2018 IL App (1st) 171987
Ill. App. Ct.2018Background
- Plaintiffs Laura Glaser and Leonard Loventhal own 3522 N. Janssen; defendant Chicago Title Land Trust purchased adjacent 3528 N. Janssen (Khyl residence), an older, "orange-rated" building with existing nonconforming setbacks and a 35-foot height.
- Trust applied for zoning variations (front, rear, north and south side setbacks, and increase in height to ~38.39 ft) to renovate and add a three-story rear addition, garage, porch, and patio.
- The City zoning administrator denied the variation requests; the Trust appealed to the Chicago Zoning Board of Appeals (Board).
- At the Board hearing, the Trust presented expert testimony that unique site conditions (elevated first floor, preservation of façade and an oak tree, "canyon effect" from neighboring buildings) and design constraints created practical difficulties; neighbors and plaintiffs presented conflicting expert testimony that the project would demolish most of the house, enlarge and overbear the block, and impair light, air, and privacy.
- The Board granted all requested variations; the plaintiffs sought administrative review in Cook County circuit court, which affirmed the Board. Plaintiffs appealed to the Illinois Appellate Court, First District.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board had competent evidence to find practical difficulties and particular hardships to justify variations (height and rear setback) | Board relied on misleading testimony; renovation reportedly demolishes ~90% of house so preservation justifications are false; no competent evidence of hardship | Testimony showed elevated first floor limited upper-floor height; canyon-like shadowing, need to preserve oak tree and privacy created hardships not generally applicable; renovations preserve façade and neighborhood character | Affirmed: conflicting evidence existed and record contained competent evidence supporting Board; decision not against manifest weight of evidence |
| Whether side and front setback variations are permissible given nonconformity rules | Variations effectively reestablish nonconformities after major demolition, so prohibited | Requested side setbacks do not increase the extent of existing nonconformities (some requested setbacks lie within current nonconforming dimensions); front setback identical to existing nonconformity and needed to retain porch | Affirmed: side and front variations do not increase nonconformity extent and are permissible under the Code |
| Whether the Trust created its own hardships by prior condition or could have planned to fit within current nonconformities | Trust created hardships by acquiring property and planning a larger renovation; alternate compliant designs were available | Board had evidence of unique site constraints and credibility determinations favor Trust; mere existence of alternate plans does not preclude hardship finding | Affirmed: credibility and conflicting testimony are matters for the Board; plaintiffs' alternate plans do not make Board decision manifestly erroneous |
| Standard of review applicable to Board factual findings | (argued) mixed question; clear-error review applies | (argued) factual challenge; manifest-weight/arbitrary-and-capricious review applies | Court applied deferential review: agency findings prima facie true; affirmed because record contained supporting evidence |
Key Cases Cited
- Provena Covenant Medical Center v. Department of Revenue, 236 Ill. 2d 368 (explaining standard for reviewing agency decisions and mixed questions of law and fact)
- Abrahamson v. Illinois Department of Professional Regulation, 153 Ill. 2d 76 (agency factual findings upheld if record contains evidence to support them)
- Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200 (reviewing court does not substitute its judgment for that of the agency)
- Wade v. City of North Chicago Police Pension Board, 226 Ill. 2d 485 (decision against manifest weight requires opposite conclusion be clearly evident)
- Weinstein v. Zoning Board of Appeals of the City of Highland Park, 312 Ill. App. 3d 460 (conflicting testimony resolved by zoning board supports upholding variation grant)