Dunlap v. Village of Schaumburg, 1-08-1358.

• Decision Date: 25 September 2009
• Docket Number: No. 1-08-1358.,1-08-1358.
• Citation: 915 N.E.2d 890
• Parties: Deborah DUNLAP, Plaintiff-Appellant, v. VILLAGE OF SCHAUMBURG, William Wehmeier, and Patricia Wehmeier, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

915 N.E.2d 890

Deborah DUNLAP, Plaintiff-Appellant, v. VILLAGE OF SCHAUMBURG, William Wehmeier, and Patricia Wehmeier, Defendants-Appellees.

No. 1-08-1358.

Appellate Court of Illinois, First District, Sixth Division.

September 25, 2009.

Thomas E. Sullivan, Downers Grove, IL, for Appellant.

Jack M. Siegel, Holland & Knight LLP, Chicago, IL, for Appellees.

Justice JOSEPH GORDON delivered the opinion of the court:

Homeowner Deborah Dunlap filed this suit challenging a decision by the Village of Schaumburg (the Village) to issue a zoning variance to neighboring homeowners William and Patricia Wehmeier. The Village's zoning ordinance requires homeowners to maintain a 30-foot backyard. The variance at issue allowed the Wehmeiers to build a patio room at the back of their single-family home which would come within 19 feet, 3 inches of their rear lot line. Dunlap contended that the granting of this variance was contrary to both local ordinance and state statute. The trial court granted summary judgment in favor of the Village and the Wehmeiers, and Dunlap now appeals. For the reasons that follow, we affirm.¹

I. BACKGROUND

Dunlap's second amended complaint against the Village and the Wehmeiers alleges the following facts, which are not in dispute. Dunlap and the Wehmeiers both reside in single-family homes in the Village. The Wehmeiers' residence is immediately adjacent to and abuts the backyard of Dunlap's residence. Both homes are in an R-6 zoning district for single-family residential homes. The Illinois Municipal Code (65 ILCS 5-11-13-1 et seq. (West 2006)) (hereinafter Zoning Enabling Act) provides that R-6 lots are required to maintain a backyard of 30 feet. On June 12, 2006, the Wehmeiers applied to the Village for a zoning variance to allow them to build a patio room at the back of their house which would extend to within 19 feet 3 inches of their rear lot line. The Village plan commission held a public hearing on this request, and over Dunlap's objection, they issued a unanimous recommendation to the Village board that the variance be granted. The Village board voted to adopt this recommendation and passed an ordinance granting the requested zoning variation on August 8. Subsequently, a building permit was issued to the Wehmeiers to allow them to begin construction of the patio room.

Dunlap contended that the granting of this ordinance was improper under both Village ordinance and state statute. With regard to the former, she claimed that under section 154.45 of the Schaumburg Village Code (Village Code) (Schaumburg Village Code § 154.45 (eff. February 12, 2002)), the Village plan commission was only authorized to recommend a variation where carrying out the Zoning Enabling Act as written would cause particular difficulties or hardship, which she alleged the Wehmeiers did not and could not prove. Similarly, with regard to the latter, she claimed that under state statute (65 ILCS 5/11-13-1 et seq. (West 2006)), the Village was not authorized to grant a variation absent a showing of "practical difficulties or particular hardship" (65 ILCS 5/11-13-5 (West 2006)) in enforcing the Zoning Enabling Act.

Dunlap therefore brought suit against the Village and the Wehmeiers, relying upon section 11-13-15 (65 ILCS 5/11-13-15 (West 2006)), a provision of the Zoning Enabling Act that empowers private landowners under certain circumstances to bring suit to prevent unlawful land usage:

"In case any building or structure, including fixtures, is constructed * * * in violation of an ordinance or ordinances adopted under Division 13, 31 or 31.1 of the Illinois Municipal Code, or of any ordinance or other regulation made under the authority conferred thereby, * * * any owner or tenant of real property, within 1200 feet in any direction of the property on which the building or structure in question is located who shows that his property or person will be substantially affected by the alleged violation, in addition to other remedies, may institute any appropriate action or proceeding * * * to restrain, correct, or abate the violation." 65 ILCS 5/11-13-15 (West 2006).

Dunlap sought declaratory judgment against the Village and the Wehmeiers to invalidate the variance and enjoin the Wehmeiers from maintaining any structure within 30 feet of their rear lot line.

The Village filed an answer in which it admitted Dunlap's factual allegations but denied that its granting of the ordinance was in violation of any law. It first contended that Dunlap did not have a valid cause of action against any of the defendants under section 11-13-15, because the statute did not empower private landowners such as Dunlap to sue the public body that granted the ordinance, nor did it empower suit against the Wehmeiers, who were not in violation of any ordinance, as they were acting pursuant to a variance. The Village further contended that a showing of hardship was not required for its variance to be upheld. Rather, it contended that the validity of the variance, as a legislative act by a home rule municipality, was to be determined solely in accordance with the constitutionally mandated standards as set out in La Salle National Bank of Chicago v. County of Cook, 12 Ill.2d 40, 46, 145 N.E.2d 65, 69 (1957), which provides that zoning ordinances are within the discretion of municipalities unless they are "arbitrary, capricious or unrelated to the public health, safety and morals."²

The Village subsequently filed a motion to dismiss pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2006)), contending that Dunlap could not maintain an action under section 11-13-15 against any of the defendants, for the reasons previously stated in its answer to Dunlap's complaint. The trial court denied the motion. It found that, although a cause of action did not lie against any of the defendants under section 11-13-15, Dunlap could nevertheless proceed under the 2006 amendment to section 11-13-25(a):

"Any special use, variance, rezoning, or other amendment to a zoning ordinance adopted by the corporate authorities of any municipality, home rule or non-home rule, shall be subject to de novo judicial review as a legislative decision, regardless of whether the process of its adoption is considered administrative for other purposes." 65 ILCS 5/11-13-25(a) (West 2006).

The trial court found that pursuant to this section, the zoning variance at issue was a legislative act, which made it subject to judicial review with respect to its compliance with the standards articulated in La Salle.

On January 30, 2008, the Village filed a motion for summary judgment in which the Wehmeiers later joined. In its motion, the Village reiterated its argument that Dunlap did not have a valid cause of action against the defendants under section 11-13-15. It additionally argued that, even if Dunlap were allowed to proceed under section 11-13-25(a), she still could not prevail, because she could not demonstrate by clear and convincing evidence that the zoning variance was arbitrary and capricious under the standard articulated in La Salle, which it contended was the sole applicable standard for evaluating the validity of the variance.

Dunlap filed a cross-motion for summary judgment on February 1, 2008. In her motion, she argued that, contrary to the Village's contention, the Village lacked the power to grant the zoning variance absent a showing that the Wehmeiers would suffer hardship if the variance were not granted. She further contended that the Village and the Wehmeiers had failed to present any evidence of hardship that would create a material issue of fact as to that question.

In ruling upon the motion for summary judgment, the court considered the affidavit of Patricia Wehmeier, in which she averred that she had been diagnosed with basal cell carcinoma in 2000 and, as a result, her health care professionals had told her to avoid extended exposure to sunlight. It was allegedly because of this condition that she and her husband decided to build the patio room so that she could derive use and simple enjoyment from her home's backyard. "Affiant's medical condition required the room to be added," stated the affidavit, "and failure to utilize the full extent of her property constituted a significant and extended hardship."

The court also considered the depositions of Dunlap and the Wehmeiers, as well as the depositions of expert witnesses from both sides. Christopher Huff, expert witness for the Village, identified himself in his deposition as the Village's director of community development. He testified that it was his job to deal with applications for zoning variances in the Village. He would assign each application to a case manager, who would prepare a draft recommendation to either grant or deny the requested variance; the recommendation would then be sent to him for his approval. This would occur before any hearing on the variance was held.

Huff stated that he recommended that the Wehmeiers' request for a variance be granted for a number of reasons. First, he stated that the patio room was to be built on the site of a previously existing deck that had been in the backyard since 1978. He explained that this deck was in conformity with Village ordinances, which classify decks as accessory structures that are not subject to the 30-foot rule. As a result of this preexisting deck, Huff stated, the construction of a patio room would not decrease the green space in the yard at all.

Second, Huff stated that there had been many other, similar variances granted in the Village, including 14 within 1,200 feet of the Wehmeiers' residence. He said that the Village is typically "very accommodating" in granting variances extending up to around 18 feet from the back property line. Furthermore, he stated, "it is a very normal utilitarian porch addition to an existing suburban home, and there are any number of thousands of those scattered throughout...