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People Ex Rel. Kreda v. Fitzgerald

OCTOBER 24, 1975.

THE PEOPLE EX REL. DAN KREDA ET AL., PLAINTIFFS-APPELLANTS,

v.

JOSEPH FITZGERALD, BUILDING COMMISSIONER OF THE CITY OF CHICAGO, ET AL., DEFENDANTS-APPELLEES.



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

MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

This is an appeal from an order refusing to issue a writ of mandamus and an injunction seeking (1) to direct the Building and Zoning Department (hereafter defendants) to take the necessary action to issue a permit to plaintiff for the building of an auto laundry; and (2) to order defendants to approve plans for the erection of a car washing facility.

It appears from the testimony of Fred Pecora, president of an engineering company hired by plaintiff to construct a car wash building on plaintiff's property, that he presented plans *fn1 to the City of Chicago Zoning Department which "show a car wash building approximately 25 foot [sic] by 65 foot [sic] along with a service station." He testified also that the plans provided for a conveyor system for the washing of only one car at a time and that they also showed a service station house, two gasoline islands for the fuel pumps, and a gasoline island house.

The record indicates that plaintiff's property was zoned C-1-1, and the permitted uses for such property include those allowed in a B-4 to B-5 district. (Municipal Code of Chicago 1972, ch. 194A, par. 9.3-1B (1).) One of such uses is the following:

"Automobile Service Stations — for the retail sale and dispensing of fuel, lubricants, tires, batteries, accessories and supplies including installation and minor services customarily incidental thereto. Facilities for chassis and gear lubrication and for washing of not more than two vehicles, are permitted only if enclosed in a building."

An auto laundry is distinguished from a service station and constitutes a special use in both B and C zones. It is defined as follows:

"An `auto laundry' is a building, or portion thereof, containing facilities for washing more than two automobiles using production line methods with a chain conveyor, blower, steam cleaning device, or other mechanical devices."

The record discloses that the Zoning Department considered plaintiff's application to be for an auto laundry and, because there was no provision for the washing of more than two vehicles simultaneously, the Department determined there was a violation of the ordinance and refused a special use permit for an auto laundry. The Zoning Board of Appeals upheld that decision.

Thereafter, plaintiff filed the instant suit for mandamus and injunction. In his second amended complaint he asked (1) "that defendants be directed to issue the necessary permits so that he could secure the proper permit for the building of an auto laundry"; and (2) that a mandatory injunction issue ordering defendants "to approve the plans submitted." In this complaint the events outlined above relative to his application for a permit were set forth, and it was further alleged that from 1969 to 1972 some 48 car wash units were installed in the City of Chicago which were incapable of washing more than two cars and that of the 48 units built, six units located in C zone districts were required to receive special use permits, five were constructed in M zone districts which did not require special use zoning, and the remaining 37 units were not classified by the Commission as auto laundries and thus not required to receive special use permits from the Zoning Board.

Evidence supporting these allegations was adduced at trial. However, on cross-examination it was established that of the 37 units operating car washes without special use permits, all but one were connected with automobile service stations and thus could properly contain facilities "for washing of not more than two vehicles. *fn2

The trial court found that the pertinent zoning provisions were constitutional and, because plaintiff had failed to prove the material allegation of its complaint, that he was not entitled to the relief sought.

OPINION

Initially, we note that the application for a permit allegedly filed by plaintiff does not appear in the record nor have we been provided any of the documents presented before the Zoning Department or the Board of Appeals. There is attached, however, to plaintiff's complaint, as an exhibit, the formal notification to him by the zoning administrator that his application for a special use permit for an auto laundry was not approved, for the reason that it did not conform to the requirements of the ordinance.

We construe plaintiff's attack upon the ordinances as follows: (1) The limitation of the special use "auto laundry" to those facilities capable of washing more than two automobiles is arbitrary and unreasonable; and (2) the facility proposed by plaintiff for washing of only one car at a ...


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