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Hazel Wilson Hotel Corp. v. City of Chicago

JANUARY 29, 1974.




APPEAL from the Circuit Court of Cook County; the Hon. EDWARD F. HEALY, Judge, presiding.



The City of Chicago and the Zoning Board of Appeals of the City of Chicago appeal from a judgment which reversed a decision of the Zoning Board of Appeals, with directions that the Zoning Administrator be ordered to approve the application for a special use so as to permit the plaintiff to continue to operate a shelter care home at 4544 N. Hazel Street, Chicago, which is located in a B 4-5 District under the Chicago Zoning Ordinance.

Plaintiff purchased the Hazel Wilson Hotel, 4544 North Hazel Street, Chicago, in 1967. The hotel is a five-story building which was, when purchased, being operated as an apartment hotel with apartments being rented to the general public. The building was purchased with the intention that it would be converted to a shelter care home use. At the time plaintiff acquired the building in 1967 there were no zoning regulations whatsoever for this type of use.

When purchased, the building contained approximately seventy apartments, including twenty-four bedroom units and forty-four one-room or efficiency apartments. The property was in a bad state of repair. Plaintiff spent $175,000 in repairing, refurnishing, and converting the building, in addition to the original purchase price of $275,000. A vacant drug store on the first floor was converted to a kitchen and dining room facility after the plaintiff had secured a building permit from the City. Prior to that time, no food had been served on the premises.

Agents of the Board of Health came to inspect the premises, and the plaintiff, at their suggestion, took out the kitchens (i.e., the stoves and the refrigerators) from the individual apartments. Recreation rooms were made available on each floor, and each apartment was equipped with two beds to allow occupancy by two persons.

In December, 1968, the City Council passed a residential care home ordinance which provided for the licensing of residential care and shelter care homes. On January 3, 1969, the plaintiff, at the suggestion of the board of health, applied for a license and paid the city collector the sum of $650 as a license fee for a residential care home license for the year 1969. The city collector accepted the money, but the license was never issued. On December 19, 1969, the plaintiff paid the city collector an additional $650 for the 1970 residential care home license but, although the fee was accepted, no license was issued.

When license applications are made to the City, it is the City's standard operating procedure to route the applications through all of its departments which are involved with the type of activity for which the license is sought, for an approval prior to the issuance of the license. It appears that plaintiff's applications for both 1969 and 1970, in the course of their circulation for approvals, reached the City's Zoning Administrator, who simply took no action either to approve or disapprove said applications.

On August 24, 1970, nearly three years after the plaintiff began operating the premises as a shelter care home, the City Council passed an ordinance which made residential care homes and shelter care homes a special use in certain residentially zoned districts, and which allegedly thereby made plaintiff's existing use in the business district illegal. Thereafter, on December 1, 1970, the plaintiff's application for a license was disapproved by the Zoning Administrator because it violated the Chicago zoning ordinance. The plaintiff filed an appeal with the Zoning Board of Appeals from the decision of the Zoning Administrator, alleging that in November, 1967, there was no provision whatsoever in the zoning ordinance for either a shelter care home or a residential care home; that in December, 1968, the city council of the City of Chicago passed a residental care home ordinance to regulate the maintenance of such facilities; that the plaintiff's facility has been approved by the Department of Public Health and the Department of Mental Health of the State of Illinois, and by the board of health and the fire department of the City of Chicago.

Plaintiff's tenants are referred by the Department of Mental Health and the State pays for them. The Department of Public Aid has also referred a few private people, who are supported by the public aid.

On January 22, 1971, after a hearing, the Board of Appeals rendered its decision denying the appeal of the plaintiff. The Board found, among other things, "that it is without authority to act upon the appeal filed in this case to legalize the operation of a shelter care home in a B 4-5 District" and, therefore, affirmed the decision of the Zoning Administrator.

No evidence was introduced on behalf of the City of Chicago, although Alderman O'Rourke and Roger Reynolds, executive director of the uptown Chicago commission, made statements for the record.

On February 16, 1971, plaintiff filed its complaint for administrative review, praying that the decision of the Zoning Board of Appeals be reversed. The judgment of the court below has already been set out in the opening paragraph of this opinion.

On this appeal, the defendants argue that, when the Board of Appeals denied a non-conforming use permit, it was error for the trial court to direct the issuance of a special use permit; and that the evidence does not establish the ...

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