Appeal from the Circuit Court of Lake County, Nineteenth
Judicial Circuit; the Hon. MINARD E. HULSE, Judge, presiding.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT.
Rehearing denied May 7, 1970.
Petitioner seeks mandamus to compel the issuance of a permit by the City which would allow the removal of an existing house and portions of a greenhouse, and the construction of a new building, for the purpose of operating a "greenhouse, garden center, landscaping office and florist shop." A lawful continuance of a nonconforming use is claimed.
The City denied the permit, except for the request to wreck existing structures. The trial court upheld the action of the City.
The property is located within the City of Highland Park, with a frontage of approximately 167 feet on Deerfield Road, and with a depth of approximately 226 feet. It was annexed to the City in 1924 and was previously unzoned, in an unincorporated area. At the time of the annexation, the Highland Park Zoning Ordinance classified the property as Residence District and it has remained zoned for single-family purposes.
The dispute centers on questions of whether a nonconforming use has been established by the evidence, and on whether the contemplated repairs, demolishment and reconstruction would constitute expansion or enlargement of such use prohibited under relevant ordinances. In the alternative, an issue is raised by petitioner's claim that the City has been estopped to deny the issuance of the requested permit.
Robert S. Ramsey, testified for petitioner. He is the President of the Deerfield State Bank, one of the relators, which is the beneficial owner of the premises. He stated that he was a longtime resident of the area and had been familiar with the property in question since 1923. He passed the property two or three times a year at that time when he drove to Deerfield. He recalled a greenhouse on the property in 1923, and a separate "building used as an office." Some time after 1923, he recalled that there was a new greenhouse built on the property, and observed that one or two years after 1923 the greenhouse was used for growing potted flowers, plants and cut flowers for sale. Items purchased were paid for in the separate building wherein he observed a cash register on a desk and a cot in the room. Prior to 1926 the greenhouse was relocated in its present position, and purchases on the premises were paid for in the house-office. He observed no change in use after 1926. In the early 1960's he solicited a bank account from the then owner, Ladd Stachel. A year or two later his bank loaned money to a John Zender to acquire the property. Both Stachel and Zender operated a "flower cart sale of cut flowers on the property." He knew of improvements to the separate building in 1964, including the installation of a "picture window." Also, "a kitchen was put in, some calking, and the north portion of the building was what I would call gutted." Zender died and the bank acquired title to the property and leased it to the relator, Joseph Greco.
Jens Peterson also testified for relators, claiming that he went on the property regularly to do business. He said that the original greenhouse and retail sale business of cut flowers was that of Fred Coleman (an adjoining owner) and not Frank Keleman (who was in the chain of title to the property), and he could not say whether it was outside the present premises or not. He testified that in 1926 "there was a new greenhouse built a little bit northeast of where this old one was that Fred Coleman had, but it was built by a different man." He said at another point that there were "two greenhouses" being put up on the subject property. He stated that the present house was not there prior to 1926.
Joseph Greco, one of the relators, testified that he began operation of a flower shop and garden center in 1965, selling potted plants, fertilizer and grass seed. He was in the landscaping business and had occasion to be on or by the property three or four days a week in 1952 or 1953. He testified to paying bills in the house and described a room with a cash register, a safe and office furniture, and said the building was used as a residence. He purchased potted plants at the premises between 1952 and 1964, although not in each year. These products were on sale about three months out of the year.
Greco further testified that while nothing was missing from the present foundation of the greenhouse, it needed replacement of glass; and heating and electrical work. A stucco building attached to the greenhouse needed complete renovation and he was using it only for storage. He described his proposed plans. He would remove the back portion of the greenhouse and renovate the existing part. He would build a new building in the present location of the "stucco building" and use it as a garden shop building. The house would be torn down.
There was evidence of a series of building permits which had been issued by the City: June 16th, 1924, to Frank Keleman, to construct a "greenhouse building"; June 15th, 1925, to Keleman, to construct a "new greenhouse"; November 8th, 1927, to B. Nechville, for a "tool shed" (on a portion of the property not now a part of the premises in question); July 23rd, 1930, to Nechville, to construct an "addition to greenhouse"; August 24th, 1933, to Nechville, to construct a "porch addition"; April 4th, 1939, to Pasquale Bellei, to add an additional room "to cottage"; and on May 18th, 1964, to John Zender, for "remodeling of porch." (This application stated, "retail florist" in the use portion of the form.)
The zoning ordinance of Highland Park passed in 1947 and as amended, introduced by the City included,
Article 14, headed "Non-Conforming Uses" and providing ...