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Westgate Terrace Assoc. v. Burger King

OPINION FILED NOVEMBER 28, 1978.

WESTGATE TERRACE COMMUNITY ASSOCIATES, INC., PLAINTIFF-APPELLANT,

v.

BURGER KING CORPORATION ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH M. WOSIK, Judge, presiding.

MR. JUSTICE BROWN DELIVERED THE OPINION OF THE COURT:

The plaintiff condominium association filed a four-count amended complaint against the various defendants, seeking temporary and permanent injunctive relief. It also filed an amended motion for a temporary restraining order and a preliminary injunction. The gravamen of the amended complaint and amended motion was that the further construction of a Burger King restaurant with its own exterior entrance to Circle Court Shopping Center would violate a restrictive covenant, that certain existing and proposed signs would violate the zoning ordinance of the City of Chicago, and that the proposed restaurant would constitute a nuisance.

Upon defendants' motions to dismiss, the trial court entered orders striking the amended complaint and amended motion and dismissing the cause with prejudice. Plaintiff appeals pursuant to the trial court's finding no just reason for delaying enforcement or appeal. The city and its commissioners are not parties to this appeal.

Plaintiff filed its complaint on February 18, 1977, and its motion for a temporary restraining order and a preliminary injunction was filed on or about that same date. After plaintiff had been granted leave to file amended pleadings, it filed its amended complaint and amended motion on March 15, 1977.

All four counts of the amended complaint alleged that plaintiff is an Illinois not-for-profit corporation comprised of the owners of 48 condominiums known as Westgate Terrace, on the south side of Harrison Street between Racine and Throop in the City of Chicago; that defendant Circle Court Associates is an Illinois general partnership which owns and operates Circle Court Shopping Center and is the successor in interest to the National Republic Bank as to the ownership of the land on which the shopping center sits; and that the shopping center is an enclosed mall shopping center bounded on the south by Harrison Street, on the east by Throop, on the north by the Congress Expressway, and on the west by Racine Avenue.

Count I alleged that the continuing construction of a Burger King restaurant with its own exterior entrance to the shopping center would violate various agreements between the parties and between the defendants. First, it alleged that the construction would violate a restrictive covenant in the land sale contract between the city and the National Republic Bank, which required the shopping center to remain in conformance with the "Urban Renewal Plan" until May 11, 2003. The land sale contract, dated May 7, 1971, was attached to the amended complaint as an exhibit. Second, it alleged that the construction would violate the restrictive covenant in the deed from the city to the bank, which covenant required that the property be devoted to the uses specified in the "Redevelopment Plan." The deed, dated September 22, 1971, was attached to the amended complaint as an exhibit. Third, it alleged that plaintiff "was a party to the original agreement between the City and the bank." The urban renewal redevelopment plan was not attached to the amended complaint as an exhibit, but a certain portion of it was recited in the amended complaint as providing that the shopping center "was conceived as an inward oriented center" which "permits a quiet exterior treatment which will blend with Westgate and the Circle Campus of the University of Illinois." Count I stated that the redevelopment plan was presently in the custody of the Department of Urban Renewal.

Plaintiff further alleged in count I that it gave its approval for a zoning change of the subject property from residential to commercial and that it gave its approval of the bank's redevelopment proposal to the Department of Urban Renewal.

Count I also alleged that the building permit issued to defendant Chart House, Inc., was invalid because issued contrary to normal approval procedure and that the construction violated the scope of the building permit since the permit limited construction to interior remodeling. The pleadings indicate that defendant Chart House, Inc., operates Burger King restaurants under an exclusive license from defendant Burger King Corporation. The building permit was not attached to the amended complaint as an exhibit, but a certain portion of it was recited in the amended complaint as permitting "interior remodeling of a new Burger King Restaurant." Count I stated that the city's Department of Building has care and custody of the building permit and that it was issued on August 11, 1976.

Count I prayed for an order enjoining further construction by defendants Burger King, Chart House, Parrillo and Circle Court Associates on the outside of the shopping center building; requiring the city's commissioners to revoke the building permit, to require a new application for permit, and to require its submission through the normal review procedures for property under the jurisdiction of the Department of Urban Renewal; and permanently enjoining any modification of the shopping center which would alter its enclosed mall status.

Count II alleged that four existing advertising signs on the Congress Expressway side of the shopping center violated section 9.9(4)(b) of the city's zoning ordinance, in that the signs were located within 400 feet of the expressway. The four signs allegedly advertise: (1) a Jewel food store; (2) the National Republic Bank; (3) the availability of space in the shopping center; and (4) the shopping center itself. Count II prayed for an order directing defendants Circle Court Associates and Parrillo to remove the signs and enjoining them from erecting such signs in the future.

Count III alleged that a proposed Burger King sign on the south wall of the shopping center would violate sections 8 and 9.9(5) of the city's zoning ordinance, in that the sign would be located on that wall which is less than 75 feet from plaintiff's members' property, which property is located in a Residence District. Count III further alleged that defendant Parrillo has threatened to erect advertising signs along the entire Harrison Street side of the shopping center building, all of which signs would be in violation of the city's zoning ordinances. Count III prayed for an order enjoining the erection of the proposed Burger King sign and enjoining defendants Circle Court Associates and Parrillo from erecting any sign along the south wall of the shopping center.

Count IV alleged that the proposed Burger King restaurant would constitute a nuisance in that it will increase vehicle traffic; increase the presence of trash, garbage, waste paper, rodents, cockroaches and other vermin; increase the number of persons milling around plaintiff's members' houses; and the illumination of Burger King signs will interfere and damage the peace, quiet and comfort of plaintiff's members. Count IV prayed for an injunction enjoining defendants Burger King, Chart House, Parrillo and Circle Court Associates from breaking through the south wall of the shopping center, from erecting an entrance at the proposed point on the wall, and from erecting signs on the wall.

Plaintiff's amended motion for a temporary restraining order and a preliminary injunction contained allegations substantially similar to those contained in plaintiff's amended complaint.

All defendants filed motions to dismiss. On May 20, 1977, defendant Chart House, Inc., filed an answer which alleged that the Burger King restaurant has been constructed and is now in operation. Photographs of the restaurant, depicting interior and exterior views, are attached to the answer as exhibits. ...


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