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Diakonian Soc'y v. Zoning Bd. of Appeals

OPINION FILED AUGUST 11, 1978.

DIAKONIAN SOCIETY, PLAINTIFF-APPELLANT,

v.

CITY OF CHICAGO ZONING BOARD OF APPEALS ET AL., DEFENDANTS-APPELLEES.



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

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

Plaintiff appeals the trial court's affirmance of the decision of the City of Chicago Zoning Board of Appeals denying it a certificate of occupancy. It raises the following issues for review: (1) whether such decision was against the manifest weight of the evidence; and (2) whether defendants are estopped to deny the issuance of the certificate.

In August 1976, plaintiff contracted to purchase a residence for the purpose of housing 13 unrelated men. The residence is located in an area zoned for single-family dwellings; however, unrelated people may reside in parish houses, rectories, convents or monasteries as they are permitted uses. In seeking a certificate of occupancy for use of the residence in question as a monastery or convent, plaintiff communicated with the Zoning Administrator of the City of Chicago who, on September 7, 1976, gave tentative approval subject to the review by his office of plaintiff's charter and its plans and permits for the conversion of the single-family residence. On September 20, the charter was approved; however, upon application to the zoning board, the certificate of occupancy was denied with the Board finding that while the proposed occupants were members of a group bound together by religious beliefs and philosophy, their use of the residence does not constitute a rectory, parish house, monastery or convent as it more closely resembles a private club or rooming house, which is not a permitted use.

Plaintiff is a religious society which was incorporated in 1976 and which is regulated by the creeds of the Holy Catholic Apostolic Church circa 100 to 500 A.D. Since plaintiff perceives itself as an ecumenical ministry, its members may belong to and attend the services of acceptable orthodox congregations such as Roman Catholic, Lutheran, and Presbyterian. However, their day-to-day activities are regulated by the Pryor, Reverend Kemmerer, who in turn is guided by the provisions of the Benedictine Rule which was formulated by the Roman Catholic Church to administrate religious houses and monasteries. The standard schedule governing the members (plenary, postulate, and novitiate) requires arising at 5:30 a.m. for benedictions and personal devotions, eating a common breakfast, and commencing the day's work. Such work is limited to employment and courses of study which are assigned by or found acceptable to the Pryor as being consistent with a religious profession. Seven benedictions which correspond to the daily offices of the Roman Catholic Church are required to be made throughout the day, and on holy days and feast days additional benedictions in the middle of the night are made. The members' evenings are taken up with hours of study and the performance of chores around the house. This schedule allows only four to five unregulated hours per week.

To become a plenary member, one must successfully pass through the stages of postulate and novitiate. A postulate must take simple vows of poverty, chastity and obedience which are temporary in the sense that they are revoked should the postulate fail to achieve novitiate status. Postulancy is of a year's duration and encompasses instruction in religious faith and other prescribed areas. Once the novitiate phase is entered, permanent or perpetual vows are taken with are binding for life. After nine months, a novitiate (if accepted by plaintiff) becomes a full or plenary member.

During the course of his testimony, Reverend Kemmerer defined the vows taken in the following manner:

"Poverty. The person would remit all finances that he might have or ever hope to have and he would receive a $10.00 allowance a month from which all personal effects would be drawn. That is above and beyond clothing and food which, of course, is supplied.

Chastity would mean that he would vow to pursue a celibate life unmarried.

Obedience. There would be absolute obedience to the governing body, to the rules, and to the superiors."

Father John F. Fahey, a priest of the Chicago Archdiocese of the Roman Catholic Church, was called on behalf of plaintiff as an expert witness in the area of canon law. Father Fahey testified that within the Catholic Church, a monastery is defined as the residence of monks and that a monk is one who has committed himself to a religious way of life, is a member of a religious society, has taken the vows of poverty, chastity and obedience and lives a common life with others who have taken similar vows. He testified further that he was familiar with plaintiff and that in his opinion it was a religious society and its members (except for the fact that they were not Catholic) were monks.

OPINION

Plaintiff first contends that the Board's decision is against the manifest weight of the evidence. Its position is that the letters submitted and opinions voiced during the hearing by community residents cannot properly be considered, as it was denied the opportunity to cross-examine them and that its uncontested evidence shows their use to be a permitted one. While arguing that the comments of neighbors may in general be considered, defendants note that here such commentary is irrelevant to the legal issue involved; i.e., the interpretation of the term monastery as used in the zoning ordinance. As neither party views this commentary as supportive of the judgment below, we will not consider it further. Both sides do agree, however, that the issue is one of first impression in Illinois, and they refer us to the reasoning in the strikingly similar case of Association for Educational Development v. Hayward (Mo. 1976), 533 S.W.2d 579.

• 1 The ordinance involved here states that the following are permitted uses in single family districts: churches, rectories, parish houses, convents and monasteries. (Chicago Municipal Code, ch. 194A, art. 7, § 7.3-1.) Because of the interests protected by the first amendment to the United States Constitution, the impact of zoning upon church property cannot be determined in accordance with the usual rules; however, there is no doubt that the location of church property can be regulated in a proper case. (Twin-City Bible Church v. Zoning Board of Appeals (1977), 50 Ill. App.3d 924, 365 N.E.2d 1381; South Side Move of God Church v. Zoning Board of Appeals (1977), 47 Ill. App.3d 723, 365 N.E.2d 118.) To interpret such a regulation, it has been said:

"The rules governing construction of a zoning ordinance are the same as those applied in the construction of statutes. [Citations.] The basic consideration in construing an ordinance is to ascertain and then give effect to the intention of the drafters. [Citations.] To achieve this purpose, a court should focus upon the terminology used, the objects sought to be attained, the natural import of the words used in common and accepted usage, the setting in which they are employed, and the general structure of the ordinance as a whole. [Citation.] As with most zoning questions, the trial court's ruling will not be disturbed unless contrary to the manifest weight of the evidence. [Citations.]" Pioneer Trust & Savings Bank v. County of Cook (1977), 49 Ill. App.3d 630, 640-41, 365 ...


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