Appeal from the Circuit Court of McLean County; the Hon.
WENDELL E. OLIVER, Judge, presiding. Both causes reversed and
remanded with directions.
Rehearing denied May 23, 1969.
Plaintiffs filed for an injunction to restrain the defendants from using a lot zoned for a single-family residence as a driveway or walkway for ingress and egress to their four-unit apartment dwelling located on commercially zoned property. The City of Bloomington intervened to enforce an ordinance which allegedly forbade such use. In this case, the issue distills itself into the basic single question whether or not such use violates the zoning ordinances of the City of Bloomington. The trial court held that it didn't and all plaintiffs appeal.
Before final determination of the first suit, the defendants in that suit sought a plat of resubdivision of the property involved and presented it to the Planning Commission and to the City Council. Its approval was denied by both bodies. They then filed for a writ of mandamus against the city seeking an order directing such approval. The city and its officers appeal from a decision of the trial court granting the writ. In addition, the Trustee-owner of adjoining property appeals from an order denying him leave to intervene in this action.
The situation looks like this:
(The picture after denial of Williams' resubdivision.)
As can be seen, Lot 22 abuts on a cul-de-sac and it is across this lot, as we have said, that the access driveway leads back to defendants' apartment house.
As a bit of background (only), defendants after acquiring Lot 22 and part of Lot 21, had applied to the Zoning Commission and the City Council for a rezoning of this section to permit the four-unit apartment building. The application was denied. Defendants then purchased the area to the north of Lots 22 and 23, zoned commercial, and commenced the construction of the apartment house. The construction contract was entered into on November 18, 1965, the footings poured on December 8, and plaintiffs instituted their suit on December 16. At that time this area was outside of the city limits but later annexed. In spite of the pendency of this action, defendants continued their construction and paved a driveway across Lot 22 and began using it as access to the apartment house. We note in passing the curb cut given them by the city.
Is this access use prohibited? We look to the applicable zoning ordinances.
Section 2.2, c 44, of the Bloomington City Code provides:
"No building or premises shall be used, and no building shall be hereafter erected or altered for any purpose other than permitted in the Use District in which such building or premises is located, as follows:"
Section 2.201 of the same chapter provides:
"In the R1A and R1B `Single-family Districts' as defined in Sec 2.103 of this Article, no building or premises shall be used, and no building shall be hereafter erected or altered, unless otherwise provided in this ...