United States District Court, N.D. Illinois, Eastern Division
November 18, 2004.
THOMAS F. NOVAK, et al., Plaintiffs,
CITY OF GENEVA, et al., Defendants.
The opinion of the court was delivered by: JAMES ZAGEL, District Judge
MEMORANDUM OPINION AND ORDER
This suit arises out of a long standing zoning dispute over the
operation of a drive-through window at Plaintiffs' Wendy's
restaurant located at 200 North Kirk Road within a B-1 zoned
business district of the City of Geneva ("the City"). On March
26, 1999, Plaintiff Thomas Novak filed an application for a
Special Use permit to allow for the operation of a drive-through
window at his Wendy's restaurant. In areas designated as B-1
business districts, drive-through windows, like all other
designated Special Uses, are allowed if the applicant can
establish that the following Special Use Standards have been met:
1. The proposed use at the specified location is
consistent with the comprehensive plan.
2. The proposed building or use will not diminish the
value of adjacent and nearby properties.
3. The proposed use at the specified location will
not substantially or unduly increase traffic, traffic
congestion and on-street parking demand in the
immediate vicinity of the proposed use and in the
area affected by traffic generated by the proposed
4. The proposed use has been designed to provide for
adequate ingress and egress to minimize potential
vehicle conflicts and congestion in public streets.
5. The proposed building or use will not adversely
affect or change the character of the areas in which
it is located.
6. The proposed use at the specified location will
not adversely affect the use and development of
adjacent and nearby properties in accordance with the
regulations of the district in which they are located. The
location, size and height of proposed buildings and
other structures and the operation of their use will
not adversely affect the use and development or
hinder the appropriate development of adjacent and
7. Adequate utility, drainage, parking and other
necessary facilities to service the proposed use will
be provided and that such utility, drainage, parking
and other necessary facilities will not adversely
affect the use, development and value of adjacent and
8. The proposed building, other structures and use
comply with any and all regulations, conditions or
requirements of the City of Geneva applicable to such
building, structure or use.
9. That the exterior architectural appeal and
function of any proposed structure will not be so at
variance with either the exterior architectural
appeal or functional plan of the structures already
constructed in or in the course of construction in
the immediate neighborhood or the character of the
applicable district to cause a substantial
depreciation in property values in the neighborhood.
(City of Geneva Zoning Ordinance § 1002.2)
In accordance with its zoning procedures, the City held public
hearings on May 10, 1999, June 28, 1999, July 8, 1999, and July
22, 1999 to discuss the merits of the proposed drive-through
window. During those meetings, the public and the City's Plan
Commission voiced numerous concerns over the operation of a
drive-through window at a location which they considered to be in
close proximity to the Glengarry residential subdivision. In
early August 1999, Plaintiffs' Special Use application made its
way to and was approved by the City Council. This approval,
however, was ultimately repealed because of procedural
Following the repeal, Plaintiffs resubmitted an application and
started the process over again. Plaintiffs' second application
met with the same opposition as the first. After considering
evidence submitted by Novak, the Plan Commission Staff, and the
public, the Plan Commission recommended approval of the Special
Use permit with restrictions that included limitations on truck
access/parking and hours of operation. The City Council reviewed
the record, accepted the Plan Commission's finding, and approved the Special Use permit
with the recommended restrictions. The City Council agreed with
the Planning Commission's finding that the conditions levied on
the approval were necessary to bring the drive-through window
into compliance with the nine Special Use Standards stated in the
City's Zoning Code.
On June 18, 2001, almost two years after the Wendy's had been
constructed, Plaintiffs filed a petition with the City requesting
that some of the conditions be repealed. Specifically, Plaintiffs
requested that the limitations on store hours and truck
access/parking be lifted. In order to show that the restrictions
were not required to meet the Special Use Standards, Plaintiffs
submitted late night car counts and traffic studies from areas
around Plaintiffs' Geneva and West Chicago Wendy's franchises,
real estate sales reports on homes in the Glengarry subdivision,
and affidavits of local residents stating that the surrounding
area was commercial when they purchased their properties.
During a hearing held on August 9, 2001, the Plan Commission
reviewed the new evidence submitted by Plaintiffs and heard
testimony from the Plan Commission staff members who were of the
opinion that the newly submitted evidence, which they found to be
limited in scope and largely historical, did not establish that
the drive-through window could meet the Special Use Standards
without the hours of operation and truck access/parking
restrictions. The Plaintiffs countered by arguing that other
similar restaurants in the area, namely Burger King and
McDonald's, as well as a nearby bank and gas station were
permitted to operate drive-through businesses without similar
On September 13, 2001, the Plan Commission held a meeting and
recommended denial of Plaintiffs' request to lift the Special Use
restrictions. This recommendation was voted upon and adopted by the City Council. In making its denial, the City
Council stated that the drive-through window could not comply
with the City's nine Special Use Standards without the disputed
restrictions. Specifically, the City Council found that
Plaintiffs had not presented sufficient evidence establishing the
value of nearby property would not be diminished (Standard 2),
traffic and on-street parking would not be increased (Standard
3), there would be adequate ingress and egress from the property
(Standard 4), the character of the neighborhood would not be
affected (Standard 5), and parking facilities were adequate to
accommodate the requested changes (Standard 7). (Geneva
Resolution No. 2001-29).
In response to the City Council's denial, Plaintiffs filed suit
in the Sixteenth Judicial Circuit Court of the State of Illinois
in Kane County. Pursuant to 28 U.S.C. § 1331 and § 1441, the City
removed the case to this court. In their First Amended Complaint,
Plaintiffs allege that Defendants violated Illinois's Freedom of
Information Act, the Civil Rights Act, Plaintiffs' substantive
due process rights, and Plaintiffs' equal protection rights.
Plaintiffs are also seeking judicial review of the City Council's
denial or, in the alternative, a declaratory judgment by this
court that the City's Zoning Code is invalid as applied to
II. Legal Analysis
A. Standard of Review
Currently before me are Plaintiffs' and Defendants' cross
motions for summary judgment on Count VII of Plaintiffs'
Complaint in which Plaintiffs are seeking review of the City
Council's 2001 decision not to lift the restrictions imposed on
Plaintiffs' 1999 Special Use permit. Summary judgment is proper
when there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. Celotex Corp.
v. Catrett, 477 U.S. 317, 322-323 (1986). In determining whether any genuine issue of
material fact exists, I must construe all facts in the light most
favorable to the non-moving party and draw all reasonable and
justifiable inferences in its favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). A genuine issue of fact exists
only when, based on the record as a whole, a reasonable jury
could find for the non-movant. Pipitone v. United States,
180 F.3d 859, 861 (7th Cir. 1999).
B. Common Law Writ of Certiorari
The sole method for seeking review of the City Council's
decision is through a common law writ of certiorari. People ex
rel. Klaeren v. Vill. of Lisle, 781 N.E.2d 223 (Ill. 2002). "A
common law writ of certiorari is a general method for obtaining
circuit court review of administrative actions when the act
conferring power on the agency does not expressly adopt the
Administrative Review Law and provides for no other form of
review." Hanrahan v. Williams, 673 N.E.2d 251, 253 (1996).
Whether review is sought under the common law writ of
certiorari or under the Administrative Review Law, the standards
to be applied are the same. As a general rule, the agency's
factual findings are deemed prima facie true and correct and
should not be disturbed unless they are contrary to the manifest
weight of the evidence. Scadron v. Zoning Bd. of Appeals of the
City of Chicago, 637 N.E.2d 710, 713 (Ill.App.Ct. 1994). A
decision is against the manifest weight of the evidence when,
viewing the evidence in the light most favorable to the agency,
no rational trier of the fact could have agreed with the agency's
A federal district court may properly review an administrative
finding by a state body, under its supplemental jurisdiction, so
long as the state claim can satisfy the relatedness requirements of 28 U.S.C. § 1367(a). Chicago v. International
Coll. of Surgeons, 522 U.S. 156, 165 (1997); See Also Schullo
v. The Town of Cicero, No. 97 C 6456, 1998 U.S. Dist. LEXIS
11354 at *14-16 (N.D. Ill. July 17, 1998). For the state and
federal claims to be sufficiently related to satisfy § 1367(a),
they must arise out of the same nucleus of operative facts. Id.
Here, this court has original jurisdiction over Plaintiffs'
claims alleging violations of their substantive due process and
equal protection rights (Counts III and IV) and violations of the
Civil Rights Act, 28 U.S.C. § 1983 (Counts V and VI).
28 U.S.C. § 1331. Since these constitutional and federal claims are derived
from the same nucleus of operative facts as Plaintiffs' petition
for a common law writ of certiorari (Count VII), namely the
City's decision not to lift the restrictions from Plaintiffs'
Special Use permit, I may properly assert supplemental
jurisdiction over that claim. 28 U.S.C. § 1367(a). I say that I
may assert because there is no requirement for me to do so.
However, in this particular case, I conclude that granting
supplemental jurisdiction best serves the principles of economy
and convenience, which underlie the pendant jurisdiction doctrine
codified in the supplemental jurisdiction statute.
D. The Special Use Standards
That being said, I move on to the substantive consideration of
Plaintiffs' and Defendants' motions for summary judgment. The
arguments in both Plaintiffs' and Defendants' motions center on
whether the City Council's decision not to lift the truck
access/parking and hours of operation restrictions was against
the manifest weight of the evidence.*fn1 Plaintiffs contend
that they brought sufficient evidence forward, during the public
hearing process, to demonstrate conclusively that the Wendy's
drive-through window met the nine Special Use Standards without
the applied restrictions.*fn2 Defendants, on the other hand,
argue that the evidence produced by Plaintiffs fell short of
showing that Standards 2, 3, 4, 5, and 7 could be met.
To begin with, Plaintiffs argue that the City Council's refusal
to repeal its hours of operation and truck access/parking
restrictions was improperly based on factors not embodied in the
City's Zoning Code. Plaintiffs claim that the City Council's
decision was based on a finding that the Wendy's drive-through
window was neither in balance nor compatible with the business
district in which it was located. Plaintiffs argue that the use
of compatibility and harmony in zoning decisions concerning
Special Use permits is improper under Chicago Heights v. Living
Word Outreach Full Gospel Church & Ministries, Inc.,
749 N.E.2d 916 (Ill. 2001). In Living Word, the City of Chicago Heights
("Chicago Heights") denied the defendant church's Special Use
permit because it found all non-commercial uses to be
incompatible with its comprehensive zoning plan, even though churches were designated as Special Uses
in its Zoning Code. Id. at 920-21. The Court found that Chicago
Heights could not use its Special Use process to ban a use which
had been legislatively deemed an appropriate use by its inclusion
in the Zoning Code. Specifically, the Court stated:
In general, a "special use" is a type of property use
that is expressly permitted within a zoning district
by the controlling zoning ordinance so long as the
use meets certain criteria or conditions. `The
purpose of special uses is to provide for those uses
that are either necessary or generally appropriate
for a community but may require special regulation
because of unique or unusual impacts associated with
In sharp contrast to a variance, the inclusion of a
special use within a zoning ordinance `is tantamount
to a legislative finding that the permitted use is in
harmony with the general zoning plan and will not
adversely affect the neighborhood.'
Id. at 926 (quotations omitted).
In Living Word, the Court was primarily concerned with the
blanket objection made by Chicago Heights to non-commercial uses
in their business district. The Court made clear that the Chicago
Heights City Council could not make "effective amendments" to
Chicago Height's zoning law by labeling all non-economic Special
Uses as incompatible with current zoning, thereby eliminating
them from consideration. Id. at 930. The Court's decision,
however, was limited to broad-based or blanket decisions not to
allow a certain type of Special Use regardless of individual
consideration. Thus, it does not extend to those situations, such
as the one before me here, where the City Council denies a
specific Special Uses permit for reasons related to the use's
In Living Word, the Court provided the following standard for
denial of a Special Use request: the appropriate standard to be used in determining
whether a requested special exception use would have
an adverse effect and, therefore, should be denied is
whether there are facts and circumstances that show
that the particular use proposed at the particular
location proposed would have any adverse effects
above and beyond those inherently associated with
such a special use exception irrespective of its
location within the zone.
Id. at 929.
The standard articulated by the Court focused on the individual
nature of each Special Use permit determination and forces the
decision maker to articulate reasons why a proposed Special Use
is inappropriate given its specific circumstances. This is
exactly what the City Council did when it considered Plaintiffs'
Special Use permit for a drive-through window. It looked at the
list of nine Special Use Standards articulated in § 1002.2 of its
Zoning Code and applied them to Plaintiffs' drive-through window.
The fact that the City Council made statements concerning the
compatibility of this particular drive-through window with the
surrounding neighborhood does not mean the City Council violated
Living Word, which expressly permits administrative bodies to
consider compatibility so long as it is done on an individual
basis. Id. at 929.
In the end, both the Planning Commission and the City Council
determined that, given the specific location of the Wendy's
drive-through window, certain Special Use Standards were not met
without the hours of operation and truck access/parking
restrictions. This individual consideration is evidenced by the
numerous public meetings held to discuss the drive-through window
and by the findings of fact issued by the City Council, detailing
their findings as to each Special Use Standard.
Since I have determined that the City Council followed the
proper process in considering Plaintiffs' request to remove
restrictions from its Special Use permit, I consider whether the
City Council's denial was against the manifest weight of the evidence.
Under the City's Zoning Code, the burden is on the applicant to
demonstrate compliance with the nine enumerated standards.
(Geneva Zoning Code § 1002.2(F)).
1. Special Use Standard 2
Special Use Standard 2 requires the applicant to show that the
value of the adjacent and nearby properties will not be
diminished by the proposed use. To establish that eliminating the
hours of operation and truck access/parking restrictions would
not negatively impact the value of neighborhood properties,
Plaintiffs presented realty evidence showing that since the
Wendy's opened, the property values in the Glengarry subdivision
had risen and the average time to sale had decreased.*fn3
Plaintiffs also presented evidence that other businesses in the
near vicinity, a gas station and a bank, had been operating
24-hour drive-through businesses and that somewhat farther away a
Burger King and McDonald's had been operating unrestricted
drive-through windows without any perceivable impact to the
surrounding residential community.
The City Council found that the evidence submitted by
Plaintiffs failed to demonstrate the adjacent homes would not be
adversely affected by a lengthening of the hours of operation and
an increase in truck access/parking. First, it criticized the
realty data for being too static and for failing to predict the
effects of lifting the restrictions. In the City Council's
opinion, the realty information demonstrated that the imposed
restrictions were appropriate measures, which had prevented the
drive-through window from diminishing home values in the adjacent neighborhood. (Geneva Resolution No. 2001-29). Second, the City
Council criticized Plaintiffs' comparison of their property to
the nearby and unrestricted Burger King and McDonald's. The City
Council found those properties to be distinguishable from
Plaintiffs' property because the Burger King and McDonald's have
direct traffic access to and from Route 38, a major thoroughfare,
unlike the side street/neighborhood access to Plaintiffs'
property, and because the Burger King and McDonald's are not
adjacent to any residential areas. (Geneva Resolution No.
2001-29). Third, the City Council found that the nearby bank and
gas station were also distinguishable because they are also
farther away from the residential area. (Geneva Resolution No.
2001-29). Additionally, the City Council found that the
restriction on truck parking for the side streets helped protect
home values by decreasing parking and traffic congestion. (Geneva
Resolution No. 2001-29).
Given the weak and retrospective nature of Plaintiffs'
evidence, I cannot find the City Council's determination was
against the manifest weight of the evidence. As noted by the City
Council, Plaintiffs did not present any evidence to show what
kind of impact changing the restrictions could or would have on
property values in the adjacent neighborhood. To definitively
show neighboring home values would not be diminished, Plaintiffs
would need to produce evidence with some sort of predictive
value. Since Plaintiffs did not do so, I affirm the City
2. Special Use Standard 3
Special Use Standard 3 requires the applicant to show that the
use will not substantially or unduly increase traffic, traffic
congestion, or on-street parking demand in the use's immediate
vicinity. In an attempt to establish Special Use Standard 3 had
been met, Plaintiffs submitted late night car counts from their
West Chicago Wendy's location and current traffic patterns at
their Geneva Wendy's location. Again, the City Council criticized
Plaintiffs' evidence because it did not address how changing the
hours of operation and truck access/parking would affect overall
traffic patterns and congestion. (Geneva Resolution No. 2001-29).
Specifically, the City Council noted that while the car count at
Plaintiffs' West Chicago Wendy's location had some predictive
value, the Plaintiffs did not establish that it was a comparable
property, making the estimated increase in traffic of one car
every 7 minutes somewhat unreliable. (Geneva Resolution No.
2001-29). As for lifting the truck parking restrictions to allow
for thirty-minute street parking, the City Council relied on the
Chief of Police's opinion that increased truck traffic and
parking would most certainly cause more congestion. (Geneva
Resolution No. 2001-29).
With regards to the effect of extended hours on traffic, this
is somewhat of a close call. The minimal data submitted by
Plaintiffs suggests that the increase in traffic would be small.
However, even a relatively small number of cars and especially
trucks can cause a large disturbance in a residential
neighborhood. Because Plaintiffs' data concerning the actual
increase in nighttime traffic and the effect of that increase is
somewhat uncertain, I can't say that the City Council's decision
was against the manifest weight of the evidence. With regards to
the increased traffic from allowing truck access and parking, I
do not think any reasonable person could disagree with the City
Council's determination that allowing truck access/parking would
increase existing traffic congestion.
3. Special Use Standard 4
Special Use Standard 4 requires the applicant to show that the
use has been designed to provide adequate ingress and egress to
minimize congestion on public streets. The Plaintiffs did not
submit any evidence on the ingress and egress during the public
hearings. The City Council, on its own accord, raised safety and
vehicle conflict concerns over Plaintiffs' request for
thirty-minute truck parking on Bank Lane. (Geneva Resolution No. 2001-29).
These concerns seem fairly straightforward if the street from
which the Wendy's is accessed is more congested because of truck
parking, then entering or leaving the property may become more
difficult and potentially more dangerous. Since Plaintiffs didn't
submit any evidence showing that access to their property would
remain unaffected by the thirty-minute truck parking, I find that
the City Council acted reasonably in determining that this
standard had not been met.
4. Special Use Standard 5
Special Use Standard 5 requires the applicant to show that the
use will not adversely affect or change the character of the area
in which it is located. Plaintiffs argued that the character of
the surrounding area would not be affected by the extended hours
and increased truck access/parking because the surrounding area
consists primarily of other business uses. The City Council found
that the Wendy's was decidedly closer to the residential area
than the other businesses and, thus, would have the greatest
impact the on character of the adjacent residential neighborhood.
(Geneva Resolution No. 2001-29).
Out of all the Standards, this one appears to have received the
least attention from both sides. This is understandable give the
amorphous nature of "character" judgments in general. In this
case, a character judgment is made even more difficult because
the property is located near the border between two differently
zoned areas. A Wendy's with later hours of operation and more
truck traffic is probably consistent with the gas stations,
restaurants, and retail stores located in the heart of the
business district. But, the same Wendy's is probably not
consistent with a purely residential neighborhood like the
Glengarry subdivision. Because this criteria is so subjective, it
will always create grounds on which reasonable people can differ.
Thus, I cannot find the City Council acted against the manifest weight of the
evidence in finding that Special Use Standard 5 was not met.
5. Special Use Standard 7
Special Use Standard 7 requires the applicant to show that the
property has adequate utility, drainage, and parking for the
proposed use. Here, the City Council found that the Wendy's did
not have adequate parking facilities to accommodate large trucks,
necessitating Plaintiffs' request for thirty-minute truck parking
on Bank Lane. (Geneva Resolution No. 2001-29). Plaintiffs' only
answer to the City Council's concern seems to miss the point;
Plaintiff states: "the fact that truck parking cannot be provided
on site is virtually irrelevant because only delivery trucks can
turn north onto Whitfield Drive from Bank Lane and such parking
can be had within Bank Lane or on Whitfield Drive." (Plaintiffs.
Mem. P. 19). In this statement, Plaintiffs imply that adequate
truck parking is not available without the use of City streets.
Since Plaintiffs have not established that there is adequate
parking to accommodate truck parking on site, I cannot find the
City Council acted unreasonably when it determined that Special
Use Standard 7 had not been met.
D. Invalidity of the Zoning Ordinance
On pages twenty-one through twenty-six of their Memorandum in
Support of Summary Judgment, Plaintiffs make the somewhat
out-of-place argument that the City's Zoning Code is
unconstitutional both on its face and as applied. When filing
these cross-motions for summary judgment, Plaintiffs and
Defendants limited the scope of their arguments to Count VII of
Plaintiffs' Complaint. (Pls.' 1st Mot. Part. Summ. J.P. 1; Defs'
Mot. Summ. J.P. 1). Count VII is itself limited to a petition for
a common law writ of certiorari and does not extend to
Plaintiffs' constitutional claims, which appear individually in
Counts I, III, and IV of their Complaint. Their lack of relevance here is likely reflected in
Defendants' single paragraph response. Since Plaintiffs'
constitutional claims do not fall within the intended scope of
this motion, I decline to consider them at this time.
Since I have found that the City Council's determination that
Special Use Standards 2, 3, 4, 5, and 7 have not been met was not
against the manifest weight of the evidence, I affirm its
findings and grant summary judgment on Count VII of Plaintiffs'
For the reasons stated herein, Plaintiffs' Motion for Partial
Summary Judgment is DENIED and Defendants' Motion for Partial
Summary Judgment is GRANTED.