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Baron v. Abt

JULY 30, 1965.

JOSEPH M. BARON AND JANE M. BARON, PLAINTIFFS-APPELLANTS,

v.

GEORGE J. ABT AND JUANA C. ABT, AND P. MALONEY, DEFENDANTS-APPELLEES.



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

MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT.

Plaintiffs appeal from a decree dismissing their complaint for want of equity. There is little dispute as to the facts out of which the action arises.

Plaintiffs are owners, since 1948, of real estate improved with a 40 apartment building located on the south side of Farwell Avenue in the City of Chicago, bearing the street address of 1633-43 West Farwell. Defendants George and Juana Abt are owners of real estate immediately adjacent to and east of plaintiffs' property bearing the address of 1629-31 West Farwell. Defendants purchased the real estate in October, 1963 and razed the one family dwelling thereon preparatory to constructing a ten-unit building. On March 23, 1964 the Department of Buildings of the City of Chicago issued to defendants *fn1 building permits authorizing the construction of a two and three story ten-unit apartment building in accordance with plans relating thereto which had been approved by said Department, and were found to comply with all applicable provisions of the Municipal Code of Chicago and the Chicago Zoning Ordinance.

On April 4, 1964 the complaint was filed alleging that the construction proposed to be undertaken by defendants would violate certain provisions of the Chicago Zoning Ordinance and of the Municipal Code; that plaintiffs, as a consequence of the alleged violations would suffer irreparable damage in that some of their apartments would be deprived of free access of light and air; and that the building would suffer a serious diminution in value. The complaint further alleged that should the applicable ordinances be found to permit said construction, that the ordinances were unconstitutional because they deprive plaintiffs "of property rights, to wit: free access of light, air, and as increasing the fire and safety hazards without due process of law."

Plaintiffs prayed that defendants be restrained from proceeding with the construction and for such other relief as equity might require. After defendants filed answer thereto, the cause was referred to a master in chancery who reported to the court recommending that the cause be dismissed for want of equity. The chancellor, by agreement of the parties, considered the evidence as reported by the master, heard arguments of counsel and entered a decree dismissing the cause of action.

It is the theory of the plaintiffs that the building then proposed to be erected, but since completed, violates zoning and building ordinances, works irreparable injury to their adjacent property, and that the court should have enjoined the construction thereof. On appeal plaintiffs request relief by way of money damages since the building is now completed.

Defendants contend that the construction was in compliance with the applicable provisions of the zoning ordinance and building code of the city and the presumption of the validity of these ordinances was not rebutted by the plaintiffs.

Defendants' building is "L" shaped, having a clearance on the east side of 6 feet from their east lot line to their building extending from street to alley. On the west side the base of the "L" abuts plaintiffs' property for a distance of 27 feet 9 inches, rising to a height of 27 feet and approximately 3 feet from plaintiffs' building (the width of a sidewalk on plaintiffs' property extending alongside their east lot line from front to rear). The upright of the "L" to the north of the base has its west wall parallel to and a distance of approximately 8 feet from plaintiffs' east lot line and faces an "outer court."

The controversy regards the abutting blank wall, which is opposite a kitchen window, a bathroom window and two dining room windows of one apartment and a bedroom window of another apartment situated on the first floor of plaintiffs' building; and identical windows of two apartments on the second floor. The third floor apartments are not affected, the window sills thereof being 30 feet from the ground.

The issues herein are addressed to certain specific provisions of the Chicago Zoning Ordinance (Municipal Code of Chicago, c 194A), adopted May 29, 1957, as amended to and including January 1, 1964, and of the Municipal Code of Chicago, c 66, et seq. (1963), and their effect upon the respective adjoining buildings of plaintiffs and defendants, which enforcement would have.

Article 2 of the zoning ordinance indicates the intent and purpose for which it was enacted as follows:

Article 2 — Intent and Purpose.

This comprehensive amendment is adopted for the following purposes:

(1) To promote and to protect the public health, safety, morals, comfort, convenience, and the general welfare of the people;

(3) To protect the character and maintain the stability of residential, business, commercial and manufacturing areas within the City and to promote the orderly ...


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