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Dockstader v. Hartnett

OCTOBER 6, 1972.

OMER DOCKSTADER, PLAINTIFF-APPELLEE,

v.

B. EMMET HARTNETT ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. EDWARD J. EGAN, Judge, presiding.

MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:

On November 2, 1962, the Zoning Administrator of the City of Chicago denied plaintiff's application for a certificate of occupancy *fn1 to operate an auto repair and storage business at 7312-18 North Rogers Avenue. The order denying the application stated that the proposed improvement did not conform with the requirements of the Chicago Zoning Ordinance. The order was affirmed by the Zoning Board of Appeals of the City of Chicago on August 7, 1963. On review to the Circuit Court under the Administrative Review Act (Ill. Rev. Stat. 1963, ch. 110, par. 264 et seq.), the court remanded the cause to the Zoning Board of Appeals for further hearings because the record filed by the defendants was incomplete. Upon remand further testimony was received and on July 28, 1966, the earlier decision was reaffirmed. Plaintiff again sought review in the circuit court which set aside the decision of the Zoning Board of Appeals. The defendants appeal from this decision.

The sole issue on appeal is whether plaintiff's use of the subject premises as an auto repair shop is a legal non-conforming use under the Chicago Zoning Ordinance.

The subject building can be described from photographs in the record as follows: It lies on the west side of an alley which has an entrance from the south on Rogers Avenue. It contains a one-story, brick factory-type building which has one small window with light from the outside coming through a skylight on the roof. The building is about 100 feet long (on the north-south sides) and 55 feet wide (on the east-west sides). A small open yard lies adjacent to the south and is used to park trucks and cars. At the time plaintiff applied for the certificate of occupancy the area was zoned B2-2, Restricted Retail District.

The following is a summary of the testimony elicited at the hearings held before the Zoning Board of Appeals:

Joseph Brader testified for the plaintiff. He is the contract seller of the subject property. He built the building in 1948 when the area was zoned for commercial purposes and used it for storing and crating furniture. Trucks were kept in the building and adjacent yard for use incidental to the main operation. This use was continued until 1955 at which time he leased the premises to a Mr. Rusnak. For several years Rusnak used the property for storing, manufacturing and repairing furniture. He then subleased the building to a Mr. Goren. Goren used the premises to grind plastic into pellets. Plaintiff entered the premises in 1960.

Plaintiff testified that he has continuously used the building for repairing and storing cars since occupying it in March 1960.

Several persons who resided in nearby townhouses testified for the defendants. They stated that a large amount of noise and paint fumes emanated from plaintiff's building.

Ronald Handler, an architect and builder, and an owner of a house just west of plaintiff's building, testified for the defendants. He felt that plaintiff should move to a zoning district that allows an auto repair business or should use his premises for any one of 20 uses associated with retail businesses that are permitted in a B2-2 district. The premises would be unsuitable for the other 40 uses permitted in a B2-2 district since it fronts on an alley.

Based upon the foregoing evidence the Zoning Board of Appeals concluded that the Zoning Administrator properly denied plaintiff's application for a certificate of occupancy for use of the premises as a garage for the storage and repair of automobiles. The circuit court reversed.

Opinion

• 1 The issue on appeal is whether plaintiff's use of the premises as an auto repair shop is a legal non-conforming use. It arises within the context of the established rule that a decision of an administrative body will not be reversed unless contrary to the manifest weight of the evidence. Gloss v. Board of Trustees, Firemen's Pension Fund 132 Ill. App.2d 736, 270 N.E.2d 472.

It is undisputed that the use of the premises prior to 1958 conformed to the commercial zoning classification then existing in the district. With the passage of the comprehensive amendment to the Chicago Zoning Ordinance (effective January 1, 1958) the district was rezoned B2-2, Restricted Retail District. A storage and repair shop, the use of the premises when the amendment took effect, is not a permitted use in a B2-2 district. Thus, the status of the premises on January 1, 1958, was that of a legal non-conforming use since under the ordinance any use of a building that does not comply with all the regulations governing use for the zoning district in which it is located is a non-conforming use and Section 6.2 provides:

"[The use of a] building or structure which shall become non-conforming upon the adoption of this comprehensive amendment * * *, may be continued, some for specified and respective periods of ...


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