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Hammond v. City of Chicago





Appeal from the Circuit Court of Cook County; the Hon. Arthur L. Dunne, Judge, presiding.


A circuit court administrative review, which affirmed the decision of the zoning board of appeals, is the subject of this appeal. We are asked to decide whether the circuit court correctly affirmed the Chicago Zoning Board of Appeals' decision granting a substitution of use to defendant Louis Fasco (Fasco) permitting him to operate a wholesale bakery in a nonconforming building located in an R4 general residence zoning district.

On December 7, 1983, the city of Chicago zoning administrator rejected Fasco's application for a substitution of use in the building located at 1132-44 North Damen Avenue in Chicago. The building was originally designed for and occupied by commercial and manufacturing uses some time prior to 1957 and housed nonconforming uses since the adoption of Chicago's Comprehensive Zoning Ordinance of 1957, including a food processing and distribution warehouse, a furniture warehouse, and an automobile showroom and repair shop. Under the 1942 comprehensive amendment to the zoning ordinance of Chicago, the property was zoned commercial.

The Chicago Zoning Board of Appeals had sustained the establishment of nonconforming uses on the subject property previously in both 1967 and 1972 in compliance with section 6.2 of the Municipal Code of Chicago, which provides:

"Any non-conforming use, building or structure which existed lawfully at the time of the adoption of this comprehensive amendment and which remains non-conforming, and any such use, building or structure which shall become non-conforming upon the adoption of this comprehensive amendment * * * may be continued, some for specified and respective periods of time, subject to the regulations which follow." (Municipal Code of Chicago, Zoning Ordinance, ch. 194A, sec. 6.2 (1984-85).)

The most recent use of the property was by Martinez Brothers Incorporated, which used it for food processing and distribution. Martinez Brothers leased the building from Alfonso Martinez (Alfonso), a shareholder and chief operating officer of Martinez Brothers, for $1,305 per month.

On August 10, 1979, Martinez Brothers filed a voluntary petition in bankruptcy, showing the National Bank of Greece (bank) as one of its secured creditors, and listing the property at 1132-44 North Damen as the security. The Small Business Administration was a junior mortgagee on the property. The property, which had been mortgaged to the bank by Alfonso individually and not by Martinez Brothers, was then held in trust by the Exchange National Bank as trustee. Martinez Brothers continued to use the building until August or September of 1980. Since that time the building has been vacant.

On November 24, 1981, Martinez Brothers was discharged in bankruptcy. There was no disposition of the property at 1132-44 North Damen, nor any indication in the record as to if, when or how the property was determined to have been outside the bankruptcy proceedings. Seven months later, on July 9, 1982, the bank filed a foreclosure action on Alfonso's mortgage. On December 10, 1982, an order of foreclosure was entered with a finding that the property had been "abandoned" by Alfonso Martinez as of May 19, 1982.

On January 20, 1983, the bank purchased the subject property for $70,537.94 at a sheriff's sale. At an unspecified time prior to July 20, 1983, Fasco, owner and operator of Las Villas Bakery, entered into an agreement with the bank to purchase the property contingent upon Fasco's obtaining the proper "licensing" to operate a wholesale bakery. Pursuant to that agreement, Fasco applied to the zoning administrator for a substitution of use, which was rejected as noted above. Fasco appealed to the zoning board of appeals the following day. The board held a hearing on March 23, 1984, and issued a decision reversing the administrator on April 2, 1984, finding specifically that Martinez Brothers had

"filed for bankruptcy in 1979 and [that those] * * * proceedings had been in litigation until February, 1983 when the appellant [Louis Fasco for National Bank of Greece] took deed of the subject site property; that the change of use from a food processing plant and wholesale food distribution warehouse to a wholesale bakery is a proper substitution of use under Section 6.4-7 of the zoning ordinance * * *."

Plaintiffs, objectors to Fasco's appeal at the zoning board hearing, thereupon filed an action for administrative review with the circuit court of Cook County. The circuit court affirmed the decision of the board on September 24, 1984. This appeal followed.

• 1 Our function in this appeal is limited to ascertaining whether the findings and conclusion of the agency on questions of fact, which must be considered prima facie true and correct (Ill. Rev. Stat. 1983, ch. 110, par. 3-110, formerly Ill. Rev. Stat. 1979, ch. 110, par. 274), are against the manifest weight of the evidence; they may be disturbed only if a review of the record demonstrates that they are against the manifest weight of the evidence. Roosevelt Memorial Hospital v. Chaddick (1970), 131 Ill. App.2d 82, 266 N.E.2d 755.

Plaintiffs contend that Fasco was not entitled to a nonconforming use at the subject property because Alfonso, the previous owner, had allowed the use to lapse, relying on section 6.4-5 of the Municipal Code of Chicago, which provides:

"Discontinuance of Use of Non-Conforming Building or Structure. A building * * * which is designed or intended for a use which is not permitted in the district in which it is located, which * * * becomes vacant and remains unoccupied or is not used for a continuous period of one year, shall not thereafter be occupied or used except by a use which conforms to the use regulations of the district in ...

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