Dyer v. Zoning Bd. of Appeals of Arlington Heights

• Decision Date: 31 January 1989
• Docket Number: Nos. 87-2814,87-3566,s. 87-2814
• Citation: 128 Ill.Dec. 324,179 Ill.App.3d 294,534 N.E.2d 506
• Parties: , 128 Ill.Dec. 324 Kim DYER, John Dyer, Michael Witt and Diane Witt, Plaintiffs-Appellants, v. ZONING BOARD OF APPEALS OF ARLINGTON HEIGHTS, Village of Arlington Heights, Gary Dienstag, Anthony Tomaso, William W. Kurnik, Norma Damm, A.T. Berk, George Hauff, F. Marks, William Farrington, Susan Farrington, Glen Davis, and McKone Builders, Inc., all individually, Defendants-Appellees. Kim DYER, John Dyer, Michael Witt, Diane Witt and James Jarvis, Plaintiffs- Appellees, v. William FARRINGTON and Susan Farrington, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 506

534 N.E.2d 506

179 Ill.App.3d 294, 128 Ill.Dec. 324

Kim DYER, John Dyer, Michael Witt and Diane Witt, Plaintiffs-Appellants, v. ZONING BOARD OF APPEALS OF ARLINGTON HEIGHTS, Village of

Arlington Heights, Gary Dienstag, Anthony Tomaso, William W.

Kurnik, Norma Damm, A.T. Berk, George Hauff, F. Marks,

William Farrington, Susan Farrington, Glen Davis, and McKone

Builders, Inc., all individually, Defendants-Appellees.

Kim DYER, John Dyer, Michael Witt, Diane Witt and James

Jarvis, Plaintiffs- Appellees, v. William FARRINGTON and Susan Farrington, Defendants-Appellants.

Nos. 87-2814, 87-3566.

Appellate Court of Illinois,

First District, Second Division.

Jan. 31, 1989.

James S. Jarvis, Greenberg, Keele, Lunn & Aronberg, Chicago, for Kim Dyer, John Dyer, Michael Witt and Diane Witt.

Lee T. Hettinger, Chicago, for William Farrington and Susan Farrington.

Jack M. Siegel, Chicago, for Zoning Bd. of Appeals of Arlington Heights, Village of Arlington Heights, Gary Dienstag, Anthony Tomaso, William W. Kurnik, Norma Damm, A.T. Berk, George Hauff and F. Marks.

Justice SCARIANO delivered the opinion of the court:

In this consolidated action plaintiffs appeal the dismissal of their amended complaint, in which they sought to reverse a certain zoning variation granted to defendants William and Susan Farrington. Additionally, the Farringtons appeal the denial of their motion for sanctions against plaintiffs.

The issues raised in this appeal are as follows: (1) whether the trial court erred in dismissing plaintiffs' amended complaint for lack of standing and in denying their motion for reconsideration, motion for rehearing and request for leave to file a second amended complaint; (2) whether the trial court erred in denying plaintiffs' motion to strike the pleadings of the Zoning Board of Appeals of Arlington Heights (ZBA) as being those of a nominal defendant with no interest in the proceedings; and (3) whether the trial court erred in denying the Farringtons' motion for sanctions against plaintiffs.

The Farringtons lived in a home on a 78-foot lot contiguous to the vacant 50-foot lot which is the subject of this appeal. Some time prior to September 1985 plaintiffs Kim and John Dyer purchased the Farrington home. At that time they declined to exercise their option to buy the adjacent lot, which was under contract to a builder for the construction of a single family residence. The Farringtons' agreement with the builder allowed them to cancel their contract with him if they found someone willing to buy both their home and the vacant lot. The Witts live adjacent to the Farringtons' lot (the exact location of their property is not specified in the record), and James Jarvis is an attorney who lives in the subdivision.

In September 1985 ZBA denied the contract buyer's petition for a variation on the vacant lot, i.e., to reduce its size for building purposes from the zoning requirement of 70-feet to 50-feet, but in February 1986 the Farringtons' petition for the same variance was granted. Plaintiffs then filed a complaint in administrative review in the circuit court of Cook County. The Farringtons' and ZBA's motions to dismiss plaintiffs' complaint were granted; accordingly, plaintiffs filed an amended complaint, alleging that the granting of the variance would alter the essential character of the neighborhood, result in a decrease in the value of the property of adjacent landowners, cause flooding problems for adjacent landowners and that "the plight of the Farringtons was not due to unique circumstances." Plaintiffs sought an order reversing the ZBA's decision granting a variance, as well as an order directing the ZBA to file with the court the transcript of the two meetings at which the variation was discussed. Plaintiffs attached as exhibits to their amended complaint a letter written by Mrs. Farrington to the Arlington In her letter, Mrs. Farrington explained that their house was on a 78-foot lot with some 15 to 20 feet between it and the boundary line of the adjoining vacant 50-foot lot; that because Mr. Farrington's work required it, they moved out of state, thus putting them under some time pressure to complete the sale of their home; that they had originally hoped to sell their house and vacant lot as one parcel, but after a few weeks they took the advice of their realtor and listed the lots separately; and that if a variance were not permitted for the 50 foot lot, that property would be worthless to them. The ZBA found as follows:

[128 Ill.Dec. 326] Heights Planning Commissioner, and the "findings" of the ZBA. (Plaintiffs attached a more detailed "findings" statement and the minutes of the ZBA hearing at which the variance was granted to their original complaint but did not include these in their amended complaint.)

"The petitioner, upon advice of a realtor, sold the house located on 78' of frontage in 1985, and attempted to sell a 50' vacant lot to a builder at the same time. The builder has subsequently defaulted on the contract and the Zoning Board of Appeals has previously denied a request by the developer for a variance to construct a single family residence.

* * *

* * *

Testimony was introduced that the petitioner would suffer a financial hardship if the variation were not granted and that his property would not yield a reasonable rate of return. * * *

Testimony was introduced that a significant portion of the lots and the homes in the area were built on 50' lots and that the granting of the variation would not alter the property value."

Defendants' motion to dismiss the amended complaint with prejudice on the basis of lack of standing was granted, and thereafter the trial court denied plaintiffs' motion for rehearing which pleaded, in the alternative, for leave to file a second amended complaint. (Transcripts of the hearings on these motions are not included in the record on appeal.) The trial court also denied the Farringtons' motion for sanctions. (A transcript of this hearing, but not an order denying the motion, is included in the record.) Both parties appeal the denial of their respective motions.

OPINION

Plaintiffs contend that they have sufficiently alleged a protectable interest, and that therefore they have standing. Our supreme court has addressed the issue of standing in a zoning matter in a number of cases, including Winston v. Zoning Board of Appeals (1951), 407 Ill. 588, 95 N.E.2d 864, and 222 East Chestnut Street Corp. v. Board of Appeals of City of Chicago (1956), 10 Ill.2d 130, 139 N.E.2d 221, cert. denied (1957), 353 U.S. 984, 77 S.Ct. 1284, 1 L.Ed.2d 1143.

In Winston, plaintiffs' complaint, in which they sought a review of a zoning board's decision to grant a variance permitting construction of an apartment building, was dismissed for lack of standing. Plaintiffs had alleged that they were property owners "in the vicinity of the premises involved" and that the value and use of their property would be adversely affected by the granting of the variance. The supreme court upheld the dismissal, stating:

"To show a cause of action, it was incumbent upon plaintiffs to allege specific facts showing that they were parties to the administrative proceeding whose rights, privileges or duties were adversely affected by the decision of the zoning board. [Citations.] This, they have failed to do and, consequently, the complaint does not state a cause of action." 407 Ill. at 595, 95 N.E.2d 864.

In 222 East Chestnut, the owner of an apartment building situated in the same zoning district as a proposed apartment building sought to reverse the decision of the board granting a variance to the trustee of the proposed structure. The trial court, "after hearing questions presented by the record, affirmed the board's decision and dismissed the complaint." (10 Ill.2d at 133, 139 N.E.2d 221) The supreme court affirmed the dismissal, stating "We have heretofore held that the right to review a final administrative decision is limited to those parties of record in the proceeding before the administrative agency 'whose rights, privileges, or duties are affected by the decision.' (Winston v. Zoning Board of Appeals, 407 Ill. 588 .) * * * In affirming a judgment dismissing the complaint, this court held that to state a cause of action specific facts must be alleged showing that the plaintiffs were injured or damaged by the decision sought to be reviewed.

In the case at bar the complaint alleges that granting the variation would substantially injure plaintiff's property in that its light, air and fire protection would be interfered with, its 'taxable value' would be diminished, and traffic congestion would be increased near and in front of it. The allegations were denied by defendants. In its brief plaintiff fails to show any evidence whatever to support them, nor have we found such support in the record. * * * We think * * * that under our decision in the Winston case it was incumbent upon plaintiff to allege and prove it would in fact be adversely affected by the board's decision." (10 Ill.2d at 136, 139 N.E.2d 221.)

See also 222 East Chestnut Street Corp. v. Board of Appeals of City of Chicago (1958), 14 Ill.2d 190, 192, 152 N.E.2d 465 ("[W]e held it is incumbent upon the party seeking review to both allege and prove that the board's decision would in fact adversely affect such party. * * * This is in accord with the majority view which holds that the right to maintain a suit in such cases depends upon whether the zoning inflicts a special or peculiar injury upon the party bringing suit."); Allender v. Zoning Board of Appeals (1978), 63 Ill.App.3d 204, 210, 21 Ill.Dec. 69, 381 N.E.2d 4 ("The standing of any person to appeal the result of an administrative review proceeding must appear as a factual matter in the record made before the administrative body.")

Plaintiffs argue that they were denied an opportunity to prove their allegations because their complaint was improperly dismissed,...