{ "id": 4271934, "name": "ROBERT P. TAYLOR et al., Plaintiffs-Appellants, v. THE ZONING BOARD OF APPEALS OF THE CITY OF EVANSTON et al., Defendants-Appellees", "name_abbreviation": "Taylor v. Zoning Board of Appeals", "decision_date": "2007-08-23", "docket_number": "No. 1-05-0374", "first_page": "585", "last_page": "594", "citations": [ { "type": "official", "cite": "375 Ill. App. 3d 585" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "358 N.E.2d 1198", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "44 Ill. App. 3d 815", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2812023 ], "year": 1976, "pin_cites": [ { "page": "820" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/44/0815-01" ] }, { "cite": "409 N.E.2d 450", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "87 Ill. App. 3d 1017", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3178719 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "1023" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/87/1017-01" ] }, { "cite": "736 N.E.2d 650", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "316 Ill. App. 3d 28", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1096577 ], "year": 2000, "pin_cites": [ { "page": "39" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/316/0028-01" ] }, { "cite": "320 N.E.2d 54", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "24 Ill. App. 3d 107", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5308315 ], "year": 1974, "pin_cites": [ { "page": "110" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/24/0107-01" ] }, { "cite": "487 N.E.2d 87", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "139 Ill. App. 3d 98", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3569042 ], "year": 1985, "pin_cites": [ { "page": "102" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/139/0098-01" ] }, { "cite": "278 N.E.2d 131", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1971, "pin_cites": [ { "page": "135" } ], "opinion_index": 0 }, { "cite": "3 Ill. App. 3d 189", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2841585 ], "year": 1971, "pin_cites": [ { "page": "193" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/3/0189-01" ] }, { "cite": "675 N.E.2d 120", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "285 Ill. App. 3d 745", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1295547 ], "year": 1996, "pin_cites": [ { "page": "750-51" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/285/0745-01" ] }, { "cite": "782 N.E.2d 913", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "335 Ill. App. 3d 981", "category": "reporters:state", "reporter": "Ill. 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TAYLOR et al., Plaintiffs-Appellants, v. THE ZONING BOARD OF APPEALS OF THE CITY OF EVANSTON et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE CAMPBELL\ndelivered the opinion of the court:\nThis is an appeal from an order on administrative review. Plaintiffs, Robert P Taylor and Ann L. Carollo-Taylor (plaintiffs or Taylor), are the owners of a building in Evanston. Plaintiffs filed a request with the City of Evanston (City or Evanston) to classify the existing use of the building as a multifamily residence containing five dwelling units. The zoning administrator denied plaintiffs\u2019 application, finding that the property was properly zoned for four dwelling units, and the Zoning Board of Appeals (ZBA) upheld the determination of the zoning administrator. Plaintiffs filed an action for administrative review in the circuit court of Cook County against the ZBA and its directors and members. The circuit court affirmed the determination of the ZBA and plaintiffs now appeal. On appeal, plaintiffs contend that (1) the decision of the ZBA is against the manifest weight of the evidence and contrary to the law, as the ZBA misapplied the zoning ordinance in determining that the property could not be certified for five dwelling units; and (2) plaintiffs\u2019 due process rights were violated when a ZBA member participated in the ZBA hearings, notwithstanding the fact that the member later recused herself from formal deliberations and did not vote on plaintiffs\u2019 zoning request. For the following reasons, we affirm the judgment of the trial court.\nBACKGROUND\nThe following facts are relevant to this appeal. Plaintiffs Robert E Taylor and Ann L. Carollo-Taylor are the owners of a property located at 1026 Garnett Place, Evanston (1026 Garnett or Garnett Property). The record reveals that 1026 Garnett was originally constructed as a single-family home in 1921, concurrent with enactment of the first Evanston Zoning Ordinance of 1921. 1026 Garnett remained a single-family dwelling until 1957, when the owner of 1026 Garnett, a certain O. Spenser, submitted an application for a building permit, to wit: \u201cto alter/build to rear of 3-story frame bldg 2 Apts. Added mating a total of 5 apts [sic].\u201d Evanston issued building permit No. 33191 on this application, as well as a \u201cCertificate of Occupancy and Compliance\u201d No. 7788, to construct and use the three-story building at the Garnett Property \u201cas a 5 Apt Bldg.\u201d\nCity inspection records show that the property was certified for occupancy as five apartments on November 19, 1957. Subsequent inspection reports dated November 12, 1968, January 24, 1984, July 20, 1989, and October 7, 1991, certified the property as containing four dwelling units.\nBrian King purchased the Garnett Property in 1986. Members of the King family occupied the entire Garnett Property as a single-family residence, housing student boarders from time to time.\nAfter the adoption of the original zoning ordinance in 1921, Evanston adopted amended zoning ordinances in 1960 and 1978. The current ordinance, adopted by amendment on April 26, 1993, superseded the 1978 zoning ordinance.\nPlaintiffs acquired 1026 Garnett in 1996, via Brian King\u2019s bankruptcy proceedings.\nIn 1999, Evanston city inspector Lawrence Smith inspected the 1026 Garnett Property and noted a discrepancy between the certificate of occupancy for four units and plaintiffs\u2019 use of the property as a five-unit dwelling. At that time, plaintiffs initiated a petition for a zoning recertification of 1026 Garnett as a five-flat dwelling.\nOn March 13, 2000, Evanston zoning administrator Arthur Alter-son denied plaintiffs\u2019 petition for zoning recertification pursuant to section 6 \u2014 6\u20144\u20147 of the Evanston Municipal Code (hereinafter Zoning Ordinance), which provides as follows:\n\u201c6 \u2014 6\u20144\u20147: CHANGE IN USE:\nA nonconforming use in a noncomplying structure may, upon application to the Zoning Administrator pursuant to Section 6 \u2014 3\u20149, \u2018Administrative Interpretations,\u2019 be changed to another nonconforming use of same or similar type but of less intensity provided; however, that nothing in this Section 6 \u2014 6\u20144\u20147 shall be deemed to authorize any violation of Section 6 \u2014 6\u20144. Whenever any nonconforming use is changed back to a more intensive nonconforming use, such use shall not thereafter be changed back to a more intensive nonconforming use. Whenever any nonconforming use is changed to a conforming use, such use shall not thereafter be changed to a nonconforming use.\u201d Evanston Municipal Code \u00a76 \u2014 6\u20144\u20147 (eff. April 26, 1993).\nAlterson further indicated that the Zoning Ordinance did not provide for the restoration of an abandoned nonconforming use that is substandard as to lot area in an area zoned an R4 General Residence District where multiple-family dwellings are permitted. The requirements of an R4 district are set forth in section 6 \u2014 8\u20145\u20144 of the Zoning Ordinance as follows:\n\u201c6 \u2014 8\u20145\u20144: LOT SIZE:\nOn June 16, 2000, Alterson sent the ZBA the following summary of his findings:\n\u201cZoning lots in the R4 District improved with two-family, single-family attached or multi-family dwellings are required to provide 2,500 square feet per dwelling unit. The subject property has 5,520 square feet, resulting in the residential use of the property being confirming [sic] for no more than two dwellings. While City records contain a Certificate of Occupancy and Compliance dated 11/19/57 for the use of 1026 Garnett as a \u20185 apt bldg,\u2019 City inspection reports dated 11/12/68, 1/24/84 [sic], 7/20/89, and 10/7/91, state that the property contains 4 dwellings.\u201d\nAlterson determined that 1026 Garnett was legally nonconforming for four units and could not be changed back to a more intensive nonconforming use, i.e., to five dwellings.\nPlaintiffs appealed Alterson\u2019s decision to the ZBA. Prior to commencing a hearing on plaintiffs\u2019 appeal, ZBA member Patricia English recused herself from the hearing on the grounds that she was a neighbor to the Garnett property and that, if necessary, she would make a statement as a resident-objector. The hearing officer denied plaintiffs\u2019 motion in limine to prohibit any statement of board member Patricia English and further refused to admit letters submitted by plaintiffs written by individuals who were not present and thus unavailable for cross-examination.\nAlterson testified at the hearing that he made the decision denying certification of the Garnett Property as a five-unit dwelling. Alter-son stated that since 1968, there had been no recordation that 1026 Garnett consisted of five units. Alterson further testified that when plaintiffs applied for a variance for the erection of a garage on the Garnett Property, plaintiffs\u2019 architect stated that there were four units on the property. Alterson identified inspection reports dating November 12, 1968, January 24, 1984, July 20, 1989, and October 7, 1991, and a zoning analysis dated November 21, 1997, all of which identified 1026 Garnett as a four-unit dwelling.\nPlaintiff Robert Taylor testified that he purchased 1026 Garnett on December 19, 1996, as part of the chapter 7 bankruptcy of Brian King. Taylor inspected the property at the time of sale, describing it as a building that is separable in two parts; the \u201cold\u201d part of the building in the front and the \u201cnewer\u201d portion of the building in the back, constructed in 1957. Taylor stated that at the time of purchase, the certificate of occupancy provided that 1026 Garnett contained five dwelling units and that the property was assessed and taxed as a \u201cfive-flat,\u201d but that it was being used as a six-unit dwelling and there were at least six kitchens in the building. Taylor admitted, however, that his contract to purchase 1026 Garnett described the property as a four-unit building and that describing the property as containing four units enabled him to obtain better financing.\nTaylor further testified that upon entering the basement for the first time, \u201cit was a mess,\u201d but that it consisted of a dwelling unit with a lockable door. The first floor consisted of a foyer, coatroom, large parlor, living room, dining room, kitchen and bathrooms. Prior to his purchase of the Garnett Property, the property was occupied by members of the King family and several college students.\nEvanston city inspector Lawrence Smith testified that he inspected 1026 Garnett in the summer of 1999 and found numerous code violations, including impermissible basement and attic apartments. Upon reinspection, the City refused to certify the building for occupancy pending a determination by the zoning department regarding the proper number of dwelling units. Smith further testified that Taylor advertised 1026 Garnett as a six-unit rental building.\nZBA Chairman Gregory E. Norwell testified that the Cook County assessor\u2019s records for the year 2000 classify the Garnett Property as a four-unit apartment building.\nJoe Goodman, a neighbor of the Garnett Property, testified as an objector to a reclassification of the property as a five-unit dwelling. Goodman is the owner of the real estate company Orrington Realty and owns three buildings on Garnett Place. Goodman identified a listing agreement off of the \u201cMultiple Listing Service\u201d (MLS) showing that the Garnett Property was sold to Taylor as a four-unit building. Goodman stated that \u201ccrowding\u201d five to six units into the Garnett Property would create higher density and stress the neighborhood.\nPatricia English, the ZBA member who recused herself from the hearing, testified as an objector stating that she resides at 1023 Gar-nett Place. English stated that she became friendly with the King family in 1979 and that between 1979 and approximately 1994, the property contained three or four units. The King family owned the house and never rented the basement to students. At that time, the first and second floors of the property were occupied by Mrs. Dunbar, her partner, Bruce King, and four children, and the family kept a dog in the basement. Occasionally, two or three people lived in the back of the property.\nWilliam English, Patricia English\u2019s husband, testified that he had lived on Garnett Place for 40 years and never knew anyone to live in the basement of the Garnett Property building. William English knew the floor plan of the Garnett Property because it was identical to the house in which he was raised.\nAt the conclusion of the testimony, the ZBA made findings of fact as follows: Chairman Norwell stated on the record that all of the testimony and evidence in support of classifying the Garnett Property as a five-unit dwelling was based upon the conjecture of the applicant. While the record, in fact, revealed that a certificate of occupancy issued in 1957 for five units, since that time all facts consistently showed the Garnett Property to consist of no more than four dwelling units. Norwell noted that Taylor was unusually experienced in the area of zoning, as he was a member of the Evanston Plan Commission as well as a member of the Evanston Real Property Owners Association.\nZBA member Donald Sampen stated that Taylor knew as early as 1999 that the City would take issue with Taylor\u2019s attempt to certify the building for five units, noting that Taylor wrote a letter to the zoning office stating: \u201c[T]hroughout recent history of this basement apartment, it was a judgement call as to whether there was more living space than storage space.\u201d\nZBA member Barbara Putta agreed that the evidence over time revealed a four-unit building and that the concept of five units was abandoned long before Taylor acquired the property.\nThe ZBA voted unanimously to affirm the decision of the zoning administrator and issued its formal decision on September 5, 2000. On April 26, 2000, plaintiffs filed an administrative review action in the circuit court of Cook County, challenging the interpretation of Evanston Zoning Ordinances sections 6 \u2014 9\u20145\u20144 and 6 \u2014 6\u20144\u20147. After oral arguments, the trial court entered a written memorandum opinion and order on September 24, 2004, affirming the decision of the ZBA, finding that the evidence supported the ZBA\u2019s determination that 1026 Garnett is a four-unit dwelling.\nThe trial court denied plaintiffs\u2019 motion to reconsider on January 5, 2005. On March 3, 2005, plaintiffs filed a late notice of appeal, without objection by defendant, which was allowed by order of this court.\nOPINION\nOn appeal, Taylor contends that the determination of the ZBA was against the manifest weight of the evidence. Taylor initially argues that both Alterson and the ZBA incorrectly applied section 6 \u2014 6\u20144\u20147 of the Zoning Ordinance pertaining to changes in use in deciding his recertification application.\nJudicial review of an administrative decision is governed by the Administrative Review Law (735 ILCS 5/3 \u2014 101 et seq. (West 2004)). On appeal, this court reviews the decision of the administrative agency, not the order of the circuit court. AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 390, 763 N.E.2d 272 (2001). This appeal of the ZBA decision is made pursuant to section 6 \u2014 3\u201411 of the Evanston Zoning Ordinance, which permits an appeal pursuant to the Illinois Municipal Code (65 ILCS 5/11 \u2014 13\u201413 (West 2004)). The findings and conclusions of an administrative agency on questions of fact are deemed prima facie true and correct unless found to be against the manifest weight of the evidence. Abrahmson v. Illinois Department of Professional Regulation, 153 Ill. 2d 76, 88, 606 N.E.2d 1111 (1992).\nTaylor contends that instead of applying section 6 \u2014 6\u20144\u20147, which provides for changes in use, the ZBA should have applied section 6 \u2014 6\u20145\u20141 of the Zoning Ordinance, which provides as follows:\n\u201cNONCOMPLYING STRUCTURES (AS TO BULK):\n6 \u2014 6\u20145\u20141: AUTHORITY TO CONTINUE:\nAny noncomplying structure that is devoted to a use that is permitted in the zoning district in which it is located may be continued so long as it remains otherwise lawful, subject to the restrictions in Sections 6 \u2014 6\u20145\u20142 through 6 \u2014 6\u20145\u20144.\u201d Evanston Municipal Code \u00a76 \u2014 6\u20145\u20141 (eff. April 26, 1993);\nAs well as:\n\u201c6 \u2014 6\u20145\u20142: REPAIR, MAINTENANCE, ALTERATIONS, AND ENLARGEMENT:\nAny noncomplying structure may be repaired, maintained, altered or enlarged; provided, however, that any such repair, maintenance, alteration or enlargement whether in the vertical or horizontal dimension, shall comply with all provisions of this Ordinance. (Ord. 129 \u2014 0\u201494).\u201d Evanston Municipal Code \u00a76 \u2014 6\u2014 5 \u2014 2 (eff. April 26, 1993).\nTaylor argues that because both the past and present use of the Gar-nett Property as a \u201cmultiple-family dwelling\u201d is consistent, the use of a fifth residential unit on the property cannot legally be characterized as nonconforming. Taylor describes the pertinent issue as one regarding the definition of \u201cbulk,\u201d or the number of square feet required per dwelling unit. Taylor states that \u201cbulk standards\u201d is the only issue in this case because the only issue of noncompliance with the ordinance is that the Garnett Property does not comply with the minimum number of square feet required per unit. Taylor concludes that his use of the Garnett property as a multiple-family dwelling is a conforming use in a noncomplying structure.\nA legal nonconforming use is a use that is not permitted under the current zoning ordinance but is allowed to continue because it predates the ordinance. City of Marengo v. Pollack, 335 Ill. App. 3d 981, 782 N.E.2d 913 (2002); Bainter v. Village of Algonquin, 285 Ill. App. 3d 745, 750-51, 675 N.E.2d 120 (1996); J. Beidler Camp v. City of Evanston, 3 Ill. App. 3d 189, 193, 278 N.E.2d 131, 135 (1971). \u201cThe right to a legal nonconforming use is a property right that cannot be taken away unreasonably or for reasons not based on public welfare.\u201d Pollack, 335 Ill. App. 3d at 986, citing Hammond v. City of Chicago, 139 Ill. App. 3d 98, 102, 487 N.E.2d 87 (1985); Sanderson v. De Kalb County Zoning Board of Appeals, 24 Ill. App. 3d 107, 110, 320 N.E.2d 54 (1974). However, a use that was not lawful at its inception is not a legal nonconforming use and therefore may be eliminated if it violates the current zoning ordinances. Wright v. County of Du Page, 316 Ill. App. 3d 28, 39, 736 N.E.2d 650 (2000).\nTaylor contrasts Welch u. City of Evanston, 87 Ill. App. 3d 1017, 409 N.E.2d 450 (1980), citing its holding that a use must be lawful at its inception before it can be protected from elimination by a present ordinance. There, the building owners failed to show that an eleventh unit was ever legally established notwithstanding the custom that a janitor tended to occupy a basement apartment in Evanston buildings constructed during the 1920s. By contrast, Taylor argues, the Garnett Property was expressly zoned for five-unit occupancy in 1957. Therefore, Taylor concludes, the City must refute the 1957 zoning certification in order to certify the property as a four-unit building.\nTaylor\u2019s reliance on Welch is misplaced and his contention is unsupported by the record. Welch held that the party requesting a nonconforming use bears the burden of establishing that the use was legally established at the time the zoning ordinance was adopted or amended. Welch, 87 Ill. App. 3d at 1023. The record reveals that the Garnett Property was completed the same year as the original Evanston Zoning Ordinance, 1921. At the time of the inception of the original Zoning Ordinance, the Garnett Property was certified as a single-family home. Although the property changed in character from time to time after that, including in 1957 when the property was zoned to accommodate five units, in 1986, the property reconverted to use as a single-family residence, thus demonstrating an intent to abandon the use of a fifth unit. See, e.g., City of Des Plaines v. La Salle National Bank of Chicago, 44 Ill. App. 3d 815, 820, 358 N.E.2d 1198 (1976). At the time Taylor acquired the property in 1996, the Garnett property was certified as a four-unit dwelling and had been so certified on multiple occasions.\nThe Zoning Ordinance applicable to this case is the 1993 amended ordinance. The Garnett Property is located in an R-4 General Residence District, which permits multiple-family dwellings. The lot on which the Garnett Property is located contains 5,520 square feet of space. The current ordinance requires lots devoted to multifamily uses in the R-4 district to provide 2,500 square feet of land area for each dwelling. Thus, 1026 Garnett allows for a maximum of two conforming dwelling units under the ordinance.\nThe record reveals that the Garnett Property did not contain a fifth unit at the time of adoption of the 1993 ordinance, nor was the property certified for five-unit occupancy at that time. As set forth above, section 6 \u2014 6\u20144\u20147 of the ordinance prohibits reconversion to a more intensive use once that use has been abandoned. Therefore, the fifth unit proposed by Taylor does not constitute a legal nonconforming use of the Garnett Property. The City properly denied plaintiffs\u2019 petition for zoning recertification pursuant to section 6 \u2014 6\u20144\u20147 of the Zoning Ordinance.\nTaylor further contends that his due process rights were violated when the board denied his motion in limine to preclude ZBA member Patricia English from testifying at the hearing as an objector to Taylor\u2019s application for recertification. Taylor argues that the City ignored article 1, section 7, of the Rules of Procedure of the Zoning Board of Appeals, which provide in pertinent part: \u201cNo member of the [Zoning] Board who has a financial interest in the property or the affairs of the applicant or appellant or believes he has some other direct conflict of interest shall participate in any way in the case involving such property or person.\u201d Taylor concedes that the Rules of Procedure are not incorporated into the Zoning Ordinance.\nTaylor\u2019s argument is unsupported by any citation to authority. The record shows that English recused herself from sitting as a ZBA member because of the possibility that she might testify as a neighbor. There is nothing in the record that indicates English had any financial interest in the outcome of Taylor\u2019s hearing; therefore, the procedural rule cited by Taylor is inapposite.\nFinally, Taylor contends that the public hearing he was afforded did not adequately protect his due process rights. Taylor argues specific rules and procedures were not followed by the ZBA in that the ZBA chair admitted: \u201cI guess appeals [of administrator rulings] are somewhat unusual in coming before us. The procedure is not as well-formalized or well-known by me in general anyway.\u201d Taylor states that he was denied a fair hearing by the absence of specific procedural guidelines such as those mandated in a zoning revocation hearing. Taylor cites no authority for his contention.\nThe record shows that Taylor was afforded a hearing on his application for recertification of the Garnett Property and that the ZBA heard the testimony of multiple witnesses prior to issuing its opinion. The process for review of the application for recertification of a property is distinct from an enforcement action as the latter is a quasi-criminal proceeding and carries with it substantial notice and hearing provisions. 65 ILCS 5/11 \u2014 13\u201415 (West 2006). As such, Taylor has failed to show that his due process rights were obstructed in any manner.\nFor the reasons set forth herein, we affirm the judgment of trial court, affirming the decision of the ZBA.\nAffirmed.\nQUINN, PJ\u201e and MURPHY, J, concur.", "type": "majority", "author": "JUSTICE CAMPBELL" } ], "attorneys": [ "Bellande & Sargis Law Group, LLP, of Chicago (Mark R Sargis, of counsel), for appellants.", "Holland & Knight LLP, of Chicago, and Jack M. Siegel, Corporation Counsel, of Evanston, for appellees." ], "corrections": "", "head_matter": "ROBERT P. TAYLOR et al., Plaintiffs-Appellants, v. THE ZONING BOARD OF APPEALS OF THE CITY OF EVANSTON et al., Defendants-Appellees.\nFirst District (4th Division)\nNo. 1-05-0374\nOpinion filed August 23, 2007.\nBellande & Sargis Law Group, LLP, of Chicago (Mark R Sargis, of counsel), for appellants.\nHolland & Knight LLP, of Chicago, and Jack M. Siegel, Corporation Counsel, of Evanston, for appellees." }, "file_name": "0585-01", "first_page_order": 601, "last_page_order": 610 }