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Blog comments do not reflect the views or opinions of the Author or Ancel Glink. Some of the content may be considered attorney advertising material under the applicable rules of certain states. Prior results do not guarantee a similar outcome. Please read our full disclaimer

Monday, April 30, 2018

Bill Would Require Pension Funds to Broadcast Meetings to Public

HB 4413, if enacted, would require all Illinois pension boards to broadcast their open meetings to the public and maintain those recordings on the pension fund's website. The recordings can be in either audio or video format. The bill passed in the Illinois house by a vote of 71 to 39, and is currently in committee in the Illinois senate. The Illinois Municipal League, public safety union organizations, and others oppose the bill. 

Post Authored by Julie Tappendorf

Thursday, April 26, 2018

Local Government Severance Pay Bill Introduced

SB 3604 was recently introduced that proposes to create the "Local Government Severance Pay Act." If passed, the law would require any unit of government that enters into an employment agreement or renews or amends an existing employment agreement to comply with certain statutory restrictions on severance provisions in those agreements. 

First, the Act would restrict the amount of severance pay that an employee could be entitled to under the agreement to no more than 20 weeks of compensation. 

Second, the Act would prohibit any payment of severance to an employee who was fired for misconduct. The Act defines misconduct fairly broadly, to include the following:
  1. conduct that would be found to be a deliberate violation or disregard of reasonable standards of behavior; 
  2. carelessness or negligence manifesting culpability or wrongful intent; 
  3. chronic absenteeism or tardiness; 
  4. willful and deliberate violation of a state standard or regulation by an employee licensed or regulated by the state; or 
  5. a violation of an employer's rules or policies, with some exceptions.

The bill was introduced two weeks ago and is currently in committee. We will follow this and report back if it moves forward.

Post Authored by Julie Tappendorf

Wednesday, April 25, 2018

Water Shutoff May Violate Tenant's Constitutional Rights

In a recent decision from the Second Circuit Court of Appeals, a federal court found that a city violated both the Equal Protection and Due Process clauses of the U.S. Constitution when it terminated water service to tenants whose landlords failed to pay the water bill. Winston v. City of Syracuse. Although the case comes from a court outside of Illinois, it is still of interest since it specifically mentions a Seventh Circuit decision involving an Illinois municipality.

A tenant in a multi-family building had her water services turned off by the City when her landlord failed to pay the water bill. Winston attempted to pay her landlord’s overdue water bill in order to restore service; however the City’s ordinance allowed only property owners to make applications and pay for water services.

As an initial matter, the court found the City had a rational basis for classifying tenants and landlords differently for the purposes of opening water accounts with the City because property ownership, as opposed to rental, allowed City to collect its unpaid water bills more effectively because it could subject the property to liens.

However, the court found that terminating a tenant’s water service was not a rational means of collecting the landlord’s water debt because the tenant (the one directly penalized by the shutoff) was not the debtor. So, the City’s policy of shutting off water to tenants whose landlords failed to pay the water bill could violate the Equal Protection clause.

Closer to home, the Seventh Circuit had previously ruled in favor of a tenant on a similar issue involving an Illinois municipality in Sterling v. Village of Maywood, 579 F.2d 1350 (1978). There, the court found an equal protection violation after the Village refused to turn on water service to the tenant's unit because of the landlord's failure to pay for water service. The court also questioned whether the Village's refusal to provide water service violated her due process rights. 

Post Authored by Jessi DeWalt, Ancel Glink

Tuesday, April 24, 2018

City Not Liable for Flooding on Residents' Property

In a recent unpublished opinion, an Illinois appellate court ruled in favor of a municipality in a lawsuit filed by residents who claimed the City was liable for flooding on the residents' property. Adcock v. City of O'Fallon, 2018 IL App (5th) 160435-U.

The Adcocks sued the City and the developer of land near their property claiming both were responsible for flooding on their property. The City filed a motion to dismiss the case, arguing that the City was not responsible because (1) it had no duty to inspect or maintain the private drainage system; (2) it did not create the flooding; and (3) the City is not liable for stormwater diverted by the developer of neighboring property. The circuit court agreed, and dismissed the case against the City, and the Adcocks appealed.

The appellate court rejected the Adcocks' argument that the City should be responsible for the damages that allegedly resulted from the diversion of stormwater from the nearby development. Importantly, the appellate court noted that the City did not create the nuisance - that was the developer's action in building its condominium development on nearby property, and that party had already settled its claims with the Adcocks for a full release. There was no evidence to convince the appellate court that the City should be responsible for fixing the plaintiffs' flooding issues.

Post Authored by Julie Tappendorf

Monday, April 23, 2018

FOIA Bill Would Require $7,500 Escrow For All Denials, Among Other Changes

A reader pointed out a FOIA bill that would certainly impact Illinois local governments, if enacted. HB 5742 would amend the Freedom of Information Act in the following ways:

1. Recurrent Requesters. It proposes to amend the definition of "recurrent requester" to exempt requests made by members of the General Assembly. It would also exempt requests made for the purpose of accessing and disseminating information pertaining to public policy and the administration of state government.

2.  Deliberative Process/Draft Documents. It proposes to amend the exemption from FOIA for draft records and records that formulate policy in two ways. First, it would limit the "deliberative process" exemption to records where opinions of the public body or its agents are expressed. Second, the exemption would not apply to preliminary records expressing opinions if the records were produced in connection with a report that is required to be publicly produced by the agency of the executive branch.

3.  Denial "Index". For every denial of a public record, this bill would require the public body to produce an "index" that includes a description of each document withheld or redacted, the date the withheld or redacted document was created, the author and recipient of each such document, and a statement of the exemptions claimed for each individual withheld or redacted document.

4. Escrow for Denials. One of the more troubling proposed changes would require a public body to place in escrow in an interest-bearing account $7,500 for each request that is denied by the public body. That escrow would remain in the fund for at least 60 days after the denial, or until after the PAC completes its review if an appeal is filed with the PAC or until a circuit court issues an opinion if an appeal is filed with the court. If a determination is made that the public body improperly denied a request, the funds will be awarded to the requester. 

5. Liability. Currently, public bodies are not liable for penalties if it discloses a record in accordance with a PAC opinion. If passed, this bill would exempt the "escrow" award from this immunity provision. 

It's not clear whether this bill has any traction, since it has been sitting in committee since February. But, since it has significant financial implications for all public bodies in the state subject to FOIA, including municipalities, school districts, park districts, libraries, townships, etc., it is worth bringing to your attention.

Post Authored by Julie Tappendorf

Friday, April 20, 2018

7th Circuit Upholds Nationwide Injunction in Sanctuary City Case

Yesterday, the Seventh Circuit Court of Appeals ruled in favor of the City of Chicago in its lawsuit against the U.S. Attorney General in a case involving the City's sanctuary city status (or in the case of Chicago, "Welcoming City"). City of Chicago v. Jefferson B. Sessions (7th Cir. April 19, 2018).

The lawsuit was filed after the Attorney General tied receipt of federal grant funds to municipal police departments to compliance with certain conditions, including (1) mandating advance notice to federal authorities of the release date of any persons in state or local custody who are believed to be aliens and (2) requiring correctional facilities to provide access to federal agents to meet with those persons. The district court had granted the City's request for an injunction against enforcement of these two conditions, and the Attorney General appealed to the Seventh Circuit Court of Appeals.

The appellate court upheld the ruling in favor of the City, noting that the "power of the purse" rests with Congress, the body that authorized the federal grant funds. In this case, Congress had not imposed any immigration enforcement conditions on the receipt of these grant funds, nor did Congress authorize the Attorney General to impose conditions.  In short, the Seventh Circuit held that the Attorney General did not have the authority to impose conditions on the federal grant funds. The court also upheld the district court's grant of a nationwide injunction, finding it consistent with a recent U.S. Supreme Court case where the Court denied a stay of a nationwide injunction in a challenge to the President's Executive Order suspending entry of foreign nationals from seven countries. 

Post Authored by Julie Tappendorf

Thursday, April 19, 2018

Former Village Manager Not Entitled To Hearing When Contract Was Not Renewed

A federal appeals court recently ruled in favor of a municipality in a lawsuit brought by a former village manager who alleged that the village's failure to provide a hearing before it chose not to renew his contract violated his due process rights. Linear v. Village of University Park, (7th Cir. April 17, 2018).

The former manager had an employment contract with the Village that expired with the mayor's term. When the mayor began her new term in May of 2015, the Village decided not to extend his contract. The former manager filed suit, claiming that he was entitled to a hearing before he was terminated under the due process clause of the federal constitution. The Village replied that he was not terminated, and instead the Village simply did not renew his contract when the term ended. The district court agreed with the Village and dismissed the former manager's case, finding he had no property interest in the position because state statute prohibits any contract for a village manager from extending past the end of the mayor's term.

On appeal, the Seventh Circuit also held that the former manager had no federal property right to remain as village manager. However, the court took issue with the district court's ruling on the state law issues, and particularly its application of the statutory limits on contracting beyond the mayor's term. It also noted that the case was more about contractual rights (i.e., what did the employment contract provide), rather than a federal due process issue, and that was an issue for the state court to address, not the federal court.  

In short, the Seventh Circuit held that the former manager had no federal constitutional right to a hearing on the Village's decision not to renew his contract. The court refused to address the other claims, including whether he was entitled to severance under the contract, finding those to be state law issues that should be decided by the state court.

Post Authored by Julie Tappendorf

Wednesday, April 18, 2018

Municipal Consolidation Bill Still Alive in Illinois House

We've been following a bill that would amend the Illinois Municipal Code to establish a process for consolidation of two or more municipalities. See HB 5777.

Currently, section 7-2-1 of the Illinois Municipal Code provides authority for two or more contiguous municipalities to unite into one incorporated city through a process that is initiated by the filing of a petition in the circuit court and then proceeds to a referendum vote. 

HB 5777, if adopted, would substantially change that process in a number of ways.  First, it would provide for the consolidation of two or more contiguous municipalities into one contiguous city or village. It would eliminate the circuit court process entirely and instead be initiated by the filing with the county election authority of a petition signed by 10% of the electors of each municipality or 250 such electors (whichever is less). The statute would prohibit any elected official, member, employee, or contractor of the municipalities subject to the petition from using governmental or public resources in opposing or supporting the petition. Finally, instead of requiring the approval of the referendum by a majority of voters in each municipality affected by the consolidation, the statute would only require a majority vote in any of the affected municipalities. 

Because this legislation raises a lot of questions for Illinois municipalities, we will follow the bill and report back if it passes.

Post Authored by Julie Tappendorf

Tuesday, April 17, 2018

Court Finds No Discrimination in Zoning Challenge by Substance Abuse Facility

A federal court of appeals recently ruled in favor of a municipality in a lawsuit claiming the municipality violated the ADA, Fair Housing Act, among other federal statutes in denying approval of a substance abuse facility. Get Back Up, Inc. v. City of Detroit (6th Cir. Mar. 30, 2018) Although the case is a Sixth Circuit Court of Appeals case (which doesn't include Illinois), it's still an interesting read because it goes through the various standards that a court looks at in these discrimination cases.

Get Back Up, Inc. (GBU) had applied for a conditional use permit in 2007 to operate a substance abuse facility. The City's planning department approved the permit, but neighbors appealed to the zoning board of appeals, which reversed the permit. GBU filed its first lawsuit against the City, claiming discrimination, but lost that case.

GBU filed a second permit application with the City a few months after it lost the first lawsuit. That permit was also approved by the City's planning department, but overturned by the City's zoning board when neighbors again appealed. So, GBU filed a second lawsuit, claiming the zoning board violated the ADA, FHA, and the Rehabilitation Act when it overturned the permit approval by discriminating against disabled persons, including recovering addicts.

On appeal, the Sixth Circuit Court of Appeals first discussed the review standard for discrimination cases such as this one. GBU has the initial burden to show discrimination on the part of the City. If it succeeds, then the City has to offer a non-discriminatory reason for its decision. If the City succeeds at that, then Get Back Up must show that the City's stated reasons are "pretextual."

The Sixth Circuit determined that GBU met its initial burden to show discrimination based on statements made at the zoning board of appeals' meetings by the neighbors. 

The court acknowledged that the statements made by citizens at the zoning board hearing on their own do not establish discrimination by the City, so the City still had the opportunity to show its decision was based on non-discriminatory reasons. In that respect, the court noted that the City provided evidence that, among other things, the facility could affect property values in the neighborhood, which was also one of the zoning standards in the City's code. The City also raised other concerns raised by citizens, including complaints of trespass, theft, and other adverse effects from GBU's previous temporary operation on the site. The court found that the City had met its burden on this test.

That left the last prong of the test - whether the zoning board's reasons were "pretextual" in nature - in other words, did they conceal a discriminatory motive? The court concluded that GBU did not provide sufficient evidence of pretext by the City, so it was not entitled to an injunction against the City.

Post Authored by Julie Tappendorf

Monday, April 16, 2018

Legislative Aide Fired For Snapchat

In yet another installment of "be careful what you post on social media," we learned through a number of news reports about a Colardo legislative aide who was fired last month when he posted the following on Snapchat after a notice went out of a mandatory employee training session:
Mandatory 2 hour sexual harassment training. And they aren't even gonna show me the proper way to grab a woman's a**...
As soon as his employer was notified of the post, he was terminated. His boss, a state senator, stated in a press release that his aide's actions were "unacceptable and unbecoming of an employee of the Colorado State Senate." 

Post Authored by Julie Tappendorf

Friday, April 13, 2018

Small Wireless Facilities Act Enacted Into Law

SB 1451, proposing the establishment of the Small Wireless Facilities Deployment Act, was signed into law yesterday as P.A. 100-0585. This law will affect all municipalities in Illinois (including home rule municipalities with the exception of Chicago). The law takes effect on June 1, 2018.

Section 15 of the new Act restricts the regulatory authority of Illinois municipalities and certain other units of local government over small wireless facilities. Small wireless facilities are defined under the new law as wireless facilities that (1) have antenna that are no more than 6 cubic feet in volume and (2) all equipment associated with the antenna does not cumulatively exceed 25 cubic feet in volume. These are usually attached to existing utility poles or other support structures.

The following is a summary of just some of the restrictions on municipal regulatory authority over small wireless facilities:

  1. The law prohibits municipalities from banning, regulating, or charging for the co-location of small wireless facilities in a manner which is inconsistent with the law.
  2. It also provides that small wireless facilities are considered "permitted uses" for zoning purposes.
  3. It further states that small wireless facilities are not subject to zoning review or approval if they are either (a) co-located in rights of way in any zone or (b) are located outside of rights of way in commercial or industrial zones. However, a municipality can limit the maximum height of a small wireless facility to 10 feet above the utility pole or support structure with a few exceptions.
  4. Municipalities may require permits for co-location of a small wireless facility, and can apply generally applicable standards regarding underground requirements, construction standards for rights of way installations, design standards, and other regulations. However, the municipality cannot require as a condition to permitting that the applicant to perform services unrelated to the co-location (i.e., in-kind contributions, reservation of fiber, etc). The municipality also must process applications within the statutory time period (30 days to determine if the application is complete; if there is no decision within 120 days, the application will be deemed approved). The law mandates approval of an application unless it fails to comply with the requirements of the new law.
  5. Municipalities can reserve space on utility poles for public safety uses or electric utility uses, but that reservation cannot preclude the co-location of small wireless facilities.
  6. Municipalities cannot require the placement of facilities on specific utility poles, or impose minimum horizontal separation distances unless the facility will interfere with public safety communications.
  7. Municipalities may charge an application fee, but it cannot exceed $650.00 for the first co-located facility, and $350 for each additional co-located facility. For small wireless facilities that will include the installation of a new utility, the fee can be $1,000.
  8. The law limits the amount of “rent” or “license fees” which a municipality can collect for providing space on its own utility poles to $200 per year. 

This is just a brief summary of some provisions of the new law - there is a lot more to digest and analyze, so we plan to provide more detailed information about the impact of this law on local governments in future posts

Post Authored by Julie Tappendorf

Wednesday, April 11, 2018

Federal Appeals Court Also Upholds Appointment of Chicago School Board Members

Last week, we wrote about an Illinois appellate court ruling that upheld the state law that provides for appointment (rather than election) of Chicago School Board members. In that case, the challenge was that the law violated the Illinois constitution because it treated Chicago differently than other school districts that elected their school board members. You can read that post here

A few days ago, a federal appeals court also addressed the constitutionality of this law, but this time the challenge was that the law violated the Voting Rights Act, a federal law, because the system allegedly deprived minority citizens of their right to vote for school board members. Quinn v. State of Illinois (7th Cir. April 10, 2017). The district court had dismissed the complaint, and the plaintiffs appealed to the Seventh Circuit Court of Appeals.

The Seventh Circuit also upheld the law, finding no violation of the Voting Rights Act. First, the law did not treat citizens or voters differently, because all citizens were treated the same (in Chicago, all citizens were treated the same - they had no vote, and outside Chicago, they all had the right to vote). The Court also rejected the argument that allowing the Mayor to appoint the school board members violated their equal protection and due process rights, finding that a U.S. Supreme Court case had previously held that appointing a school board is constitutionally permitted.

Post Authored by Julie Tappendorf

Monday, April 9, 2018

Ill Supreme Court Upholds Law Banning Sexual Predators and Offenders in Public Parks

On April 5, 2018, the Illinois Supreme Court issued a ruling in People v Pepitone reversing the appellate court’s finding that Section 11-9.4-1(b) of the Criminal Code of 2012 was unconstitutional. That statute says that it is unlawful for a sexual predator or a child sex offender to knowingly be present in any public park or on real property comprising any public park. You may recall that we wrote about the appellate court's ruling here
Marc Pepitone pled guilty to predatory criminal sexual assault of a child in 1998 and was sentenced to six years imprisonment. In 2013, a Bolingbrook police officer patrolling a municipal park observed Pepitone’s vehicle parked across three spaces. The officer ran the vehicle’s plates and discovered the owner was a registered child sex offender. Pepitone, who was walking his dog in the park, claimed he did not know about the ban. He was arrested and charged with child sex offender in a public park.  A jury found the defendant guilty. Pepitone appealed claiming the law violated his due process rights. The appellate court reversed his conviction despite two similar appellate court rulings addressing substantive due process challenges involving public parks and sex offender registration issues. 
In a unanimous decision, the Supreme Court reversed the appellate court and upheld Pepitone's conviction. The Court found that the legislature has a legitimate interest in protecting patrons of public parks from child sex offenders and sexual predators. The State supported its argument by providing numbers of cases where sexual assaults against minors have occurred in parks. Combined with data reflecting high numbers of recidivism among sex offenders, the Court found a rational relation between protecting the public, especially children, from sex offenders who have been convicted of crimes against minors from being present in public parks.  
Post Authored by Megan Mack, Ancel Glink.

Thursday, April 5, 2018

Candidate Elected to City Mayor Ineligible for Office Due to Past Felony Conviction

A court recently ruled that a candidate for the office of mayor was ineligible to serve or take the oath of office because of his previous felony conviction for mail fraud. People of the State of Illinois v. Roger Agpawa, 2018 IL App (1st) 171976. 

At the April 4, 2017 election, Agpawa received the most votes in the election for mayor of the City of Markham. The Cook County Clerk certified the election results and declared him the winner. Prior to his taking the oath of office, however, the Cook County State’s Attorney filed a lawsuit claiming that Agpawa was not eligible to serve as mayor or take the oath of office because of a prior felony conviction. 

The Illinois Municipal Code provides as follows:
a person is not eligible to take the oath of office for a municipal office if that person has been convicted in any court locate in the United States for any infamous crime, bribery, perjury, or other felony. 
The appellate court held that under this statute, Agpawa was not eligible to hold municipal office because of a prior felony conviction. The court noted that his eligibility for public office did not change simply because he received more votes than any other candidate on the ballot. The court also held that the right to run for or hold public office was not a fundamental right and that the state has an interest in ensuring public confidence in the honesty and integrity of those serving in local offices.

Post Authored by Jessi DeWalt, Ancel Glink

Wednesday, April 4, 2018

Appointment of Chicago School Board Members Not Unconstitutional

In Illinois, members of school district boards are elected by voters in the respective school district except in the City of Chicago. In Chicago, the school board members are appointed by the Chicago Mayor. That law has been in place since 1872. Recently, the statute was challenged in a lawsuit brought by residents in the City of Chicago (including plaintiff Pat Quinn, former Governor) who claimed that the statute was unconstitutional. 

Both the trial and appellate courts upheld the statute, rejecting the plaintiffs' claim that appointing school members rather than electing them violated various provisions of the Illinois constitution, including the right to vote under the free and equal election clause, the due process clause, and exceeded the City's home rule powers. Quinn v. State Board of Education. The appellate court held that there was a "rational basis" for the distinction in statute that provided for appointed school board members in Chicago but elected school board members elsewhere in the state.

Tuesday, April 3, 2018

Police Officers' Emails on Private Devices Subject to FOIA

Update - this post is being republished because the previous version of this post did not contain the correct link to the Chicago v. Attorney General case.

We reported in the past on PAC Opinion 16-006, where the PAC found the Chicago Police Department in violation of FOIA when it failed to provide copies of emails sent/received by Chicago police officers on their private accounts that related to the Laquan McDonald shooting. The City filed an appeal to the Circuit Court of Cook County, and we received a copy of the Court's ruling from one of our readers. The Circuit Court ruled in favor of the PAC and found that the emails on the officers’ personal accounts do qualify as “public records” under FOIA. City of Chicago v. Attorney General of the State of Illinois and CNN, 16 CH 12085.

The Court noted that for a communication to qualify as a public record, it must both 1) pertain to the transaction of public business and 2) been prepared by, prepared for, used by, received by, possessed by, or controlled by a public body. Notwithstanding the appellate court's finding in Champaign v. Madigan that a government official is not generally a "public body" that would be subject to FOIA, the Court found that the officers were acting as the public body, reasoning that a public body can only act through its employees, agents, and officials. The Court found that the PAC properly balanced the privacy rights of the officers with the public’s right to the information requested.  Further, it found that the request was limited in time, scope, and participants, so it does not allow for indiscriminate browsing through personal emails.  The Court ordered the City to conduct a new search in accordance with the PAC’s opinion, and noted the changes in technology since FOIA was enacted.

Public bodies have received mixed advice on the issue of FOIA and emails/text messages sent on a government official or employee's private device or using a private account. In a case we wrote about in 2016, the Cook County Circuit Court determined that the Mayor of Chicago's emails sent on his private device are subject to FOIA. Yet, the appellate court in Champaign v. Madigan determined that city council members' texts and emails sent on their private devices are only subject to FOIA in very limited circumstances: (1) if sent during a city council meeting; (2) if sent to a majority of the city council; and (3) if forwarded to/from a city account. Consistent with this Appellate Court ruling, a Cook County Circuit Court earlier this year issued a similar ruling in Ahmad v. City of Chicago, finding that an alderman was not acting as a "public body" for purposes of FOIA when he sent emails and text messages to constituents even though those messages related to City business. Yet, in this Circuit Court case, the court held that police officers' emails/texts sent on their private devices are subject to FOIA. 

With this hodge-podge of advice from the PAC and Illinois courts that treats government officials and employees differently for purposes of FOIA, it's difficult to provide any consistent guidance to public bodies on whether their officials' or employees' communications sent on private devices will be subject to FOIA. Some public bodies are taking actions to address this issue by adopting policies that require government business to be discussed only on official government accounts and using official government devices. 

Post Authored by Erin Pell & Julie Tappendorf

Monday, April 2, 2018

Court Upholds ZBA's Decision Granting Zoning Variations

An appellate court recently upheld a zoning board's decision to overturn the zoning administrator's denial of a zoning variance in Glaser v. City of Chicago, 2018 IL App (1st) 171987.

In Chicago, certain zoning variation requests are decided by the zoning administrator. In this case, an owner filed an application for zoning variations with the zoning administrator to allow certain improvements to an existing nonconforming residence. Specifically, the variations would allow the height of the home to extend to 39 feet (the zoning code limits height to 35 feet) and the home to extend into the front, rear, and side setbacks. 

The zoning administrator denied the variations, and the owner appealed to the City's Zoning Board of Appeals (ZBA). The ZBA conducted a hearing and heard evidence from the owner and neighboring residents who opposed the variation requests. At the conclusion of the hearing, the ZBA granted the variations, finding that there were practical difficulties and particular hardships with the owner complying with the zoning code and that existing conditions were not generally applicable to other properties or created by the owner. The ZBA also found that the variations would enhance property values in the area.  

Neighboring residents who had objected to the variations filed a lawsuit challenging the ZBA's decision, and the trial court ruled in favor of the ZBA. On appeal, the appellate court determined that the ZBA's decision granting the variations was appropriate and consistent with the standards for variations in the City's zoning code. The appellate court noted that where there is conflicting evidence and testimony in the record (in this case, the testimony of the owner at the hearing in support of of the variations vs. the testimony of neighboring residents opposing the variations), the ZBA's decision  to approve the variations should be upheld.