Speck v. Zoning Board of Appeals

417 N.E.2d 630, 93 Ill. App. 3d 460, 48 Ill. Dec. 898, 1980 Ill. App. LEXIS 4308
CourtAppellate Court of Illinois
DecidedDecember 23, 1980
Docket79-817
StatusPublished
Cited by7 cases

This text of 417 N.E.2d 630 (Speck 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
Speck v. Zoning Board of Appeals, 417 N.E.2d 630, 93 Ill. App. 3d 460, 48 Ill. Dec. 898, 1980 Ill. App. LEXIS 4308 (Ill. Ct. App. 1980).

Opinion

Mr. JUSTICE ROMITI

delivered the opinion of the court:

Amalgamated Trust and Savings Bank, as trustee, Edward Ochylski, Jr., and Daniel L. Houlihan (hereinafter called the applicants), filed an application for a variation in the nature of a special use for the approval of the location and erection of an addition to the south of an existing building to be used as a meat packing plant, including slaughtering, rendering, cutting and boning facilities in an area zoned manufacturing. The plaintiffs-appellees (hereinafter called the objectors) intervened as objectors in the proceeding. With one exception, they are residents living near the property. After a hearing, the zoning board of appeals granted the application. Upon appeal by the objectors, the circuit court found that while the determination that the proposed use was necessary for the public convenience was supported by the evidence, the other findings were not supported by the evidence and the board failed to set forth findings of fact with respect to the requirements of the ordinance. Accordingly the circuit court ordered that the zoning board’s decision be reversed and the special use variation requested by the applicants be denied. The zoning board of appeals but not the applicants appealed. The objectors did not cross-appeal. We hold that:

(1) the zoning board of appeals had standing to appeal from a reversal of its decision;

(2) any error in the hearing examiner’s decision that there was no continuing nonconforming use was clearly waived by the applicants at the hearing before the zoning board of appeals;

(3) the applicants failed to meet their burden of proving that the operation of the slaughterhouse would conform to the applicable regulations, and the zoning board of appeals failed to make the necessary findings, indeed could not make them since insufficient evidence had been produced on those issues. Since it is clear that the applicants and the board believed that such evidence was not necessary and the legislature has given the consideration of these questions to the agency, we believe that justice is better served by a reversal of the board’s decision and a remand to it for additional hearings and consideration of the necessary issues.

I.

When the appeal was filed in the circuit court, Daniel Houlihan filed his appearance for the applicants. William Quinlan filed his appearance as attorney for the zoning board of appeals and the enumerated members thereof. After the circuit court reversed the zoning board’s judgment, Quinlan filed notice of appeal for “the defendants, Zoning Board of Appeals, et al.” A copy of the notice was sent by Quinlan to Daniel L. Houlihan as attorney for plaintiff-appellee. Houlihan did not sign the notice of appeal nor did he at any time file a notice of appeal for the applicants. Houlihan has contended on appeal that the notice of appeal was for all parties. However, we cannot agree. Supreme Court Rule 303(c)(3) (Ill. Rev. Stat. 1977, ch. 110A, par. 303(c)(3)) requires that the notice of appeal contain the signature and address of each appellant or his attorney. The notice of appeal contained the signature neither of the applicants nor of their attorney. Furthermore, a copy of the notice was sent to Houlihan as attorney for plaintiff-appellee. This clearly indicates that Houlihan’s clients were not considered by the appellants as part of the class of defendants and according to the notice of appeal it was “the defendants, Zoning Board of Appeals, et al.” that were appealing. Since the filing of a notice of appeal is jurisdictional (Texaco, Inc. v. Barnes (1978), 60 Ill. App. 3d 696, 377 N.E.2d 187), and the applicants never filed a notice of appeal, we agree with the objectors that their brief must be stricken.

The objectors further contend that the zoning board of appeals has no standing to appeal from the circuit court’s reversal of the zoning board’s decision. Obviously if the zoning board has no standing to appeal, this court has no jurisdiction over this case since, as we already ruled, the applicants, having failed to appeal, are barred from seeking review of the trial court’s decision.

This State has not directly passed on the issue whether a zoning board of appeals has standing to appeal from a reversal of its own decision, although we note that in Cosmopolitan National Bank v. Zoning Board of Appeals (1978), 63 Ill. App. 3d 926, 380 N.E.2d 940, a case was considered by the appellate court upon appeal by the zoning board of appeals, the question of standing apparently not having been raised by the parties. This question has been addressed in other States, however, with differing results.

A slight majority of the States that have addressed this issue have held that a zoning board of appeals or similar body has no standing to appeal a reversal of its own decision since it exercises quasi-judicial functions, has no interest in the proceeding other than to decide the case fairly and impartially and therefore is not aggrieved by the decision. (See, for example, Miles v. McKinney (1938), 174 Md. 551, 199 A. 540; Board of Adjustment v. Kuehn (1955), 132 Col. 348, 290 P.2d 1114; A. Di Cilio & Sons, Inc. v. Chester Zoning Board of Appeals (1952), 158 Ohio St. 302, 109 N.E.2d 8; Hassell v. Zoning Board of Review (1971), 108 R.I. 349, 275 A.2d 646; Appeal of Board of Adjustment (1934), 313 Pa. 523, 170 A. 867; Robert Louis Corp. v. Board of Adjustment (1971), 1 Pa. Cmwlth. 292, 274 A.2d 551; State ex rel. Bringhurst v. Zoning Board of Appeal & Adjustment (1941), 198 La. 758, 4 So. 2d 820; River Oaks-Hyman Place Homeowners Civic Association v. City of New Orleans (La. App. 1973), 281 So. 2d 293; Gilliam v. Etheridge (1942), 67 Ga. App. 731, 21 S.E.2d 556, and compare Minnesota Water Resources Board v. County of Traverse (1970), 287 Minn. 130, 177 N.W.2d 44.) A few cases (see, for example, Borough of Hasbrouck Heights v. Division of Tax Appeals (1958), 48 N.J. Super. 328, 137 A.2d 585; Altman v. School Committee (1975), 115 R.I. 399, 347 A.2d 37), none of which were zoning cases, have indicated that an exception to the rule of no standing would lie where (1) there would otherwise be no adversary because the agency was prosecutor as well as judge or (2) where the interest of the public in the litigation reaches out decidedly beyond that of the immediate parties and in connection with which the agency has a general public duty to perform. Neither of these exceptions would be applicable here.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Hartney v. Bevis
2018 IL App (2d) 170165 (Appellate Court of Illinois, 2018)
Bainter v. Village of Algonquin
675 N.E.2d 120 (Appellate Court of Illinois, 1996)
Central Transport, Inc. v. Village of Hillside
210 Ill. App. 3d 499 (Appellate Court of Illinois, 1991)
CENTRAL TRANSPORT v. Village of Hillside
568 N.E.2d 1359 (Appellate Court of Illinois, 1991)
Tiskilwa Economic Development Corp. v. Zoning Board of Appeals
500 N.E.2d 66 (Appellate Court of Illinois, 1986)
Speck v. Zoning Board of Appeals
433 N.E.2d 685 (Illinois Supreme Court, 1982)

Cite This Page — Counsel Stack

Bluebook (online)
417 N.E.2d 630, 93 Ill. App. 3d 460, 48 Ill. Dec. 898, 1980 Ill. App. LEXIS 4308, Counsel Stack Legal Research, https://law.counselstack.com/opinion/speck-v-zoning-board-of-appeals-illappct-1980.