Smith v. Town of Normal

605 N.E.2d 727, 238 Ill. App. 3d 944, 178 Ill. Dec. 933, 1992 Ill. App. LEXIS 2060
CourtAppellate Court of Illinois
DecidedDecember 23, 1992
Docket4-92-0430
StatusPublished
Cited by8 cases

This text of 605 N.E.2d 727 (Smith v. Town of Normal) 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
Smith v. Town of Normal, 605 N.E.2d 727, 238 Ill. App. 3d 944, 178 Ill. Dec. 933, 1992 Ill. App. LEXIS 2060 (Ill. Ct. App. 1992).

Opinion

JUSTICE McCULLOUGH

delivered the opinion of the court:

The Zoning Board of Appeals of the Town of Normal (Board) sustained the determination made by the building commissioner of the Town of Normal (Commissioner) that the Town of Normal Zoning Code (Code) (Normal, Ill., Zoning Code ch. 15, §15.1—1 (1988)) required plaintiff Robert Smith (Smith) to change the lawful nonconforming use of his property from a rooming house to a single-family residence. Smith appeals, contending (1) the Board’s interpretation of the Code was contrary to the manifest weight of the evidence; (2) the applicable nonconforming-use provisions of the Code (Normal, Ill., Zoning Code ch. 15, §15.3—2 (amended Aug. 20, 1990), §15.4—6 (amended Apr. 15, 1991)) are void for vagueness; and (3) the Code, as interpreted and applied by the Board, Commissioner and circuit court is unconstitutional because it bears no direct and substantial relationship to the protection or promotion of the public health, safety and welfare. We affirm.

Smith owns a seven-bedroom house in Normal, Illinois, which he pm-chased in 1979 for $37,000 or $38,000. He rents this house to eight students at a rate of $985 per semester per student, which generates an income of approximately $16,000 a year. He also rents the house during the summer for approximately $1,000 to $1,200. Smith valued his house at approximately $65,000, based on four times the gross income from the tenants.

Smith’s house is located in an area zoned for single-family residences. However, section 15.3 — 2 of the Code states:

“A non-conforming use is any use of land, buildings or structures, which use is not permitted in the zoning district in which such use is located, but which use was permitted at the time such use was established.” (Normal, Ill., Zoning Code ch. 15, §15.3—2 (amended Aug. 20, 1990).)

Section 15.4—6(D)(1) of the Code provides that if a lawful use of a structure existed at the time the Code became effective but that use would now be prohibited under the Code, that use may continue under certain circumstances. (Normal, Ill., Zoning Code ch. 15, §15.4—6(D)(1) (amended Apr. 15, 1991).) Prior to the enactment of the Code, Smith’s use of the structure as a rooming house was permitted. Upon the Code’s enactment, the area was zoned for single-family residences, and Smith’s use of the structure as a rooming house became a lawful nonconforming use.

On August 14, 1991, a fire of suspicious origin occurred at Smith’s rooming house. The fire originated in the rear of the house where the north side of the rear deck joined to the exterior walls of the house. On the first floor of the house, there was flame damage to a three-foot-wide portion of the exterior wall extending the entire height of the first floor and there was flame damage to a portion of the first-floor kitchen ceiling. A “header joist” which extended through the kitchen between the first and second floors was flame damaged; however, it was not conclusively established that this header joist would need to be reinforced or replaced as a result of the fire. A three-foot-high “knee wall,” which bears the load of the northernmost roof of the house, had flame damage. A portion of the load-bearing exterior wall on the east side of the house on the second floor directly south of the knee wall was flame damaged. A “shed roof” extending over the first-floor kitchen was damaged and a portion of the roof was damaged by firemen cutting a ventilation hole in the roof. The testimony before the Board indicated that as few as 5 or as many as 18 studs would either have to be replaced or strengthened by nailing new studs to the flame-damaged studs. Smith estimated the cost of repairs to the structure at $4,000. The Board made a finding of fact that the cost of repairs to the structure caused by the fire did not exceed 50% of the fair cash market value of the structure. Smith was issued a building permit to repair the damage caused by the fire.

On September 4, 1991, the Commissioner wrote Smith a letter stating that his structure could no longer be used as a rooming house. Smith was told that by operation of law, the property had reverted to use as a single-family residence only. The Commissioner concluded that the structure could no longer be used as a rooming house because the fire at Smith’s property caused the need for replacement or reconstruction of the exterior bearing walls.

Smith filed a notice of appeal of that determination with the Board on September 11, 1991. On October 17, 1991, the Board held a hearing at which testimony was presented regarding the extent of the fire damage and the amount of work necessary to repair the building. The Board adopted its findings of fact on December 12, 1991, in which it concluded that the Commissioner properly interpreted the Code. The Board noted that Clinton Curtis, a defendant herein, owns a house near Smith’s property and testified that his property, a single-family residence, was valued at $17,000.

The Board made a specific finding that the first-floor exterior wall directly north of the rear entrance, the knee wall on the exterior of the second floor, and the exterior wall on the east side of the house on the second floor directly south of the knee wall are load-bearing walls, and that the header joist above the first-floor kitchen is a load-bearing component of the structure. The Board found that the Commissioner did not misunderstand the factual situation giving rise to the action from which the appeal was taken. Moreover, the Board found he did not misinterpret or erroneously apply the provisions of the Code in his ruling that the repairs to the load-bearing walls on Smith’s property constituted reconstruction under the provisions of the Code and, therefore, Smith’s property could no longer be used as a rooming house. One member of the Board disagreed and would overrule the Commissioner by finding that the proposed work to Smith’s property constituted ordinary repairs under section 15.4—6(F) of the Code. Normal, Ill., Zoning Code ch. 15, §15.4—6(F) (amended Apr. 15,1991).

Smith filed his complaint for administrative review of the Board’s decision in the circuit court on January 8, 1992. The circuit court affirmed the Board’s decision construing the Code. Defendant timely filed his notice of appeal.

Smith first contends the Board’s decision sustaining the Commissioner’s interpretation of the Code was against the manifest weight of the evidence. Specifically, Smith alleges section 15.4—6(D)(4), rather than section 15.4—6(D)(1) of the Code, applies in this situation. (Normal, Ill., Zoning Code ch. 15, §§15.4—6(D)(4), (D)(1) (amended Apr. 15, 1991).) Furthermore, Smith argues the proposed work on the building constitutes “repair of a structural element” rather than “reconstruction of a structure” and that this work is “ordinary repair” under the Code.

Generally, in construing municipal ordinances, the same rules are applied which govern construction of statutes. (In re Application of County Collector (1989), 132 Ill. 2d 64, 72, 547 N.E.2d 107, 110.) In construing a zoning ordinance, the intention of the drafters should be given effect by considering the common accepted usage of the words employed, the context in which they are employed, and the general structure of the ordinance. Dixon v.

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Bluebook (online)
605 N.E.2d 727, 238 Ill. App. 3d 944, 178 Ill. Dec. 933, 1992 Ill. App. LEXIS 2060, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-town-of-normal-illappct-1992.