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Sabath v. City of Chicago

FEBRUARY 15, 1965.




Appeal from the Circuit Court of Cook County; the Hon. WILLIAM G. EOVALDI, Judge, presiding. Affirmed in part, reversed in part, and remanded with directions.


Rehearing denied April 5, 1965.

Defendants appeal from a declaratory judgment order, which (1) found and declared that plaintiffs' use of their premises was "a legal nonconforming use under the Zoning Ordinance of the City of Chicago," and (2) directed that a commercial driveway permit be issued for the subject premises after finding that a driveway would neither create undue safety hazards in the use of the street and sidewalk nor impede the safe and efficient flow of traffic thereon.

The plaintiff, Raymond L. Sabath, is engaged in the wholesale meat business and does business under the names of Century Packing Company and Century Provision Company, and has operated a meat packing and storage plant at 3826-3830 Emerald Avenue since 1954. The defendants are the City of Chicago, Lloyd M. Johnson, Commissioner of the Department of Streets and Sanitation, and John F. Maloney, Zoning Administrator of the City of Chicago. Certain owners of nearby residence property were granted leave to file intervening petitions, which alleged, in part, that plaintiffs' use of their premises constituted an enjoinable nuisance. They participated in the trial, but have not joined in this appeal.

The premises are contained within a square block bounded by 38th Street on the north, Emerald Avenue on the east, Pershing Road (39th Street) on the south, and Halsted Street on the west, in the City of Chicago. The block is divided into 50 lots and is bisected by an alley, 18 feet wide, running north and south in direction, located between Halsted Street and Emerald Avenue, with ingress and egress at the north from and into 38th Street, and at the south from and into Pershing Road. The tier of twenty-five lots facing Emerald Avenue is consecutively numbered from Lot 1 at the south end nearest Pershing Road to Lot 25 at the north end nearest 38th Street. Plaintiffs' premises consist of Lots 6, 7, 8, 9, 10, 11, 12, 13 and 14. Each lot has 24 feet of frontage on Emerald and a depth of 125 feet to the west.

The first structure on any part of the premises was erected in 1917 on Lots 7, 8 and 9, for use as a meat slaughtering plant, by a firm known as City Abbatoir. A loading dock was located at the south end of the premises, set back about 18 feet from Emerald, with ingress and egress to and from Emerald. There were three residences located to the north on Lots 12, 13 and 14. Lots 10 and 11 were set aside for use as a cattle pen.

In the early 1930's the Empire Packing Company, also a meat slaughterer, took possession of the premises, and in 1935 constructed a meat cooler on Lots 10 and 11, by adding three walls onto the existing building, with the north wall of the old building serving as a common wall between the two buildings. No part of the new addition was ever used for loading or unloading by Empire. In 1935, the residence on Lot 12 was demolished; in 1945, the residence on Lot 13 was burned down; and in the late 1940's, the residence on Lot 14 was demolished. Lots 12, 13 and 14 all remained vacant and were not used for loading, unloading, parking or driveway purposes until 1954. On Lot 15, there was and is a residence continuously occupied.

In 1954, the premises were occupied by plaintiffs under a lease. In March, 1956, plaintiffs purchased Lots 6 through 14. The cooler building, standing on Lots 10 and 11, was still intact. This building is three stories in height, approximately 50 feet wide and 120 feet deep, and is set back 6 feet from the east line of the subject premises, extending to the alley to the west. In 1954, the plaintiffs remodeled it, made interior changes, and added a loading dock to the north wall of the building. The loading dock is approximately 15 feet wide, extending these 15 feet into Lot 12. It is 66 feet long, commencing 14 feet west of the east property line of the premises, ending about 46 feet east of the west property line, the alley. The distance from the north edge of the loading dock to the north lot line of the subject premises is approximately 55 feet. The dock contains six bays or doors, each of which is 8 feet wide and 10 feet high. The balance of Lot 12 and all of Lots 13 and 14 were paved with concrete, and a driveway, about 23 feet in width, was installed on Lot 14 to provide ingress and egress to and from Emerald Avenue.

Plaintiffs never used the building to the south, located on Lots 7, 8 and 9, and subsequently demolished it. The area was filled with the rubble from the demolished structure, and is being used, along with Lot 6, for off-street parking of plaintiffs' employees' automobiles, for vehicles awaiting their turn at the loading dock, and is also leased on a nighttime basis to neighboring businesses for truck parking. Ingress and egress to and from this area is provided by the 18-foot public alley to the west. The dimensions of this area are 96 feet by 124 feet. The property to the south of Lot 6, extending to Pershing Road, is also vacant.

Sometime in 1953 or 1954, plaintiffs submitted plans and specifications for remodeling of the premises and construction of the loading dock to the Building Department of the City of Chicago, which were approved by the Department. No driveway was shown on the plot plan, which was included in the plans and specifications submitted to the City. The required application for a driveway permit was not made by plaintiffs in 1954, when the driveway was established, and no driveway permit was ever issued to anyone, nor were driveway fees paid by anyone for the driveway. In October, 1961, the plaintiffs filed the commercial driveway permit application involved here with the Department of Streets and Sanitation of the City of Chicago. The application was returned to plaintiff Sabath, marked "R.3 Not Approved." The accompanying letter stated: "The Department of Buildings has returned your Driveway Application without a zoning approval." It appears, therefore, that plaintiffs' application was rejected because it was not deemed to be in conformity with the R3 General Residence District zoning of the property under the 1957 amendment. Thereafter, an appeal was taken to the Mayor of Chicago, pursuant to provisions of the Municipal Code, which appeal was denied. Thereupon, plaintiffs instituted the present action.

Plaintiffs do no slaughtering on the premises but purchase dressed carcasses of beef, cut the meat, package it, and distribute it throughout the country through various retail chains, governmental institutions, and hotel and restaurant supply purveyors. They receive approximately 20 trailers of meat per week; the trailers average from 32 to 38 feet in length. In addition, they receive both trailers and vehicles of a smaller design which come to the plant for the purpose of picking up produce for local delivery or out-of-state shipment. For pickup purposes, they average four trailers and six smaller units per day.

The voluminous evidence consisted of exhibits and testimony. The exhibits included plans and specifications submitted to the Building Department of Chicago by plaintiffs in 1954, two 1961 applications by plaintiffs for a commercial driveway permit and pertinent correspondence, zoning maps and ordinances, traffic volume studies, and many photographs. The witnesses included plaintiff Sabath, City employees, traffic experts, and numerous intervenors — residents of the immediate area. Plaintiff Sabath and the intervenors testified as to the historical and current use of the premises, its incidental operations and use of the driveway.

There are two issues in this appeal: (1) the determination of the zoning status of the subject premises under the 1942 amendment, and (2) whether the driveway on Lot 14 created an undue traffic and safety hazard, impeding the safe and efficient flow of traffic.

As to zoning, the first issue, the trial court found: "4. All of said improvements were completed and occupied by plaintiffs in March, 1954, having been constructed pursuant to a building permit duly issued in 1953. The use district maps of the Zoning Ordinance then applicable placed the building in a manufacturing district and the northernmost lot of the loading court fell in a commercial district. 5. Under the applicable provisions of the Zoning Ordinance then in effect plaintiffs' use, including building, dock and loading court, was permitted and lawful and was permitted and lawful at the time of the adoption of the 1957 Chicago Zoning Ordinance, now in effect. 6. Plaintiffs' use of the subject premises is substantially unchanged since its inception in 1954 and constitutes a legal nonconforming use under the Chicago Zoning Ordinance." The court then declared that plaintiffs' use of its premises "consisting of a three story building, attached loading dock and paved loading Court, is a legal nonconforming use under the Zoning Ordinance of the City of Chicago."

As defendants concede that plaintiffs' business of meat packing and distribution is a permitted use on Lots 6 through 11 under the 1957 amendment, we are concerned only with plaintiffs' use of Lots 12, 13 and 14 — the loading dock, paved loading court, and driveway. The 1957 amendment places Lots 12, 13 and 14 in an R3 General Residence District, which does not permit the use plaintiffs make of these lots. (Section 7.3-3.) Neither does the 1957 amendment allow this use to be classified as an "accessory" use, which must be "located on the same zoning lot as the . . . principal use served." (Section 3.2.)

Plaintiffs contend that although their use of Lots 12, 13 and 14 is not a "permitted use" under the 1957 amendment, their use of these lots can be continued under the terms of ...

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