SECOND DIVISION

								June 19, 2001

No.  1-99-2284

THEODORE PECORA and,			) Appeal from the

BETTY PECORA					) Circuit Court of

							) Cook County

		Plaintiffs-Appellants,	)										

v.							)

							)

COUNTY OF COOK, ILLINOIS, a		)

body politic and BOARD OF 		) Honorable  	

COMMISSIONERS OF COOK COUNTY,		) Sidney A. Jones, III,

							) Judge Presiding.

	Defendants-Appellees.		)

JUSTICE GORDON delivered the opinion of the court:

	Plaintiffs Theodore and Betty Pecora (collectively "the Pecoras") appeal from the judgement of the circuit court of Cook

County granting summary judgement in favor of defendants, Cook

County, Illinois and the Cook County Board of Commissioners

(collectively "the county ").  On appeal, the Pecoras argue that

the circuit court erred in granting summary judgement against

them because they had exhausted their administrative remedies;

because further proceedings before the administrative agencies

would be futile and would require them to pursue multiple

remedies; and because the trial court incorrectly viewed their

declaratory judgement action as a case in the nature of

administrative review.  The county argues that the Pecoras failed to exhaust their administrative remedies.  The county further

contends that even if the Pecoras did exhaust their

administrative remedies, summary judgement was still proper

because the Pecoras could not prove their case at trial.  We

reverse.

	BACKGROUND

	The instant action has been pending in and out of the

circuit court since 1981 and is almost two decades old.  While

the record is obviously lengthy, only the details relevant to

this case need be discussed herein.  Unless otherwise noted, the

facts stated in this section are not in dispute.

	The subject of this litigation is a real estate tract

(hereinafter referred to as "the property") of approximately 4.9

acres located about 150 feet east of Wildwood Avenue on the south

side of Higgins Road in unincorporated Elk Grove Township in Cook

County, Illinois.  The Pecoras own the property as they have

since 1972.  The property is currently vacant and is zoned R-5

under the Cook County Zoning Ordinance.  The R-5 district permits

single family homes (as well as cemeteries; schools; and

recreational uses such as golf courses) with a minimum lot size

of 10,000 square feet.  Cook County Zoning Ordinance §§ 4.53,

4.58(1) (1984).  A neighborhood of single-family homes in the

municipality of Elk Grove Village stands immediately west of the property and five single-family homes in unincorporated Cook

County stand immediately to the east.

	On September 3, 1981, the Pecoras filed the first complaint

in the case at bar seeking a declaration that the property could

be lawfully used for any use permitted in the I-1 restricted

industrial district.  The Pecoras' first complaint alleged that

they had applied to the Cook County Zoning Board of Appeals

(hereinafter the "ZBA") to change the zoning of the property from

the R-5 district to the I-1 district (application I).1  The complaint averred that on May 5, 1981, the ZBA recommended to the

Board of Commissioners of Cook County (hereinafter the "county

board") that the Pecoras' application be denied and the board

denied that application on May 18, 1981.

	A lengthy series of continuances and other miscellaneous

motions ensued for nine years after the original complaint was

filed until June 27, 1990, at which time the Pecoras were granted

leave to amend their complaint.  The subsequent amendment to the

first complaint specified the Pecora's proposed use of the

property was as an office and warehouse facility.  

	On October 13, 1994, approximately four years later, the Pecoras filed a first amended complaint, which sought a

declaration that the property could be developed pursuant to the

uses permitted by the I-1, C-8, or C-6 (with a special use permit

for a warehouse) districts.  The first amended complaint alleged

that the ZBA had held a hearing on March 5, 1993, pursuant to the

Pecoras' application to change the zoning of the property from

the R-5 district to the C-8 intensive commercial district.2  This was a new application (application II) filed following the denial

of the earlier application (application I) by the county board on

May 18, 1981.  Application II sought reclassification to the C-8

district, unlike application I which sought reclassification to

the I-1 district.  According to the first amended complaint, the

ZBA recommenced that application II be denied, which

recommendation was adopted by the county board on June 2, 1993. 

The first amended complaint further alleged that on January 21,

1994, a hearing was held by the ZBA pursuant to the Pecoras'

application to change the zoning on the property from the R-5

district to the C-6 automotive service district and the Pecoras'

combined special use application to permit a self-storage warehouse on the property.3  While not spelled out in the pleadings, these allegations refer to still a third application

(application III) seeking reclassification to the C-6 district

with a special use permitting a warehouse, which was filed after

the denial of the second application on June 2, 1993.  The

application was denied by the county board on July 14, 1994. 

	On November 22, 1994, the Pecora's voluntarily withdrew

their first amended complaint and filed their second amended

complaint.  A copy of this complaint cannot be found in the

record.  However, there does not appear to be any dispute that

the second amended complaint limited the relief sought to a 

declaration that the property could be developed pursuant to the

C-6 automotive service district with a special use permitting a

warehouse.  

	On November 22, 1995, the county filed a motion pursuant to

section 2-619(a)(9) of the Code of Civil Procedure to dismiss the

declaratory action on the grounds that the Pecoras failed to exhaust their administrative remedies.  735 ILCS 5/2-619(a)(9)

(West 2000).  It contended that the Pecoras' appearance before

the ZBA on January 21, 1994, requesting a C-6 designation with a

special use permitting a warehouse was perfunctory, as the

Pecoras did not present any expert testimony regarding the

suitability of a C-6 designation for the property.  In support,

the county attached a copy of the findings of the ZBA from the

January 21, 1994, hearing wherein the ZBA recommended that the

Pecoras' application for a C-6 district with a special use

permitting a warehouse be denied.  The ZBA found that the Pecoras

had presented no expert testimony on the five factors relevant to

the approval of a special use, (namely the effect of the change

on the general welfare, the effect on nearby property, the effect

on the development of surrounding property, the adequacy of

facilities and utilities and ingress and egress) and that no

conclusion could thus be reached with respect to those factors. 

As an additional ground in support of the contention that there

was a failure to exhaust administrative remedies, the movant

contended that the forgoing application to the ZBA was

ineffective because it was filed during the pendency of the

circuit court proceedings.  The movant averred that one could not

simultaneously proceed to seek relief from the courts before the

conclusion of the administrative action.

	On December 5, 1995, the court granted the motion to dismiss

stating that:

	"Defendant's motion to dismiss is granted.  Plaintiffs

failed to exhaust their administrative remedies.  This

action is remanded back to the Cook County Zoning Board

of Appeals.  This cause is held in abeyance pending an

administrative hearing before the Cook County Zoning

Board of Appeals and further determination by the Cook

County Board."

	Approximately one year later, on December 15, 1996, the

Pecoras filed their third amended complaint again seeking a

declaration that the property could be developed in accordance

with the requirements of the C-6 district with a special use

permitting a warehouse.  Apparently following the dismissal of

the second amended complaint on December 5, 1995, for failure to

exhaust and the attendant "remand" by the trial court to the ZBA,

the Pecoras returned to the ZBA and made a fourth application

(application IV) seeking for the second time before the ZBA

reclassification of the property to the C-6 district with a

special use permitting a warehouse.  Upon the denial of

application IV, the Pecoras filed their third amended complaint

alleging that on April 26, 1996, following the Pecoras' return to

the ZBA, a hearing was held before the ZBA pursuant to their request for reclassification of the property from the R-5

district to the C-6 district with a special use permitting a

warehouse.  According to the third amended complaint, on

September 26, 1996, application IV was denied by the county board

presumably pursuant to the recommendation of the ZBA.

	The county filed a motion to dismiss the third amended

complaint under section 2-615 of the Code of Civil Procedure. 

735 ILCS 5/2-615 (West 2000).  In its motion the county contended

that the allegations of the third amended complaint were

insufficient to state a cause of action.  Specifically, the

county contended that the third amended complaint did not allege

with sufficient specificity the nature and size of the Pecoras'

proposed development of the property.  In response, the Pecoras

filed a fourth amended complaint on February 28, 1997.  The

fourth amended complaint was similar in all respects to the third

amended complaint, except that it made additional factual

allegations regarding the nature of the Pecoras' proposed

warehouse facility.  	

	On February 1, 1999, after the fourth amended complaint was

filed, the county moved for summary judgement alleging that the

Pecoras had failed to exhaust their administrative remedies.  In

support, the county averred that with respect to application IV,

the Pecoras did not present any evidence to the ZBA to establish that their special use of a warehouse would have adequate

utilities, drainage and other necessary facilities.  The Pecoras

denied that allegation and in support of their denial, they

attached documents and record excerpts from the transcript4 of the hearing on April 26, 1996.  These included the notarized

application for a special use (application IV) submitted in

advance of the April 26, 1996, hearing.5 

	On April 8, 1999, the court granted the motion for summary

judgement.  In granting the motion, the trial judge stated that

"[t]his case has two aspects *** [f]irst of all exhaustion and

secondly, whether the process was arbitrary, unreasonable and

capricious."  The court then found that the Pecoras had failed to

exhaust their administrative remedies, stating,

	"With respect to exhaustion, I think that the Plaintiff

has done a great deal of work.  I think its fallen

short of what the Board needed in order to make a

decision, and the Court finds that there has been a

failure to exhaust.  But beyond that, the teachings of the City of Carbondale case say that the police power[] [is] an[] attribute of sovereignty, and its not to be

disturbed merely where there is a difference of opinion

with a regulatory decision as to its wisdom, necessity

and expediency.  And the unmistakable weight of

presumption in favor of the Board's decision was

certainly present."

The court then went on to discuss the second issue:

	"Now the Court has already found that there's been an

inadequate administrative presentation, but even to the

extent that the presentation was adequate, it seems to

me that there is no showing that the process was

unreasonable, arbitrary and capricious."

The court noted that there is residential development to the east

and the west of the property.  The court then found that the

Pecoras had failed to show "that the process or the result was

unreasonable, arbitrary and capricious."

	On May 7, 1999, the Pecoras filed a motion to vacate that

judgement which the trial court denied on June 1, 1999.6  This appeal followed.

	ANALYSIS

	On appeal the county  makes two arguments in support of the

Chancellor's findings.  First, the county urges that the Pecoras

cannot simultaneously pursue their declaratory action in court

while their case in front of the administrative agency is still

pending.  Secondly, the county urges that the Pecoras did not

exhaust their administrative remedies by reason of the fact that

they did not adequately present a full case to the ZBA.  The

Pecoras deny that they have failed to exhaust their

administrative remedies.  They further contend that even if their

administrative remedies have not been exhausted, they fall within

two exceptions to the rule that administrative remedies must be

exhausted; namely that any further administrative proceedings

would be futile and that they should not be required to pursue

multiple remedies.    

	We first address the county's contention that the Pecoras

failed to exhaust their administrative remedies because they were

seeking judicial relief and administrative relief simultaneously. 

For the reasons discussed below, we disagree with either contentiion

contention.

	Generally, in a zoning dispute where the plaintiff contends

that "the enforcement or application of a particular

classification to the plaintiff's property is unlawful and void

*** judicial relief is appropriate only after available administrative remedies have been exhausted."  Bright v. City of Evanston, 10 Ill. 2d 178, 185, 139 N.E.2d 270, 274 (1956).  "The Bright rule *** is *** an expression of judicial policy prompted by the circumstance that zoning is legislative and administrative

in nature, not judicial, and which is aimed at providing the

local authority an opportunity to correct error and to settle

disputes locally before there is judicial intervention."  County of Lake v. MacNeal, 24 Ill. 2d 253, 259, 181 N.E.2d 85, 89 (1962). 

	The county  principally relies on the decision of our

supreme court in Northwestern University v. City of Evanston, 74 Ill. 2d 80, 383 N.E.2d 964 (1978), for the proposition that you

cannot maintain an action for declaratory relief while

simultaneously maintaining a pending action before the ZBA.  In

Northwestern, our supreme court held that where a property owner files a court action challenging the application of a zoning

ordinance to his property while his application for

administrative relief is still pending before the local zoning

authorities, the property owner has not exhausted his

administrative remedies.  Northwestern, 74 Ill. 2d at 87-88, 383 N.E.2d at 968.  Under Northwestern, such is the case even where the administrative action is concluded before the conclusion of

the court action.  Northwestern, 74 Ill. 2d at 89, 383 N.E.2d at 969.  The facts in Northwestern disclose that historically there was a long standing dispute between the university and the city

regarding a city ordinance which prohibited professional athletic

events at the university's Dyche Stadium.  The university had

previously engaged in a pattern of behavior whereby it would sue

the city over its zoning ordinance in advance of a professional

athletic event; obtain a temporary injunction allowing the event

to take place; and then dismiss the lawsuit against the city as

moot after the event took place.  Under the operative facts

pending before the Northwestern court, the university filed an application for a variance with the Evanston ZBA seeking to allow

professional athletic contests on November 21, 1975.  After the

aforesaid application was filed but before an administrative

hearing was held, the university filed a complaint in the circuit

court of Cook County seeking a declaration that the prohibition

on professional athletics on the property was unconstitutional. 

Subsequently, the administrative hearing was held and

administrative relief was denied, before any judgement was

entered in the court action.

	The court stated that the "dispositive fact" of the case was

that when the suit was filed "Northwestern's petition for an amendment to the ordinance and its application for a variance

were both pending before the zoning authorities, which, indeed, had not yet held hearings on the merits."  Northwestern, 74 Ill. 2d at 88, 383 N.E.2d at 968.  The court held that "[u]nder these

circumstances, the university cannot be said to have exhausted

its administrative remedies at the time this suit was filed."  (Emphasis added.) Northwestern, 74 Ill. 2d at 88, 383 N.E.2d at 968.  

	The court went on to hold that the exhaustion requirement

may not be satisfied retroactively.  In explaining the rational

behind its holding, the court stated,

	"Nor does the fact that the local zoning authorities

and the city council denied Northwestern's petition and

application after the initiation of this lawsuit

justify us in holding that the university exhausted its

local remedies retroactively *** such a holding would

have pernicious consequences as a precedent.  It would

in effect be a holding that a party may pursue

administrative and judicial remedies simultaneously so

long as the administrative proceedings are concluded

before there has been a hearing on the merits in the

lawsuit.  Such a holding would allow a party to file a

lawsuit and then satisfy the exhaustion requirement by

putting in a perfunctory appearance before the local

bodies, reminding them of the pendency of the suit, on which the party's real effort was focused."

Northwestern, 74 Ill. 2d at 89, 383 N.E.2d at 969.  

	Contrary to the county 's contentions, we find that the

facts of the case at bar are manifestly different from the facts

in Northwestern and that consequently the rational behind the court's decision in Northwestern does not apply to the instant case.  

	Unlike the facts in Northwestern, the record in this case shows that at no time did the Pecoras simultaneously request the

same relief from the ZBA and the courts.  All of the relief

requested by way of declaratory judgement followed the denial of

that relief by the ZBA.  In this case, unlike the facts in

Northwestern, the lawsuit initially seeking a declaration compelling reclassification to the I-1 district was filed only

after the claim for that relief was denied by the ZBA.  This

lawsuit was first filed on September 3, 1981, after the Pecoras

were denied reclassification to the I-1 district by the county

board on May 18, 1981, and after a hearing was held by the ZBA on

this request (application I) on January 16, 1981.  Thus, at the time the suit was first filed no administrative proceedings for such relief (reclassification to the I-1 district) were pending.7  	While during the pendency of the declaratory judgement

action, the Pecoras returned to the ZBA a second time seeking

reclassification to the C-8 district (application II) and a third

time seeking reclassification to the C-6 district with a special

use permitting a warehouse (application III), their declaratory

action was still confined exclusively to obtaining the I-1

classification which had already been denied by the ZBA at the

time their lawsuit was filed.  The Pecoras did not amend their

complaint seeking declaratory relief for reclassification to the

C-8 or C-6 districts until after their administrative

applications for those remedies were denied by the county board.

	The second and third applications to the administrative

agency, which requested reclassification to the C-8 district and

the C-6 district with a special use respectively, requested

distinct remedies different than the request for reclassification

to the I-1 district, as shall be more fully discussed below.  The

second and third administrative proceedings on March 5, 1993,

(application II requesting reclassification to the C-8 district)

and on January 21, 1994, (application III requesting reclassification to the C-6 district with a special use

permitting a warehouse) respectively, both terminated in a denial

of the requested relief by the county board on June 2, 1993, and

July 14, 1994, respectively, before the Pecoras' complaint was

again amended to seek declaratory relief from those denials. 

Thus, at no time did the Pecoras attempt to seek any specific

judicial relief before they had received a final determination on

their respective applications seeking such relief from the county

board.8  

	The rule is clear that the exhaustion of remedies rule does

not require exhaustion of multiple remedies.  In other words,

where several forms of alternative relief are available at the

administrative level, the rule does not require that all of the

alternative forms of relief be pursued and denied before the

property owner may proceed in court.  Kuney v. Zoning Board of Appeals of City of De Kalb, 162 Ill. App. 3d 854, 857, 516 N.E.2d 850, 852 (1987).  Consequently, an application to an

administrative agency for an alternative but distinct remedy need

not be exhausted in order to request relief from the court for

the original remedy.  Kuney, 162 Ill. App. 3d at 857, 516 N.E.2d at 852.  Each zoning classification represents an independent

remedy at the administrative level and thus under the multiple

remedy rule, a property owner may proceed to court once he has

been denied administrative reclassification to one of the

potential districts without first seeking administrative

reclassification to the others.  

	As we have noted above, the I-1 district, the C-8 district,

and the C-6 district permit different uses of land within their

boundaries (Compare Cook County Zoning Ordinance §6.13 (1984),

with Cook County Zoning Ordinance §5.83 (1984), and Cook County

Zoning Ordinance §§5.63, 5.64(1984)) and consequently are

alternatives to each other and constitute different remedies. 

Kuney, 162 Ill. App. 3d at 857, 516 N.E.2d at 852 ("when multiple remedies exist before the zoning board, and one remedy has been

exhausted" the property owner need not exhaust the other remedies

to proceed to court).  See also Liebling v. Village of Deerfield, 21 Ill. 2d 196, 199, 171 N.E.2d 585, 586 (1961) (once a property

owner has been denied reclassification to a different district by

the administrative agency he need not also apply for a variation

in order to exhaust his administrative remedies and proceed to

court); accord, Wheeling Trust & Savings Bank v. Village of Mount Prospect, 64 Ill. App. 3d 1038, 1041-42, 382 N.E.2d 128, 130 (1978).  Cf. American National Bank & Trust Co. of Chicago v. City of Chicago, 130 Ill. App. 2d 24, 27-28, 264 N.E.2d 847, 849 (1970).  This is all the more true with respect to the special

use which the Pecoras sought in conjunction with their effort to

obtain reclassification to the C-6 district.  See Kuney, 162 Ill. App. 3d 854, 857, 516 N.E.2d 850, 852 (specifically holding that

the property owner need not exhaust his right to obtain a special

use at the administrative level before he may proceed with a

declaratory judgement action).  

	Thus under the multiple remedies rule, there was no

requirement upon an applicant to exhaust all available remedies

as a prerequisite to seeking declaratory relief for the

administrative denial of any single one.

	Thus, in seeking respectively administrative

reclassification to the C-8 district (application II) and

subsequently to the C-6 district (application III) during the

pendency of the declaratory action focused on reclassification to

the I-1 district, the Pecoras were not simultaneously pursuing

the same administrative remedy which they were pursuing in their

declaratory action.9  When the Pecoras amended their complaint to seek declaratory relief for reclassification to the C-8 district and the C-6 district with a special use, their administrative

actions for such relief had by then fully terminated. 

	In reaching this conclusion we are not unmindful of the fact

that application IV, seeking for the second time administrative

reclassification to the C-6 district with a special use, occurred

after the first amended complaint seeking declaratory relief for

C-6 reclassification was filed and while that amended action was

still technically pending.  However, upon analysis this does not

alter our conclusion.  

	First, while the administrative proceedings seeking

reclassification for the second time to the C-6 district with a

special use permit were technically proceeding simultaneously

with pending court proceedings asking for the same relief, namely

the relief sought pursuant to an earlier administrative

proceeding on application III, it is clear that the declaratory

judgement action predicated on the denial of application III was

not being actively pursued in court during this period of

purported "remand."  With respect to that period, the court had

entered an order stating that the case was "dismissed" and the

cause held "in abeyance."  While there is some question as to

what the effect of this order is, there can be no question that,

at the very least, it meant that legal proceedings would

completely cease until after the conclusion of the further administrative hearings (application IV), at which point the

court proceedings would start over as if a new suit had been

filed.

	Had the trial judge simply dismissed the case with prejudice

on December 5, 1995, rather than holding it in "abeyance," the

Pecoras would have had clear sailing to file an entirely new

application for C-6 relief (application IV) and thus an action

arising from the denial of that new application.  Cf.  Cook County Zoning Ordinance §§ 13.98, 13.10-10 (1984)(if an

application for relief is denied by the county board it may be

filed again later); Hazelton v. Zoning Board of Appeals of City of Hickory Hills, 48 Ill. App. 3d 348, 351-52, 363 N.E.2d 44, 47 (1977)("it is well established that a prior determination by an

administrative body is not res judicata in subsequent proceedings before it"); Seno v. Franke, 16 Ill. App. 2d 39, 46, 147 N.E.2d 469, 473 (1958).  Consequently, the mere fact that the court held

this case in abeyance should not alter this result.  In holding

this case in abeyance, it is clear that the court did not

contemplate ongoing litigation concerning application III once it

would be superceded by the denial of application IV.  Thus at no

time was the court action seeking declaratory relief from the

denial of application IV pending during the pendency of the

administrative action seeking relief pursuant to application IV since the court action was initiated only after application IV

was denied at the administrative level. 

	Even more overridingly, the hearing before the ZBA pursuant

to application IV was not commenced by the parties of their own

volition but was initiated pursuant to an explicit directive of

the trial judge.  When the Pecoras filed their declaratory

judgement action and initially amended their complaint seeking a

declaration of entitlement to use their property in accordance

with requirements of the C-6 district and a special use permit

for a warehouse, all administrative action concerning that remedy

had already terminated.  The Pecoras did not then proceed on

their own to seek to re-apply for the same relief in still

another administrative action.  As previously noted, they then

had full recourse to seek declaratory judgement for such relief

without any procedural necessity to re-apply for that same

administrative relief already denied them.  Cf. Liebling v. Village of Deerfield, 21 Ill. 2d 196, 199, 171 N.E.2d 585, 586 (1961) ("the plaintiff sought the appropriate local remedy, and

having been denied relief, he may have access to the courts

without also making application for a variation"); Wheeling Trust & Savings Bank v. Village of Mount Prospect, 64 Ill. App. 3d 1038, 1041-42, 382 N.E.2d 128, 130 (1978) (plaintiff need not

request the same relief for a second time in the guise of a variation in order to exhaust his administrative remedies). 

Rather, it was the trial court who then directed that such a re-

application take place.  Under these circumstances there is no

risk that a party would "file a lawsuit and then satisfy the

exhaustion requirement by putting in a perfunctory appearance

before the local bodies, reminding them of the pendency of the

suit, on which the party's real effort was focused" which was the

rational used in Northwestern for barring simultaneous proceedings.  Northwestern, 74 Ill. 2d at 89, 383 N.E.2d at 969.  Furthermore, to hold otherwise would allow a trial judge to

unilaterally prevent a property owner from exhausting his

administrative remedies.

	The county next argues that the Pecoras failed to exhaust

their administrative remedies because they only made a

perfunctory appearance before the ZBA at the April 26, 1996,

hearing.  In support, the county contends that no evidence was

presented on the issue of whether the Pecoras' proposed

development would have adequate drainage.  We disagree.

	We find that the second hearing on a request for a C-6

designation was not a perfunctory appearance before the ZBA by

the Pecoras.  The transcript of the April 26, 1996, hearing and

the accompanying exhibits do not support the view that the

Pecoras' participation in that hearing was perfunctory.  Three witnesses testified in detail about the project and its impact on

the neighborhood, including Theodore Pecora, a land planner and a

traffic engineer.  The Pecoras also presented, among other

documents, a feasability study and percolation tests indicating

the feasability of installing a septic system for the live-in

manager of the proposed facility.  

	Furthermore, the Pecoras presented evidence on the factors

which must be established before the ZBA can recommend that a

special use be granted to a property owner.  Cook County Zoning

Ordinance §13.10-7 (1984).  Those standards are:

	"1.  That the establishment, maintenance or operation

of the special use will not be detrimental to or

endanger the public health, safety or general welfare.

	2.  That the special use will not be injurious to the

use and enjoyment of other property in the immediate

vicinity for the purposes already permitted, nor

substantially diminish and impair property values

within the neighborhood.

	3.  That the establishment of the special use will not

impede the normal and orderly development and

improvement of the surrounding property for uses

permitted in the district.

	4.  That adequate utilities, access roads, drainage and/or other necessary facilities have been or are

being provided.

	5.  That adequate measures have been or will be taken

to provide ingress and egress so designed as to

minimize traffic congestion in the public streets.

	6.  That the special use shall in all other respects

conform to the applicable regulations of the Ordinance

and other applicable County regulations, except as such

regulations may in each instance be modified by the

Board of Commissioners pursuant to the recommendation

of the Zoning Board of Appeals."  Cook County Zoning

Ordinance §13.10-7 (1984).

The Pecoras presented evidence on each of the forgoing factors. 

	Theodore Johnson, a certified planner, testified that the

proposed development of the self-storage warehouse facility would

have a positive impact on the general welfare because a need for

such a facility exists in the area.  He stated that the

development would not be injurious to the enjoyment of other

property, noting that a landscaped buffer zone would exist

between the development and homes on adjoining property.  He

further averred that it would not impede normal and orderly

development in the area because the trend of development in the

area is towards non-residential development.  He also testified that adequate utilities, roads, drainage and other necessary

facilities were being provided and that the development complied

with all other regulations.  

	David Miller, a traffic engineer, then testified that the

development would generate during peak hours 5 cars per hour in

the morning and 9 per hour in the afternoon.  On the weekend, it

would generate 11 per hour.  In comparison, a McDonald's

restaurant would generate 120 cars per hour at its peak time. 

Miller also testified that residents in the adjoining homes would

not be able to see the traffic on the property.

	The evidence presented by the Pecoras at the April 26, 1996

hearing distinguishes this case from Northwestern.  In Northwestern the court indicated that the plaintiff university made a perfunctory appearance before the ZBA.  In the facts of

Northwestern several hearings were held before the ZBA on the university's request for a variance.  The university refused to

appear at several of the hearings.  At the hearings in which the

university did participate, its participation was limited to

submitting a written "statement of facts" with a letter asking

for a continuance and having its attorney insist before the board

that the zoning ordinance was unconstitutional.  The university

refused to present facts or arguments to the board showing how

its proposal for a variance met the requirements for such a variance in the local zoning ordinance.  Northwestern, 74 Ill. 2d at 85. 383 N.E.2d at 967.  This state of affairs is in stark

contrast to the amount of evidence presented by the Pecoras to

the ZBA in the case at bar.  While the ZBA herein may have held

that the proof was not enough to obtain the relief requested,

this is a far cry from saying that the appearance was perfunctory

and only used to choreograph an agency appearance in order to

obtain relief in the courts.10

	The county  next argues that even if the Pecoras exhausted

their administrative remedies, summary judgement should be

sustained on the merits.  The county  contends that in order to

prevail at trial the Pecoras must prove all of the factors

enumerated in LaSalle National Bank of Chicago v. County of Cook, 12 Ill. 2d 40, 46-47, 145 N.E.2d 65, 69 (1957), and Sinclair Pipe Line Company v. Village of Richton Park, 19 Ill. 2d 370, 378, 167 N.E.2d 406, 411 (1960), as well as the factors enumerated in the Cook County Zoning Ordinance as requirements for the granting of

a special use permit (Cook County Zoning Ordinance § 13.10-7

(1984)).  The county  thus contends that since the Pecoras have

not presented any evidence indicating that their facility has or

will be provided with adequate drainage (one of the special use

factors), the Pecoras cannot prove a prima facie case and summary judgement against them must stand.  

	The Pecoras argue in response that the motion for summary

judgement did not contend that they are unable to prove a prima facie case and that it only contended that they have not exhausted their administrative remedies.  The Pecoras also argue

that even if the motion for summary judgement went beyond

exhaustion, they provided sufficient evidence on the issue of

adequate drainage to survive summary judgement on that issue. 

The Pecoras also contend that the affidavit furnished by the

county  with its motion for summary judgement was insufficient

and thus apparently argue that the county  has not met its burden

of production as the movant in a summary judgement motion. 

Consequently, the Pecoras claim that since the county  failed to

satisfy its burden of production, then that burden of production

never shifted to the Pecoras and they were entitled to stand on

their pleadings with regard to the issue of drainage.  We agree

with that position.

	The burden of proof and the initial burden of production in

a motion for summary judgement lie with the movant.  Rice v. AAA Aerostar, Inc., 294 Ill. App. 3d 801, 805, 690 N.E.2d 1067, 1070 (1998).  "Only if [the movant] satisfies its initial burden of

production does the burden shift to [the respondent] to present

some factual basis that would arguably entitle [it] to a

favorable judgement."  Rice, 294 Ill. App. 3d at 805, 690 N.E.2d at 1070.  

	"A defendant who moves for summary judgment may meet

its initial burden of production in two ways.

[Citation.]  The first is similar to the way a

plaintiff would establish his right to summary

judgment:  by affirmatively showing that some element

of the case must be resolved in defendant's favor.  A

defendant who uses that method is required to prove

something it would not be required to prove at trial; 

at trial, the burden would be on plaintiff to prove the

element, not on defendant to disprove it."  Hutchcraft v. Independent Mechanical Industries, Inc., 312 Ill. App. 3d 351, 355, 726 N.E.2d 1171, 1174 (2000).

In such a motion, the "party opposing [the] motion for summary

judgment may rely solely upon his pleadings to create a material

question of fact until the movant supplies facts that would clearly entitle him to judgment as a matter of law."  Malone v. American Cyanamid Co., 271 Ill. App. 3d 843, 846, 649 N.E.2d 493, 495 (1995).  

	The second method by which a defendant/movant may meet

initial burden of production, recognized by the United States

Supreme Court in Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265, 275 (1986), is by

"point[ing] out to the *** court *** that there is an absence of

evidence to support the nonmoving party's case."  While Illinois courts have held that a "[d]efendant's burden is certainly

reduced in a Celotex-type motion," the Illinois Appellate Court has suggested that "[t]he Illinois cases may require the

defendant to do more than 'point out' the absence of evidence." 

Hutchcraft, 312 Ill. App. 3d at 355, 726 N.E.2d at 1174.  Accord 4 R. Michael, Illinois Practice § 40.3, at 272 ("a mere recital

in the defendant's affidavit" is insufficient to carry the

defendant's burden of showing that the plaintiff cannot prove his

case).

	We find that Williams v. Covenant Medical Center, 316 Ill. App. 3d 682, 737 N.E.2d 662 (2000), is squarely on point.  In

Williams the defendant-movant made a Celotex-type motion for summary judgement which asserted without affidavit that

plaintiffs had no expert testimony to establish that the defendant-movant's negligence was the proximate cause of the

plaintiff's injury.  The court held that the defendant-movant

thus "failed to establish that plaintiffs could not produce an

admissible expert opinion on the issues of Covenant's [defendant-

movant's] breach of the standard of care and proximate cause of

Williams' [plaintiff's] injuries, and Covenant made no showing

that it was clearly entitled to judgement as a matter of law on

those issues."  Williams, 316 Ill. App. 3d at 690, 737 N.E.2d at 669.  The court thus held that the "plaintiffs could have relied

on their complaint to create an issue of material fact on those

issues."  Williams, 316 Ill. App. 3d at 690, 737 N.E.2d at 669.

	In the case at bar, the affidavit which accompanied the

county 's motion for summary judgement does not state that "the

plaintiffs could not produce an admissible expert opinion on the

issue" of adequate drainage.  Furthermore, the motion does not

even allege as much.  Rather the affidavit and the motion merely

argue that no drainage information was presented before the

county board.  Such an argument does not suggest that adequate

drainage evidence could not be presented at trial, and the

Pecoras would not be limited to evidence presented to the ZBA in

a trial of this case.  Smith v. County Board of Madison County, 86 Ill. App. 3d 708, 715, 408 N.E.2d 452, 459 (1980) (in a

declaratory judgement action "the validity of the ordinance does not depend on the evidence presented at the hearings before the

Zoning Board or the County Board, but is determined in an

independent action"); Knor v. County of Madison, 151 Ill. App. 3d 767, 773, 502 N.E.2d 1063, 1067 (1986) ("transcripts of hearings

before the zoning board of appeals or the county board are not

admissible in declaratory judgement actions").  Thus the county 

did not meet its burden of production and the Pecoras are thus

entitled to rely on their pleadings to create an issue of fact on

the issue of adequate drainage.  Since their fourth amended

complaint alleges that "[a]dequate utilities, access roads,

drainage and other necessary facilities are available for the

self-service storage facility," summary judgement cannot be

affirmed on the basis of this issue, as on the basis of the

preceding issues.11

[The following material is nNon-publishable material  under Supreme Court Rule 23 omitted here.]

	The county  next argues that the trial court properly

granted summary judgement because the Pecoras cannot overcome the presumption that Cook County's R-5 zoning classification

for the property is valid.  In support, the county  apparently argues that the Pecoras cannot demonstrate that the R-5

classification is arbitrary and unreasonable as applied to the property because the property is surrounded on three sides (west,

east and south) by residential development.  The county  thus

contends that the Pecoras can only show that there is a fair

difference of opinion regarding the R-5 zoning and cannot show

that it is unreasonable.12  The Pecoras contend that the county  did not support its motion with any affidavits, evidence or facts

which would enable the trial court to reach a determination that

the property is surrounded on three sides by residential

property.  The Pecoras further contend that the transcript of the

ZBA hearing would not be admissible for this purpose.  

	We find that the county 's position lacks merit regardless

of the admissibility of the transcript of the ZBA hearing for

these purposes.  First, as shall be more fully discussed below,

whether to grant summary judgement cannot be determined from the

analysis of one factor, namely the surrounding context of the

property, but must deal with several factors.  Secondly, we find

that there are genuine issues of material fact even with regard

to this one factor.

	"It is well established that zoning ordinances carry a

presumption of validity, and the party challenging the presumption carries the burden of establishing by clear and

convincing evidence that, with respect to the particular property

in question, the ordinance is arbitrary, capricious, and

unreasonable and bears no reasonable relation to the public

health, safety or general welfare."  Tim Thompson, Inc. v. Village of Hinsdale, 247 Ill. App. 3d 863, 872, 617 N.E.2d 1227, 1234 (1993)13.  The property owner must show that the current zoning classification is unreasonable and that his proposed use

is reasonable.  Glenview State Bank v. Village of Deerfield, 213 Ill. App. 3d 747, 758, 572 N.E.2d 399, 407 (1991).  

	In determining the validity of a zoning ordinance as it is

applied to a particular property, this court must evaluate many

different factors.  Six of the leading factors are enumerated in

LaSalle National Bank of Chicago v. County of Cook, 12 Ill. 2d 40, 46-47, 145 N.E.2d 65, 69 (1957).  Additional factors are

added by the analysis in Sinclair Pipe Line Company v. Village of Richton Park, 19 Ill. 2d 370, 378, 167 N.E.2d 406, 411 (1960).  See also Rodriguez v. Henderson, 217 Ill. App. 3d 1024, 1028-29, 578 N.E.2d 57, 60 (1991).

	"The La Salle court identified six factors as being 'among the facts which may be taken into consideration'

when determining a zoning ordinance's validity: (1) the

existing uses and zoning of nearby property; (2) the

extent to which property values are diminished by the

particular zoning restrictions; (3) the extent to which

the destruction of a plaintiff's property values

promotes the health, safety, morals, or general welfare

of the public; (4) the relative gain to the public as

compared to the hardship imposed upon the individual

property owner; (5) the suitability of the subject

property for the zoned purposes; and (6) the length of

time the property has been vacant as zoned, considered

in the context of land development in its vicinity.

[Citation.] Additional factors that have been

identified include (7) whether a comprehensive

government zoning plan for land use and development

exists;  (8) if so, whether the ordinance is in harmony

with it;  and (9) the evidence or lack of evidence of

community need for a proposed use."  Rodriguez, 217 Ill. App. 3d at 1029, 578 N.E.2d at 60.

"The list of factors is not exclusive; no one factor controls,

and validity is to be determined on the facts and circumstances of each ordinance."  Tim Thompson, 247 Ill. App. 3d at 872, 617 N.E.2d at 1235.

	While the county  contends that the first LaSalle factor, "the existing uses and zoning of nearby property," is of

paramount importance (Amalgamated Trust & Savings Bank v. Cook County, 82 Ill. App. 3d 370, 381, 402 N.E.2d 719, 728 (1980)), case law indicates that such determinations are not to be made on

the basis of one factor alone.  Tim Thompson, 247 Ill. App. 3d at 872, 617 N.E.2d at 1235 ("no one factor controls").  Given that

the county has not argued that the other LaSalle factors cannot support the Pecoras' position (Spinelli v. Immanuel Lutheran Evangelical Congregation, Inc., 118 Ill. 2d 389, 401, 515 N.E.2d 1222, 1227 (1987) (arguments inadequately presented on appeal are

waived)), we find it difficult to understand how summary

judgement could be sustained on the basis of the single factor

pertaining to the nearby property, even if we were to agree that

evidence on that factor was properly presented for summary

judgement purposes (Tim Thompson, 247 Ill. App. 3d at 871, 617 N.E.2d at 1234 (summary judgement should only be granted where

the right of the movant is free from doubt)).  To affirm a grant

of summary judgement when evidence is presented on only one of

the nine LaSalle factors would reduce the LaSalle test to a mere inquiry into the uses of the surrounding property.

	Moreover, it is apparent from both the pleadings and the

transcript of the ZBA hearing that factual disputes exist

regarding the uses of nearby property.14  First, looking only at the pleadings, the county  does not allege in its motion for

summary judgement that the property is surrounded on three sides

by residential development.  The county 's memorandum in support

of its motion for summary judgement contends, without supporting

evidence or affidavits, that a single family subdivision in Elk

Grove Village is to the west of the property and five single

family homes in unincorporated Cook County are to the east.  The

Pecoras' fourth amended complaint states that their "proposed use

is an appropriate transitional use between the existing single-

family residences to the west, commercial development across

Higgins Road to the north, multi-family and industrial

developments to the south and future commercial and industrial

developments to the east, which will replace the few remaining

dated residences to the east and the anticipated commercial

development on vacant land across Stanley road."  The Pecoras

thus contend that the property currently has residential

development to the east and the west, commercial development to the north, and both residential and industrial development to the

south.  Thus if we do not go beyond the pleadings, the Pecoras

allegations create an issue of material fact as to the nature of

the current use of the property to the south of the property in

question.

	If we expand our view to include the transcript of the ZBA

hearing, the result does not change.  Theodore Johnson, a

professional land planner, testified that there are "multiple

family and office industrial uses to the south."  This clearly

supports the Pecoras allegation in their fourth amended complaint

that there are industrial and residential uses to the south and

contradicts the bare contention of the county  in its brief that

there are only residential uses to the south of the property.

	Moreover, even if there were no factual dispute as to the

suggestion that the property is surrounded on three sides by

residential development, the county  would still not prevail in a

summary judgement motion because these facts would still lend

themselves to conflicting inferences and interpretations.  The

case of Tim Thompson is on point.  The Tim Thompson court held that where the parties do not disagree as to the zoning and uses

of property surrounding the property at issue, but are able to

draw conflicting inferences from those facts, summary judgment is

inappropriate.  

	In the facts of Tim Thompson, the plaintiff sought to have his property located in the defendant village rezoned from R-2 to

R-4.  The village obtained summary judgement.  On appeal, the

court stated that "the residential character of the entire

neighborhood and the prior and existing zoning of the various

surrounding subdivisions was not disputed by the parties." 

However, the parties drew "diametrically opposed inferences" from

the surrounding uses.  Tim Thompson, 247 Ill. App. 3d at 873, 617 N.E.2d at 1235.  The court noted that the defendant village

looked to the west and to the south of the subject lots (where

property was zoned R-2) in support of its argument while the

plaintiff looked to the east and the north (where property was

zoned R-4).  The court thus held that "the parties seek to place

before this court an issue of material fact based upon differing

inferences arising from the undisputed facts, which by their

nature require determination of credibility and appraisal and

weighing of evidence."  Tim Thompson, 247 Ill. App. 3d at 874, 617 N.E.2d at 1235.  The court further noted that "[w]here

reasonable persons could draw divergent inferences from the

undisputed facts, summary judgement should be denied."  Tim Thompson, 247 Ill. App. 3d at 874, 617 N.E.2d at 1235. 

	Likewise, in the case at bar, there is no dispute that there

is non-residential development on the north side.  Even assuming arguendo that there is residential development on three sides of the property, the parties draw diametrically opposed inferences

from these facts.  The county  looks to the residential

development surrounding the property for support for its position

that the R-5 classification is reasonable.  The Pecoras look to

the non-residential development to the north and the trend

towards non-residential development in the area to support their

argument that the R-5 classification is unreasonable and that

their proposed use is reasonable.  The Pecoras also contend that

commercial and industrial uses will materialize to the east of

the property.  They thus argue that their proposed self-storage

warehouse will serve as an appropriate buffer use between the

single family residences to the west and the commercial and

industrial uses in the area.  Consequently, summary judgement on

this basis was inappropriate.

[The preceding material is non-publishable under Supreme Court Rule 23.]

	In remanding12 the instant case for further proceedings we are not unmindful that we may be extending this case for yet

another life span.  We cannot, however, compromise the integrity

of the legal issues raised herein in deference to the age of the

case before us. 

	For the reasons discussed above, the judgement of the

circuit court of Cook County granting summary judgement in favor

of the defendant is reversed and this cause is hereby remanded

for further proceedings not inconsistent with this opinion.

	Reversed; cause remanded.

	CAHILL, P.J. and McBRIDE, J., concur.