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Lipski v. Smyth

OPINION FILED JANUARY 27, 1978.

WILLIAM J. LIPSKI, JR., ET AL., PLAINTIFFS-APPELLEES,

v.

JOHN SMYTH, COMM'R OF PUBLIC WORKS OF THE VILLAGE OF FRANKLIN PARK, ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR L. DUNNE, Judge, presiding.

MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Plaintiffs brought this action in mandamus to compel the issuance of a building permit for the construction of a single family residence on a lot they own in Franklin Park. The circuit court entered an order directing the issuance of the permit. On appeal defendants contend the property fails to meet the minimum lot area requirements of the Franklin Park Zoning Ordinance. Franklin Park Zoning Ordinance 1959, §§ 6.C.2, 6.C.4.

The facts are not in dispute.

In March 1953 Lester and Josephine Voss purchased three lots (recorded in 1890 and numbered north to south Nos. 1, 2 and 3) on the southeast corner of Ruby Street and Minneapolis Avenues in the Village of Franklin Park. Lots 1 and 2 are each 20 feet wide and 124 deep. Lot 3, the subject of this dispute, is 25 feet wide and 125 feet deep. A house and a garage are located on lots 1 and 2. The south side of the house is 2 feet 10 inches north of lot 3 while the garage is 10 inches north of lot 3. Lot 3 is vacant.

The Franklin Park Zoning Ordinance of 1959 zoned the three lots "R — 1", single family. The ordinance also provided that:

"Every lot * * * shall have a minimum width at the front building line of 37 1/2 feet and a minimum area of 4000 square feet for all one family dwellings, provided however where there is a lot of record between two improved lots * * * with frontage of not less than 25 feet and a minimum area of 3000 square feet the owner thereof may construct thereon a one family residence subject to all other provisions of this Ordinance." Franklin Park Zoning Ordinance 1959, § 6.C.4.

Section 3 of the Ordinance defines "lot" as:

"A parcel of land occupied or suitable for occupancy by one main building or use, with accessory buildings, including the open spaces by this ordinance, and having its principal frontage upon a public street or highway." Franklin Park Zoning Ordinance 1959, § 3.

In addition, the ordinance provided that in R-1 districts all detached accessory buildings (including garages) should not be less than 3 feet from any other lot line and that there shall be a side yard having a width of not less than 3 feet or 10 per cent of the lot width, whichever is greater, on each side of all buildings. Franklin Park Zoning Ordinance 1959, § 6.C.2.

Voss's conveyed lots 1 and 2 to Mr. and Mrs. Robert E. Flood on June 7, 1973. On July 25 of that year they sold lot 3 to James G. and Glennie Wade for $6,000. Prior to the entering into this contract Wade met with defendant, John Smyth, Commissioner of Public Works and informed him of the location and size of lot 3. He also told Smyth it was a lot of record and asked him if it was a buildable lot. According to Wade, Smyth responded that "if the lot was a lot of record there would be no way to keep" Wade from obtaining a building permit.

On September 3, 1974, Franklin Park adopted a new zoning ordinance (Franklin Park Code 1974, appendix A) which zoned the property in question R-2, single family. (Franklin Park Code 1974, app. A, art. VII, § 7.2.) In addition it provided:

"4.7. Minimum lot size. Every residential building hereafter erected on a lot or parcel of land created subsequent to the effective date of this Ordinance shall provide a lot of parcel of land in accordance with the lot size requirements of the district within which it is located. In any Residence District, on a lot of record on the effective date of this Ordinance, a single-family dwelling may be established regardless of the size of the lot, provided all other requirements of this Ordinance are complied with; however, where two (2) or more contiguous substandard recorded lots are in common ownership and are of such size as to constitute at least one conforming `zoning lot,' such lots or portions thereof shall be so joined, developed, and used for the purpose of forming an effective and conforming zoning lot or lots. Such contiguous substandard lots in common ownership shall be considered as being maintained in common ownership after the effective date of this ordinance for zoning purposes. In no case shall a lot created illegally be considered a lot of record." Franklin Park Code 1974, app. A, art. IV, § 4.7.

On June 1, 1975, James and Glennie Wade contracted with William and Suzette Lipski to sell lot 3. The contract was contingent on the Wades obtaining a building permit to construct a single-family dwelling on the property.

The Wades applied for a variation from the lot size requirements. On July 8, 1975, the Zoning Board of Appeals recommended to the Board of Trustees that the variation be denied. The Board of Trustees ...


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