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Taylor v. Zoning Board of Appeals of the City of Evanston

August 23, 2007

ROBERT P. TAYLOR AND ANN L. CAROLLO-TAYLOR, PLAINTIFFS-APPELLANTS,
v.
THE ZONING BOARD OF APPEALS OF THE CITY OF EVANSTON; ARTHUR ALTERSON, ASSISTANT DIRECTOR OF ZONING OF THE CITY OF EVANSTON; GREGORY E. NORWELL, CHAIRMAN, ZONING BOARD OF APPEALS; WALTER B. CLARKSON, MEMBER; PATRICIA ENGLISH, MEMBER; BARBARA PUTTA, MEMBER; SONJA ZUNIGA-REID, MEMBER; AND DONALD SAMPEN, MEMBER, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable William O. Maki, Judge Presiding.

The opinion of the court was delivered by: Justice Campbell

Published opinion

This is an appeal from an order on administrative review. Plaintiffs, Robert P. Taylor and Ann L. Carollo-Taylor (plaintiffs or Taylor), are the owners of a building in Evanston. Plaintiffs filed a request with the City of Evanston (City or Evanston) to classify the existing use of the building as a multifamily residence containing five welling units. The zoning administrator denied plaintiffs' application, finding that the property was properly zoned for four dwelling units, and the Zoning Board of Appeals (ZBA) upheld the determination of the zoning administrator. Plaintiffs filed an action for administrative review in the circuit court of Cook County against the ZBA and its directors and members. The circuit court affirmed the determination of the ZBA and plaintiffs now appeal. On appeal, plaintiffs contend that the decision of the ZBA is against the manifest weight of the evidence and contrary to the law, as the ZBA misapplied the zoning ordinance in determining that the property could not be certified for five dwelling units; and (2) plaintiffs' due process rights were violated when a ZBA member participated in the ZBA hearings, notwithstanding the fact that the member later recused herself from formal deliberations and did not vote on plaintiffs' zoning request. For the following reasons, we affirm the judgment of the trial court.

BACKGROUND

The following facts are relevant to this appeal. Plaintiffs Robert P. Taylor and Ann L. Carollo-Taylor are the owners of a property located at 1026 Garnett Place, Evanston (1026 Garnett or Garnett Property). The record reveals that 1026 Garnett was originally constructed as a single-family home in 1921, concurrent with enactment of the first Evanston Zoning Ordinance of 1921. 1026 Garnett remained a single-family dwelling until 1957, when the owner of 1026 Garnett, a certain O. Spenser, submitted an application for a building permit, to wit: "to alter/build to rear of 3-story frame bldg 2 Apts. Added making a total of 5 apts [sic]." Evanston issued building permit No. 33191 on this application, as well as a "Certificate of Occupancy and Compliance" No. 7788, to construct and use the three-story building at the Garnett Property "as a 5 Apt Bldg."

City inspection records show that the property was certified for occupancy as five apartments on November 19, 1957. Subsequent inspection reports dated November 12, 1968; January 24, 1984; July 20, 1989; and October 7, 1991, certified the property as containing four dwelling units.

Brian King purchased the Garnett Property in 1986. Members of the King family occupied the entire Garnett Property as a single-family residence, housing student boarders from time to time.

After the adoption of the original zoning ordinance in 1921, Evanston adopted amended zoning ordinances in 1960 and 1978. The current ordinance, adopted by amendment on April 26, 1993, superseded the 1978 zoning ordinance.

Plaintiffs acquired 1026 Garnett in 1996, via Brian King's bankruptcy proceedings.

In 1999, Evanston city inspector Lawrence Smith inspected 1026 Garnett Property and noted a discrepancy between the certificate of occupancy for four units and plaintiffs' use of the property as a five-unit dwelling. At that time, plaintiffs initiated a petition for a zoning recertification of 1026 Garnett as a five-flat dwelling.

On March 13, 2000, Evanston zoning administrator Arthur Alterson denied plaintiffs' petition for zoning recertification pursuant to section 6-6-4-7 of the Evanston Municipal Code (hereinafter Zoning Ordinance), which provides as follows:

"6-6-4-7: CHANGE IN USE:

A nonconforming use in a non-complying structure may, upon application to the Zoning Administrator pursuant to Section 6-3-9, 'Administrative Interpretations," be changed to another noncon-forming use of same or similar type but of less intensity provided; however, that nothing in this Section 6-6-4-7 shall be deemed to authorize any violation of Section 6-6-4. Whenever any noncon-forming use is changed back to a more intensive nonconforming use, such use shall not thereafter be changed back to a more intensive nonconforming use. Whenever any nonconforming use is changed to a conforming use, such use shall not thereafter be changed to a nonconforming use." Evanston Municipal Code §6-6-4-7 (eff. April 26, 1993).

Alterson further indicated that the Zoning Ordinance did not provide for the restoration of an abandoned nonconforming use that is substandard as to lot area in an area zoned an R4 General Residence District where multiple-family dwellings are permitted. The requirements of an R4 district are set forth in section 6-8-5-4 of the Zoning Ordinance as follows:

"6-8-5-4: LOT SIZE:

The minimum lot sizes in the R4 ...


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