Heft v. Zoning Bd. of Appeals of Peoria County

• Decision Date: 29 September 1964
• Docket Number: No. 38250,38250
• Citation: 201 N.E.2d 364,31 Ill.2d 266
• Parties: Kenneth W. HEFT et al., Appellants, v. The ZONING BOARD OF APPEALS OF PEORIA COUNTY et al., Appellees.
• Court: Illinois Supreme Court

Page 364

201 N.E.2d 364

31 Ill.2d 266

Kenneth W. HEFT et al., Appellants, v. The ZONING BOARD OF APPEALS OF PEORIA COUNTY et al., Appellees.

No. 38250.

Supreme Court of Illinois.

Sept. 29, 1964.

Arthur G. Greenberg, Peoria, for appellants.

Thomas W. Kehr, Chillicothe, James V. Cunningham, Peoria, and Byron S. Matthews and Thomas A. Matthews, Chicago, for appellees.

HERSHEY, Justice.

The Greater Chillicothe Sanitary District of Peoria County filed with the Peoria County zoning department a request for a building permit to construct on a certain parcel of land a sewage disposal plant. This was denied. Thereafter, a petition was filed with the Zoning Board of Appeals of Peoria County for a variation in use of the subject property for such purpose. The plant was to consist of an administration building, parking facilities, a clarifier, a digester and five open sludge drying beds with other necessary appurtenances. The north half of the property was zoned 'C' residential, and the south half 'E' light industrial, neither of which zones permitted a sewage disposal plant. Plaintiffs are owners of land adjacent to the property for which the variation was sought and they appeared as objectors to the petition. The Zoning Board of Appeals heard extensive evidence and granted the variation. Thereafter, a building permit was issued on March 13, 1963. No objectors appealed from the order issuing the building permit. No stay of proceedings was requested as provided in the county zoning ordinance. On April 15, 1963, plaintiffs filed a complaint for administrative review in the circuit court of Peoria County praying that the decision of the Zoning Board of Appeals be set aside, reversed and nullified. The circuit court affirmed the decision of the Zoning Board of Appeals. The Sanitary District constructed the plant and at the time of this appeal the plant was near completion.

This appeal was taken by plaintiffs to reverse the judgment of the circuit court, the plaintiffs contending (1) that the part of the statute authorizing county zoning regulations to confer upon the Board of Appeals authority to vary or modify the zoning ordinance where there are practical difficulties or particular hardships in carrying out the strict letter as to use is an unconstitutional delegation of legislative authority, since no standard is set forth for determining what are practical difficulties or particular hardships (Ill.Rev.Stat.1963, chap. 34, pars. 3154-3157); (2) that section 16.1 of article 16 ot the Peoria County zoning ordinance, based on said statute, is illegal, void and unconstitutional and does not delegate to the Zoning Board of Appeals the right to change the use of land; and (3) that the findings of the Zoning Board are arbitrary, unsupported by evidence, amount to a denial of due process, and are contrary to public policy.

The Illinois law originally provided that the zoning board of appeals should be authorized to grant variations. In Welton v. Hamilton, 344 Ill. 82, 176 N.E. 333, this statute was held to be unconstitutional as being an unconstitutional delegation of legislative power to the board of appeals in a case where the fact that the owner of the property could make more money by disregarding zoning regulations was held not a 'difficulty' or 'hardship' sufficient to permit a variation. In that case, the board granted permission to build an apartment building to a height of 214 feet in a district where the maximum height permitted by the zoning ordinance was 72 feet. The action of the Board was a clear abuse of discretion and was not based on any finding of fact. Thereafter, the statute was amended by authorizing a variation by ordinance after a hearing before a board of appeals or a variation by the board of appeals in accordance with general or specific rules therein contained in cases where there are practical difficulties or particular hardships in the way of carrying out the strict letter of the regulations relating to the use, construction or alteration of buildings or structures or the use of the land. In each case a public hearing is required and the body must make a finding of fact specifying the reason for making the variation. Since this amendment, the constitutionality of the provision authorizing granting of variations has not been challenged in this court. The statute authorizing zoning boards of appeals of cities to grant variations is substantially similar to the statute governing zoning boards of appeals of counties to grant variations.

Subsequent to the decision in Welton v. Hamilton, and the amendment of the statute, this court has at numerous times recognized that variations as to use of property may be granted where supported by findings of fact. Thus, in Downey v. Grimshaw, 410 Ill. 21, 101 N.E.2d 275, where the ordinance provided that variations be granted by the village board, a variation was granted and upheld. Variations by boards of appeals have been upheld in many cases, of which a few are Bank of Lyons v. Cook County, 13 Ill.2d 493, 150 N.E.2d 97, Sinclair Pipe Line Co. v. Village of Richton Park, 19 Ill.2d 370, 167 N.E.2d 406, and Fox v. City of...