Hous. Auth. of the Cnty. of Lake v. Lake Cnty. Zoning Bd. of Appeals

2017 IL App (2d) 160959

88 N.E.3d 138

The HOUSING AUTHORITY OF the COUNTY OF LAKE and Pads Lake County, Plaintiffs–Appellees,

v.The LAKE COUNTY ZONING BOARD OF APPEALS; Gregory G. Koeppen, Marvin J. Raymond, John Reindl, Geraldine Stimpson, Al Westerman, Carol Zerba, and George Bell, in Their Official Capacities as Members of the Lake County Zoning Board of Appeals; Eric Waggoner, In His Official Capacity as the Director of the Lake County Planning, Building and Development Department ; Jennifer Mueller ; Mary Ann Ryan ; Amy Foor–Noland; Joyce Bozacki–Rae; Melissa Pearlman–Rich; Mary Toups Miske; Sam Fazio; Cheryl Gorey; Larry Schaedel; Sheri Buergey; Rose Arendarczyk; Donna Fitzpatrick; and Daniel McManus, Defendants

(Jennifer Mueller, Mary Ann Ryan, Amy Foor–Noland, Joyce Bozacki–Rae, Melissa Pearlman–Rich, Mary Toups Miske, Sam Fazio, Cheryl Gorey, Larry Schaedel, Sheri Buergey, Rose Arendarczyk, Donna Fitzpatrick, and Daniel McManus, Defendants–Appellants).

No. 2-16-0959

Appellate Court of Illinois, Second District.

Opinion filed October 11, 2017

Daniel C. Shapiro, Justin A. Silva, and Ian T. Brown, of Shapiro & Associates Law, of Northbrook, for appellants.

Robert J. Masini and David L. Hazan, of Diver, Grach, Quade & Masini, LLP, of Waukegan, for appellee Housing Authority of the County of Lake.

Mariah F. DiGrino, Thomas F. Geselbracht, and Kenneth L. Schmetterer, of DLA Piper LLP (US), of Chicago, for other appellee.

JUSTICE BIRKETT delivered the judgment of the court, with opinion.

¶ 1 In this appeal, we address the issues arising from a change-in-use permit issued by defendant Eric Waggoner, the director of the Lake County Planning, Building and Development Department (Waggoner will hereinafter be referred to as the Director; the Lake County Planning, Building and Development Department will hereinafter be referred to as the Department; neither the Director nor the Department is a party to this appeal), regarding the subject property, commonly known as Midlothian Manor, located in unincorporated Lake County, near the Village of Lake Zurich. The change-in-use permit was issued at the behest of plaintiffs, the Housing Authority of the County of Lake (the Authority) and PADS Lake County (PADS). Following the issuance of the permit, defendants Jennifer Mueller, Mary Ann Ryan, Amy Foor–Noland, Joyce Bozacki–Rae, Melissa Pearlman–Rich, Mary Toups Miske, Sam Fazio, Cheryl Gorey, Larry Schaedel, Sheri Buergey, Rose Arendarczyk, Donna Fitzpatrick, and Daniel McManus (collectively, defendants) administratively appealed the Director's decision to defendant the Lake County Zoning Board of Appeals (Board).¹ Following a three-day public hearing, the Board reversed the Director's decision and denied the change-in-use permit. Plaintiffs appealed, under the Administrative Review Law ( 735 ILCS 5/3–101 et seq. (West 2014)), to the circuit court of Lake County. The circuit court reversed the Board's decision and reinstated the change-in-use permit. Defendants appealed the judgment of the circuit court. On appeal, defendants contend that the Board's decision to reverse the Director's decision was not clearly erroneous, because the Director misapplied the applicable provisions of the Unified Development Ordinance of Lake County (Unified Development Ordinance) (Lake County Code of Ordinances § 151.001 et seq. (adopted Oct. 13, 2009)) in determining that the proposed use of Midlothian Manor would be a "government use (no assembly space)" in a residential area zoned R–1. For the following reasons, we affirm the circuit court's judgment reversing the Board's decision.

¶ 2 I. BACKGROUND

¶ 3 We summarize the pertinent facts appearing in the record. In 1946, the Authority was established pursuant to the Housing Authorities Act (Act) ( 310 ILCS 10/1 et seq. (West 2014)). The Authority was created to address the "shortage of safe and sanitary housing" available in Lake County to persons of limited financial resources. The Act empowers the Authority to create low-rent housing projects, as well as to build and operate housing accommodations. See 310 ILCS 10/2 (West 2014). The Authority is also expressly authorized to make and execute contracts with others to carry out its objectives. See 310 ILCS 10/8.5 (West 2014). The Authority works on its own and with developers to fulfill its statutory goals.

¶ 4 The Authority's operations dovetail with the objectives of the U.S. Department of Housing and Urban Development (HUD). HUD has directed public housing authorities to work to end homelessness, specifically for the "chronically homeless," whom HUD defines as persons with disabilities that contribute to their homelessness. The Authority, in conjunction with the Lake County Community Development Department and the Lake County Coalition for the Homeless, developed the "Zero: 2016 Campaign" to end chronic homelessness. In addition to this partnership, there are a number of other facilities in Lake County that address the issue of homelessness, run by county governmental bodies, other charitable organizations, and PADS.

¶ 5 In 2006, the Authority, in collaboration with other public and private entities, drafted the "Lake County 10 Year Plan to End Homelessness," which included goals specifically targeting chronic homelessness. The plan's goal was to create 44 new permanent housing units throughout Lake County for chronically homeless persons. The proposed use of the subject property would prevent the loss of 13 units of permanent housing for the chronically homeless and would add one new unit.

¶ 6 Founded in Lake County in 1972, PADS is an Illinois not-for-profit organization that supports homeless persons. To that end, PADS offers services including temporary emergency shelter, permanent supportive housing, and comprehensive support. On average, PADS assists between 1,800 and 2,000 persons every year.

¶ 7 As is relevant to this appeal, PADS operates a program named "Safe Haven." Safe Haven offers permanent housing support to chronically homeless adults. Adults who have mental illnesses or other issues that prevent them from achieving stable housing situations are eligible for assistance from the Safe Haven program. PADS's objective in helping the chronically homeless draws its definitions, as well as some funding, from HUD. HUD's definition of chronically homeless persons includes those with physical, mental, and developmental disabilities. Following HUD's lead, PADS's Safe Haven program subscribes to the approach of "housing first/harm reduction," which allows persons to enter the program with limited barriers. The program attempts to provide a period of stabilization, followed by the initiation of services, and eventually attempts to transition the participants into permanent housing. Historically, the participants have been about 60% male and 40% female, with some, but not all, being veterans of the armed services.

¶ 8 At the time of the proceedings before the Board, Safe Haven was operated out of the federal Veteran's Administration facilities in North Chicago. The federal facilities needed the space occupied by Safe Haven, so for several years, PADS looked for a new facility to house the recipients of Safe Haven's services. In North Chicago, Safe Haven provided 13 rooms; the residents were not permitted to eat or cook in their rooms, but they were offered a meal service, along with support from staff, including a social worker and a nurse. When PADS was required to relocate Safe Haven, it submitted a proposal to use the then-vacant Midlothian Manor building to house the program. PADS contemplates that the residents will be able to use their in-room kitchenettes to prepare frozen or prepackaged meals and will be able to eat in their rooms.

¶ 9 Midlothian Manor was constructed in 1997 and used as an assisted living facility for low-income elderly persons. The building is about 9,500 square feet, it is a single-story L-shaped structure, and it is sited on a 2.56-acre lot located in an area zoned R–1, a low-density residential zoning district. As it stands, the building has 14 attached single-room occupancy units. Included are common areas, such as a lobby, a laundry facility, and a kitchen that contains an oven, a stove, and a sink. Each unit has a kitchenette, consisting of a countertop, a microwave oven, and a small refrigerator. The units do not include kitchen-area sinks; instead, the occupants will be expected to use their bathroom sinks for water needs and hygiene. The units all have bathrooms and exterior patios. The patios, however, are not contemplated for use by the residents, but only to provide exits in case of a fire or other emergency.

¶ 10 Around 2001, the ownership of Midlothian Manor was transferred to the Authority. According to the Director, zoning staff was not consulted at the time of the transfer, so there was never a determination of the subject property's use in the Department's records. The Authority operated Midlothian Manor as a senior assisted-living facility between 2001 and 2010. Around 2010, due to chronic operating losses, the Authority discontinued operating Midlothian Manor, and the building stood vacant. Defendants point out that, from 2001 through 2014, the Authority did not seek to have the subject property reclassified as a "government use."

¶ 11 While Midlothian Manor lay vacant, the Authority explored ways to use it. Eventually, the Authority issued a request for proposals of ways to use Midlothian Manor to provide housing and services to homeless persons. PADS submitted a proposal, suggesting that it could operate its Safe Haven program at Midlothian Manor. The Authority accepted PADS's proposal.

¶ 12 In 2014, the Authority entered into negotiations with PADS to lease Midlothian Manor for PADS's Safe Haven program. Around September 2014, PADS and the Authority approached the Department, seeking guidance regarding the proposed use and the zoning requirements. Department staff suggested, based on the information...