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Marquis Who's Who v. Ohio-st. Clair Gar. Corp.

APRIL 17, 1968.

MARQUIS WHO'S WHO, INC., BROWNE & STORCH, INC., PHILIP BERMAN, LOUIS BERMAN & CO., HIBBARD, SPENCER, BARTLETT & CO., E.W. MURDOCK, J. MURDOCK, CINEMA PROCESSORS, INC., CHICAGO DOCK CANAL TRUST, A. BARTIMOCCIA, THE GREATER NORTH MICHIGAN AVENUE ASSOCIATION, AND HOWARD L. STORCH, PLAINTIFFS-APPELLANTS,

v.

OHIO-ST. CLAIR GARAGE CORPORATION, WOMEN'S ATHLETIC CLUB OF CHICAGO, HARRIS TRUST & SAVINGS BANK, TRUST NO. 14455, BAIRD AND WARNER, INC., GERTRUDE K. HAMILTON, LAKE SHORE NATIONAL BANK, ARTHUR T. GALT, ET AL., BENJAMIN E. SHERMAN AND SON, B.E. TEWES, TIME, INCORPORATED, H.W. SHERMAN CORPORATION, NORMLYN CORPORATION, FIRST NATIONAL BANK, STATE BANK AND TRUST COMPANY, M.S. SHARP, 218 E. ONTARIO BUILDING, C. BONAS, S. MAGGLOS, J. MEYERS, H. GILDEN, BROKERS BUILDING, BOWES REALTY COMPANY, COMMERCE MART, ZONING BOARD OF APPEALS OF CITY OF CHICAGO, B. EMMET HARTNETT, JOHN P. KRINGAS, HUBERT F. MESSEE, KARL M. VITZHUM, SIDNEY SMITH, BUILDING COMMISSIONER OF THE CITY OF CHICAGO, AND SAM D. KAPLAN, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County, County Department, Law Division; the Hon. CHARLES S. DOUGHERTY, Judge, presiding. Affirmed.

MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.

Plaintiffs *fn1 appeal from a judgment entered in an administrative review in the Circuit Court upholding the decision of the Zoning Board of Appeals of the City of Chicago which granted a special use to the Ohio-St. Clair Garage Corporation. Defendants contend that plaintiffs have not established that they were adversely affected by the decision of the Zoning Board of Appeals and therefore were not entitled to challenge the decision by way of administrative review. Plaintiffs argue that they were entitled to an administrative review and that the decision of the Board should be reversed and plaintiffs given a new hearing because one of the four votes necessary to grant the special use was cast by a board member who was not present at all the proceedings. *fn2 Plaintiffs also urge that the court erred in refusing to call the Chairman of the Board of Appeals as a witness.

To obtain an administrative review plaintiffs must prove that they are adversely affected by the decision of the Board (Rosenfeld v. Zoning Board of Appeals of Chicago, 19 Ill. App.2d 447, 451, 154 N.E.2d 323) and that they have suffered a "special or peculiar injury." 222 E. Chestnut St. Corp. v. Board of Appeals of the City of Chicago, 14 Ill.2d 190, 152 N.E.2d 465. Defendants assert that no such injury has been shown.

Defendant Ohio-St. Clair Garage Corporation applied for a variation in the nature of a special use to the Zoning Board of Appeals on June 2, 1966, proposing to build a four-story parking facility on the southwest corner of Ohio and St. Clair Streets. The first floor was to contain retail stores and the top three floors were to be devoted exclusively to parking. Plaintiff Howard L. Storch of Browne & Storch, a real estate firm which owned and managed a number of properties in the area, sent the Board a letter objecting to the proposed use because it would create traffic congestion and would block the proper development of the area. The Board also received letters authorizing Storch to object on behalf of the St. Clair Hotel (located directly across the street of the subject property) *fn3 and Louis Berman & Co. (owners of nearby property). Others of the plaintiffs also communicated with the Board. Marquis Who's Who, Inc., sent an objection virtually identical word for word to that sent by Storch. The Greater North Michigan Avenue Association wrote the Board objecting to the manner of construction of the proposed facility and stated that: "We . . . will work energetically with . . . the applicant . . . to upgrade the present parking structure proposal. . . ." Later the Association, of which Howard L. Storch is a vice-president, wrote letters suggesting that the site be used for a business or residential structure with off-street parking included and objecting to the construction of a building which would house a parking facility exclusively. The Board also received letters from the Chicago Dock & Canal Trust and Bowes Realty Co.

A hearing on the special use application was set for June 30, 1966. One of the five board members had died, creating a vacancy on the Board which was not filled during the proceedings involved here. All four of the remaining board members were present on June 30 and voted to continue the hearing until September 14. At the hearing held on September 14 Chairman B. Emmet Hartnett was absent and the hearing was conducted by the three remaining board members. The Board met with the same three members on September 16 and again on November 22, when it passed a resolution approving the special use application. Although Chairman Hartnett was absent from these meetings, according to the minutes of the Board he "concurred in taking the action designated on the face of the resolutions."

At the hearing of September 14 the objectors presented four witnesses in support of their objections. Howard L. Storch stated that he had been in the real estate business in the area of the subject property for thirty-eight years and that this special use would substantially damage the surrounding property because it would start a precedent for gasoline stations and because it would take up one of the few remaining plots, thereby stopping the proper development of the area. He also testified that the parking facility would cause traffic congestion, create safety hazards and attract vagrants and that although such facilities were appropriate to the area west of Michigan Avenue they were incompatible with the properties to the east. He said that he had offered to buy the property in question and lease it back for a parking lot. One of the board members referred to a letter on file with the Board which Storch had written to the president of the applicant corporation stating:

I am sure it would be far better for you to let us negotiate a ground lease with one of the major developers, making a condition of this transaction a long-term lease on large garage facilities in its base; this would provide you both with the profit of the garage operation as well as income from the land; in effect, you can have your cake and eat it too!

Carl Gardner testified that he was a city planning and zoning consultant. He asserted that the proposed use was incompatible with the surrounding uses; that it would create backups onto Michigan Avenue and that this use would interfere with the proper development of the area. On cross-examination he said that the best use for the land would be for a highrise apartment with parking built into the structure.

Kenneth Anglemire, president of Marquis Who's Who, Inc., which owns the property diagonally across from the subject property, said that the proposed use would impair the value of his company's building because it would interfere with the type of development which is expected to be carried over from Michigan Avenue and because it would create a pedestrian hazard.

Philip Berman, president of Louis Berman & Co., stated that he agreed with the testimony of Anglemire and that the garage exits would stop people from walking on this street, cheapen the neighborhood and hurt retail business on Michigan Avenue.

The applicant offered the testimony of four witnesses. Sam D. Kaplan, president of the applicant, stated that he talked to Philip Berman and was told that Mr. Berman himself had no objection but was just going along with the property owners association. He said that he also talked to Leo Wallach of the St. Clair Hotel and was told that he saw no objections to the garage and that in fact the hotel needed a garage but that he would want to talk to someone else before committing himself. Kaplan further testified that there was a need for parking in this area and that the cars would be hidden from view by precast metal grill work.

Norman Kraemer testified that he was the operator of the city parking facility located one block away at Grand and St. Clair. He said that there was a growing need for parking in the area and that this need would soon be increased because certain parking facilities, which he named, were giving way to the construction of buildings eliminating facilities for 750 cars.

William Horowitz testified that he was an architect and had drawn plans for the proposed garage. He said that the building would use architecturally finished concrete and that through use of concrete parapets and aluminum screening devices the parked cars would not be visible from the street.

John J. Mack testified that he was a real estate developer and was familiar with the area in question. He said that Kaplan had come to him for suggestions on how to best develop the subject property and that he had advised Kaplan that a multistory apartment building was not economically feasible. He said he based his estimate on a 248-unit building. Mr. Mack stated that the contemplated parking ...


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