Reichard v. Zoning Board of Appeals

290 N.E.2d 349, 8 Ill. App. 3d 374, 1972 Ill. App. LEXIS 2033
CourtAppellate Court of Illinois
DecidedNovember 1, 1972
Docket55890
StatusPublished
Cited by14 cases

This text of 290 N.E.2d 349 (Reichard v. Zoning Board of Appeals) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Reichard v. Zoning Board of Appeals, 290 N.E.2d 349, 8 Ill. App. 3d 374, 1972 Ill. App. LEXIS 2033 (Ill. Ct. App. 1972).

Opinion

Mr. JUSTICE BURMAN

delivered the opinion of the court:

This is an appeal from a judgment of the Circuit Comt of Cook County reversing a decision of the Zoning Board of Appeals of Park Ridge which granted to the appellant, All American Life and Casualty Company (“All American”), a variation permitting construction of a seven story office building, 88 feet in height, in a zoning district where the height limit is 40 feet.

The subject property, which is owned by All American, is located on the north side of Higgins Road west of its intersection with Cumberland Avenue. It has an east-west dimension of approximately 331 feet and north-south dimensions varying from 258 feet at the western boundary to 300 feet at the eastern boundary. It is located in the “D” commercial zoning district, to which regulations of the “D-D” district are made applicable by section 256.1 of the Park Ridge Zoning ordinance. Section 256-3 of the ordinance provides that:

“No building hereafter erected or altered in the "D-D’ Commercial districts shall exceed forty feet (40 ft.) in height or three (3) stories.”

All American filed an application for a variation of the height limitation. The Zoning Board of Appeals took evidence at a hearing on April 10, 1970, and on April 17 granted the variation to All American. The board’s decision was not mailed, however, until April 24, A complaint for administrative review of the board’s decision was filed on May 25th in the Circuit Court of Cook County by Grant Reichard, John Fayes and Robert Milnikel, residents and property owners of Park Ridge. The complaint named as defendants the Zoning Board of Appeals and its members, the City of Park Ridge, All American, various city officials and others. On July 27, 1970, the City of Park Ridge moved to be realigned as a plaintiff. The motion was granted, and Park Ridge adopted the complaint filed by the individual plaintiffs. On December 18,1970, the Circuit Comt entered its order reversing the decision of the Zoning Board or, in the alternative, reversing and remanding to the Board to make further findings of fact. This appeal by All American followed.

On appeal All American raises the following contentions:

(1) Park Ridge is not authorized and empowered to contest a final decision of its own zoning board of appeals.

(2) Park Ridge is not a “person aggrieved” within the meaning of controlling Illinois law.

(3) Park Ridge did not seek judicial review in a timely manner.

(4) The Zoning Board of Appeals made adequate findings of fact; and

(5) The findings of the Zoning Board of Appeals were supported by substantial evidence.

We first consider whether Park Ridge has authority to seek judicial review of a decision of its own zoning board of appeals. All American urges that Park Ridge has no such authority and cites in support of its position Village of Bensenville v. County of Du Page, 30 Ill.App.2d 324; Village of Mount Prospect v. County of Cook, 113 Ill.App.2d 336 and Krembs v. County of Cook, 121 Ill.App.2d 148. We believe the cases cited by AH American are distinguishable from the present case.

In Bensenville, tire issue before the court was whether a municipality had standing to attack a decision of Du Page County authorities to rezone contiguous unincorporated land. The court held that in the absence of a statute explicitly conferring a right to maintain such an action the municipality lacks standing. In Mount Prospect, the municipality sought to attack a zoning decision of Cook County, alleging special damages. The court held that Mount Prospect had no standing to maintain its action. In Rrembs, the Village of Northbrook attempted to intervene to defend zoning action taken by Cook County. Relying on Mount Prospect the court upheld the denial of the petition for leave to intervene.

All of the foregoing cases involved an attempt by the municipality to attack action taken by county zoning authorities with respect to land located outside the corporate limits of the municipality. In holding that the municipaHty did not have the power to attack action taken by the county zoning authorities, the court in Mount Prospect cited section 11-13-1 of the Municipal Code (Ill. Rev. Stat. 1971, ch. 24) which provides in part:

“No municipality shall exercise any power set forth in this Division 13 outside the corporate Emits thereof, if the county in which such municipality is situated has adopted ‘An Act in relation to county zoning.’ ”

Thus these cases turned upon the fact that the statute deprived the municipalities of the power to attack zoning action taken with respect to land situated outside their corporate Emits. In the present case there is no question that the land owned by All American was within the corporate Emits of Park Ridge, and we believe that the decisions rehed upon by A11 American do not apply.

There appear to be no cases in which the Illinois courts have considered the precise question of whether a municipaHty has the power to obtain judicial review of a decision of its zoning board of appeals. It is our conclusion that such a power is implicit in the provisions of the Municipal Code. Zoning variations in municipalities of less than 500,000 population are covered by section 11-13-5, which provides that such variations may be granted by the board of appeals or the corporate authorities. When authority to grant variations is vested in the board of appeals, it must be exercised in accordance with the conditions imposed by section 11-13-4. In the present case, authority to grant variations was in the board of appeals and was therefore subject to the conditions of section 11-13-4. Section 11-13-4 provides in part that:

“A decision of the board of appeals shall not be subject to review, reversal or medication by the corporate authorities but shall be judiciaHy reviewable under the provisions of Section 11-13-12.”

This language is troublesome, as section 11-13-12 does not deal with judicial review at all but with appeals to the board of appeals. Prior to 1961, section 11-13-4, which was then section 73-4 (Ill. Rev. Stat. 1959, ch. 24), read:

“A decision of the board of appeals shall not be subject to review, reversal or modification by the corporate authorities but shaH be judicially reviewable under the provisions of Section 73-6.01.” Section 73-6.01 provided:
“All final administratve decisions of the board of appeals under this Article shaH be subject to judicial review pursuant to the provisions of the Administrative Review Act’ * *

Thus the statute clearly is intended to provide for judicial review of decisions of the board of appeals although it does not specify who may obtain such review. We beheve, however, that the history of sections 73-6.01 and 11-13-13, the counterpart of section 73-6.01 in the present Municipal Code, indicates an intent that municipalities should have this power. Section 73-6.01 was enacted in 1949 to replace section 73-6 (Ill. Rev. Stat. 1947, ch. 24), which provided that:

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Bluebook (online)
290 N.E.2d 349, 8 Ill. App. 3d 374, 1972 Ill. App. LEXIS 2033, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reichard-v-zoning-board-of-appeals-illappct-1972.