Date: 06-19-2001

Case Style: Theodore Pecora v. County of Cook, Illinois

Case Number: 1-99-2284

Judge: Gordon

Court: Illinois Court of Appeals, First District

Plaintiff's Attorney: Glenn R. Gaffney, Glendale Heights, Illinois

Defendant's Attorney: Richard A. Devine, Chicago, Illinois (Patrick T. Driscoll, Jr., Chief, Civil Actions Bureau, William Motto, Assistant State's Attorney

Description: Plaintiffs Theodore and Betty Pecora (collectively "the Pecoras") appeal from the judgement of the circuit court of Cook County granting summary judgement in favor of defendants, Cook County, Illinois and the Cook County Board of Commissioners (collectively "the county "). On appeal, the Pecoras argue that the circuit court erred in granting summary judgement against them because they had exhausted their administrative remedies; because further proceedings before the administrative agencies would be futile and would require them to pursue multiple remedies; and because the trial court incorrectly viewed their declaratory judgement action as a case in the nature of administrative review. The county argues that the Pecoras failed to exhaust their administrative remedies. The county further contends that even if the Pecoras did exhaust their administrative remedies, summary judgement was still proper because the Pecoras could not prove their case at trial. We reverse.

BACKGROUND

The instant action has been pending in and out of the circuit court since 1981 and is almost two decades old. While the record is obviously lengthy, only the details relevant to this case need be discussed herein. Unless otherwise noted, the facts stated in this section are not in dispute.

The subject of this litigation is a real estate tract (hereinafter referred to as "the property") of approximately 4.9 acres located about 150 feet east of Wildwood Avenue on the south side of Higgins Road in unincorporated Elk Grove Township in Cook County, Illinois. The Pecoras own the property as they have since 1972. The property is currently vacant and is zoned R-5 under the Cook County Zoning Ordinance. The R-5 district permits single family homes (as well as cemeteries; schools; and recreational uses such as golf courses) with a minimum lot size of 10,000 square feet. Cook County Zoning Ordinance §§ 4.53, 4.58(1) (1984). A neighborhood of single-family homes in the municipality of Elk Grove Village stands immediately west of the property and five single-family homes in unincorporated Cook County stand immediately to the east.

On September 3, 1981, the Pecoras filed the first complaint in the case at bar seeking a declaration that the property could be lawfully used for any use permitted in the I-1 restricted industrial district. The Pecoras' first complaint alleged that they had applied to the Cook County Zoning Board of Appeals (hereinafter the "ZBA") to change the zoning of the property from the R-5 district to the I-1 district (application I).(1) The complaint averred that on May 5, 1981, the ZBA recommended to the Board of Commissioners of Cook County (hereinafter the "county board") that the Pecoras' application be denied and the board denied that application on May 18, 1981.

A lengthy series of continuances and other miscellaneous motions ensued for nine years after the original complaint was filed until June 27, 1990, at which time the Pecoras were granted leave to amend their complaint. The subsequent amendment to the first complaint specified the Pecora's proposed use of the property was as an office and warehouse facility.

On October 13, 1994, approximately four years later, the Pecoras filed a first amended complaint, which sought a declaration that the property could be developed pursuant to the uses permitted by the I-1, C-8, or C-6 (with a special use permit for a warehouse) districts. The first amended complaint alleged that the ZBA had held a hearing on March 5, 1993, pursuant to the Pecoras' application to change the zoning of the property from the R-5 district to the C-8 intensive commercial district.(2) This was a new application (application II) filed following the denial of the earlier application (application I) by the county board on May 18, 1981. Application II sought reclassification to the C-8 district, unlike application I which sought reclassification to the I-1 district. According to the first amended complaint, the ZBA recommenced that application II be denied, which recommendation was adopted by the county board on June 2, 1993. The first amended complaint further alleged that on January 21, 1994, a hearing was held by the ZBA pursuant to the Pecoras' application to change the zoning on the property from the R-5 district to the C-6 automotive service district and the Pecoras' combined special use application to permit a self-storage warehouse on the property.(3) While not spelled out in the pleadings, these allegations refer to still a third application (application III) seeking reclassification to the C-6 district with a special use permitting a warehouse, which was filed after the denial of the second application on June 2, 1993. The application was denied by the county board on July 14, 1994.

On November 22, 1994, the Pecora's voluntarily withdrew their first amended complaint and filed their second amended complaint. A copy of this complaint cannot be found in the record. However, there does not appear to be any dispute that the second amended complaint limited the relief sought to a declaration that the property could be developed pursuant to the C-6 automotive service district with a special use permitting a warehouse.

On November 22, 1995, the county filed a motion pursuant to section 2-619(a)(9) of the Code of Civil Procedure to dismiss the declaratory action on the grounds that the Pecoras failed to exhaust their administrative remedies. 735 ILCS 5/2-619(a)(9)

(West 2000). It contended that the Pecoras' appearance before the ZBA on January 21, 1994, requesting a C-6 designation with a special use permitting a warehouse was perfunctory, as the Pecoras did not present any expert testimony regarding the suitability of a C-6 designation for the property. In support, the county attached a copy of the findings of the ZBA from the January 21, 1994, hearing wherein the ZBA recommended that the Pecoras' application for a C-6 district with a special use permitting a warehouse be denied. The ZBA found that the Pecoras had presented no expert testimony on the five factors relevant to the approval of a special use, (namely the effect of the change on the general welfare, the effect on nearby property, the effect on the development of surrounding property, the adequacy of facilities and utilities and ingress and egress) and that no conclusion could thus be reached with respect to those factors. As an additional ground in support of the contention that there was a failure to exhaust administrative remedies, the movant contended that the forgoing application to the ZBA was ineffective because it was filed during the pendency of the circuit court proceedings. The movant averred that one could not simultaneously proceed to seek relief from the courts before the conclusion of the administrative action.

On December 5, 1995, the court granted the motion to dismiss stating that:

"Defendant's motion to dismiss is granted. Plaintiffs failed to exhaust their administrative remedies. This action is remanded back to the Cook County Zoning Board of Appeals. This cause is held in abeyance pending an administrative hearing before the Cook County Zoning Board of Appeals and further determination by the Cook County Board."

Approximately one year later, on December 15, 1996, the Pecoras filed their third amended complaint again seeking a declaration that the property could be developed in accordance with the requirements of the C-6 district with a special use permitting a warehouse. Apparently following the dismissal of the second amended complaint on December 5, 1995, for failure to exhaust and the attendant "remand" by the trial court to the ZBA, the Pecoras returned to the ZBA and made a fourth application (application IV) seeking for the second time before the ZBA reclassification of the property to the C-6 district with a special use permitting a warehouse. Upon the denial of application IV, the Pecoras filed their third amended complaint alleging that on April 26, 1996, following the Pecoras' return to the ZBA, a hearing was held before the ZBA pursuant to their request for reclassification of the property from the R-5 district to the C-6 district with a special use permitting a warehouse. According to the third amended complaint, on September 26, 1996, application IV was denied by the county board presumably pursuant to the recommendation of the ZBA.

The county filed a motion to dismiss the third amended complaint under section 2-615 of the Code of Civil Procedure. 735 ILCS 5/2-615 (West 2000). In its motion the county contended that the allegations of the third amended complaint were insufficient to state a cause of action. Specifically, the county contended that the third amended complaint did not allege with sufficient specificity the nature and size of the Pecoras' proposed development of the property. In response, the Pecoras filed a fourth amended complaint on February 28, 1997. The fourth amended complaint was similar in all respects to the third amended complaint, except that it made additional factual allegations regarding the nature of the Pecoras' proposed warehouse facility.

On February 1, 1999, after the fourth amended complaint was filed, the county moved for summary judgement alleging that the Pecoras had failed to exhaust their administrative remedies. In support, the county averred that with respect to application IV, the Pecoras did not present any evidence to the ZBA to establish that their special use of a warehouse would have adequate utilities, drainage and other necessary facilities. The Pecoras denied that allegation and in support of their denial, they attached documents and record excerpts from the transcript(4) of the hearing on April 26, 1996. These included the notarized application for a special use (application IV) submitted in advance of the April 26, 1996, hearing.(5)

On April 8, 1999, the court granted the motion for summary judgement. In granting the motion, the trial judge stated that "[t]his case has two aspects *** [f]irst of all exhaustion and secondly, whether the process was arbitrary, unreasonable and capricious." The court then found that the Pecoras had failed to exhaust their administrative remedies, stating,

"With respect to exhaustion, I think that the Plaintiff has done a great deal of work. I think its fallen short of what the Board needed in order to make a decision, and the Court finds that there has been a failure to exhaust. But beyond that, the teachings of the City of Carbondale case say that the police power[] [is] an[] attribute of sovereignty, and its not to be disturbed merely where there is a difference of opinion with a regulatory decision as to its wisdom, necessity and expediency. And the unmistakable weight of presumption in favor of the Board's decision was certainly present."

The court then went on to discuss the second issue:

"Now the Court has already found that there's been an inadequate administrative presentation, but even to the extent that the presentation was adequate, it seems to me that there is no showing that the process was unreasonable, arbitrary and capricious."

The court noted that there is residential development to the east and the west of the property. The court then found that the Pecoras had failed to show "that the process or the result was unreasonable, arbitrary and capricious."

On May 7, 1999, the Pecoras filed a motion to vacate that judgement which the trial court denied on June 1, 1999.(6) This appeal followed.

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Click the case caption above for the full text of the Court's opinion.

Outcome: Reversed and remanded

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: Reported by Kent Morlan