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Gans v. City of Chicago

NOVEMBER 26, 1968.

DORIS L. GANS, ET AL., PLAINTIFFS-APPELLEES,

v.

CITY OF CHICAGO, A MUNICIPAL CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. WALKER BUTLER, Judge, presiding. Decree reversed.

MR. PRESIDING JUSTICE BURKE DELIVERED THE OPINION OF THE COURT.

Plaintiffs instituted this action challenging the constitutionality of the Zoning Ordinance of the City of Chicago, as it applies to their subject property, and requesting the trial court to enter a decree permitting them to construct a gasoline filling station on the premises. The trial court entered a decree granting the requested relief, in accordance with the recommendations of the Master to whom the cause had been referred for hearing. Defendant appeals.

The subject property, consisting of five unimproved lots, is located at the northeast corner of 95th Street and Michigan Avenue in Chicago. The property fronts 140 feet along 95th Street and extends 125 feet in depth along Michigan Avenue to an east-west alley next north of and running parallel to 95th Street. Ninety-fifth Street is a heavily traveled, 100-foot wide, U.S. arterial highway route, at this point consisting of four lanes of moving traffic and two parking lanes. Traffic at the 95th Street and Michigan Avenue intersection is controlled by a traffic light. The subject property lies within an area zoned B1-1 local retail which does not permit the use desired by plaintiff. The proposed use, a gasoline filling station, requires a B4-1 restricted service classification.

In October 1964 plaintiffs filed an application with the City Council of the City of Chicago seeking an amendment to the City's Zoning Ordinance. The application included not only the subject property, but the entire B1-1 district within which the subject property lies and which extends from Michigan Avenue on the west to Indiana Avenue on the east, and from 95th Street on the south to the alley next north of and running parallel to 95th Street on the north. The amendment was approved by the City Council but was vetoed by the Mayor in January 1965. Plaintiffs thereupon instituted the present action in the Circuit Court.

Defendant, City of Chicago, filed a motion to dismiss the action on the ground that plaintiffs, in seeking a ruling in the instant action with respect to the subject property alone, had failed to exhaust all available local remedies, in that the City Council passed upon the application covering the entire B1-1 district wherein the subject property lies, but never was presented with the opportunity of acting upon an application covering the subject property alone.

Defendant's motion was denied and the trial court suggested that plaintiffs file with the City Council an application to amend the zoning ordinance by rezoning the subject property alone, in order to correct the situation. The subsequent application was denied in June 1966 and plaintiffs thereupon filed an amended complaint below setting up the said denial as proof of complete exhaustion of local remedies.

The subject property is located in a B1-1 local retail district which is bounded by Michigan Avenue on the west, Indiana Avenue on the east, 95th Street on the south, and the alley next north of and running parallel to 95th Street on the north. In addition to the five vacant lots comprising the subject property, this area consists of seven more lots, five of which are vacant and one of which is improved with a single-family residence; the seventh lot is improved with a three-story mercantile building housing a shoe repair shop and several apartments. The rest of the block, to the north of the alley north of this area, is zoned single-family residential and is improved with one, two and three-family dwellings, the single-family dwellings predominating.

Moving directly east from the subject property, the area from Indiana Avenue on the west to a point across Prairie Avenue approximately 110 feet west of Forest Avenue on the east, and from 95th Street on the south to the alley next north of and running parallel to 95th Street on the north, is zoned R3 general residential. This area is improved with eight single-family residences, a church, and a building housing a beauty shop in front and residence in the rear; there is also one vacant lot in this area. The rest of the block, to the north of the alley, is zoned R2 and is developed with one and two-family residences.

The area from the point approximately 110 feet west of Forest Avenue on the west to Dr. Martin Luther King, Jr. Drive on the east, and from 95th Street on the south to the alley next north of and running parallel to 95th Street on the north, has a B2-1 restricted retail classification. This area is improved with four single-family residences and also contains several vacant lots. The area directly to the north of the alley is an R2 single-family residential district.

To the west of the subject property, from Michigan Avenue on the east to a point across Wabash Avenue approximately fifty feet east of State Street on the west, and from 95th Street on the south to the alley next north of and running parallel to 95th Street on the north, is an R3 general residential district. The northwest corner of 95th Street and Michigan Avenue, directly across the street from the subject property, is vacant. The balance of the area is improved with one, two and three-family dwellings, in addition to containing one vacant lot. The northeast corner of 95th and State Streets is zoned B4-1 restricted service and is improved with a gasoline filling station. The area north of the alley next north of and running parallel to 95th Street is zoned and improved single-family residential. Running in a north-south direction, immediately west of State Street, is the Dan Ryan Expressway. Access to and from the Expressway and 95th Street is provided along State Street.

The south side of 95th Street, from State Street on the west to Michigan Avenue on the east, and from 95th Street on the north to the alley next north of and running parallel to 103rd Street on the south, is zoned R3 general residential. A public park fronts along 95th Street, from State Street to Michigan Avenue, and extends southward approximately three blocks. The park is diagonally across from the subject property.

From Michigan Avenue on the west to Indiana Avenue on the east, and from 95th Street on the north to the alley next south of and running parallel to 95th Street on the south, the area is zoned B4-1 restricted service. The southeast corner of 95th Street and Michigan Avenue, directly across 95th Street from the subject property, is developed with a gasoline filling station. Proceeding easterly along the south side of 95th Street from the filling station, the lots are improved with a construction office with residence above, a real estate office with residence above, a beauty shop, a restaurant, and a gasoline filling station on the southwest corner of 95th Street and Indiana Avenue.

To the south and southeast of the above described B4-1 district are areas zoned R2 and R3, having as their northern boundary lines the alley next south of and running parallel to 95th Street. Their east and west boundary lines are, respectively, Dr. Martin Luther King, Jr. Drive and the aforementioned public park.

Directly to the east of the above described B4-1 district, from Indiana Avenue on the west to Forest Avenue on the east, and from 95th Street on the north to the alley next south of and running parallel to 95th Street on the south, the district is zoned C1-1 restricted commercial. The area between Indiana Avenue on the west and Prairie Avenue on the east within this district is vacant. The area from Prairie Avenue on the west to the southwest ...


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