By Stuart R. Wahlin
When the Winnebago County Board voted Aug. 13 to deny a parking lot variance requested for a convenience store, a number of board members were surprised to learn afterward that their action would essentially cause the closure of West Quick Mart, 1002 S. Pierpont Ave.
The convenience store remains open for business, however, and more litigation is brewing for the county.
Property owner Odell Tidwell Sr. previously ran a fish market at the location, during which time a gravel parking area was permitted under a grandfather clause. When the market closed, however, county ordinance required paved parking for any new commercial venture at the southeast corner of Cunningham Road and Pierpont Avenue.
A site plan to reflect the paved lot for West Quick Mart was submitted to the county and approved. But by the time the paving project was completed, the lot didn’t match the site plan, because the paved area extended through a 5-foot strip of public right-of-way to abut Pierpont Avenue.
As a result of the noncompliance, Nashwan Ali, operator of West Quick Mart, petitioned for a variation, on behalf of property owner Tidwell, to excuse the discrepancy.
Although the Zoning Board of Appeals (ZBA) and Zoning Committee both recommended approval of the variation, the county board rejected the petition in a 16-9 vote.
Less than a month later, West Quick Mart, Inc., Tidwell and wife Annie filed for a writ of mandamus against Winnebago County, county board members and county staff.
According to Black’s Law Dictionary, mandamus is a writ “issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly.”
The Tidwells are represented by Federal District Court Trial Bar member Thomas O. Meyer, a former Rockford alderman and special assistant attorney general, who is licensed to practice before the U.S. Court of Appeals for the Seventh Circuit and the U.S. Supreme Court.
Meyer did not respond to requests for comment.
This appeal of the board’s decision asks that the variation be granted so West Quick Mart can stay in business at the location. Meantime, during the appeal process, the store would be allowed to remain open, but the county is fighting back, trying to force the convenience store’s closure.
Oct. 20, the county filed for a preliminary injunction against the Tidwells and West Quick Mart. Meyer’s practice partner, Timothy F. Horning, is representing the Tidwells and West Quick Mart in the related matter.
County Planning & Zoning Officer Troy Krup indicated, “The county filed for an injunction because the site is not in compliance with the zoning ordinance, as the parking lot setback variations needed for compliance were denied.”
Assistant State’s Attorney Sara Hohe noted, “The injunction concerns West Quick Mart and the Tidwells not complying with the zoning ordinance by operating, or allowing the operation of, the convenience store after the zoning variation was denied.”
As yet, Hohe noted, none of the parties named as defendants has been served in the matter of the writ of mandamus. A case management conference has been scheduled for Dec. 16.
Meantime, a hearing regarding the injunction is scheduled for Nov. 18.
The vote revisited
Doug Aurand (D-3), George Anne Duckett (D-12), John Ekberg (R-10), Dave Fiduccia (R-4), Angie Goral (D-7), Bob Hastings (D-13), Pearl Hawks (D-6), Karen Hoffman (D-11), Kay Mullins (R-8), Randy Olson (R-1), Mel Paris (D-8), Dianne Parvin (R-4), Steve Schultz (R-2), David Tassoni (D-7), L.C. Wilson (D-12) and Dave Yeske (R-2) voted to deny the requested variation.
It was only after the vote, however, that the impact of the board’s action was discussed.
Krup explained, “In order to open up a new business, they needed to obtain a special use, which they did, but that special use was granted with the condition that it must comply with all applicable codes, which they were trying to do by obtaining those variations to allow the parking lot to remain in its current location.
“They submitted a site plan to the zoning division, and that was in compliance with the zoning code. Then, what they installed did not match up with the approved plan,” Krup reported. “The only way at this point to obtain compliance, because of the mistake being different from the approved site plan, is by obtaining that variation.
“They should have supplied an accurate site plan that would have been denied,” he added. “And then at that point, we would have said, ‘In order to put the parking lot in the desired location, you need to obtain a variance.’ Should the variance be granted, then they would re-design the parking lot for that variance, and the parking lot would go in.”
With the variation having been denied, however, Krup noted, “The only option left is to close the business to obtain that conformity.”
Frank Gambino (R-14) wondered how a store could be put out of business simply because a parking lot was over-extended. Paul Gorski (D-5) echoed the concern.
“Through either an engineering or a contractor error, they made the lot too big. And then they had to come back and ask for the variation after the fact, because they realized it was too big,” Gorski said. “Since now it’s not in compliance with the special use, we have to ask them to shut down the business due to a contractor or an engineering error.”
Although he’d voted to deny the request, Ekberg was shocked to learn what effect the ruling would have on the business. Having been on the prevailing side, he moved for reconsideration, with the intention of laying the matter over for further review.
Rick Pollack (R-13) suggested the board could amend its previous action to allow six months for the parking lot to be brought into compliance.
“He was trying to conform with the ordinance, and it seems to me like, whether I’m for the business or not, it seems very unfair if you’ve got somebody putting up money, getting loans and trying to bring a business into compliance, and then, there’s a mistake made, and the business has to be shut down,” Pollack argued. “I think that’s kind of harsh, myself.”
Duckett, however, said it’s not the board’s problem if a contractor allegedly didn’t deliver what was promised.
“I don’t know what these ordinances are for if it’s not called the law,” she asserted. “I don’t understand why he didn’t go according to what he submitted to the county, but that’s not our fault, and I’m sure he knows that.”
If the board were to forgive the mistake, Duckett warned, “You better watch out, ’cause there’s gonna be a lot of people coming back, talking about their mistakes.”
Assuming a similar attitude, Aurand argued: “Rules are rules, and at some point in time, we’d better start abiding by the rules. They knew the rules. They didn’t abide by the rules. We need to vote ‘no.’
“We’ve got to make these people be responsible,” he added. “In my district, we had a builder that built a building 2 feet too high. … He said, ‘I made a mistake.’ He raised the building, and he took 2-foot off. Let’s make these people do it right.”
Hawks and fellow District 6 Democrat Dorothy Redd, who was not present for the vote, were opposed to the variation, but not necessarily for reasons having to do with a compliant parking lot. Paving issues aside, Hawks cited safety concerns.
“When you think about business and money, you think about lives, too,” she said. “This is at a four-way stop sign, and there’s been complaints that, at times, people run those stop signs.”
Hawks also expressed concern for area children walking to nearby parks.
“When they initially applied for this business, it was supposed to be like fast foods,” she explained. “There was not supposed to be any liquor. And the next thing, I look up, and they’re selling liquor. With them selling liquor there, it even makes it more a safety hazard.”
A liquor license for West Quick Mart was approved in 2008, and Duckett agreed that’s all the more reason not to let the paving error slide.
“I don’t think people realize what alcohol does to the community that Pearl represents, but they’ve had other facilities out there that sell alcohol, and I’m telling you all the west side needs no more alcohol,” Duckett asserted. “I just think the safety issue is a concern. I’m telling you, if it was your kids out there, you would not want that four-way stop there with the alcohol place there, and all the other stuff that goes on out there. I just think that you have to understand that Pearl knows that district, and she and Dorothy were shocked when they found out there was an alcohol permit for them. They didn’t know it was even there on the table.”
Gambino suggested that to demand compliance, fines could be levied, but that a business and jobs could be saved meantime. Responding to the decidedly hard-line position other board members were taking, he countered: “People make mistakes. I’m not going to say this was intentional. We can’t prove one way or the other, but I think there is room for error. But there also is room for us giving the chance to rectify the situation, and to make it right.”
Gambino and others never had a chance to make things right as they saw it, because the matter never made it back to the floor. In a 15-10 vote, the motion for reconsideration was defeated. Aurand, Duckett, Fiduccia, Goral, Hastings, Hawks, Hoffman, Logan, Olson, Paris, Parvin, Schultz, Tassoni, Wilson and Yeske voted “no.”
Although the board voted down the variation, it did not specifically address or refute the findings of fact, upon which the ZBA’s recommendation was based. The board was only allowed to consider these findings when deciding whether to grant the variation. Essentially, by denying the request, the board must bear the burden of proof that the findings of fact were not satisfied.
In March, a special-use permit granted in 2006 was overturned under similar circumstances. In that case, the ZBA had voted unanimously to recommend denial of the permit, because it determined findings of fact had not been satisfied.
Despite the recommendation for denial, the Zoning Committee and county board overwhelmingly voted to approve the special-use permit for the controversial Dyn Cannell, LLC, planned community development west of Rockton.
However, the board negated the rules by not justifying its reasons for disregarding the findings of the ZBA. Therefore, Judge Eugene Doherty nullified the permit and sent the matter back to the board to address the findings of fact before a new permit could be issued.
Board members did so in short order, and another permit was granted.
In the similar West Quick Mart case, a judge could send the matter back to the board to substantiate its reasons for denial, forcing it to disprove the findings of fact as established by the ZBA.
From the November 11-17, 2009 issue