Appeal from the Circuit Court of Knox County; the Hon. BURTON
A. ROETH, Judge, presiding. Reversed and remanded with
The plaintiffs, John C. McCoy, Jr., and Nelda C. McCoy, filed suit for a declaratory judgment on an agreed statement of facts, seeking a determination that certain property under the zoning ordinance of the defendant, City of Knoxville, can be used for filling station purposes as a lawful pre-existing nonconforming use. The Trial Court held that there was a nonuse or cessation of use for filling station purposes for more than two years, and that this constituted a discontinuance of the pre-existing nonconforming use, thus placing the property and proposed use in the "A" Residence District where the proposed use was forbidden by the ordinance. Only the construction of a portion of the zoning ordinance is in issue.
The facts, as shown by the pleadings and stipulation, are substantially as follows: The plaintiffs, John C. McCoy, Jr. and Nelda C. McCoy own, and have owned since January 22, 1950, the subject real estate in the City of Knoxville. When the plaintiffs purchased the real estate on January 22, 1950, it was being occupied and used for filling station purposes, and was bought subject to a lease dated July 27, 1949, given by the plaintiffs' precedessors to Sinclair Refining Company for filling station purposes, which lease covered the period from December 3, 1949 to December 2, 1959. The property was actually used for filling station purposes from prior to January, 1950, until February 28, 1958. On the last mentioned date the lessee, Sinclair Refining Company, suspended its actual operation of a filling station, but its lease was not surrendered and did not terminate until December 2, 1959. The real estate is improved with a filling station building and, among other improvements, are underground wiring and underground gasoline tanks and the building is not suitable for a dwelling in its present condition. It has not actually been operated as a filling station since February 28, 1958.
Continuously since prior to December 2, 1959, when the Sinclair lease expired, and until after the filing of the present suit, September 8, 1961, the plaintiffs made numerous attempts to lease it to tenants to operate as a filling station, and also made numerous attempts to sell the real estate for filling station purposes, which attempts were made by the plaintiffs individually and through several relators with whom they listed the property. The plaintiffs have now obtained a buyer, the sale to whom, however, is conditioned upon a judicial determination that the real estate may now be used for filling station purposes.
The defendant, on January 6, 1958, passed a zoning, building, housing, and subdivision ordinance, by which the city was divided into three zoning districts: "A" Residence District, "B" Commercial District, and "C" Industrial District. The real estate in this case is located in the "A" Residence District, and, under the district use regulations set forth in the ordinance, filling stations are not permitted in the "A" Residence District, but are permitted in the "B" Commercial District. By reason of Section 8, Part II of the Ordinance, "Non-Conforming Uses," the use of this real estate for filling station purposes as of January 6, 1958 became and was a pre-existing lawful nonconforming use.
The real estate is presently unoccupied, and the defendant has refused, and still refuses, to issue an occupancy permit to the plaintiffs for the use of the real estate for filling station purposes. The defendant has indicated it will charge the plaintiffs with violations of the provisions of the ordinance if they use it for filling station purposes.
Section 8 of Part II of the ordinance provides, among other things, as follows:
"Section 8. Nonconforming uses.
(a) The lawful use of a building existing at the time of adoption of this Ordinance or of a change in the district classification may be continued even though such use does not conform with the provisions thereof. . . .
(d) In the event that the nonconforming use of a building or premises is discontinued for a period of two years or more, such building or premises shall thereafter be used only in conformity with the regulations of the district in which it is located."
It is the theory of the defendant that the non-user of a pre-existing lawful nonconforming use for two years or more should conclusively be presumed to be an abandonment or discontinuance of that use and no voluntary act of abandonment or discontinuance is necessary, and that under the circumstances here the right of the plaintiffs to use this real estate for filling station purposes has ceased.
It is the plaintiff's theory that the word "discontinued" as used in this ordinance, Sec 8(d), is equivalent to "abandonment," and that the facts here show that there has never been any "discontinuance" in that sense of the term.
Every zoning case must be determined upon its own peculiar facts, and with regard to the provisions of the particular zoning ordinance involved; the right to a nonconforming use is a property right and any provision of an ordinance which takes away that right in an unreasonable manner, or in a manner not grounded on public welfare would be invalid: Schneider v. Board of Appeals etc. (1949) 402 Ill. 536, 84 N.E.2d 428; Douglas v. Village of Melrose Park et al. (1945) 389 Ill. 98, 58 N.E.2d 864; Brown et al. v. Gerhardt et al. (1955) 5 Ill.2d 106, 125 N.E.2d 53.
In Douglas v. Village of Melrose Park et al. (1945) 389 Ill. 98, 58 N.E.2d 864, where the zoning ordinance provided that "whenever a nonconforming use of a building has been discontinued . . . such use shall not thereafter be changed to a use of lower classification," it was held that "discontinued" means more than a mere suspension of the nonconforming use; discontinuance is equivalent to abandonment; time, per se, is not an essential element of abandonment, though it is evidential; and the efforts of the property owner there to rent or sell the property for the nonconforming use it cannot be said they intended to abandon the nonconforming use, though the property had not actually been used for the nonconforming use for several years, and the owner had not there discontinued the nonconforming use, under the circumstances. In People ex rel. Delgado et al. v. Morris et al. (1948) 334 Ill. App. 557, 79 N.E.2d 839, it was held that to constitute an abandonment of a nonconforming use it must appear there is an intent to abandon such; mere cessation of use will not, per se, result in a loss of the right to resume such use; ...