                                   2018 IL App (1st) 171987

                                                                            SIXTH DIVISION
                                                                 Opinion filed: March 16, 2018

                                 No. 1-17-1987
______________________________________________________________________________

                                           IN THE

                             APPELLATE COURT OF ILLINOIS

                                FIRST DISTRICT
______________________________________________________________________________

 LAURA GLASER and LEONARD LOVENTHAL,           ) Appeal from the

                                               ) Circuit Court of

       Plaintiffs-Appellants,                  ) Cook County

                                               )

 v.                                            ) No. 15 CH 18562
                                               )

 THE CITY OF CHICAGO, a Municipal Corporation; )

 THE CITY OF CHICAGO ZONING BOARD OF           )

 APPEALS; JONATHON SWAIN, Chairman; SOL        )

 FLORES; SHEILA O’GRADY; BLAKE SERCYE;         )

 SAM TOIA; and CHICAGO TITLE LAND TRUST,       )

 NO. 8002366263,                               )

                                               )

       Defendants,                             )

                                               ) Honorable

 (Chicago Title Land Trust, No. 8002366263,    ) David B. Atkins,

 Defendant-Appellee).                          ) Judge, Presiding.

______________________________________________________________________________

       PRESIDING JUSTICE HOFFMAN delivered the judgment of the court, with opinion.
       Justices Cunningham and Connors concurred in the judgment and opinion.

                                          OPINION

¶1     The plaintiffs, Laura Glaser and Leonard Loventhal, appeal from the judgment of the

circuit court of Cook County affirming the order of the City of Chicago Zoning Board of

Appeals (Board), which reversed the zoning administrator’s decision to deny the application of

the defendant, Chicago Title Land Trust, No. 8002366263 (trust), for zoning variations under the
No. 1-17-1987


Chicago Municipal Code (Code) (Chicago Municipal Code § 17-1-0100 et seq. (added May 26,

2004)). For the reasons that follow, we affirm.

¶2        The following factual recitation is taken from the pleadings, exhibits, and testimony of

record.

¶3        The plaintiffs live at 3522 North Janssen Street in Chicago, in a three-story residence

they constructed in 1999. The trust later purchased the house directly north of the plaintiffs,

located at 3528 North Janssen Street, for its beneficiary, Carson Khyl. The Khyl residence was

built in 1901, and, like other houses on the block, has a front porch, irregular roof line, and sits

on a parcel approximately 50 feet wide and 125 feet deep. A garage is situated in the south

corner of the rear yard, abutting an alley, but unlike other properties on the block, the Khyl

residence also has a driveway.

¶4        The Code contains a zoning ordinance that limits the height of buildings and provides the

minimum distances they must be “set back” from property boundaries on each side. See Chicago

Municipal Code § 17-2-0300 et seq. (amended April 15, 2015). When the trust acquired the Khyl

residence, the house was 35 feet tall and had setbacks of 12.44 feet in front, 1.55 feet on the

north side, zero feet on the south side, and 1.46 feet on the rear side. Due to the age of the house,

and variations to the setback requirements previously granted by the Board, these dimensions are

in legal nonconformity with contemporary regulations. Currently, similar houses in the same

zoning district cannot exceed 35 feet in height and require setbacks of 14.85 feet for the front

yard, 34.65 feet for the rear yard, 4 feet for each side yard individually, and 10 feet for both side

yards combined. See id.

¶5        Khyl retained an architect to renovate the house, and the trust filed an application with

the City of Chicago Department of Planning and Development for additional height and setback



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variations in connection with the renovation. The requested variations included (1) maintaining

the front yard setback at 12.44 feet, (2) setting the rear yard setback at 2.14 feet, (3) setting the

north side and south side setbacks at 2.05 feet and 0.48 feet, respectively, and (4) increasing the

allowable height to 38.39 feet for the construction of a three-story addition to the rear of the

house, which would also include an attached two car garage, a front porch addition, an

unenclosed parking stall, and a raised rear patio.

¶6        On May 20, 2015, the zoning administrator denied the trust’s variation requests. The trust

filed an appeal from the variation denials with the Board, which held a hearing on October 16,

2015.

¶7        At the hearing, the Board heard witnesses for the trust and the plaintiffs, who objected to

the variations. The Board also received diagrams of the proposed renovations, reports by the

parties’ land planning experts, and information regarding variations that were granted to the

plaintiffs when they built their house. We set forth only the evidence that is relevant to this

appeal.

¶8        Timothy Barton, the trust’s land planning expert, opined that a front setback variation is

needed to preserve the Khyl residence’s front porch and that a height variation is needed due to

the difficulty in “add[ing] to any floor space vertically” under the current zoning rules. Barton

also testified that, although the garage would be rebuilt in the same location in the south corner

of the rear yard, the rear setback poses a hardship due to the need to preserve an oak tree,

construct “screening” for privacy from neighbors, and alleviate the “canyon-like effect” caused

by “very large” buildings to the north and south that leave the yard “in shadow much of the

time.”




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No. 1-17-1987


¶9     According to Barton, the conditions necessitating the setback variations are neither

generally applicable to similarly-zoned properties nor created by the trust or Khyl, as the

residence predates current zoning rules and the neighboring buildings were developed several

years “before the [trust’s] interest in the property.” Barton denied that the renovations would

interfere with light or air, as a 15-foot high wall connecting the residence to the garage would

face a wall on the plaintiffs’ property. He opined that this layout would “benefit” the neighbors

to the north “by maintaining the open space in the north half of the lot.” Barton denied that the

variations would alter the neighborhood’s character and stated that one of the project’s “main

thrusts” is rehabilitating and reusing the existing house. On cross-examination, he acknowledged

that the house, like several others on the block, is rated “orange” by the Chicago Historic

Resources Survey, and those residences “have more or less consistent setbacks on the front.” 1

¶ 10   Patrick Murphy, the trust’s architect, testified that the zoning ordinance’s height limit

poses a hardship because the Khyl residence’s first floor is approximately “six and a half feet

above grade,” which reduces the total height available for the upper floors. Therefore, a variation

of “a few extra feet” is needed to render the third floor addition “habitable” while maintaining

the height of the first and second floors relative to the windows. This plan, according to Murphy,

would incorporate low roof lines and preserve “the existing structure and look of the building.”

Murphy agreed that “the main goal” of the renovation project is to maintain “the historic features

of the facade of the home” and stated that no variation to the allowable floor area ratio is

necessary.


       1
         The Chicago Historic Resources Survey is a database of historic buildings produced by the
City of Chicago. Properties classified as “orange” have “some architectural feature or historical
association that made them potentially significant in the context of the surrounding community.”
Chicago          Historic         Resources        Survey,        City           of         Chicago,
http://webapps.cityofchicago.org/landmarksweb/web/historicsurvey.htm (last visited Mar. 2, 2018).


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No. 1-17-1987


¶ 11   Khyl testified that he requested the variations in order to “build a nice home for [his]

family” while preserving the residence’s historic features. He denied that his goal was to “make

money.”

¶ 12   George Kisiel, the plaintiffs’ land planning expert, stated in his report that the proposed

renovations would “demolish a significant amount” of the Khyl residence. He testified that

“nothing unique” about the property would prevent renovations consistent with the

neighborhood’s character, and that no hardship would result from maintaining the current

setbacks because, based on the renovation plans, “[a]ll *** existing nonconforming attributes”

would be “demolished” and replaced with new construction. According to Kisiel, the requested

variations would render the residence “a full story taller and *** and 50 percent larger than the

next largest house on the block.” Further, the addition along the south boundary would vary

“between 24 feet and 14 feet with the majority of it being over 20 feet,” and sit 6 inches from the

plaintiffs’ property, which has windows on its north side. These changes, according to Kisiel,

would reduce “light, air, and privacy” and conflict with the neighborhood’s character and orderly

development.

¶ 13   Loventhal, one of the plaintiffs, testified that the proposed renovations to the Khyl

residence would preserve “[v]ery little” of the original house and produce “a massive,

overbearing structure not in character with the rest of our street,” with less landscaping than

other parcels. He acknowledged that the property has a driveway but stated that, after the

renovation, it would still be the only residence with parked cars and a curb cut. Loventhal stated

that, with the requested variations, the residence’s height and “extended footprint” would

interfere with privacy and block “light, air, and views” for neighboring properties, including his

own.



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No. 1-17-1987


¶ 14       Marguerite Tompkins, a neighbor, testified that, together with other long-time residents

of the neighborhood, she opposed the requested variations because “oversized homes ***

threaten to fundamentally alter the quality of our neighborhood,” “dwarf” older residences, and

create a “canyon effect.”

¶ 15       Following the trust’s and plaintiffs’ evidence, Alderman Thomas Tunney testified that he

did not object to the requested variations. According to Alderman Tunney, the proposed

renovations “will enhance the values of the neighbors in the block much more than new

construction or a teardown.”

¶ 16       On December 2, 2015, the Board issued a written resolution granting each variation

requested by the trust. 2 The Board found that, “due to the preservation” of the “orange-rated

residence” and oak tree, and the “canyon effect” caused by neighboring buildings, practical

difficulties and particular hardships would occur without the variations. These conditions,

according to the Board, are not generally applicable to other properties and were not created by

the trust. The Board determined that the variations comport with the zoning rules’ purpose and

intent by preserving the character of the neighborhood. Additionally, the Board found that the

variations would enhance property values and not increase congestion, detract from the public

welfare or safety, or impair light or air to neighboring properties, including the plaintiffs’

property. The Board also noted that the trust “will continue to own” the property and, therefore,

whether it could secure a reasonable rate of return absent the variations was inapplicable.

¶ 17       On December 23, 2015, the plaintiffs filed a complaint in the circuit court for

administrative review. The circuit court entered a written order affirming the Board’s decision on




           2
            Three Board members approved and one dissented, but the resolution does not include a written
dissent.
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No. 1-17-1987


June 28, 2017, and denied the plaintiffs’ motion to reconsider on July 12, 2017. This appeal

followed. 3

¶ 18   On appeal, the plaintiffs contend that the Board erred by granting the requested variations

based on evidence suggesting they were needed to preserve the Khyl residence, when, per the

renovation plans, at least “90%” of the home would be demolished. Therefore, according to the

plaintiffs, the Board’s decision relied on “misleading testimony and reports,” and “no competent

evidence” demonstrated that the variations are merited.

¶ 19   When, as here, an appeal is taken to the appellate court following entry of judgment by

the circuit court on administrative review, “it is the decision of the administrative agency, not the

judgment of the circuit court, which is under consideration.” Provena Covenant Medical Center

v. Department of Revenue, 236 Ill. 2d 368, 386 (2010). The parties dispute the applicable

standard of review. The plaintiffs claim this appeal presents a mixed question of law and fact,

which is reviewed for clear error and exists when the “historical facts are admitted or established,

the rule of law is undisputed, and the issue is whether the facts satisfy the statutory standard.” Id.

at 387. The trust, in contrast, argues that the plaintiffs challenge the evidence underlying the

Board’s findings and, therefore, raise questions of fact. We agree with the trust.

¶ 20   An agency’s factual findings “are held to be prima facie true and correct and will not be

overturned unless the agency exercised its authority in an arbitrary or capricious manner or

unless its decision is against the manifest weight of the evidence.” 1212 Restaurant Group, LLC

v. Alexander, 2011 IL App (1st) 100797, ¶ 42. A decision is against the manifest weight of the

evidence only when the opposite conclusion is clearly evident. Wade v. City of North Chicago

Police Pension Board, 226 Ill. 2d 485, 504 (2007). On review, this court “does not weigh the


       3
        The City of Chicago, the Board, and its members, Jonathon Swain, Sol Flores, Sheila O’Grady,
Blake Sercye, and Sam Toia did not file a brief on appeal.
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No. 1-17-1987


evidence or substitute its judgment for that of the agency.” Cinkus v. Village of Stickney

Municipal Officers Electoral Board, 228 Ill. 2d 200, 210 (2008). “If the record contains evidence

to support the agency’s decision, it should be affirmed.” Abrahamson v. Illinois Department of

Professional Regulation, 153 Ill. 2d 76, 88 (1992).

¶ 21   We briefly set forth the regulatory framework relevant to the plaintiffs’ argument on

appeal. The Code’s zoning ordinance controls property development within Chicago. See

Chicago Municipal Code § 17-1-0100 et seq. (added May 26, 2004). The purpose and intent of

the zoning ordinance includes, inter alia, promoting the general welfare; preserving the quality

of life for residents and visitors; protecting the character of established residential

neighborhoods; maintaining orderly and compatible development; ensuring adequate light, air,

and privacy; and promoting the rehabilitation and reuse of older buildings. See Chicago

Municipal Code § 17-1-0500 et seq. (amended Dec. 12, 2012).

¶ 22   Generally, an element of a structure that was lawfully established under previous zoning

rules but does not comply with current regulations “may be altered or enlarged as long as the

alteration or enlargement does not increase the extent” of the nonconformity. Chicago Municipal

Code § 17-15-0403-A (amended Sept. 13, 2006). However, “[w]hen a structure with

nonconforming elements is removed or intentionally destroyed, re-establishment of the

nonconforming elements is prohibited.” Id. § 17-15-0404-A. Notwithstanding, the Board may

grant variations from zoning requirements. See Chicago Municipal Code § 17-13-1101-A

(amended Dec. 12, 2007).

¶ 23   To grant a variation, the Board must find evidence demonstrating that (1) “strict

compliance with the regulations and standards *** would create practical difficulties or

particular hardships for the subject property” and (2) the variation “is consistent with the stated



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No. 1-17-1987


purpose and intent” of the zoning ordinance. Id. To determine whether difficulties or hardships

exist, the Board must find evidence that (1) the property “cannot yield a reasonable return if

permitted to be used only in accordance with” the zoning ordinance, (2) the difficulties or

hardships “are due to unique circumstances and are not generally applicable to other similarly

situated property,” and (3) the variation “will not alter the essential character of the

neighborhood.” Id. § 17-13-1107-B. Additionally, the Board must consider the extent to which

the evidence demonstrates whether (1) the physical condition of the property or its surroundings

would cause hardship to the owner, as opposed to inconvenience, if the zoning ordinance was

strictly enforced; (2) the conditions premising the petition for a variation are inapplicable to other

similarly-zoned property; (3) the variation’s purpose “is not based exclusively upon a desire to

make more money out of the property”; (4) the difficulty or hardship “has not been created by

any person presently having an interest in the property”; (5) the variation will not be detrimental

to the public welfare or injurious to other property in the neighborhood; and (6) the variation

“will not impair an adequate supply of light and air to adjacent property,” “substantially

increase” congestion on public streets, endanger the public, or “substantially diminish”

neighborhood property values. Id. § 17-13-1107-C.

¶ 24   Based on these principles, the Board’s decision to grant the variations was not against the

manifest weight of the evidence. Turning first to the height and rear setback variations, the trust

presented evidence that strict compliance with the zoning ordinance would cause practical

difficulties and particular hardships. Murphy testified that the Khyl residence’s elevated first

floor reduces the height available for the upper floors, and that a variation of “a few extra feet” is

needed for the third floor addition to be “habitable.” Barton testified that “very large” buildings

to the north and south create a “canyon-like effect” that leaves the rear yard in shadow.



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No. 1-17-1987


Additionally, he stated that the rear setback poses a hardship due to the need to create privacy

and preserve an oak tree. As both witnesses explained, these considerations are not generally

applicable to similarly situated property, and the renovations facilitated by the variations would

preserve the building’s facade and the neighborhood’s character.

¶ 25   The Board’s determination that the height and rear setback variations accord with the

purpose of the zoning ordinance also is supported by the evidence. Barton opined that the

renovations would not impede light or air, as the layout of the rear yard would preserve open

space to the north, and a wall to the south would face another wall on the plaintiffs’ property.

Murphy stated that the design would incorporate low roof lines, preserve “the existing structure

and look of the building,” and not require a variation to the allowable floor area ratio. Other

factors also supported the Board’s determination. In particular, Khyl testified that the property

was not acquired for purposes of profit, Barton stated that the buildings on either side were

constructed several years before the trust obtained its interest in the property, and Alderman

Tunney opined that the project would increase property values in the neighborhood.

¶ 26   As the plaintiffs observe, Kisiel and Loventhal testified that, with the renovations allowed

by the height and rear setback variations, the Khyl residence would become larger and taller than

neighboring houses and interfere with their light, air, and privacy. However, the plaintiffs’

evidence does not render the trust’s hardship evidence incompetent. Where, as here, the Board is

presented with conflicting testimony and evidence exists in the record to support its decision,

that decision will be affirmed. See Abrahamson, 153 Ill. 2d at 88; see also Weinstein v. Zoning

Board of Appeals of the City of Highland Park, 312 Ill. App. 3d 460, 466 (2000) (noting that a

reviewing court “defer[s] to the Board’s resolution of the factual disputes embodied in the

evidence presented by each party”).



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No. 1-17-1987


¶ 27   Turning to the north and south side setbacks, we observe that the requested variations of

2.05 feet and 0.48 feet, respectively, are within the property’s current nonconforming setbacks of

1.55 feet to the north and zero feet to the south. Similarly, the requested front setback variation is

identical to the current nonconformity and, according to Barton, is necessary for retaining the

front porch. Therefore, these variations are permissible because they will not increase the extent

of the nonconformity in the front yard or either of the side yards. See Chicago Municipal Code

§ 17-15-0403-A (amended Sept. 13, 2006). To the extent the plaintiffs argue the renovations

amount to a “90%” demolition and that the Board was “deceived” regarding the extent to which

the nonconforming elements of the residence would be removed and reestablished, we disagree.

The Board received the trust’s application for variations and renovation plans, along with the

report and testimony of the plaintiffs’ expert, and is entitled to the presumption that it properly

read and considered the evidence. See Watra, Inc. v. License Appeal Comm’n, 71 Ill. App. 3d

596, 601 (1979). As such, we will not substitute our judgment on review for that of the Board.

See Cinkus, 228 Ill. 2d at 210.

¶ 28   The plaintiffs contend, however, that the trust “created its own practical difficulties” and

would not have needed the requested variations had it been “built within” the current

nonconforming setbacks. Although Kisiel testified that no hardship would result from adhering

to the existing nonconformities, the trust, as we have discussed, adduced evidence regarding the

need for extending certain variations. See Weinstein, 312 Ill. App. 3d at 465-66 (when hardship

exists, the Board’s decision to grant a variation is not against the manifest weight of the evidence

even if the objecting party presents an alternate plan that “complie[s] with the zoning

ordinances”). Where, as here, the issue “is merely one of conflicting testimony and credibility of

witnesses, the administrative board’s decision should be sustained.” O’Boyle v. Personnel Board,



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No. 1-17-1987


119 Ill. App. 3d 648, 653 (1983); see also Rodriguez v. Bagnola, 297 Ill. App. 3d 906, 916


(1998) (rejecting a claim that an agency’s decision was against the manifest weight of the


evidence where the parties presented conflicting expert testimony). The plaintiffs’ position is,


therefore, without merit.


¶ 29   For all the foregoing reasons, we affirm the order of the circuit court of Cook County,


which affirmed the order of the Board, which reversed the decision of the zoning administrator to


deny the trust’s application for zoning variations. 


¶ 30   Affirmed.





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