APPEAL from the Circuit Court of Cook County; the Hon. EDWARD
J. EGAN, Judge, presiding.
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 13, 1971.
The plaintiff, Brunhild Towers, Inc., instituted this action under the Administrative Review Act to set aside an order and decision made by the Zoning Administrator of the City of Chicago and affirmed in a resolution of the Zoning Board of Appeals which directed the corporation to discontinue the use of a 40-car open air parking lot because the lot did not conform with the surfacing requirements of the Chicago Zoning Ordinance. The circuit court, after considering the complaint, the answer thereto, which consisted of the entire record of proceedings before the Zoning Board of Appeals, and the argument of counsel, reversed. The zoning administrator, the members of the zoning board of appeals, and the City of Chicago appeal.
The plaintiff is the owner of real estate located on the west side of Marine Drive between Montrose Avenue on the north and Junior Terrace on the south in Chicago, Illinois. A 17-story apartment building which contains 92 apartments and which has parking facilities for about 80 automobiles, is located on the southern portion of the property; and an open air parking lot with a capacity of storing about 40 cars is located next to the apartment building on the northern part of the property. The parking lot, which is the subject property, faces both Marine Drive and Montrose Avenue, is fully enclosed by a cyclone fence and has no entrance or exit directly onto the public ways. It is covered with a hard surface composed of stone and cinders which have been rolled over. It is located in an R7 General Residence District.
On April 27, 1967, the Zoning Administrator served notice upon the plaintiff to discontinue the use of the parking lot because it was not improved with a macadam base and surfaced with asphaltic concrete or other comparable all weather dustless material, as required by the Chicago Zoning Ordinance; and on May 2, 1967, he entered an order finding that the lot was improperly surfaced.
The plaintiff appealed to the zoning board of appeals which, after conducting a full hearing, affirmed the decision of the zoning administrator and made the following findings: "* * * that in this case the appellant [plaintiff] provides off-street parking in excess of the requirements of an R7 District; that the public parking facilities provided by the applicant are in excess of the 25% allowed under Section 7.12 (1) of the zoning ordinance; and further, that the location of the parking lot in relationship to Lincoln Park and the surrounding residential neighborhood requires that the applicant comply with Section 7.12(8)b of the zoning ordinance * * *."
Section 7.12(8)b, which was added to the Chicago Zoning Ordinance in 1957 as a part of a comprehensive amendment, provides with reference to the surfacing of open air off-street parking facilities in residence districts as follows:
"Off-street parking spaces accessory to uses allowed in Residence Districts shall be provided in accordance with the regulations set forth hereinafter as well as in Article 5, General Provisions, Sections 5.8-1 to 5.8-6.
(8) Design and Maintenance.
b. Surfacing. All open off-street parking areas, except a single parking space accessory to a one family dwelling, shall be improved with a compacted macadam base, not less than four inches thick, surfaced with asphaltic concrete, or some comparable all-weather dustless material.
The plaintiff does not dispute the fact that the surface of its parking lot fails to conform with the requirements of section 7.12(8)b, however, it does contend that since its use of the property as a parking lot was lawfully established long before 1957, the property is not subject to section 7.12(8)b. It is argued that the parking lot as surfaced constitutes a non-conforming use.
At the hearing before the Zoning Board of Appeals, A.F. Jaworek, the secretary of Brunhild Towers, Inc., testified that the corporation purchased the parking lot in 1944 and that the lot prior to its acquisition had been used for the parking of cars owned by tenants of Brunhild Towers. He further stated that the general public had never been permitted to bring in cars for parking. In response to a question from the chairman of the Board he clarified his statement concerning the exclusion of the general public from the lot, "What I mean by that is, nobody from the outside; they mostly are tenants or employees, or guests that are allowed to come in." It was then brought out that about 20 spaces were rented out at the rate of $15.00 per month each to persons not residing in the apartment building and that the corporation did not have a license to operate a public garage. It was not clear from the testimony whether the spaces were rented out both in the building and in the outdoor lot or just in the outdoor lot.
A use of land established prior to the comprehensive amendment which becomes non-conforming by reason of the passage of the amendment may continue with limitations not relevant here provided that the use is not changed to one which is prohibited in the district where the land is located. (See Chicago Zoning Ordinance, sections 6.2 *fn1, 6.6 *fn2, and 6.6-3 *fn3.) The questions to be determined, therefore, are (1) whether plaintiff's use of the subject property was lawfully established prior to the adoption of the amendment and (2) whether that use continued unchanged.
When the subject property was purchased in 1944, it was located in an apartment house district. Apartment buildings with more than two units, in districts of this type, were required to have facilities for parking in a private garage or in ...