APPEAL from the Circuit Court of Cook County; the Hon. JAMES
J. MEJDA, Judge, presiding.
MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT:
James Ganley, a real estate developer, applied to the Commissioner of Buildings of the City of Chicago for permits to construct three one-story, single-family residences at 6800, 6802 and 6804 North Olcott Avenue, Chicago. The permits were issued and Ganley immediately started excavating; he poured concrete foundations, put in sewers and did the back-filling for the buildings. On April 1, 1971, 3 weeks after permission to build was granted, the department of buildings revoked the permits and halted the construction. On July 13, 1971, the Chicago Park District designated the property as a park site and authorized acquisition of the land. Ganley then filed a complaint for mandamus to compel the reissuance of the permits. After a hearing, the trial court issued the writ.
The evidence showed that Ganley bought 100 front feet of land on North Olcott. The property consisted of four 25-foot lots numbered 22, 23, 24 and 25. (I.e., 6806, 6804, 6802 and 6800 North Olcott.) He paid $12,500 for lot 22 and $12,000 each for lots 23, 24 and 25. Lot 22 was vacant; he built a one-family brick house on the lot and sold it for $37,500. A large frame residence was situated on lots 23, 24 and 25. He intended to build houses on these lots similar to the one he had constructed on lot 22 and had the residence demolished for this purpose. When the neighbors realized what was taking place they protested. Their complaints and demonstrations were heeded and the building permits were withdrawn.
Ganley was invited to attend a meeting in the building commissioner's office. He was told that his proposed buildings did not conform with the type and size of the other residences in the area, and he was asked to change his plans and build two houses instead of three on the 75 feet of land. Ganley, who had erected approximately 150 buildings during his 15 years in the real estate business, refused because, he said, he had between $42,000 and $43,000 invested in the 3 lots.
The principal contention of the City of Chicago and its Commissioner of Buildings is that Ganley is attempting to circumvent the minimum lot size restriction of the Chicago zoning ordinance by demolishing a single-family residence in order to erect houses on lots which are substandard in area. An amicus curiae brief, filed on behalf of the Edison Park Community Council, makes the same argument. Since the resolution of this contention is dispositive of this appeal and we find no merit to the defendants' other contentions, we will limit our discussion to whether the zoning ordinance permitted the construction undertaken by Ganley.
Ganley testified that the majority of houses in the area surrounding lots 23, 24 and 25 were on 25-foot lots, but there were vacant lots around the houses. He stated that the houses which he intended to build were comparable in value to the surrounding structures. The plat of the original subdivision was introduced into evidence. It showed that the pertinent side of the Olcott block was divided into 25 lots; 24 had 25 feet of frontage and 1 had 39 feet.
The chief code enforcement officer for the department of buildings testified that in the two-block area surrounding the three lots, 95% of the residences were on lots which averaged 50 feet. A code-enforcement supervisor testified that the average frontage was 50 to 75 feet. A land use map was received in evidence which showed that there were 11 residences in the 6800 block of Olcott in addition to the one purchased by Ganley. The map showed the condition of the four lots before Ganley bought them. The frame residence was on land which measured 75 feet x 147 feet. The lot next to the residence, at 6806 North Olcott, measured 25 feet by 147 feet and was vacant.
The pivotal issue between the parties concerns the interpretation of three articles of the Chicago Zoning Ordinance and their application to Ganley's property. Article 7.5-2 defines the minimum lot area permissible in a single-family residence district:
"In an R2 District, there shall be provided not less than 5,000 square feet of lot area per dwelling unit, except that in cases where the predominant number of lots of record on the effective date of this comprehensive amendment, fronting on the same side of the street between the two nearest intersecting streets, have a lot area less than that prescribed by the regulation of this district, then, and in that event, the lot area requirement shall be that of existing lot areas in the area previously described, but in no event shall the lot area requirement be less than 3,750 square feet." The Municipal Code of Chicago, 1971, ch. 194A, sec. 1, part A, art. 7.5-2.
• 1 Lots 23, 24 and 25 are in an R2 single-family residence district. Each lot has an area of only 3,675 square feet, hence each one is 1,325 square feet less than the minimum number required in an R2 district. Furthermore, even if the lots came within the ordinance's exception they would not qualify for its benefits, for their square foot areas of 3,675 feet do not meet the ordinance's mandate that, "in no event shall the lot area requirement be less than 3,750 square feet." Thus, the buildings proposed by Ganley would violate the minimum requirements of article 7.5-2 and increase the density of the neighborhood.
Ganley, however, argued in the trial court and argues here that another provision of the zoning ordinance allows the contemplated buildings. Reliance is placed upon article 7.5(2) which states:
"In any Residence District a one-family dwelling may be established on a lot of record on the effective date of this comprehensive amendment regardless of the size of the lot; also if this lot of record is voluntarily increased in size and still does not comply with the minimum lot area requirement of the district, a one-family dwelling shall be permitted provided that all other requirements of this comprehensive amendment are met * * *." Municipal Code of Chicago, 1971, ch. 194A, sec. 1, part A, art. 7.5(2).
It is the City's position that article 7.5(2) applies to lots that are vacant and not to lots which have been improved, such as lots 23, 24 and 25, where a conforming use is removed in an attempt to avoid the applicable minimum lot area requirements. In support of this position, article 5.7-2 of the ordinance is cited. This article provides that:
"No improved zoning lot shall hereafter be divided into two or more zoning lots and no portion of any improved zoning lot shall be sold, unless all improved zoning lots resulting from each such division or sale shall conform with all the applicable bulk regulations of the zoning district in which the property is ...