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Klehr v. Zoning Bd. of Appeals

NOVEMBER 18, 1974.

IRVING KLEHR ET AL., PLAINTIFFS-APPELLANTS,

v.

ZONING BOARD OF APPEALS OF THE VILLAGE OF SKOKIE, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. F. EMMETT MORRISSEY, Judge, presiding.

MR. JUSTICE BURKE DELIVERED THE OPINION OF THE COURT:

Irving and Alice Klehr filed a complaint in the circuit court of Cook County for administrative review of a determination by the Zoning Board of Appeals of the Village of Skokie denying a variation to allow construction of a single-family residence on plaintiffs' lot which has a 35-foot frontage in an area wherein the required frontage is 40 feet. The court found that the Board's decision to deny a variation was not arbitrary, unreasonable or capricious and did not violate the constitutional rights of the plaintiffs. The court further held that the relevant portions of the Skokie ordinance which prohibited the plaintiffs from erecting a dwelling unit on a lot with a 35-foot frontage were not unconstitutional.

The lot (recorded as Lot 214), located at 8306 North Karlov Avenue in Skokie, has a frontage of 35 feet on Karlov Avenue and a depth of 124 feet to a public alley on the west. Lot 214 is approximately 4346 feet square, which is less than the 4800-square-foot requirement of the Skokie zoning ordinance. Lot 214 is adjoined to the north by a lot (containing a residence) with a 55-foot frontage (recorded as Lot 215), and to the south by a lot (containing a residence) with a 45-foot frontage. The south lot is on the northwest corner of Karlov Avenue and Madison Street.

In 1953, plaintiffs purchased Lots 214 and 215 as one parcel from Mr. and Mrs. Ralph Scheffield. The record indicates that the plaintiffs and their predecessors in title held the two recorded lots in common ownership and used the entire parcel as a single family residence. Shrubbery borders Lot 214 on the north and east sides, while a garage built by the Scheffields is located on the western portion of the lot. Both the Klehrs and the Scheffields used the garage for their automobiles and for storage and maintained the property by attending to the lawn and shrubbery.

In 1968, the plaintiffs sold their home located on Lot 215, separate and apart from Lot 214, to Mr. and Mrs. Henry Camnitzer. The record indicates that the Mitchell Real Estate Company, on behalf of the plaintiffs, listed the home and the adjoining lot separately. Mr. Camnitzer was given a first right of refusal on Lot 214, but declined to purchase the property at the offered price of $12,000. The Kulwin Construction Company then agreed to purchase Lot 214 on the condition that a variance be obtained from the Skokie Zoning Board of Appeals. Plaintiffs proceeded to petition the Board for permission to build a single-family dwelling unit on their undersized lot.

At the outset of the testimony before the Board, plaintiffs contended that the matter was before the Board as a request to reinstate a previous variance granted to the property in September of 1965. The 1965 variance provided that a house was to be moved to Lot 214 from a parcel which consisted of three recorded lots located in the immediate vicinity. The 1965 plan contemplated two homes on a total of four recorded lots. However, the transactions necessary to accomplish the plan were not executed and, pursuant to the Skokie zoning ordinance, the variance died after a lapse of 18 months. The Board's position was that plaintiffs' request for a variance in 1972 was an entirely new case, differing from the circumstances which prompted the Board to grant a variance in 1965.

Testimony was heard by the Board from witnesses on both sides of the issue. Mr. Jack Bieder, a man with 10 years' experience in the real estate business and part owner of the Kulwin Construction Company, testified for the plaintiffs. He stated that the highest and best use of the subject parcel was a single-family residence. Evidence was given that at least two other similarly narrow lots in the neighborhood contained single-family residences. It was Mr. Bieder's opinion that the value of Lot 214 was $12,000 if it could be used for a single-family dwelling; otherwise, it was valueless.

Neighborhood opposition to the variance was voiced by several witnesses. Ninety signatures were submitted to the Board in a petition which opposed the variance on grounds that it would tend to congest the area and set a precedent for other similarly narrow lots in the area held in common ownership.

Mr. Henry Camnitzer, the present owner of the Klehr home, testified to the circumstances and events which led to his purchase of the property recorded as Lot 215. Although he declined to purchase the adjoining Lot 214 at the price of $12,000, Camnitzer stated that he was still interested in purchasing the lot at a different price. Through an agreement with the Klehrs, Mr. Camnitzer maintains Lot 214, attending to the lawn and shrubbery.

After all the testimony was heard, the Board denied the plaintiffs' petition for a variance. The Board found that the plight of the plaintiffs was not unique and that their hardship was created by their own doing. The Board further found that a denial was warranted by provisions of the 1946 Skokie zoning ordinance which state that undersized lots of record held in common ownership after 1946 would not be the subject of variation. It is from these findings of the Board, which the circuit court affirmed, that plaintiffs prosecute this appeal.

Plaintiffs' claim is not supported by the prevailing applicable law. The facts in Weber v. Village of Skokie, 92 Ill. App.2d 355, 235 N.E.2d 406 closely resemble those in the instant case. The plaintiffs in Weber purchased a conforming parcel of land containing three lots of record in 1951. In 1964, the Webers conveyed two of those lots and retained the third. The remaining lot was substandard to the minimum lot size requirements provided by the Skokie zoning ordinance. When the Webers petitioned the Skokie Zoning Board of Appeals for a variance, the Board denied their petition. On appeal, this court upheld the Board's decision.

• 1, 2 We held in Weber that a purchaser does not have an irrevocable right by virtue of a plat's recordation pursuant to the Plat Act (Ill. Rev. Stat. 1973, ch. 109, par. 1 et seq.) to evade the applicable zoning law by establishing a nonconforming use out of the subject lot. "The fact that the property was platted prior to the enactment of the zoning ordinance does not give the purchaser any right to develop what have since become substandard lots." Citizens Bank & Trust Co. v. City of Park Ridge, 5 Ill. App.3d 77, 81, 282 N.E.2d 751; see Ganley v. City of Chicago, 18 Ill. App.3d 248, 309 N.E.2d 653.

Because the plaintiffs in the Weber case had used the three lots as one parcel for 13 years, we found no indication that reliance was placed on plat recordations. Since the Webers purchased the entire three-lot parcel in 1951, we found that they knew of the lot size requirements provided by the same 1946 zoning ordinance discussed in the instant case. Any financial disadvantage resulting to the Webers was due to their failure to convey all three lots as one parcel.

Similarly, the plaintiffs in the case at bar purchased Lots 214 and 215 in 1953, 7 years subsequent to the enactment of the Skokie zoning ordinance. The very fact that Lot 214 was granted a variance in 1965 as part of an overall plan indicates plaintiffs' knowledge of the substandard dimensions of their lot. It appears that for 15 years Lot 214 was used as a side yard for the adjoining Lot 215 whereon the family residence was located. The Klehrs utilized a garage located on Lot 214 for their automobile and the yard for recreational purposes. Thus, the circumstances attendant to the plaintiffs' ownership of the two lots do not indicate reliance upon plat recordations. With knowledge of the zoning restrictions, the Klehrs ...


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