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Cain v. American Nat'l Bk. & T. Co. of Chicago

FEBRUARY 11, 1975.

JOHN H. CAIN ET AL., TRUSTEES, PLAINTIFFS-APPELLANTS,

v.

AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, TRUSTEE, ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. CHARLES R. BARRETT, Judge, presiding.

MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

In a three-count complaint filed September 11, 1973, plaintiffs, John H. Cain and James B. Cain, trustees of a certain trustee agreement, sought declaratory and injunctive relief against defendants, American National Bank and Trust Co. of Chicago, as trustee under a certain trust agreement; B.P. Construction Co.; Ben Pekin, Ruth Greenwood, Glen Greenwood, and Ethel Kanter individually and as executrix under the will of Louis Kanter; 2314 Building, an Illinois limited partnership; and the city of Chicago. The only defendants to file an appearance in this matter were the B.P. Construction Co., Ben Pekin, individually and as general partner of 2314 Building; and the city of Chicago. Defendants filed a motion to dismiss the complaint and after a hearing on that motion, the circuit court of Cook County dismissed the complaint for want of equity.

Plaintiffs filed a three-count complaint in the circuit court seeking declaratory and injunctive relief. In Count I plaintiffs sought a declaration that since certain sections of the 1957 Chicago Zoning Ordinance do not require a side yard between plaintiffs' and defendants' property, those sections of the ordinance are invalid as applied to the property in question. In Count II plaintiffs alleged the expected violation by defendants of certain provisions of the Chicago Building Code, and on that basis, sought to enjoin the city of Chicago from issuing a building permit to defendants. In Count III plaintiffs sought to enjoin the construction of defendants' building pending final disposition of the then proposed Chicago Lakefront Plan Ordinance. *fn1 After a hearing on defendants' motion to dismiss, the circuit court dismissed plaintiffs' complaint for want of equity. This appeal follows.

The physical facts are as follows: Plaintiffs have owned the property at 2322-2330 Lincoln Park West since 1965. The property is presently occupied by a four-story building containing 32 units built in 1924. Sixteen units of plaintiff's building have their only windows facing south, approximately 1 to 4 feet in from plaintiffs' south property line. *fn2

Defendants own the property immediately adjacent to and south of plaintiffs' property. Defendants' lot, 60 by 170 feet, was formerly occupied by a single-family dwelling. However, defendants have demolished the single-family dwelling *fn3 and have commenced construction of a 29-story building approximately 281 feet in height containing 54 units. The building now under construction by defendants will cover defendants' entire property, and thus defendants' north wall will be 1 to 4 feet from plaintiffs' south wall and from the only windows for the 16 units of plaintiffs' building facing south.

The legal facts are as follows: When plaintiffs' four-story building was constructed, the zoning ordinance then in effect was the 1923 Chicago Zoning Ordinance. Under the 1923 ordinance both plaintiffs' and defendants' property were in a 3rd volume, apartment district. (Chicago Zoning Ordinance of 1923, Chicago City Council Proceedings, 1922-1923, at 2448-2449.) *fn4 For a 3rd volume, apartment district, the relevant volume, height, and side-yard requirements in 1923 were as follows:

"[N]o building shall occupy more than 75 per cent of the area of a lot if an interior lot * * * and the aggregate volume in cubic feet of all buildings on a lot exclusive of the ground story of a garage shall not exceed the area of the lot in square feet multiplied by 100 feet * * *." (Chicago Municipal Code 1931, ch. 34, par. 1876(a).)

"At any street line no building or part thereof shall exceed a height of 132 feet. For each 1 foot that a building or portion of it sets back from any street line, such building or such portion thereof may be erected 2 feet in height in excess of 132 feet. No part of a building shall be erected to a height at any point in excess of 198 feet." (Chicago Municipal Code 1931, ch. 34, par. 1876(c).)

"[P]rovided that for each 10 feet in height that any such portion of the building is erected above the street line height limit, such portion of the building shall be set back 1 foot from all lines of adjacent premises." (Chicago Municipal Code 1931, ch. 34, par. 1879(d).)

With those zoning regulations in effect, plaintiffs' building was erected 1 to 4 feet from their south property line.

In 1957, the city of Chicago comprehensively amended the 1923 zoning ordinance. Under the 1957 zoning ordinance, currently in effect as amended, both plaintiffs' and defendants' property are now zoned R7 General Residence District. (Chicago, Zoning Ordinance, May 29, 1957, part B, par. 77b.) The 1957 ordinance, as amended, did not set any height limitations as such. Rather, the ordinance set a minimum lot area and a maximum-floor-area ratio for the various districts. (Chicago Zoning Ordinance, May 29, 1957, pars. 7.5-7 and 7.6-7.) The side-yard requirements are as follows:

"In a R7 District, the regulations governing side yards in the R6 District shall apply. (Amend. Coun. J. 1-17-69, p. 4916.)" (Chicago, Zoning Ordinance, May 29, 1957, par. 7.8-7.)

"In an R6 District, side yards are not required along the side lot lines except on a reversed corner lot where the R4 District regulations shall apply. If provided on a voluntary basis, each side yard other than one adjoining a street or alley shall be equal to 10 percent of the height of the building; or 6 feet in width, whichever is greater; however, no side yard shall be required to be greater than 20 feet in width. (Amend. Coun. J. ...


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