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Edwards v. Zoning Bd. of Appeals

OPINION FILED APRIL 24, 1981.

WILLIAM R. EDWARDS ET AL., PLAINTIFFS-APPELLEES,

v.

ZONING BOARD OF APPEALS FOR THE CITY OF QUINCY ET AL., DEFENDANTS-APPELLANTS. — (FRANK WELLS ET AL., INTERVENING DEFENDANTS.)



APPEAL from the Circuit Court of Adams County; the Hon. RICHARD F. SCHOLZ, JR., Judge, presiding.

MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 1, 1981.

This case involves the request of plaintiffs, William R. and Verlee A. Edwards, for issuance of a building permit for construction work upon a lot owned by them in Quincy. Defendants, Zoning Board of Appeals for the City of Quincy (Board) and City of Quincy (City), and intervening defendants, Frank Wells et al., appeal the judgment of the circuit court of Adams County entered July 24, 1980, reversing the Board's denial of plaintiffs' request and remanding the case to the Board with directions that it issue the permit.

The basic facts are undisputed. Plaintiffs purchased a lot with a building located thereon at 520 So. 21st Street in Quincy (Tract I) and an adjoining lot behind it which did not border on a street (Tract II). Both lots were bordered on the side by an alley which extended from 21st Street. For many years the lots had been zoned RIB (Single Family Residential). However, at the time of the zoning, the house on Tract I had been used as a bakery and subsequently as a beauty parlor. It was, thus, devoted to a nonconforming use within the meaning of the city zoning ordinance. The contract by which plaintiffs purchased was conditioned upon their being permitted to perform remodeling to make the house into a tavern-restaurant, but plaintiffs completed the purchase before obtaining the permit. Apparently they felt that they had assurance that the work could be done, but no conduct of City officials is relied upon on appeal to support the circuit court's reversal of the Board's ruling.

Plaintiffs applied for the permit on June 19, 1979. On June 26, 1979, the building inspector for the City denied the permit by letter and on July 2, 1979, appeal was taken to the Board. On August 15, 1979, the Board made a ruling finding that the permit should be denied and recommending to the City Council that the permit be denied. On September 10, 1979, the latter group concurred in the Board's recommendation. On September 19, 1979, plaintiffs filed the complaint for administrative review in the circuit court. On February 6, 1980, the circuit court remanded the case to the Board for further finding of facts. Those findings were made and certified to the circuit court on February 22, 1980.

The substance of the Board findings were (1) the changes to be made by plaintiffs would result in "structural alterations" and would not result in a use of the premises within "the same or a higher classification," and (2) the proposed improvement would amount to an "enlargement * * * an extension * * * and an alteration of a nonconforming use" all as prohibited by the city zoning ordinance.

At all times pertinent, section 29.205 of the City Code of the City of Quincy provided in part:

"Nonconforming uses may be continued and if there are no structural alterations, such a use may be changed to a use of the same or of a higher classification. If it is changed from a use in a higher classification to a conforming use it cannot be changed back to the original nonconforming use. For the purposes of this paragraph the `same classification' means use in a district higher on the list of districts in Subparagraph (2) of Section 29.102.

If a nonconforming use is stopped for one year or more, it then must conform to the use regulations.

A nonconforming use cannot be enlarged, extended, reconstructed or structurally altered unless changed to a permitted use."

Similarly, section 29.102 stated:

"1. The city and the contiguous unincorporated territory within one and one-half miles of the Quincy corporate limits are divided into five types of districts:

RU Districts — Rural

RE Districts — Resort

R Districts — Residential

C Districts — Commercial

M Districts — ...


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