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City of Chicago v. Cohen

OPINION FILED MAY 19, 1977.

THE CITY OF CHICAGO, PLAINTIFF-APPELLANT,

v.

GERALD COHEN ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. JOSE R. VAZQUEZ, Judge, presiding.

MR. PRESIDING JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:

This is an appeal from the circuit court of Cook County of the dismissal of a chancery action brought by the City of Chicago to enjoin the maintenance of a valet shop in a residentially zoned district.

The issue presented for review is whether the defendants have lost their legal nonconforming use in the subject premises when said premises was left vacant for longer than six months.

The property in question is located in an R7 General Residence District at 1347 North Dearborn Street in Chicago, Illinois. It contains 42 dwelling units and a valet shop.

On October 18, 1974, the City of Chicago filed the instant proceeding for a fine and an injunction, alleging the operation of a valet shop in the subject property was not a permitted use in the zoning district in which it was located.

In their amended answer, the defendants alleged the structure on the subject property was built in about 1925 under proper permits, and it then contained a commercial unit on the ground floor, with an entrance from the lobby of the building.

The cause came for trial before Judge Vazquez on July 9, 1975. On July 20, 1975, the court entered an order dismissing the action.

The City of Chicago filed a petition for rehearing on the ground a witness had been present in court who was able to testify the nonconforming use on the subject premises had been discontinued for a period of six months, a circumstance which abrogated the legality of the nonconforming use, and the witness had not been allowed to testify.

The court set a full hearing on the petition for rehearing on February 18, 1976, and the hearing went forward on that date.

The City of Chicago called Mrs. Betty Herbert as a witness. She testified she had lived at 1347 North Dearborn Street from November 15, 1971, until July 1, 1975, and had been the rental agent for the building from May 1, 1973, until the end of May 1975. She testified the premises in question was vacant when she moved into the building, in November of 1971, and remained vacant until May of 1973.

Gerald Cohen (defendant), the owner of the building, testified for the defense. He stated that in 1970 a company that sold hair spray and cosmetics had occupied the premises now being used as a valet shop. This sales organization had moved out in 1973. Cohen said he then offered the premises for rent and in the meantime used the premises for storage purposes in his own electrical contracting business, which is known as Shaw Electric Company. He testified, "It was vacant because of my inability to obtain a tenant."

At the conclusion of the hearing on February 18, 1976, the court took the matter under advisement. On April 28, 1976, Judge Vazquez entered a judgment order finding "the defendants have a legal non-conforming use in the premises" and dismissing the City of Chicago's complaint.

On May 28, 1976, the City of Chicago filed notice of appeal to this court.

The Chicago Zoning Ordinance (1957), ch. 194A, art. 6, ...


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