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St. George's Episcopal Ch. v. Bd. of Appeals

OPINION FILED AUGUST 4, 1978.

ST. GEORGE'S EPISCOPAL CHURCH ET AL., PLAINTIFFS-APPELLANTS,

v.

BOARD OF APPEALS OF THE CITY OF BELLEVILLE ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of St. Clair County; the Hon. RICHARD P. GOLDENHERSH, Judge, presiding.

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

Rehearing denied September 6, 1978.

Appellants, St. George's Episcopal Church, James D. Young, Phyllis L. Young, William P. Hill, Jack E. Morris and Mina D. Morris, seek to reverse the decision of the Zoning Board of Appeals of the City of Belleville, which authorized the granting of a nonconforming use permit. The Board of Appeals decision was sustained by the circuit court of St. Clair County in Administrative Review.

The property in question is known as Lot 5, excepting the south one foot, Lots 6, 7, 8 and 9, and out-lots A and B of Bissel and Pensoneau's Addition to the City of Belleville, Illinois, and commonly known as 314-318 North High Street. The pertinent facts show that the City of Belleville passed a comprehensive zoning ordinance on December 20, 1965, which placed the subject property in a zoning district known as B-1 Multifamily District. At the time of the passage of the zoning ordinance, the property was utilized as a farm implement dealership. The farm implement dealership ceased operation in August 1973. On April 26, 1974, the zoning commissioner for the City of Belleville issued a certificate of nonconforming use for the property specifying that its use was that of a farm retail outlet, storage, and warehouse. In fact, the property was vacant at that time. The property remained vacant from August 1973 until April or May, 1975, when a portion of the property was put into use as a warehouse to store roofing materials. On September 20, 1976, the present owner of the premises made application for nonconforming use permit to allow the operation of a motor vehicle inspection station, parts storage and motor vehicle repair business. No permit was issued as such, but the zoning commissioner did issue an opinion that the property could be so used. Plaintiffs-appellants appealed this decision to the Zoning Board of Appeals which held a hearing on October 28, 1976, upholding the zoning commissioner's decision. It is conceded that the use of the property from 1966 to 1973 and the current proposed use by the owner would both be conforming uses in C-2, heavy commercial zoning district.

The pertinent ordinance of the City of Belleville is as follows:

"SECTION 9.

NON-CONFORMING USES

1. Continuation of Use:

A use, building or structure which shall be made non-conforming at the passage of this ordinance or any applicable amendment thereto may be continued except as otherwise provided in this Ordinance.

2. Certificate of Non-Conforming Use:

a. Every person occupying or using any premises, including land, buildings or structures, or portions thereof, for a use or purpose not designated as a permitted one in the district in which such premises are located, at the time this ordinance goes into effect, shall apply for a `Certificate of Non-Conforming Use.' Such application shall be made to the zoning enforcement officer, and shall describe the use made of the premises, and the time such use has continued. Each such application shall be verified by affidavit.

b. It shall be unlawful to use any premises for any use or purpose not designated as a permitted use in the district concerned, other than that designated in such certificate of non-conforming use.

c. Application for a certificate of non-conforming use shall be made by July 1, 1966. The zoning enforcement officer shall issue such certificates as soon as possible after application thereof has been received. The issuance of such a certificate shall be no defense to an action violating the provisions of this section, or of any ...


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