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Lapp v. Village of Winnetka

Case Date: 07/29/2005
Court: 1st District Appellate
Docket No: 1-04-1920 Rel

FOURTH DIVISION
July 29, 2005



No. 1-04-1920

ROBERT E. LAPP, JO ANNE LAPP,
DANIEL V. KINSELLA, RUTH ANNE
KINSELLA, THOMAS HULIK, DEBORAH
HULIK, JOHN SOBEL, DEBORAH SOBEL,
EDWARD MARUT, JOANNE MARUT, JOHN
SMITH, ELIZABETH HOLMES, JOHN
DURBIN, CECE DURBIN, SILAS KEEHN,
MARCIA KEEHN, WILLIAM SMITH, TRUDE
SMITH, NANCY McCARTHY and ELIZABETH
GUTEKANST,

               Plaintiffs-Appellants,

                        v.

VILLAGE OF WINNETKA, an Illinois
municipal corporation, and the
WINNETKA HISTORICAL SOCIETY, an
Illinois not-for-profit
corporation,

               Defendants-Appellees.

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)		 Appeal from
the Circuit Court
of Cook County
















Honorable
Richard J. Billik,
Judge Presiding.


JUSTICE QUINN delivered the opinion of the court:

Plaintiffs filed a complaint challenging an ordinance passed by the Village of Winnetka (Village), which granted the Winnetka Historical Society (Historical Society) a special use permit and a zoning variation to use a single-family residence and its accessory garage as the permanent home for the Historical Society's offices, archives, historical artifacts and museum exhibit space. The zoning variation permitted the Society to extend the existing one-car garage by about 10 feet so that it could be connected to the residence to provide climate-controlled storage. Plaintiffs' complaint also alleged that a second ordinance, which amended the Winnetka zoning ordinance by adding a definition for the term "nonessential public use," created an amendment that was unconstitutionally vague.

On cross-motions for summary judgment, the circuit court of Cook County entered an order dismissing count II of plaintiffs' complaint, which alleged that the amendment to the Village's zoning ordinance was unconstitutionally vague. The circuit court subsequently entered an order and memorandum opinion, granting the Villages' and Historical Society's motions for summary judgment, denying plaintiffs' cross-motions, and entering judgment for defendants, the Village and Historical Society, on all counts. Plaintiffs now appeal both orders. For the following reasons, we affirm.

I. BACKGROUND

The property at issue in this case is located at 411 Linden Avenue in Winnetka, Illinois (411 Linden). The property is 100 feet wide and about 112.59 feet deep and is improved with a single-family structure that is designated a historical landmark. It is located on one of the major streets in the Village, approximately two blocks south of the Village hall and the Village's downtown commercial area and near off-street parking. The home was built around 1859 and is one of the oldest homes in the Village and was owned by one of the Village's founding families. The home at 411 Linden is also one of the last remaining examples of Gothic Revival Architecture in the Village. The Historical Society plans to preserve and restore the original architectural features at the home. The property includes a detached, one-car garage that was built in 1997 and is approximately 220 square feet.

Prior to 1987, the Historical Society occupied space at the Winnetka public library. After vacating the library, it occupied space at the Skokie School in Winnetka. Under an arrangement, the Historical Society, with the assistance of the Village, leased space at the Skokie School. The Historical Society was required to vacate the leased space at the Skokie School in 2000. Since it moved from the school, the Historical Society has been without a permanent location. The Village's comprehensive plan, refers to the Historical Society's efforts to secure a "home," and the Village has, in the past, appropriated funds for the Historical Society's operations.

In spring 2001, the Historical Society purchased the 411 Linden property. Following the closing on the sale in June 2001, the Historical Society's real estate agent, Jane Brower, who is the wife of a Village trustee, received a $12,143.75 commission from the sale proceeds on or about July 2, 2001 from Coldwell Banker Brokerage North. Shortly thereafter, Jane Brower donated $7,000 of the commission to the Historical Society, which she estimated to represent the after-tax portion of any profit she might have received for her services as a real estate broker.

Soon after the Historical Society purchased the 411 Linden property, it decided to expand the garage to a two-car garage for functional reasons. The Historical Society planned to store part of its collection of historical artifacts and files in the garage because it claims there was insufficient storage area in the home and local fire code and load restrictions precluded the storage of all such materials in the home.

The Winnetka zoning ordinance requires buildings and structures to be set back specified distances from rear-yard lot lines. Based upon a recommendation from its architect, the Historical Society sought to attach the garage to the residence, which would become part of the home and then make it subject to a 16.92-foot rear-yard setback. According to the Historical Society, it needed to apply for a zoning variation because the garage, when expanded and attached to the home, would then be considered to be about six feet from the rear-yard line.

In May 2001, the Historical Society applied for a setback variation and also for a special use permit as a "nonessential public use" to use the 411 Linden property as its office and for its museum operations. The Historical Society is a private, not-for-profit corporation that was founded in 1932, according to the Village's comprehensive plan. The Historical Society's mission statement reads that it was established to collect, preserve and present artifacts and memorabilia representing and depicting Winnetka history and to provide services for the purpose of increasing and enriching public knowledge about Winnetka.

The Historical Society's application was considered over several months by the zoning bodies, including the Village council. On May 17, 2001, the design review board considered the Historical Society's conceptual design for the exterior appearance of the house and the property at 411 Linden. At the conclusion of the meeting, the design review board passed a motion of positive comment on the Historical Society's plans. On June 13, 2001, the Winnetka plan commission met to determine whether the Historical Society's proposed use is consistent with the Winnetka comprehensive plan. At this meeting, several of the plaintiffs voiced their opposition to the proposed use. At the conclusion of the meeting, the plan commission determined that the Historical Society's proposed use is consistent with the comprehensive plan and unanimously recommended approval of the Historical Society's application to the Village Council.

The Winnetka Zoning Board of Appeals (ZBA) conducted a public hearing that included meetings on June 11 and 28, 2001, on the Historical Society's application and the applicability of the Village's zoning ordinance that governs special use permits. The hearings included testimony and other evidence presented by the Historical Society, by objectors to the Society's application and by other interested persons.

At the conclusion of the June 11, 2001, hearing, the ZBA scheduled another meeting for June 28, 2001, to continue the public hearing to consider additional evidentiary submissions, including from the Society's real estate appraiser and from the plaintiffs' real estate appraiser. On June 19, 2001, the ZBA received the additional evidentiary submissions. At the conclusion of the continuation hearing on June 28, the ZBA voted to recommend to the Village council both the variation and special use permit requested in the Historical Society's application.

All recommendations, findings, and all recorded material used by the three advisory bodies were forwarded to the Village council. Pursuant to Zoning Ordinance