning certificate. Later that day Hewette obtained a zoning certificate and building permit to continue construction on the lawful portions of the porch. Between October 30, 1991, and November 4, 1991, the porch was completed with encroachment on the minimum setback.

[SEE DIAGRAM IN ORIGINAL]

In November of 1991, the Board met to consider Hewette's request for a variance from the minimum-setback requirements. At that hearing Hewette testified that his purpose in constructing the porch and eaves was to shelter the apartment complex from the weather. He and his wife are elderly, and it would be easier for them to maintain the premises if the sidewalk were covered with eaves which would keep the porch free of snow and sleet. Hewette testified that if he had to conform with the zoning ordinance he could not accomplish that purpose. He further testified that if he could not extend the porch and the eaves so that they meet the existing porch and eaves it would interfere with the overall aesthetic characteristics of the building.

Linda Gladson, a city planner, pointed out to the Board that Hewette could have projected the eaves of his porch to within five feet six inches of the south property line and been in conformance with the zoning ordinances. After considering the evidence presented, the Board denied Hewette a variance of setback requirements and found that no special circumstances or conditions existed which were peculiar to this property and which were not applicable to other property in the same zoning district. The circuit court affirmed the Board's decision.

Hewette first argues on appeal that the trial court's decision was against the manifest weight of the evidence. When considering whether the trial court erred in an administrative review action, we will overturn the determination of the trial court if it is against the manifest weight of the evidence. Rosehill Cemetery Co. v. City of Chicago (1983), 114 Ill. App. 3d 277, 283, 448 N.E.2d 930, 934, 70 Ill. Dec. 52.

Section 15-2-102(B)(1)(a) of the Carbondale zoning ordinances lists four factors which applicants for ...


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