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NOVAK v. CITY OF GENEVA

November 18, 2004.

THOMAS F. NOVAK, et al., Plaintiffs,
v.
CITY OF GENEVA, et al., Defendants.



The opinion of the court was delivered by: JAMES ZAGEL, District Judge

MEMORANDUM OPINION AND ORDER

I. Background

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 use.
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 nearby properties.
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 nearby properties.
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 irregularities.

  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 restrictions.

  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 Plaintiffs.

  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 ...


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