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Fisher v. Kemper

OPINION FILED NOVEMBER 18, 1953

THOMAS HART FISHER, APPELLANT,

v.

JAMES S. KEMPER ET AL., APPELLEES.



APPEAL from the Superior Court of Cook County; the Hon. JOHN F. HAAS, Judge, presiding.

MR. JUSTICE FULTON DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 18, 1954.

The plaintiffs filed an action in the superior court of Cook County seeking to enjoin the defendants from using or permitting the use of premises located in the village of Winnetka, known herein as the "Kemper Property" in violation of section 3-A of the Winnetka zoning ordinance and section 437 of the Winnetka municipal code.

A stipulation covering most of the basic facts was filed in the cause.

The Kemper property consists of four or five acres of land lying between Sheridan Road and Lake Michigan in the village of Winnetka and is presently improved with a three-story single-family dwelling referred to as the "main building," consisting of 20 rooms and a basement, together with a one-and-a-half story wing on the south side, and a one-story glass-enclosed "breakfast porch" on the east or lake side of the building. The main building is of "ordinary construction" as defined in sections 475-478 of the municipal code of the village of Winnetka. The exterior walls of the main building are of solid masonry, consisting of brick trimmed with stone, having a thickness of 16 inches between the first and second floors and a thickness ranging from 12 to 16 inches between the first and second floor and the roof. The foundation walls of the main building are of concrete 16 inches thick. The roof is covered with slate tile shingles one-half inch thick, laid on wooden rafters.

There are also two accessory buildings on the premises, a garage and a two-room guest house. The guest house is a small, one-story stucco-and-wooden building consisting of two rooms and no heating facilities except a fireplace. It is located approximately 100 feet from the nearest property line. The wooden garage with living quarters is located within eight feet of a single-story shed-type wooden building abutting the property line between the Kemper property and the property of plaintiff Thomas Hart Fisher on the north. This structure is located within ten feet of a two-story brick-and-wooden building on the Fisher property used for a private artist's studio. The Kemper property is located within an "A" (one-half acre) residence district in said village of Winnetka, as defined in the zoning ordinance, section 3-A, and is located in the most highly restricted district of said village.

The Congregation of the Resurrection entered into an agreement to purchase the Kemper property from the defendant James S. Kemper on September 6, 1951, for the sum of $176,500, and the purchase was consummated on September 20, 1951. The congregation took possession of the property on October 1, 1951.

The plaintiff Thomas Hart Fisher owns the property on the north of the Kemper property, and his residence is located more than 200 feet away from all the buildings, except the small guest house mentioned above.

The congregation proposed to use the Kemper premises for the purpose of conducting a minor seminary or private school in which boys of high school age are provided with a secondary school education in preparation for a religious life. A high school curriculum is offered so that the boys who do not continue with a religious career are eligible for transfer to another high school or for admission to college.

On January 17, 1922, the village council of the village of Winnetka passed and approved a zoning ordinance to which many amendments have been made. The proposed use of the Kemper property is not challenged on this appeal.

The appellant contends, however, that the use should not be permitted unless all of the buildings on the premises shall be of fireproof construction, and asserts that all of the outbuildings on the Kemper and Fisher properties are inflammable and should be of fireproof construction before the proposed use be permitted.

The stipulation of facts further recites that the premises may be used as a minor seminary after the requirements of the village of Winnetka and the State of Illinois are completed, and upon receiving a certificate of occupancy and compliance from the superintendent of public works of the village of Winnetka.

Section 10 of the village zoning ordinance provides that no land or building shall be occupied or used until a certificate shall have been issued by the superintendent of public works stating that all building and health laws and ordinances have been complied with.

Shortly after the purchase of the property the congregation by letter applied to Robert L. Anderson, superintendent of public works of the village of Winnetka, for a permit to use the entire Kemper property as a minor seminary or private school for at least 20 boys and four teachers. The application was presented to a meeting of the village council and referred to the law committee. The superintendent of public ...


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