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Chicago Title and Trust Company v. Village of Inverness

August 16, 2000

CHICAGO TITLE AND TRUST COMPANY, TRUSTEE, U/T/A DATED SEPTEMBER 14,1988, TRUST NO. 1091974, PLAINTIFF-APPELLEE,
v.
THE VILLAGE OF INVERNESS, A MUNICIPAL CORPORATION, AND THE VILLAGE OF INVERNESS ZONING BOARD OF APPEALS, BRUCE ROBERTS, CHAIRMAN, AND INDIVIDUAL MEMBERS, GEORGE CALLAS, LYNDA CONNOR, JEROME FINIS, DIANE JANURA, JOHN MATHIAS, AND NICK ZISSIMOPOULOS, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County 97 CH 15728 Honorable Aaron Jaffe Judge Presiding.

The opinion of the court was delivered by: Justice Hall

This action involves administrative review of a decision by defendant, the Village of Inverness Zoning Board of Appeals (the Board), denying plaintiff's, Chicago Title & Trust Company, trustee, u/t/a dated September 14, 1988, trust No. 1091974 (plaintiff), request for a building permit. Plaintiff sought to build a single-family residence on the subject property. The Village of Inverness zoning enforcement officer ruled that the subject property did not meet the minimum lot size and lot width requirements under the Village's zoning ordinance and did not fall within the exception provided in section 5-8-6 of the zoning ordinance (Inverness Village Code §5-8-6 (eff. December 12, 1978)) and, therefore, could not be built upon. The Board denied plaintiff's appeal of this decision. Plaintiff filed a complaint seeking administrative review of the Board's decision. On May 10, 1999, the circuit court reversed the decision of the zoning board of appeals and ordered the issuance of a building permit but stayed that order pending appeal. Defendants filed a timely notice of appeal on June 4, 1999. For the following reasons, we affirm.

I. BACKGROUND

Plaintiff is the owner of lot 38 in the Country Club Estates subdivision (the subject property), an unimproved lot located in the Village of Inverness (the Village). The subject property was created by a plat of subdivision recorded with the Cook County recorder of deeds on October 6, 1927. The subject property comprises approximately .64 acres (27,800 square feet) in area and has a lot width of 100 feet and a depth of about 278 feet. The subject property is zoned in an A-I single-family residence district that requires a lot size of 1 acre (43,560 square feet) and a lot width of 140 feet.

On November 9, 1962, Mr. and Mrs. Arthur Johnson purchased two lots adjacent to the subject property in the same subdivision (lots 36 and 37). In 1976, Robert Johnson, Mr. and Mrs. Arthur Johnson's son, bought the subject property. On December 12, 1978, Mr. and Mrs. Arthur Johnson owned lots 36 and 37 and Robert Johnson owned the subject property.

On December 12, 1978, the Village amended its zoning ordinance to add section 5-8-6, concerning the consolidation of contiguous lots. On April 30, 1979, the Johnsons sold lots 36 and 37 to Thomas and Isabel Barber. On March 11, 1980, the subject property, along with lots 36 and 37, was involuntarily annexed into the Village.

In 1984, the Barbers quitclaimed their interests in lots 36 and 37 to trust No. 2126. In 1985 trust No. 2126 conveyed lots 36 and 37 to David Wang. Also in 1985, lot 38 was acquired by Midwest Real Estate Investment Company by tax deed. In 1989 Midwest Real Estate conveyed the subject property to plaintiff.

In January 1996, plaintiff sought a determination from the Village that a building permit could be issued for the subject property pursuant to an exception provision contained in section 5-8-6 of the zoning ordinance. In the alternative, plaintiff filed a petition for certain variances from the zoning ordinance to allow construction of a single-family residence on the nonconforming subject property. After the Village denied the request for a building permit, plaintiff appealed the decision to the zoning board of appeals. The Board denied plaintiff's appeal. The Board also recommended denial of plaintiff's application for variances. On November 11, 1997, the Village board passed ordinance No. 97-602 denying plaintiff's request for variances.

On December 11, 1997, plaintiff filed a four-count complaint. Count I sought administrative review of the Board's decision that the subject property could not be granted a building permit under the exception provided in section 5-8-6 of the zoning ordinance. Counts II, III and IV were brought in the alternative and raised issues regarding the constitutionality of section 5-8-6 and the Village board's denial of plaintiff's request for variances.

Plaintiff filed a motion for judgment on the pleadings as to count I and, in the alternative, a motion for summary judgment as to counts II and III. On May 10, 1999, the circuit court ruled in favor of plaintiff on count I, reversing the Board's decision and ordering that a building permit issue for the subject property so as to allow it to be used for single-family residential purposes. The circuit court did not rule on the remaining counts in plaintiff's complaint, stating that its ruling on count I made the other counts moot. The circuit court's order was stayed pending appeal.

On appeal defendants contend: (1) that the circuit court erred in reversing the Board's determination that the subject property does not fall within the exception to section 5-8-6 of the zoning ordinance, and (2) that the circuit court erroneously based its decision upon irrelevant allegations and facts not before the administrative agency.

II. DISCUSSION

A. Standard of Review

This case involves the administrative review of the decision by the zoning board of appeals. Judicial review of an administrative agency's actions extends to all questions of law and fact presented by the record. Chicago School Reform Board of Trustees v. Illinois Educational Labor Relations Board, 309 Ill. App. 3d 88, 721 N.E.2d 676 (1999). While the Board's findings of fact are considered prima facie true and correct (735 ILCS 5/3-110 (West 1994)) and will not be disturbed unless they are contrary to the manifest weight of the evidence (Midwest Central Education Ass'n v. Illinois Educational Labor Relations Board, 277 Ill. App. 3d 440, 660 N.E.2d 151 (1995)), the issue in this case involves the construction of an ordinance, which is a question of law. Midwest Central Education Ass'n, 277 Ill. App. ...


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