The Facts About the Malone Funeral Home Special USE/Variance Fraud

Malone Funeral Home Addition Under Construction 2002 without the Required Special Use Permit. Note the lack of 2-way aisles in the parking lot required by the Geneva Code. Also, note how the handicapped parking dangerously encroaches on the ROW of Nebraska Street. Also note the unlawful extension of pavement of Nebraska Street that extends from sidewalk to sidewalk, putting pedestrians in danger unlawfully by omitting separation. Heath and Safety are the reasons why Codes exist. Code violations cannot be waived under the mandatory standards of 11-14-4. All these violations still exist today.
This is the record of the building permit of 1999-2002 for the Malone Funeral Home. More details of this “Remodel” are included in the file below. The expansion was misidentified as a “remodel.” This was explained in the Public Testimony submitted on July 21, 2021 to the Planning and Zoning Commission and to the City Council. This deception was concealed by both bodies. Both Bodies approved the Special Use and the Variances requested in 2021 in spite of provision 11-1-2 of the Geneva Municipal Code which explicitly prohibits altering the restrictive standards of a Special Use. Variances are, as a matter of common law, not permitted under any circumstances when the applicant himself creates the very hardship that requires a variance. The unlawful expansion created the alleged need for more parking.
Malone Funeral Home March 26, 1999, prior to construction of an addition to the west onto the adjacent lot. This was done without a site plan and with a building permit that does not mention the addition (according to FOIA request for all pertinent records). The Geneva Zoning Ordinance of 1995 made Funeral Homes a Special use only in Zone B3E. The Funeral Home operated as a lawful non-conforming, pre-existing use only until it was unlawfully expanded in 1999-2002. Under the “Geneva Way” of Mayor Burns it has operated unlawfully since 2002. A Special Use was requested in 2012 but was not granted based on the same 9 standards that exist today.

The Malone attorney characterized the only public testimony submitted to the Plan Commission according to the official Minutes of the 22 July 2021 Plan Commission Hearing:

“Mr. Wogain returned and addressed Dr. Nelson’s electronic message, whose contention was that the use of the funeral home was not a lawful pre-existing, non-conforming use, wherein Mr. Wogain explained it was incorrect and the business was functioning for the past 50 years and the applicant has received various building permits and approvals from the City. Mr. Wogain referenced a settlement agreement entered into by Dennis Malone, the City of Geneva, and Dr. Nelson who agreed that the use was permitted at such location and it was a non-conforming use. Regarding Mr. Nelson’s concerns about the ability to grant the approvals that were being requested, Mr. Wogain stated the items were well within the authority to do so by the applicant.”

For the record, Dr. Nelson never agreed that the use was permitted. The settlement agreement referenced is included in the written submission, which was either never read or was completely ignored by the minions of the same 20-year mayoral administration that made all the prior and current “errors.”

Below is the entire written submission contained in the “electronic message.” It is long and detailed, but it provides proof that an unlawful expansion was made to the Funeral Home in 2002 under the guise of a “remodel” building permit. This expansion made the Funeral Home a zoning zombie. It was no longer a permitted pre-existing non-conforming use as of 2002. This is because the expansion of such use required a Special Use Permit, not a “remodel” permit. The Planning and Zoning Commission improperly failed to reveal this fact. In fact, the Commission went further than concealment, it knowingly misrepresented the factual history. The “electronic message” included a reference to the recording of the 2012 testimony of the former Director of Development Richard Untch that described and admitted the “error” in no uncertain terms. Mr. DeGroot was present during that testimony, as he was then Untch’s assistant.

Like Mayor Burns’ unauthorized “papering over” of the fraudulent Plat of Planned Unit Development for Emma’s Landing, Mr. DeGroot, the entire Plan Commission, the Mayor, and the entire City Council knowingly “papered over” the City’s prior zoning “error.” In so doing, they conspired to defraud the adjacent property owner of the residential lot to the south (the only plat not in Zone B3E) of his property rights.

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