APPEAL from the Circuit Court of Peoria County; the Hon.
CHARLES IBEN, Judge, presiding.
MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 17, 1979.
Plaintiff Charles Thomas appeals from an order of the Peoria Zoning Board of Appeals which denied him a building permit to remodel a theater building and also denied his request for a variance from off-street parking requirements.
In 1976 plaintiff purchased a theater building in an area of Peoria zoned C-2, a neighborhood commercial district. The building occupied the entire lot with no space for parking on the premises and had been used as the Avon motion picture theater from 1937 until 1956. The building has a marquee, a lobby, a balcony, a projection booth, and a sloping floor located underneath a terraced floor. After standing vacant until 1970, it was remodeled and opened as a restaurant and night club where movies and old slides were shown during breaks in the live entertainment. This operation continued until the building was sold to Thomas by Larry Warner, the owner.
City records indicate that Warner last had a city amusement license in 1974 when he was issued a class 1 theater license for live entertainment. In March of 1976, Warner submitted applications for both 1975 and 1976 licenses but both requests were denied because they were late.
Plaintiff applied for a building permit for the purpose of remodeling the building to restore the original sloping floor and attached seats for the showing of movies and to upgrade the interior to conform to city building code requirements, but the permit was denied for failure to provide off-street parking as required by the city's zoning ordinance. Plaintiff then appealed to the Zoning Board of Appeals, claiming exemption from parking requirements under the ordinance, and in the alternative, seeking a variance from the parking regulation. The Zoning Board conducted a hearing on November 17, 1976, as to the propriety of the denial of a building permit. A separate hearing was held on December 10, 1976, on plaintiff's application for a parking variance. The Board denied both the building permit and the parking variance, and upon administrative review the circuit court affirmed. Plaintiff then perfected this appeal.
Plaintiff first contends that the Peoria zoning ordinance, if correctly interpreted, allows the building in question to be used as a movie theater without provision for off-street parking. Two pertinent sections of the ordinance concern nonconforming uses and are as follows:
"2-20.4000 Nonconforming uses of structures. If a lawful use of a structure, or of structure and premises in combination, exist at the effective date of adoption of this ordinance, that would not be allowed in the district under the terms of this ordinance, the lawful use may be continued so long as it remains otherwise lawful, subject to the following provisions:
2-20.4005 If a nonconforming use has been discontinued for a period of one year or more, it shall not be re-established, unless the nonconforming use was in a building designed, arranged and intended for such use."
Plaintiff reasons that he is actually seeking to re-establish a nonconforming use that had been discontinued for more than one year, that his nonconforming use was in a building "designed, arranged, and intended for such use," i.e., as a motion picture theater, and therefore that his proposed theater qualifies for the exception set out in section 2-20.4005.
1 The fatal flaw in plaintiff's theory is that a motion picture theater is a permitted use in a C-2 district, and the only nonconformance is the absence of off-street parking facilities. Consequently, his proposed theater is not a nonconforming use in a building designed, arranged and intended for such use so as to come within the exception of section 2-20.4005, but rather is a permitted use of the building on nonconforming premises.
Section 2-22.1000 provides, inter alia, that no change in use shall be made to an existing commercial building or structure "unless there already is in existence upon the lot, or provision is made for the location on the lot, concurrently with the * * * change in use, off-street parking facilities comprising adequate access drives or aisles or parking spaces" on the basis of certain minimum requirements which include, for a theater, one parking space for each four seats. Clearly, plaintiff is proposing a change in use from restaurant-night club to a motion picture theater, and plaintiff is therefore required to provide off-street parking facilities. The plain language of the ordinance mandates the denial of a building permit to plaintiff, and neither the Board nor the circuit court erred in so construing the ordinance.
Plaintiff's second contention is that the off-street parking requirements are unconstitutional as applied to plaintiff's property because great hardship would be imposed on the property owner as compared to the relatively small gain to the public. Plaintiff cites those cases which held a zoning classification to be unconstitutional as applied to a particular parcel of real estate. For example, in Marquette National Bank v. County of Cook (1962), 24 Ill.2d 497, 182 N.E.2d 147, the landowner established that his property could not be economically developed as a subdivision under an R-3 zoning classification which had 20,000 square feet minimum lot area requirements; that an R-4 classification with 10,000 square feet minimum would be feasible; that there was no substantial gain to the public in the R-3 zoning; and that there was a real hardship imposed on the owners. In describing the standard to be applied, the court said:
"A zoning classification will be upheld if it bears a substantial relation to the public health, safety, comfort, morals and welfare. Where the question of its reasonableness as applied to a particular parcel of property is subject to a fair difference of opinion, the legislative judgment of the zoning authority should be followed. The presumption of validity is overcome, however, when it is shown that there is no reasonable basis in public welfare requiring the restriction and the resulting loss. Where the gain to the ...