# Weaver v. Zoning Board of Appeals

> Appellate Court of Illinois · October 23, 1970 · 130 Ill. App. 2d 1052

URL: https://www.frixlaw.com/law-library/cases/9735476

## Case

- **Full name:** George E. Weaver, as Trustee Under Trust No. 202 Et Al., Plaintiffs-Appellees, v. Zoning Board of Appeals of the City of Park Ridge, Illinois Et Al., Defendants-Appellants
- **Court:** Appellate Court of Illinois
- **Decided:** October 23, 1970
- **Citations:** 130 Ill. App. 2d 1052; 264 N.E.2d 758; 1970 Ill. App. LEXIS 1065
- **Precedential status:** Published
- **Opinion:** Dissent by Craven
- **Judges:** Trapp, Craven
- **Cited by:** 4 later opinions in the Frix Law Library

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## Opinion text

Mr. PRESIDING JUSTICE CRAVEN, dissenting:
As I view this record, serious issues of procedure and substance require a reversal. Accordingly, I must dissent from the views of my colleagues.
Turning first to two procedural problems, the complaint in this case sought administrative review and further alleged the unconstitutionality of the height limitation in the Park Ridge zoning ordinance. After the filing of the complaint, the named defendants, acting pursuant to the Administrative Review Act, filed the record of proceedings before the Zoning Board of Appeals as their answer. At that time no findings were filed. At a later date the defendants filed what was designated as an answer to the complaint for administrative review and that answer included as an exhibit certain findings of the Zoning Board of Appeals. On motion of the plaintiffs, the trial court entered an order striking the answer of the defendants and all exhibits attached thereto. While it may be that the trial court intended to strike the pleading to which the findings were attached, the order is susceptible of an interpretation that he struck the “answer” as that term is used in the Administrative Review Act.
This cause was then heard on the record, and ultimately an order was entered reversing the Zoning Board of Appeals and holding that the Zoning Board should grant a variance to permit the plaintiff to erect a building 55 feet in height with an elevator and mechanical tower to a height of 88 feet. The court further held the height limitation to be unconstitutional. It does not appear that the constitutionality of the zoning ordinance was an issue before the Zoning Board and, indeed, the entire proceedings before the Zoning Board seem to have been predicated upon the validity of the ordinance, the controversy centering solely upon the plaintiffs’ right to a variance.
In Howard v. Lawton (1961), 22 Ill.2d 331 , 175 N.E.2d 556 , the court did hold that in an administrative review action, the court may, nonetheless, consider constitutional issues if the whole record discloses that there is a fairly debatable question whether the zoning ordinance is arbitrary and unreasonable.
As I understand it, where there is a fairly debatable question, the presumption in favor of the validity of the zoning ordinance must prevail and one who undertakes to attack that ordinance has the burden of overcoming that presumption by proving with clear and convicing evidence that the ordinance as applied to him is arbitrary and unreasonable. Mere difference of opinion or proof that the property could reasonably be classified otherwise is not sufficient. See: Bennett v. City of Chicago (1962), 24 Ill.2d 270 , 181 N.E.2d 96 ; Exchange Nat’l Bank of Chicago v. Cook County (1962), 25 Ill.2d 434 , 185 N.E.2d 250 ; Trendel v. Cook County (1963), 27 Ill.2d 155 , 188 N.E.2d 668 .
In this case, the complaint alleged that the plaintiff Weaver, as trustee, owned the premises and that the bank, as plaintiff, operated a bank thereon. There is testimony in the record by one C. A. Bostrom that the Bankers Life and Casualty Company is the beneficial owner of the property and the building. At one point the bank is referred to as the owner. The nature and extent of the bank’s interest are not otherwise established.
Thus, it seems to me that even under the doctrine of the Lawton case, the one who attacks a zoning ordinance, either under administrative review or administrative review coupled with alleged constitutional infirmities, has a greater burden of establishing his interests and the deprivation of his rights beyond that which this record shows.
Section 11—13—4 of ch. 24, Ill. Rev. Stat. 1967, provides that variations from existing zoning ordinances may be permitted by the board of appeals when it is shown (1) that the property in question cannot yield a reasonable return if permitted to be used only under the conditions allowed by the regulations, (2) that the plight of the owner is due to unique circumstances, and (3) that the variation, if granted, will not alter the essential character of the locality. It is uncontroverted that the burden is upon the plaintiffs to establish by clear and competent evidence the existence of all three statutory conditions precedent to a variance. See Brown v. Board of Zoning Appeals of Rock Island (2d Dist. 1959), 21 Ill.App.2d 273 , 157 N.E.2d 685 .
In this case, there is no showing whatsoever that the property cannot yield a reasonable return, nor is the record sufficient even to establish what the existing return is. Apparently, legal title is held by the trustee and the beneficial owner is the Bankers Life and Casualty Company. Any plight shown by this record is the plight of the Citizens Bank and Trust Company and the unique circumstances shown establish its need for more space. Since the nature and the extent of the banks interest in the subject premises are neither alleged nor proved, we cannot conclude that the bank’s hardship is the plight of the owner, and we certainly cannot conclude that the finding of the Board of Appeals is contrary to the manifest weight of the evidence.
The third prerequisite for a variance is the necessary determination that the variance, if granted, will not alter the essential character of the locality. This record does not establish that condition precedent to a variance.
The answer to the complaint for administrative review denied that there was any building in excess of the 40-ft. height limitation in close proximity to the subject property. The plaintiffs assert in this court that a variance permitting them to build the contemplated addition would not alter the essential character of the locality. We are not referred to any specific evidence as to location and height of buildings except by reference to the answer and findings that were stricken. By reference to these documents, it is indicated that the only structure in excess of the height limitation within a two-block radius of the subject property is an ornamental tower on the Pickwick theater and that that building was constructed prior to the effective date of the ordinance. Other buildings located farther away may offend against the height limitation, as do some churches and the city hall. In this connection, it should be noted that here, as in Chicago City Bank & Trust Co. v. City of Highland Park, 9 Ill.2d 364 , 137 N.E.2d 835 , cert. denied, 353 U.S. 922 , 77 S.Ct. 681 , 1 L.Ed.2d 719 (1957), the ordinance excepts from its application churches and certain public or quasi-public buildings. In that case, the court held that such an exception or distinction did not establish discrimination.
In any event, the plaintiffs had the burden of establishing that the sought variation would not change the essential character of the area, and they did not satisfy that burden. That burden cannot be shifted to the municipal authority nor to the Zoning Board of Appeals. River Forest State Bank & Trust Co. v. Zoning Board of Appeals of Maywood (1st Dist. 1962), 34 Ill.App.2d 412 , 181 N.E.2d 1 .
On the basis of this record, the Zoning Board of Appeals was correct in denying the variance and the circuit court was in error in reversing that decision. If the evidence is insufficient to satisfy the statutory requirement for a variance, it is likewise wholly insufficient to establish the constitutional infirmities found by the circuit court. The finding of the circuit court that the ordinance was unconstitutional could only have been based upon the hearing before the Zoning Board of Appeals. For these reasons, the judgment of the Circuit Court of Cook County should be reversed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9735476. Public record. Not legal advice.