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Allender v. Zoning Bd. of Appeals





APPEAL from the Circuit Court of Cook County; the Hon. RICHARD L. CURRY, Judge, presiding.


Development Management Group, Inc. (applicant), filed application before the Zoning Board of Appeals of the City of Chicago (Board), seeking a zoning variation with reference to a rear yard requirement on real estate on the south side of Chicago. The Board granted the requested variation. A group of citizens who live or own property in the vicinity of the premises (plaintiffs), filed an action against the Board and the applicant for administrative review. The trial court affirmed the decision of the Board. Plaintiffs have appealed.

Plaintiffs urge in this court that the Board had authority to condition the granted variance upon making of alterations to another part of the premises; the variance would detrimentally affect the character of the neighborhood and the authority of the Board to impose conditions is supported by precedent. The applicant contends that the findings and decision of the Board should be affirmed because there is ample evidence to support them and persons who call adverse witnesses are bound by their testimony which stands uncontradicted and unrebutted. In a separate brief, the Board urges that plaintiffs have no standing to seek administrative review of the decision of the Board and, even assuming that plaintiffs had such standing, the decision of the Board should be affirmed because it is supported by substantial evidence.

In our opinion, we are required to decide the following issues:

(1) Do plaintiffs have standing to prosecute this appeal?

(2) Regarding the variation sought by the applicant, is the decision of the Board in accordance with the manifest weight of the evidence or contrary thereto?

(3) Was the Board required to consider the matters raised by plaintiffs as a condition to the granting of the variation?

The subject property is vacant. On the east the property has a 300-foot frontage along Hyde Park Boulevard, a Chicago street running north and south. The north boundary of the property runs for 150 feet along 54th Street. The south boundary, also 150 feet, consists of an improved piece of property containing an apartment building of 3 1/2 stories. The western boundary is an alley running north and south. Immediately to the west of the northern portion of the subject property and across the alley, there is an older high-rise building consisting of some nine stories.

The subject premises are zoned under the R-6 classification in the Chicago Zoning Ordinance. This qualifies the tract for erection of high-rise residential property. Some years ago construction of such a project was started but never completed. Caissons were sunk into the ground where they remain to the present time.

Lawrence Booth, a qualified architect, testified for the applicant regarding the proposed improvements on the property. Applicant proposes to build 56 townhouses on the tract. The matter presented by the applicant to the Board is the rear yard requirement along the rear or western boundary of the tract which abuts upon the alley. It is agreed that the applicable city ordinance requires a setback of 30 feet from the abutting alley in this area. However, the plans developed by the applicant call for 56 parking spaces, one for each residential unit, to be provided on the western boundary. In such an instance the ordinances permit garage facilities to be built up to the alley which forms the western boundary of the property. However, in such case, the rear yard setback requirement of 30 feet would be applicable only above the garage area commencing at a height of 25 feet above grade. The applicant proposes that the rear or western portion of the premises be improved by the parking facility and four residential stories above it with five residential stories to be located along the eastern boundary of the tract. In both cases the total height of the project would be 45 feet above grade.

The applicant originally sought a variation which would reduce the rear yard setback requirement from 30 feet to 20 feet. At the hearings before the Board the applicant amended this request to 15 feet.

The site plan calls for a row of townhouses on the western portion of the tract facing east and for a similar row of houses on the eastern portion of the land facing west. The developer proposes to create a courtyard in between the front exposures of both rows of buildings. This space would be devoted to recreation and other purposes. The architect testified in behalf of the applicant that compliance with the rear yard requirements of the ordinance would reduce the width of the courtyard to 27 feet. If the variation were to be granted by the Board to 15 feet instead of 30 feet, the size of the courtyard could be increased to 42 feet.

The applicant also called James J. Curtis, a qualified real estate appraiser and consultant. He testified that granting of the requested variation would not, in his opinion, have any deleterious effect on adjacent property. He also testified that, in his opinion, the increased size of the courtyard would be of substantial benefit to the project in connection with light and air and that this would increase the desirability and value of the homes.

The applicant having rested, plaintiffs called Lawrence Booth, the architect, as an adverse witness. As in the case of the cross-examination of this witness by plaintiffs, the questions put to him were chiefly concerned with the issue of the treatment of the east boundary of the proposed project fronting on Hyde Park Boulevard. These questions concerning the east boundary were placed into the record by plaintiffs after objection by the applicant to this line of questioning.

On cross-examination the architect testified that the applicant proposed to erect a masonry wall 7 feet in height along the whole length of the east boundary of the project, some 300 feet. However, it appears from the record and from statements made by the chairman of the Board that the erection of this type of wall would not constitute a violation of any ordinance of the city of Chicago. It also appears from the cross-examination and from the subsequent adverse examination of the architect by plaintiffs that the applicant had made no definite decision regarding the use of this proposed wall. On the contrary, after a number of meetings with some of plaintiffs or their representatives, several alternative treatments of the east edge of the proposed project had ...

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