Appeal from the Circuit Court of Cook County; the Hon. B. FAIN
TUCKER, Judge, presiding. Affirmed.
MR. PRESIDING JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
Joseph Camardo, hereafter referred to as the plaintiff, brought an action in the Circuit Court of Cook County, asking that the defendant, Village of La Grange Park, be compelled to issue permits for the construction of three single family residence buildings on three separate lots, each with a 25-foot frontage. Judgment was entered against the defendant Village on a motion for summary judgment and from that judgment this appeal is taken. The appeal was first taken to the Supreme Court which transferred the case to this court on the ground that it had no jurisdiction to consider. In other words, the Supreme Court has said that there was no substantial constitutional question involved in the appeal.
One lot was located at 516 Harding, hereafter referred to as Parcel 1, and was subdivided and described in a plat recorded on October 2, 1926. The property located at 1212 and 1204 Maple Avenue, hereafter referred to as Parcels 2 and 3, respectively, was subdivided and described in a plat recorded in 1924. These lots all had frontages of 25 feet and were surrounded on both sides by improved property. Plaintiff made application, along with plans and specifications, to the Building Commissioner of the Village for permits to allow the construction of single family dwellings on each of the parcels equal to 1,160 square feet. Since the buildings would occupy more than 30 per cent of the lot area, such permits were refused. The plaintiff appealed to the Zoning Board of Appeals and the Board in each instance affirmed the action of the Building Commissioner in refusing to issue the permits. Under the ordinance the Zoning Board of Appeals could not grant variations. Such right was reserved for the Board of Trustees.
The Zoning Board of Appeals held public hearings and the Village Manager stated to the Board of Appeals at the hearing that to issue the permits would be a violation of the zoning ordinance. The Zoning Board of Appeals recommended to the Board of Trustees that the denial of the permits should be sustained and the Board of Trustees ruled accordingly. Thereupon, the plaintiff filed in the Circuit Court of Cook County a suit against the Village.
A large part of the briefs of both parties is devoted to the question of whether or not under all the circumstances the appeal should have been taken pursuant to the Administrative Review Act (Ill Rev Stats 1961, c 24, § 11-13-13). In order to understand the case it is necessary to refer to the zoning ordinance of the defendant Village. That zoning ordinance is a little more abstruse and esoteric than most zoning ordinances, which is saying a good deal. It provides that the Village is divided into eight classes of Use Districts and seven classes of Volume Districts. Section 4 of the ordinance provides that the following Use Districts designated on the Use map are hereby established:
A Single family residence district B Single family residence district C Single family residence district D Duplex *fn1 residence district E Duplex residence and 4-apartment buildings
The Zoning and Land Use map appears in the record. The legend on the map provides that in Use District D there may be a "35 per cent maximum coverage on inside lots, 40 per cent maximum coverage on corner lots." Use District E has the same provisions in the legend.
The zoning ordinance was passed in 1955. By the zoning ordinance Parcel 1 was placed in a Class D duplex residence district, and Parcels 2 and 3 were placed in a Class E duplex residence and 4-apartment building district classification. Section 11 of the ordinance refers to Class D; section 12 to Class E. As an introduction to sections 11 and 12 it is important to know the previous section of the zoning ordinance section 7 which deals exclusively with the area regulation of all Use classes. In paragraph (a) of section 7 it is provided that the maximum ground area for Classes A, B or C Uses shall not exceed 35 per cent of the area for a corner lot, or 30 per cent for any other lot in said district. For Class D or Class E, paragraph (b) of section 7 is controlling, and provides that one can use a maximum of 40 per cent of a corner lot, or 35 per cent of any other lot.
The regulations with reference to Class D in section 11 of the ordinance provide, in paragraph (f)(i), that no dwelling shall thereafter be erected on any lot having an area of less than 5,800 square feet and shall conform with the regulations as set forth in section 7(a); provided, however, that a single family residence may be erected on any lot having a lesser area if such lot shall have been lawfully platted and recorded in the Office of the Recorder of Deeds in Cook County prior to the passage of this ordinance. *fn2
Paragraph (f)(ii) provides that each duplex residence hereafter erected or altered shall provide a lot area of 2,900 square feet for each family unit or apartment and shall conform with the regulations as set forth in section 5(b) and in section 7(b) as set forth herein. It is apparent that there is an inconsistency between paragraphs (i) and (ii) of section 11 in relation to the maximum area usage. Whereas subparagraph (i) allows the use of 30 per cent by reference to section 7(a), subparagraph (ii) follows the area regulation set out in section 7(b) which allows 35 per cent of the lot area to be covered by a building.
Section 12 of the ordinance deals with Class E duplex residences and 4-apartment buildings. That section provides:
(g)(i) No dwelling shall hereafter be erected on any lot having an area of less than 5,800 square feet and shall conform with the regulations as set forth in section 5, paragraph (c), and in section 7, paragraph (a), and in section 10, paragraph (b).
(g)(ii) Each duplex residence and 4-apartment building hereafter erected or altered shall provide a lot area of 2,000 square feet for each family unit or apartment and shall conform with the regulations as set forth in section 5, paragraph (e), and in section 7, paragraph (b) contained herein.
As previously mentioned, subparagraph (a) of section 7 allows only a 30 per cent usage. Section 12 contains the same area ...