Really, I couldn’t make this stuff up if I
wanted to. The School applied for a
rezoning for 32 acres of land and an accompanying special exception and some
development variances to expand from 600 students to 1400. After the Village denied the rezoning
request, the circuit court denied cert without opinion. The Third District reversed, finding that the
Village’s action was impermissible reverse spot zoning.
On remand, the School modified the conditions
of the zoning request and the special exception application to reduce the
number of students to 1150, with conditions to expand the enrollment over time,
and eliminated the requested variances.
The Village approved the rezoning and, at the same hearing, heard the
special exception. The staff
recommended approval of both, but also included a condition that the School
record a 30 year covenant against any further requests for additional
buildings, students and other relief. At
the hearing, there was no testimony or evidence in support of the covenant
condition, but the School’s attorney objected to it. There was evidence that the 1150 student
enrollment was consistent with traffic and other levels of service. Neighbors and opponents testified for and
against the application. When the
testimony closed, the council began deliberating.
One of the council members made a motion to
reduce the number of students to 900.
There was debate, and the special exception resolution was passed, with
the 900 student condition and the 30 year covenant requirement. The School challenged these conditions in a
The circuit court, sitting in its appellate
capacity on the cert petition, found that neither of the conditions was
supported by competent substantial evidence.
In addition, the circuit court found that the 30 year restrictive covenant
was essentially illegal, as a moratorium and beyond the legitimate power of
zoning. The circuit court quashed the
conditions and remanded.
The Village then made plans to thwart the
School and the circuit court. The School
filed a motion to enforce the mandate (to require the Village to act again on
the application) and the Village filed a motion for clarification claiming that
the Commission could reconsider the entire application and approval because
there was no severability clause in the adopting resolution. The Circuit Court responded to this Motion,
instructing that the Village could not rely on the lack of a severability
provision to consider the entire application.
The School then filed an emergency motion with the circuit court to
enforce the mandate, claiming the Village was planning to violate the circuit
court’s mandate. The Village’s attorney filed a statement and a memo advising the
Commission not to reopen the evidentiary portion of the hearing, and the
circuit court denied the emergency relief.
The Commission then held its hearing on remand and adopted an amended
Resolution on the Special Exception. The
Amended Resolution removed the 900 student cap, but it did not reinstate the
1150 student cap or mention any number of students; resulting in a resolution
which kept the existing 600 student limit on the expanded campus, with numerous
other conditions designed to accommodate the increase in students.
The School filed a motion to enforce the
mandate (rather than a separate cert petition) which was heard by the circuit
court with full appellate proceedings.
The circuit court found the Village’s action in direct violation of the
order (as clarified) and mandate. The
circuit court rejected legalistic claims from the Village and intervening
neighbors that the mandate only quashed the 900 student cap, but did not
require the Village to approve the 1150 student application; and acclaim by the
neighbors that the School “waived” its right to challenge the refusal to grant
the 1150 student approval by challenging the 900 student cap condition. The circuit court’s order granted the motion
to enforce the mandate and remanded to the Village “for proceedings in
accordance with this Order and the Court’s Mandate of March 3, 2011.”
On first tier certiorari back to the 3d DCA, the Court upheld the circuit court's order to enforce its mandate.