NCJ Number
65707
Journal
JOHN MARSHALL JOURNAL OF PRACTICE AND PROCEDURE Volume: 1 Dated: (1967) Pages: 74-91
Date Published
1967
Length
18 pages
Annotation
AN ANALYSIS OF VARIATIONS AND ADMINISTRATIVE PROCEDURES OF THE CHICAGO ZONING BOARD OF APPEALS ILLUSTRATES THE INEFFECTIVENESS OF ZONING ORDINANCES WHEN IMPROPERLY ADMINISTERED.
Abstract
CHICAGO'S FIRST ZONING ORDINANCE, ENACTED IN 1923, FAILED TO CONTROL VARIATIONS (DEVICES FOR AVOIDING UNCONSTITUTIONAL RIGIDITY IN ZONING ORDINANCES) AND LED TO ABUSE OF THE CITY'S LAND USE PATTERN. A 1957 AMENDMENT CONTAINED STRICTER GUIDELINES WHICH PERMITTED VARIATIONS ONLY IN SITUATIONS OF EXTREME NEED. THIS AMENDMENT, HOWEVER, HAD LITTLE EFFECT ON THE ZONING BOARD WHICH STILL GRANTS OVER 95 PERCENT OF ALL APPEALS FOR VARIATIONS, MOST OF WHICH ARE IN DETERIORATING NEIGHBORHOODS. THE ZONING BOARD LACKS UNIFORM PROCEDURAL STANDARDS FOR ITS ADMINISTRATIVE HEARINGS; THUS, PREJUDICIAL RULINGS CONCERNING THE BOARD'S USE OF TESTIMONY CAN OCCUR. AN EXAMPLE OF THE PROBLEMS INVOLVING EX PARTE CONTACTS IS ILLUSTRATED BY THE CASE OF JARROTT V. SCRIVENER, IN WHICH THE FEDERAL DISTRICT COURT OF THE DISTRICT OF COLUMBIA RULED THAT THE OMMISSION OF COMMENTS BY FEDERAL OFFICIALS TO THE WASHINGTON, D.C. ZONING COMMISSION (FAVORING THE GRANT OF A VARIATION FOR A SOVIET CHANCERY) VIOLATED DUE PROCESS. IN CHICAGO, CONTACTS WITH ALDERMEN ARE SIMILARLY OMITTED FROM THE HEARING RECORD. THE CHICAGO BOARD USUALLY HAS THREE OR FOUR MEMBERS CONDUCT A PUBLIC HEARING AND THEN DEFERS THE DECISION TO A CLOSED EXECUTIVE SESSION. STATUTES SUGGEST THAT FOUR MEMBERS ARE NECESSARY FOR A VALID PUBLIC HEARING AND THAT EXECUTIVE SESSIONS SHOULD BE OPEN TO THE PUBLIC. ALTHOUGH ZONING ORDINANCES STATE THAT VARIATION DECISIONS MUST BE SUPPORTED BY FACTUAL EVIDENCE, THE CHICAGO BOARD SIMPLY RESTATES THE GENERAL STATUTORY REASONS OF DIFFICULTIES OR HARDSHIPS. IN AN APPEAL OF A ZONING DECISION, THE COURT BASES ITS DECISION ON THE HEARING RECORD AND THE BURDEN OF PROOF IS ON THE APPELLANT. AS IN NUISANCE LAW, THE PLAINTIFF MUST PROVE PERSONAL DAMAGE AND DOES NOT HAVE THE LEGAL STANDING TO REPRESENT COMMUNITY INTERESTS. SINCE THE COURTS HAVE VIEWED THE GRANTING OF VARIATIONS AS A LOCAL CONCERN, IMPROVEMENTS IN THE ZONING BOARD ARE NECESSARY TO PREVENT ABUSE. BASIC QUALIFICATIONS FOR MEMBERSHIP AND STANDARDIZED PROCEDURES SHOULD BE ESTABLISHED, AND THE BOARD SHOULD BE REQUIRED TO MAINTAIN STENOGRAPHIC RECORDS OF ALL PROCEEDINGS. OTHER SUGGESTIONS INCLUDE THE CREATION OF A STATEWIDE ZONING COMMISSION AND THE REPLACEMENT OF THE BOARD WITH A PROFESSIONAL ZONING ADMINISTRATOR. FOOTNOTES ARE PROVIDED. (MJM)