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Heerey v. Zoning Bd. of Appeals

OPINION FILED MARCH 31, 1980.

BERNARD A. HEEREY, PLAINTIFF-APPELLANT,

v.

ZONING BOARD OF APPEALS OF THE CITY OF CHICAGO, DEFENDANT-APPELLEE.



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

MR. JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:

The principal issue raised in this appeal is whether the Chicago Zoning Ordinance (Munic. Code of Chicago, ch. 194A, as amended to and including January 1, 1977) (hereinafter zoning ordinance) allows the establishment of an open, nonaccessory parking lot for the storage of private passenger automobiles as a permitted use on property situated within a B7-6 General Central Business District, or requires that such a property use be subject to discretionary approval by the Chicago Zoning Board of Appeals (hereinafter Board) as a variation in the nature of a special use requiring public notice and hearing. Plaintiff Bernard A. Heerey appeals from the order entered by the circuit court of Cook County on October 24, 1978, denying his motion for summary judgment and entering judgment in favor of the Board, and entering further judgment affirming the decision of the Board with respect to its interpretation of the application of the aforesaid provisions of the zoning ordinance to his property. An additional issue presented is whether the trial court invoked the appropriate standard of review in arriving at its conclusions affirming the decisions of the Board. For the reasons hereinafter stated, we affirm.

On August 9, 1977, plaintiff applied to the zoning administrator for a driveway permit necessitated by the proposed operation of an automobile parking lot at 1-9 East Walton Street in Chicago (hereinafter subject property). That application was disapproved on September 2, 1977, by the zoning administrator because it:

"* * * does not conform with the applicable provisions of the Chicago Zoning Ordinance Chapter 194A of the Municipal Code of Chicago, specifically sec. 8.4-7."

Plaintiff thereafter filed an appeal from the zoning administrator's denial of his application based upon his theory that the operation of an open and nonaccessory parking lot is a permitted use under the zoning ordinance. At the same time, plaintiff filed an application for a variation in the nature of a special use which, if granted, would permit parking of motor vehicles 1 1/2 tons and under on the subject property. At the initial hearing in this matter before the Board, plaintiff was permitted to file a memorandum in support of his views and his application for a special use separate and distinct from the appeal taken on the adverse ruling by the zoning administrator. The Board scheduled the hearing on the appeal prior to the hearing on the application for a special use variation.

The two matters were heard jointly on December 16, 1977. The Board found that pursuant to section 8.4-7(3) of the zoning ordinance, a public parking lot for the parking of private passenger automobiles in a B7-6 General Central Business District is not a permitted use, but a special use, and resolved that the appeal be denied. Plaintiff's application for a special use, however, was approved with findings that: a parking lot at that location was necessary for the public convenience in the high density area in which it was to be established; there was a great need at that location for public parking; the public health, safety and welfare would be adequately protected by virtue of the design, location and operation of the proposed parking lot; and the proposed use was compatible with the existing uses and improvements in the immediate area and therefore would not cause substantial injury to the value of other property in the neighborhood. The special use was made subject to certain conditions relative to its construction and operation and the order provided that the use of the premises as a public parking lot "* * * shall terminate on December 16, 1980."

Plaintiff appealed to the circuit court from the Board's denial of the appeal relating to his permitted use theory, pursuant to appropriate provisions of the Administrative Review Act (Ill. Rev. Stat. 1977, ch. 110, par. 264 et seq.). The trial court considered plaintiff's complaint, the Board's answer consisting of the transcript of the record and plaintiff's motion for summary judgment. The basis for the summary judgment motion essentially questioned the zoning administrator's interpretation of the proposed use of the premises as a special use as a matter of law. As earlier related, the circuit court denied plaintiff's motion for summary judgment and affirmed the decision of the Board, from which orders this appeal proceeds.

Plaintiff's central argument is that the operation of an open and nonaccessory public parking lot for private passenger automobiles in a B7-6 General Central Business District is a permitted use under the zoning ordinance and does not require the application for or issuance of a special use permit. He marshals the following provisions of the zoning ordinance, among others, in support of his theory. The uses permitted in a B7-6 district are provided for in section 8.3-7B:

"8.3-7 Permitted Uses — B7-5 to B7-7 General Central Business Districts.

B. The following uses are permitted in the B7-5 to B7-7 Districts inclusive. * * *

(1) Any use permitted in the B4-1 to B4-5 Districts inclusive as set forth in Section 8.3-4B, * * * unless otherwise set forth or superseded hereinafter * * *."

Section 8.3-4B lists permitted uses in the B4-1 to B4-5 districts, including:

"(27) Parking Lots, open and other than accessory, for the storage of private passenger automobiles, and subject to the provisions of Section 8.11."

Section 8.11 concerns certain technical regulations of such a facility and is not germane to this appeal. Relying upon the foregoing, plaintiff argues that the Board and the trial court were in error ...


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