1163 East Ogden Ave. Telephone 630-548-3650 Suite 705-105 Fax 630-548-9764
Naperville, IL 60563 E-mail fezzey@law.com

October 27, 1998

To the Village of Lisle Board of Trustees

Re: Illinois Zoning law and its application to the Meijer petition. Second Memorandum.

Black’s Law Dictionary defines “Spot Zoning” as the “granting of a zoning classification to a piece of land that differs from that of the other land in the immediate area. The term refers to zoning which singles out an area for treatment different from that of similar surrounding land and which cannot be justified on the bases of health, safety, morals or general welfare of the community and which is not in accordance with a comprehensive plan.”

The Appellate Court of Illinois, First District, Fifth Division in Chicago Title and Trust Co. v. Village of Skokie, 376 NE2d 313 said: “Spot Zoning is a change in zoning applied only to a small area which is out of harmony with comprehensive planning for the good of the community; spot zoning is zoning which violates a zoning pattern which is homogeneous, compact and uniform.”

In Bright v. City of Evanston, 206 NE2d 765, Appellate Court of Illinois, First District, Third Division, the court held that spot zoning by a legislative body is prohibited.

The Second District Appellate Court of Illinois is the court of appeals to which DuPage County cases are appealed and decisions of that court are the law in DuPage County. In a Second District Court of Appeals case, Concerned Citizens for McHenry, Inc. v. City of McHenry, 395 NE2d 944, an organization of citizens and individual homeowners brought an action for a declaratory judgment and a mandatory injunction challenging the zoning variations given to an applicant for the operation of a proposed retail auto dealership in a residential area. The applicant sought rezoning from a single family residential to a commercial retail district. The court found:

“The intrusion of this (commercial Retail) zoning .... seems to us to invoke the definition of spot zoning. ...the rezoning ordinance in this instance is directly contrary to the comprehensive plan of the City of McHenry as well as the recommendation from the zoning board of appeals that the zoning not be granted. Certainly those people who have constructed their homes in this area should be able to place some reliance on the continued existence of the zoning set forth by the plan. An intrusion of a business such as the one contemplated here directly adjacent to these homes cannot be condoned merely because it fronts a highway.”

“In some respects the instant case is very similar to Schultz v. Village of Lisle in which a gas station was prohibited on a corner lot in a residential area despite the fact that the residential area was located between two areas zoned and developed for business uses.”

“....the primary justification for the rezoning of this property is the anticipation of an increase of the tax base of the community. We find that such a justification is totally illusory and totally violative of all the basic principles of zoning. If the profit motive were the sole reason that zoning authorities varied their classifications, then any use whatsoever would be appropriate next to any other use so long as the maximum amount of taxes could be generated for the community’s use. This is not the law. We emphatically state that an increase in the tax base is not sufficient of itself to support rezoning. In short, we are convinced that this is, in fact, a case of spot zoning.”

Petitioner Meijer is seeking a zoning variance from what is currently R-2 single family residential (40,000 square foot lots) and is designated institutional on the Village of Lisle Comprehensive Land Use Plan Map to a special commercial use that would include, among other commercial uses, a retail store with a footprint larger than that of the Merchandise Mart that would be the largest retail store in Northeastern Illinois and would be open 24 hours a day, seven days a week. That would represent a much more drastic zoning variance than the variance sought in the McHenry case, where the applicant sought to operate a retail auto dealership on a highway on six acres in a residential area.

When the Meijer petition is assessed in light of the criteria set forth in the LaSalle and Sinclair cases detailed in my previous informal legal memorandum, the Illinois law regarding spot zoning, the recent recommendations of the Village of Lisle Plan Commission and the Zoning Board of Appeals and the controlling McHenry case, it is abundantly clear that the variance sought by Meijer is absolutely illegal.

I said it to you at the public hearing on July 9, 1998 and I have provided you with detailed reasons in previous letters and memoranda. Your job is simple. The law says that the zoning variance Meijer seeks is illegal and the Meijer petition must be rejected.

Thank you for your attention in this matter.

Sincerely yours,

Thomas F. Fezzey
2336 Trowbridge Way
Lisle, IL 60532-3352
(630) 548-3650

cc: Scott Hardek, Esq.
Karl Csukor, Esq.
Mark Misiorowski, Esq.
Richard W. Hymes, Jr. Esq.
Edward Young, President, Citizens for Responsible and Appropriate Development