{ "id": 3520640, "name": "GEORGE H. BAKER, SR., et al., Plaintiffs-Appellees, v. THE COUNTY OF PEORIA et al., Defendants-Appellants", "name_abbreviation": "Baker v. County of Peoria", "decision_date": "1983-07-18", "docket_number": "No. 82\u2014694", "first_page": "518", "last_page": "522", "citations": [ { "type": "official", "cite": "116 Ill. App. 3d 518" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "415 A.2d 946", "category": "reporters:state_regional", "reporter": "A.2d", "opinion_index": 0 }, { "cite": "52 Pa. Commw. 224", "category": "reporters:state", "reporter": "Pa. Commw.", "case_ids": [ 1910783 ], "opinion_index": 0, "case_paths": [ "/pa-commw/52/0224-01" ] }, { "cite": "153 N.E.2d 79", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "14 Ill. 2d 470", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2770149 ], "opinion_index": 0, "case_paths": [ "/ill-2d/14/0470-01" ] }, { "cite": "388 N.E.2d 1316", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "70 Ill. App. 3d 712", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5579315 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/70/0712-01" ] } ], "analysis": { "cardinality": 584, "char_count": 11902, "ocr_confidence": 0.763, "pagerank": { "raw": 9.23948272833992e-08, "percentile": 0.5109286294297467 }, "sha256": "2cc8ff96692eab6aed0dfc043c7329cda17a1c9fcca9c172762203e2958c0dda", "simhash": "1:24a23dfb0c7cf39f", "word_count": 1934 }, "last_updated": "2023-07-14T17:34:21.721217+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "GEORGE H. BAKER, SR., et al., Plaintiffs-Appellees, v. THE COUNTY OF PEORIA et al., Defendants-Appellants." ], "opinions": [ { "text": "JUSTICE SCOTT\ndelivered the opinion of the court:\nSince January 1981, the plaintiff, George H. Baker, has been raising 15 different species of cranes on his property in rural Peoria County. Some of the cranes which Mr. Baker raises are on the International Endangered Species list. Mr. Baker has State and Federal permits to engage in the breeding, raising and transfer of these large birds. In order to provide for suitable winter shelter for these tropical species to survive in Illinois, Mr. Baker began construction of four structures along the eastern boundary of his property. The shelter structures are of a prefabricated quonset style built on skids and located on concrete pads. The pads are located within four feet of Mr. Baker\u2019s property line.\nIn September 1981, a Peoria County zoning inspector discovered the crane shelters and advised Mr. Baker that the shelters were built too close to the property line and thus did not comply with the county\u2019s setback ordinance. Mr. Baker was advised that in order to bring the shelters in compliance with the county zoning ordinance, specifically the setback ordinance, it would be necessary to move the shelters at least 15 feet from his property line or to have a variance issued.\nMr. Baker then applied to the Peoria County Zoning Board of Appeals for a variance from the 15-foot setback requirement. The request for a variance was denied after a public hearing held November 19, 1981. In January 1982, the plaintiff filed a complaint for administrative review in the circuit court of Peoria County. The circuit court remanded the matter to the zoning board of appeals for the taking of additional evidence. After the additional evidence was taken, the circuit court heard the arguments of plaintiff and the defendant county, and issued a decision permitting the crane shelters to remain as constructed on Mr. Baker\u2019s property. In doing so, the circuit court made two findings. First, the circuit court determined that the setback ordinance applied only to permanent structures, not temporary or movable structures built on skids as were the crane shelters. Second, the circuit court determined that even if the setback ordinance applied to the temporary structures, the denial of the request for a variance was arbitrary and capricious. The county of Peoria has appealed this decision.\nIn the first point raised on review, the county urges that the setback ordinance, properly construed, regulates both temporary as well as permanent structures. The county points out that the setback ordinance applies to \u201cbuildings\u201d and buildings are defined as \u201cany structure designed or intended for the support, enclosure, shelter or protection of persons, animals or property.\u201d The Peoria County zoning administrator, Lou Sidell, testified in the record of this proceeding that the definition of \u201cbuilding\u201d represents a revision which occurred in 1978. At that time, the Peoria County Board voted to strike the word \u201cpermanent,\u201d to eliminate problems in distinguishing between temporary and permanent structures caused by the prior definition. We agree with the county that the general presumption of statutory construction is that phrases or provisions omitted in an amendment of an act results in their repeal. (People v. Delay (1979), 70 Ill. App. 3d 712, 388 N.E.2d 1316.) Thus, under the instant facts, where distinctions between temporary and permanent structures were eliminated from the definition set forth in the ordinance, it must be concluded that the county board intended to change the law to treat all buildings in a like manner. We believe the circuit court\u2019s conclusion to the contrary was in error.\nThe county of Peoria also contends that the circuit court erred when it determined that the denial of the variance was arbitrary and capricious. In order to evaluate this alleged error, it is necessary to set forth more fully the purposes which the zoning ordinance is intended to serve and the unique facts underlying this request for variance. Side-yard setback requirements are generally designed to assure adequate light, air and privacy. (1954 U. Ill. L. F. 213, 228.) Our supreme court has determined that such ordinances have a reasonable relationship to the purposes of the police power. It cannot be denied that the observance of a reasonable setback minimum tends to prevent the overcrowding of land, to promote safety from fire and other dangers, and to secure adequate light, air and sunshine. (Stemwedel v. Village of Kenilworth (1958), 14 Ill. 2d 470, 153 N.E.2d 79.) In determining whether the setback requirements of the Peoria County Zoning Ordinance should be varied according to Mr. Baker\u2019s petition, the zoning board of appeals is mandated to consider whether such variation would be \u201cin harmony with the general purpose and intent of such regulations.\u201d Peoria County Zoning Ordinance sec. 17.\nThe evidence in the record before the zoning board of appeals demonstrates that Mr. Baker considered three different locations on his property as sites for the crane shelters. The first location was on the flat area along the front line of his property. The second location was on high ground under a grove of large oak trees. The third location, and the location Mr. Baker, to his legal detriment, ultimately chose as the site for the crane shelters, was in a gully to the north side of his property. There, the shelters were well buffered from the view of his neighbors by trees and shrubs. Because of the topography of Mr. Baker\u2019s property, locating the shelters in the gully caused their rooftops to be lower than the property of his adjacent neighbors. In contrast, locating the shelters along the front line of his property or under the large oak trees would have caused them to be far more visible, more aesthetically offensive, and a greater burden to light, air and sunshine for his neighbors. Nevertheless, the location of the shelters along the front line of his property or under the large oak trees would have been in compliance with the Peoria County Zoning Ordinance.\nMost of Mr. Baker\u2019s neighbors offered no objection, indeed they consented, to the location of the bird shelters at the site in the gully. Two neighbors appeared at the hearing before the zoning board of appeals and objected to the variance which Mr. Baker sought. A review of the objections posed by these neighbors reveals that their disagreement was not with the location of the crane shelters in the gully, but rather with the zoning ordinance classifying the raising of cranes as a legal and permitted use in the rural Peoria County area in question.\nThe type of variance which Mr. Baker has applied for is commonly labeled an \u201carea\u201d variance.\n\u201cAn \u2018area\u2019 variance does not involve a change of use but, rather, involves relief from restriction such as those pertaining to setback lines, height restrictions, lot-size restrictions, and the like. In other words, an \u2018area\u2019 variance is a shorthand description of a variance from structural or lot-area restrictions.\nBroadly speaking, the requirements as to the showing necessary to obtain an area variance are less stringent than those applicable to a use variance, for the reasons that an area variance does not affect the use of the land, is less drastic in effect, and does not pose the threat of an incompatible use in the neighborhood. Thus, it is the rule in some states that the requirement of \u2018unnecessary hardship\u2019 applies to use variances, but that an area variance may be granted upon a showing that a literal application of the zoning regulation would result in \u2018practical difficulties.\u2019 It is generally agreed that proof of practical difficulties is a less stringent requirement than proof of unnecessary hardship.\u201d 82 Am. Jur. 2d Zoning and Planning sec. 278 (1976).\nThe Peoria County Zoning Ordinance provides that where\n\u201c*** because of certain exceptional conditions peculiar to the applicant\u2019s property, the strict application of the regulations of this chapter would result in practical difficulties or particular hardship in carrying out the strict letter of any regulation relating to *** setbacks, *** the Zoning Board shall have the power to determine and vary their application in harmony with the general purpose and intent of such regulations.\u201d\nThe ordinance then continues to set forth a series of stringent tests to be applied where the zoning board is asked to \u201cgrant a variance to allow a use not permissible under the terms of this chapter in the district involved ***.\u201d Such stringent tests are not applied where an area variance is sought. The only requirements which must be met where the zoning board is asked to grant an area variance are (1) exceptional conditions peculiar to the applicant\u2019s property, (2) practical difficulties or particular hardships in carrying out the strict letter of the regulation, and (3) harmony with the general purpose and intent of the zoning regulations.\nThis case appears to present an issue unique to zoning law. While it is not unique to grant a variance by showing that the topographical features of property are such that it cannot be used for its permitted purpose (Marlowe v. Zoning Hearing Board (1980), 52 Pa. Commw. 224, 415 A.2d 946), the facts of the instant case are different. Here, Mr. Baker freely admits that the topography of his property presents no barrier to the use permitted under the Peoria County Zoning Ordinance, that is, the raising of cranes. In fact, Mr. Baker concedes there are two locations on his property where the permitted use could be undertaken in compliance with the ordinance. Indeed, as the county points out in their brief filed before this court, \u201cthe Zoning Board of Appeals, with all the evidence and testimony before it, determined that Baker\u2019s hardship is self imposed, and there are other permissible sites on the property.\u201d\nThe unique circumstances of this case are that the purposes of the setback ordinance are thwarted if the ordinance is enforced, while the purposes of the setback ordinance are promoted if the ordinance is not enforced and a variance is granted. If Mr. Baker is forced to locate the crane shelters under the grove of oak trees or along the front line of his property, his neighbors\u2019 interest in adequate light, air and sunshine will be defeated. The shelters will be more conspicuous to his neighbors and more aesthetically offensive. Yet, a strict application of the zoning ordinance would require this result.\nWe believe these exceptional conditions are indeed peculiar to Mr. Baker\u2019s property. We believe this unique circumstance presents a practical difficulty in carrying out the strict letter of the setback ordinance. And it is clear that a variance from the strict application of the setback ordinance would be in harmony with the general purpose and intent underlying the ordinance. To otherwise conclude, to find that a variance should be denied under these facts, would countenance the absurd result of frustrating the public policy with the very ordinance that codifies that policy.\nIn conclusion, we agree with the circuit court that under these unique circumstances, a practical difficulty does exist, and to deny the variance requested was arbitrary and capricious. This is a particularly appropriate case for granting < a variance. In reliance on the authorities hereinbefore set forth, we affirm the decision reached by the circuit court of Peoria County.\nAffirmed.\nSTOUDER, P.J., and HEIPLE, J., concur.", "type": "majority", "author": "JUSTICE SCOTT" } ], "attorneys": [ "Jack Vieley, of Peoria, for appellants Don L. Monari and Marilyn J. Monari.", "John A. Barra, State\u2019s Attorney, of Peoria (Louise Natonek, Assistant State\u2019s Attorney, of counsel), for other appellants.", "Mishael O. Card, of Swain, Johnson & Card, of Peoria, for appellees." ], "corrections": "", "head_matter": "GEORGE H. BAKER, SR., et al., Plaintiffs-Appellees, v. THE COUNTY OF PEORIA et al., Defendants-Appellants.\nThird District\nNo. 82\u2014694\nOpinion filed July 18, 1983.\nJack Vieley, of Peoria, for appellants Don L. Monari and Marilyn J. Monari.\nJohn A. Barra, State\u2019s Attorney, of Peoria (Louise Natonek, Assistant State\u2019s Attorney, of counsel), for other appellants.\nMishael O. Card, of Swain, Johnson & Card, of Peoria, for appellees." }, "file_name": "0518-01", "first_page_order": 540, "last_page_order": 544 }