county board of supervisors acted in a legislative capacity in granting a special use permit
How later courts described this case
- county board of supervisors acted in a legislative capacity in granting a special use permit
Written by the judges who cited it.
The opinion
Mr. Chief Justice House, dissenting:
The county has only the powers delegated to it, expressly or by necessary implication. There is no specific authority granted by the county zoning enabling act for special use procedure, nor, in my opinion, can the device be justified under the general power to “regulate,” “restrict” and “prohibit.” How can it be said that a legislative intent was manifested to permit special use procedure when, as the majority opinion recognizes, such procedure was unknown at the date of enactment of the enabling legislation ? The fact that statutory restrictions and standards are set up for amendments and variations indicates a legislative intent to the exact contrary.
I agree with the majority that it is a matter for legislative determination whether amendment, variation or other procedure is appropriate for the new special use technique. But, that determination must come from the legislature together with suitable standards fixed for application of the procedure. It should not, as here, be left without restriction to the whim of the local governing body.
In one breath the majority opinion admits that unlimited application of the special use technique would take away the guarantee to property owners which is the very vitals of zoning and in the next approves special use procedure because its unlimited application “is not required.” The ingenuity of members of our profession could conceivably conjure up so many “unique” situations which would require applications of special use procedures that ad hoc determination could become the rule rather than the exception.
The Bell Telephone case ( 402 Ill. 617 ) is readily distinguishable. First, the ordinances involved are entirely different and, second, the special use device was not in question, but the issue was whether area and height restrictions in the volume district were applicable.
From the standpoint of zoning enthusiasts and administrators the special use device provides a flexible method disposing of troublesome “unique” situations. On the other hand, its use in such cases as here (recreation center) is the further limiting of the rights of ownership of property under the guise of the much tortured and misused police power.