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County of Cook v. Hoytt

MAY 13, 1965.

THE COUNTY OF COOK, A BODY POLITIC AND CORPORATE, PLAINTIFF-APPELLANT,

v.

MAC HOYTT, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. CORNELIUS J. HARRINGTON, Judge, presiding. Judgment affirmed.

MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.

This is an appeal from an order of the circuit court of Cook County granting the motion of the defendant for a summary judgment and dismissing the complaint.

The plaintiff filed a two count complaint for injunction on October 3, 1961 seeking the removal of a house trailer used by defendant as his dwelling, which is located on defendant's property in Palos Township, Cook County. The first count alleged that the use of the property was in violation of the provisions of the 1960 Comprehensive Amendment to the Cook County Zoning Ordinance. The second count alleged that the use of the property amounted to a public nuisance. The second count was dismissed by stipulation.

The complaint alleged that the house trailer was an illegal and nonconforming use of defendant's property, which under the 1960 amended ordinance is in an R3, single family residential district. The property of the defendant consists of nine acres and has been used as a dog kennel since prior to the 1960 amendment to the Cook County Zoning Ordinance. The plaintiff contends that while the use of the premises for a dog kennel was permitted under the 1940 ordinance, it was unlawful under said ordinance to move a house trailer onto the premises to be used as defendant's dwelling, because the 1940 ordinance required a permit for any use of property and no permit was obtained for the trailer. The plaintiff's argument is that because of defendant's failure to procure a permit, the use of the house trailer was rendered illegal under the 1940 ordinance, and that it therefore was an illegal, nonconforming use under the 1960 Comprehensive Amendment of the Cook County Zoning Ordinance. The plaintiff further contends that a house trailer, or mobile home, does not and did not fall within the permitted uses allowed in the F (Farming) classification of the 1940 Cook County Zoning Ordinance.

In November, 1959, while the 1940 ordinance was in effect, the defendant placed upon his property a house trailer, or mobile home, and has used it continuously since that time as his dwelling place. The plaintiff filed a motion for summary judgment on the pleadings supported by affidavit, and the defendant filed a counteraffidavit in opposition to the motion of the plaintiff and in support of defendant's motion for summary judgment.

It is admitted that the defendant at no time procured a permit to use the premises as a residence, or for the use of a house trailer on the property. The F (Farming) district, in which defendant's property was located, under the 1940 Cook County Zoning Ordinance allowed the maintenance of a single family residence located on a lot of 20,000 square feet minimum area. Since defendant's property comprises nine acres its area exceeds that which was required to maintain a single family residence in such F (Farming) district.

The questions presented by this appeal are whether a house trailer is a residence or otherwise permitted use within the provisions of the 1940 ordinance, and if so whether the failure to procure a use permit as required by section 1B of the 1940 Cook County Zoning Ordinance renders the use of the property unlawful under the 1940 ordinance.

Sections 6 and 8 of the 1940 Cook County Zoning Ordinance read as follows:

Section 6.

R-3 Districts (Residence — 20,000 sq. ft.)

In the R-3 Districts the only uses which may hereafter be established are those permitted in the R-2 Districts and, in addition, the following: (1) single family residences, each one on a building plot or lot not less than 100 feet average width and 20,000 square feet in area, excepting any smaller lot or parcel of land of public record on the adoption date of this ordinance.

. . . . . .

Section 8. F-Districts (Farming).

In the F-Districts the only uses which may hereafter be established are those permitted in the R-3 Districts and, in addition, the following: (1) specialized poultry, pigeon, rabbit and other animal farms, but not including the feeding or disposal of community or collected garbage, (2) apiaries, (3) mushroom barns, (4) greenhouses, (5) nurseries, (6) dog kennels, (7) sale of products from any of the above uses, (8) storage of farm products, (9) recreational camps, (10) riding stables, (11) veterinary establishments, (12) filling of holes, pits, quarries, or lowland with nonodorous and non-combustible material free from garbage and food wastes, (13) picnic grounds or groves but not including taverns and commercial eating places, (14) athletic fields, (15) skeet or trap shooting ...


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