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Price v. Ackmann

OPINION FILED JULY 12, 1951

L. HOMER PRICE, JOSEPH DAY, HAROLD THURNAU AND HAROLD RAPALEE, PLAINTIFFS-APPELLANTS,

v.

ELMER W. ACKMANN, FRED L. ACKMANN, FREDERICK J. ACKMANN AND HARRIETT L. ACKMANN, DEFENDANTS-APPELLEES.



Appeal by plaintiffs from the Circuit Court of Kane county; the Hon. HARRY W. McEWEN, Judge, presiding. Heard in this court at the October term, 1950. Reversed and remanded with directions. Opinion filed July 12, 1951. Rehearing denied December 13, 1951. Released for publication December 13, 1951.

MR. JUSTICE DOVE DELIVERED THE OPINION OF THE COURT.

Rehearing denied December 13, 1951

The plaintiffs, L. Homer Price, Joseph Day, Harold Thurnau, and Harold Rapalee, filed their complaint in the circuit court of Kane county seeking to enjoin the defendants, Elmer W. Ackmann, Fred L. Ackmann, Frederick J. Ackmann, and Harriett L. Ackmann, from operating a woodworking mill in an area zoned as "A Residential" and praying for an order requiring the abatement by the defendants of a building allegedly erected by them without a building permit and in violation of a zoning ordinance of the City of Elgin. To this complaint, the defendants filed their answer denying most of the material allegations thereof. Upon the issues thus made a hearing was had resulting in a decree dismissing the complaint for want of equity. To reverse this decree, the plaintiffs appeal.

The evidence shows that the defendants, Fred L. Ackmann, Frederick J. Ackmann, and Harriett L. Ackmann, are the owners of the real estate designated in the record as tracts A and B, and the plaintiffs are neighboring property owners. The plaintiffs' property and those two tracts are located in a restricted residential area in the northeastern part of the City of Elgin, designated as "A Residential" by a zoning ordinance passed by the City Council of the City of Elgin on January 30, 1928. The validity of this ordinance is not questioned.

On the tract designated as "tract A" is a two-story frame barn which was moved to its present position sometime in 1915 and which has been used by the defendants in their business as carpenters and contractors since that time. There is a conflict in the evidence as to what constituted the contents of this building in 1928 and, particularly, what machinery was located therein prior to April, 1947. On the tract designated as "tract B," prior to 1948 there was a single dwelling. This was occupied by one family. In December of 1948, the defendants erected a building on this tract which extended across it to the barn located on "tract A." This building is approximately 50 feet north and south and 20 feet east and west and is now being used by the defendants as a garage for their trucks and for the storage of certain materials and equipment. The defendants erected this building without a written permit from the Commissioner of Public Health and Safety of the City of Elgin, as required by an ordinance of the city.

Counsel for appellants contend that the evidence discloses that the use to which appellees' property was being put in 1918 was not a nonconforming use but should the court conclude it was that then the evidence establishes that the present use is not a continuation of said nonconforming use but a new and a different use. It is also insisted by counsel that the new building constructed in 1948 without a building permit as required by ordinance was built in violation of the provisions of said zoning ordinance.

Counsel for appellees insist that in 1928, when the zoning ordinance was passed, the barn on the premises of appellees housed a shop with power driven machinery and with a person in attendance; that this was a nonconforming use under the zoning ordinance, and that the present use of the property is a continuance of this use and is likewise a nonconforming one.

It appears from the record that in 1928 the City of Elgin adopted a zoning and building code which classified the area in which appellees' property is located as residential and restricted its use. The ordinance, however, contained a provision for the protection of nonconforming users. Section 9 of the ordinance provided that in the "A Residential" district no building or premises should be used and no building should be erected or structurally altered except for a one-family dwelling. Section 11 of that ordinance provides: "Any lawful use existing at the time of the adoption of this ordinance of any building or premises may be continued although such use does not conform to the provisions of this ordinance. Such use may be extended throughout the building provided no structural alterations are made therein. If no structural alterations are made in the building, a non-conforming use of such building may be changed to any other use permitted in the same district as that in which the use existing at the time of the adoption of this ordinance is permitted. Whenever a non-conforming use of a building or premises has been changed to a conforming use or a more restricted use, such use shall not thereafter be changed to a less restricted use. If a nonconforming use is ever discontinued for a period of ninety (90) days, any future use of such building or premises shall conform to the provisions of this ordinance. . . ."

To establish a nonconforming use under the terms of this ordinance, the ordinance requires that the building or premises must have been devoted to such nonconforming use previous to January 30, 1928. It must, therefore be determined just whether the use to which the property was put on January 30, 1928, was conforming or nonconforming, and if it appears that it was nonconforming, then whether there has been an abandonment of the nonconforming use and the establishment of a new and different use.

The evidence discloses that appellee Fred L. Ackmann was a carpenter contractor and acquired part of the property involved in this proceeding in 1901 and used the barn thereon as his carpenter shop. In 1915, Fred L. Ackmann acquired the balance of the real estate in question and moved the barn to the corner of the lot, its present location. At this time the shop contained a work bench, hand tools, and was used for storage purposes.

Fred L. Ackmann did not testify, but his son, Elmer W. Ackmann, and also his grandson, Frederick J. Ackmann, both testified that a gasoline hand-cranked engine, a grinder, lathe and cutoff saw were in use in the barn or carpenter shop prior to 1928, and that the gasoline motor was used to operate some of this power machinery. There is no proof as to the number of men employed in 1928, but it does appear that either Fred L. Ackmann or his son Elmer was in charge of the carpenter shop and that it was used for a meeting place for the men employed by Mr. Ackmann and was used for fabricating needed materials and as a housing place for tools and equipment. Notwithstanding the testimony of Alfred Klinder to the effect that he was a carpenter and worked for Mr. Ackmann from 1912 to 1932; that he was in the barn or carpenter shop every morning when working; that the barn was not used for machine purposes and that he observed no machinery therein, and notwithstanding the testimony of some of the other witnesses along this same line, we believe the weight of the testimony is to the effect that the use of this property, prior to the enactment of the ordinance, was a nonconforming use.

The use made of this shop and premises was a lawful use at the time of the adoption of the ordinance and, according to its express provisions, appellees had a right to continue such use. The question of fact for determination is whether the present use of the property is a continuation of this nonconforming use or a new and different use.

The evidence is that in 1947 a heavy pole to support electric wires and a transformer were installed, together with a three-phase 220 volt electrical system. Some new machinery was installed, and what was formerly a carpenter shop containing a regulation carpenter's work bench, hand tools, and a gasoline engine which was occasionally used to operate a table saw, grinder, and lathe, was transformed to a somewhat modern mill equipped with modern electrically driven machinery and turning out mill work of all kinds used in the building trades.

Homer Price testified that his property is 15 feet from this carpenter shop, or mill, as he calls it; that prior to April, 1947, when the electric power was installed, he heard no noises but that since then he has been disturbed by "high squeal" noises from the saw; that dust coming from the shop covers his premises; that he heard the saw operating as late as ...


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