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November 1, 1994


Appeal from the Circuit Court of Lake County. No. 92-CH-196. Honorable Peter M. Trobe, Judge, Presiding. This Opinion Substituted on Denial of Rehearing for Withdrawn Opinion of September 29, 1994, Previously

Bowman, Doyle, Colwell

The opinion of the court was delivered by: Bowman

JUSTICE BOWMAN delivered the opinion of the court:

Defendant, the City of Waukegan (the City), appeals the circuit court's order declaring invalid certain conditions which the City attached to a conditional use permit granted to plaintiff, Rebound, Inc. The City contends that the court's order unduly interferes with the City's legislative authority to impose reasonable conditions upon the granting of such a permit.

Rebound, then legally known as Community Correction Services, Inc., and commonly known as Halfway House, filed applications for rezoning and for a conditional use permit for certain property on Lewis Avenue in the City. Plaintiff sought rezoning from R-2 to R-5 plus a conditional use permit to allow the construction and operation of a residential rehabilitation center for youthful offenders convicted of nonviolent offenses. Under Waukegan's zoning ordinance, a residential rehabilitation center is a permitted conditional, or special, use in an R-5 zone. At the time, plaintiff operated a halfway house accommodating approximately 15 through 20 residents at another site in the City. Plaintiff's plan called for the construction of a new facility at the Lewis Avenue site which would house 46 residents.

The City's development commission conducted a public hearing on plaintiff's request. The commission recommended against approving the request, and the city council adopted this recommendation. Plaintiff sought review of the council's decision in the circuit court of Lake County.

The matter was tried before Judge Radosevich. Janet Mason testified that she is plaintiff's executive director. At the time of trial, plaintiff's facility had 15 residents. Their average age was 18. The residents are referred to plaintiff by the circuit court or by the juvenile division of the Department of Corrections. Plaintiff carefully screens potential residents, rejecting those who show violent characteristics, have a poor attitude toward rehabilitation, have strong gang affiliations, or have mental or substance abuse problems. Residents are not permitted to have cars and may leave the halfway house only with permission to go to work, to visit family and friends, or to run personal errands such as going to the store. At least one staff member is on duty 24 hours a day.

Judge Radosevich found the City's zoning ordinance unreasonable as applied to plaintiff's property and found that plaintiff's proposed use was reasonable. The court ordered the City to rezone the property to R-5 and to grant plaintiff a conditional use permit. In the factual findings portion of its order, the court found that the City was bound to place reasonable restrictions on plaintiff's proposed use, but could not completely prohibit it.

The City did not appeal Judge Radosevich's order. Instead, the development commission conducted further hearings. Following the hearings and various Discussions between plaintiff, the City, and neighboring residents, the development board proposed 14 conditions to the granting of the conditional use permit. The city council voted to rezone the property and grant the conditional use permit subject to the 14 conditions proposed by the development board.

Plaintiff filed a petition for a rule to show cause in the circuit court, contending that five of the proposed conditions did not substantially conform to the court's prior order. Specifically, plaintiff objected to the following conditions: (1) a requirement that plaintiff submit any site development plan to the United States Environmental Protection Agency (EPA) for approval because the property abuts a closed landfill; (2) limiting the number of residents to 32 instead of 46; (3) increasing the number of monitors or trained staff present at the facility from one for 1 through 23 residents and two for 24 through 46 residents to one for 1 through 16 residents, two for 17 through 32 residents, and three for 33 through 46 residents; (4) prohibiting the acceptance of any "individual known to be a rapist or adJudged guilty of an offense involving activity of a sexual nature"; and (5) providing for the revocation of the conditional use permit following 14 days' notice of a violation of a listed condition. The ordinance numbers these conditions differently, but for convenience we will continue to use the numbering system used here.

Following a hearing, Judge Trobe sustained the third condition but declared the others invalid. The City then perfected this appeal. Plaintiff did not cross-appeal from the court's order upholding the third listed condition. On appeal, the City does not contest the court's order insofar as it invalidated the first condition. Thus, at issue in this appeal are the second condition, reducing the number of residents to 32, the fourth condition, prohibiting the acceptance of anyone "convicted of an offense of a sexual nature," and the fifth condition providing for the revocation of the permit following 14 days' notice of a violation. Because each condition involves a different legal analysis, we consider each one separately.

The City first argues that the court erred in rejecting the second condition, limiting the number of residents to 32. The court's order states, "The trial court has previously ruled that 46 residents was a reasonable use," and therefore the condition attempting to further restrict the number of residents was invalid and of no effect. The City contends that Judge Radosevich did not find specifically that a 46-resident facility was a reasonable use and, had he done so, he would have improperly interfered with the City's legislative function to establish reasonable conditions for the granting of a conditional use permit.

Plaintiff contends, essentially, that its proposal called for a 46-unit facility and, therefore, by ordering the City to issue a permit, Judge Radosevich must have approved a 46-unit facility. The City responds that the ability to regulate the size of the facility is part of the City's power to impose reasonable conditions on the special use. The City contends that the Judge could not have intended to usurp the City's legislative function.

No language in Judge Radosevich's order specifically approves of a 46-unit halfway house. The order merely finds that a halfway house is consistent with the uses in the surrounding neighborhood. The order also remands the cause to the Waukegan development commission to impose reasonable conditions on the special-use permit. Therefore, if restricting the size of the facility to 32 residents is the type of condition which the City may impose pursuant ...

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