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O'laughlin v. City of Chicago

OPINION FILED NOVEMBER 15, 1976.

MICHAEL O'LAUGHLIN, APPELLANT,

v.

THE CITY OF CHICAGO ET AL., APPELLEES.



Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County; the Hon. Francis T. Delaney, Judge, presiding.

MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:

Appellant, Michael O'Laughlin, owner of two parcels of land, sought to enjoin the City of Chicago and its building commissioner from revoking and withholding two building permits that had been issued to him. The permits allowed the construction of two two-family dwelling apartment complexes on the appellant's parcels of land. The circuit court of Cook County, in an order dated July 5, 1973, instructed the City to restore the permits and issue whatever documents were necessary for appellant to commence construction immediately. Both the circuit court and the appellate court denied the City's motion to stay the order. However, on appeal, the appellate court found that the proposed structures violated the provisions of the Chicago Zoning Ordinance (Municipal Code of Chicago, 1973, ch. 194A) and that the City was not estopped from revoking the permits. The appellate court remanded the cause, directing the circuit court to vacate its previous order and to enter an order in favor of the City pursuant to section 11-13-15 of the Illinois Municipal Code (Ill. Rev. Stat. 1973, ch. 24, par. 11-13-15). (O'Laughlin v. City of Chicago, 28 Ill. App.3d 766.) We granted O'Laughlin leave to appeal.

On April 12, 1973, O'Laughlin purchased two adjacent lots, lot 27 and lot 28, for the purpose of constructing two two-family dwelling units. Three days prior to purchase, he applied for and received a wrecking permit to demolish a single four-unit frame dwelling and a garage which he indicated in his application were located on lot 27. He made no reference to the adjacent lot. The two lots were described in the prospectus of the realtor as one tract, 50 x 160 feet, and both were conveyed by one deed. The real estate sales contract originally described the parcels as one tract, but it was subsequently changed to indicate a contract to purchase two separate lots. After removal of the frame structure and garage, appellant requested two building permits, one for each lot, to allow commencement of the proposed construction. These permits were granted on the Thursday before Easter, which was one week after the lots were cleared, and appellant commenced construction immediately. By the following Monday, both concrete foundations were laid, brickwork was initiated, and window frames were being placed. Eleven days after the permits were issued the City revoked them for cause.

At trial, the assistant to the building commissioner, the city planner, and the alderman for the community in which the lots are located, testified. The assistant stated that, in his opinion, the structures violated the city zoning ordinance because the lots actually consisted of one improved "zoning lot." The city planner related that only one principal structure could be constructed on this zoning lot, and the alderman testified that the construction of the proposed structures would have a "severe adverse effect" on the community. Appellant was the only witness to appear on his behalf. He testified that he purchased two parcels, removed the old frame structure and garage from one of the lots, contracted with several individuals to construct the proposed buildings, and upon receipt of the building permits commenced construction. Cross-examination brought out that the land was listed for sale as one lot, 50 x 160 feet.

The zoning classification for lots 27 and 28 is R-3, which permits attached or detached single- or multi-family dwellings. (Municipal Code of Chicago, 1973, ch. 194A, sec. 7.3-3.) The bulk requirements in an R-3 District provide that not less than 2,500 square feet of lot area are required per dwelling unit. (Sec. 7.5-3.) The exception to this provision, stated in the same article, provides:

"In an R3 District on an unimproved lot of record, a two family dwelling may be established if the gross lot area is at least 3,750 square feet * * *." (Municipal Code of Chicago, 1973, ch. 194A, sec. 7.5(2))."

Appellant maintains that his two lots fall within this exception, since both "lots of record" are unimproved.

"A `Lot of Record' is an area of land designated as a lot or a plat of subdivision recorded or registered, pursuant to statute, with the Recorder of Deeds of Cook County and the Ex-officio Examiner of Subdivisions of the City of Chicago."

It is undisputed that lots 27 and 28 are two lots of record. The City, however, has determined that the two lots consist of one "zoning lot."

"A `zoning lot or lots' is a single tract of land located within a single block, which (at the time of filing for a building permit) is designated by its owner or developer as a tract to be used, developed, or built upon as a unit, under single ownership or control. Therefore, a `zoning lot or lots' may or may not coincide with a lot of record." Municipal Code of Chicago, 1973, ch. 194A, sec. 3.2.

The City claims that, since the two lots of record are one zoning lot and section 5.5 of the municipal code prohibits more than one principal detached residential building to be located on a zoning lot, appellant's proposed structures violate the zoning ordinance.

Appellant counters this contention by referring to the language "at the time of filing for a building permit" contained in the definition for a "zoning lot" and claims that at the time he filed for the building permits, lots 27 and 28 were two unimproved lots of record and fell within the exception of section 7.5(2). The City, in response, points to the record, which shows that at the time appellant acquired the lots they were improved with a multiple dwelling and a garage, used as one zoning lot by the former owner, and that the removal of these structures would not reclassify this zoning lot as two unimproved lots of record. The City concludes that the only way appellant can divide this zoning lot is to have the lots resulting from such a division conform with the applicable bulk regulations of the zoning district in which the property is located. Municipal Code of Chicago, 1973, ch. 194A, sec. 5.7-2.

If the City is correct in its interpretation, lots 27 and 28 each must total at least 5,000 square feet in area in order for the construction of both complexes to comply with the ordinance. In Ganley v. City of Chicago, 18 Ill. App.3d 248, plaintiff purchased four lots intending to construct four single-family dwellings. One lot was vacant, but the other three were occupied by a large frame house which plaintiff had demolished. The appellate court held that the three lots on which the frame house was standing were a zoning lot. It reasoned that:

"Permitting [plaintiff] to build three structures on the one zoning lot would enable him to create three non-conforming uses where none existed before. It would contravene the intent of the zoning ordinance as a whole. It would not comply with the density provisions * * * and would violate the prohibition against the expansion of non-conforming uses implicit in article 5.7-2. * * * [The provisions permit] the construction of a single-family residence on an unimproved lot of any size — if it was a lot of record before the passage of the zoning ordinance. If the lot has been improved, the density strictures of the ordinance must be observed. Article 7.5(2) does not exempt all lots of record from the minimum area restrictions, ...


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