Agenda - Planning Commission - 03/01/2007

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February 1, 20071 Volume 11 No.3 More wimesses testified after that statement was made, and the chairman made other statements to the wimesses and Kimball's lawyer, including telling the lawyer that tearing the building down would "solve everybody's problem.>> Ultimately, the board voted against Kimball, stating that: there was no evidence presented proving a unique circumstance existed to justify the grant of a variance, Kimball could make good use of its land without continuing with the current design, and any hardship Kimball suffered was self-created by beginning the building without first obtaining the proper permits. Kimball appealed the decision of the board to court. It claimed that the chairman was biased and influenced the proceedings and the board's deci- sion was against the weight of the evidence. The trial court found in favor of the city "without elaboration. " Kimball appealed. Decision: Affirmed. Several factors had to exist be~ore the board could grant a variance. A variance was considered an extraordinary measure, and it was not enough for a party to claim it would do no harm if granted. At minimum, all of the following had to be true: the property could not yield a reasonable return without avariance; the plight of the owner was due to unique circumstances and not self-inflicted; and the variation could not alter the essential character of the locality. The appeals court fouild that the record supported the con- clusion of the board that none of these factors had been proven. Although the board made limited findings of fact and its decision did not include any credibility determinations, the court noted that neither was needed. Unless a statute required specific factual findings, an administrative agency was only required to provide a record and findings to facilitate effi- cient judicial review. Further, for Kimball to succeed on the claim that the decision was against the weight of the evidence, it had to show that "all reasonable people would find that the opposite conclu~ion [was] clearly apparent." Kimball could not meet this burden. The fact that it had begun construction before obtaining any permits hurt its argument that any hardship was self-inflicted. With regard to the bias issue, the court stated that: "Bias by an adminis- trative agency may be shown only if a disinterested observer would conclude that the agency, or its members, had adjudged the facts and law of the case before the matter was heard." While the court did find that the chairman was "cavalier" and "forthright" with his opinion during the hearing, it could not find that it was so much so as to be considered biased. Importantly, Kim- ball was not prevented from presenting its case fully. The court found that the chairman's behavior did not overcome the pre- sumption of objectivity given to administrative public officials. The decision of the lower court was affirmed. ' See also: Waste Management of Illinois, Inc. v. Pollution Control Bd., 175 Ill. App. 3d 1023, 125 Ill. Dec. 524, 530 N.E.2d 682 (2d Dist. 1988). \,..~,;';/:" :,;_.;:.;...~:..:"'." :";::"" -'::: .....:.':,...-.;,..~'.,. .-..-, ....-; ",-'...,".. ....,,-'..:;~ ''':';'''-!''~-'' : "'EctitorialQuestioris o~. Somments:;west~q~i#lan@~~~mSf.)?~~~qS~,;; -',"'f ";.-:~">. '. .: . ".~'~ OM"... 8 22 /' I ("