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09/26/88 Milton Furgatch Et Al., v. Richard S. Butler

September 26, 1988

MILTON FURGATCH ET AL., PLAINTIFFS AND INTERVENING, DEFENDANTS-APPELLEES

v.

RICHARD S. BUTLER, INDIV. AND AS BENEFICIARY OF CHICAGO TITLE AND TRUST COMPANY, LAND TRUST NO. 107905, PLAINTIFF-APPELLANT (THE CITY OF CHICAGO ET



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

al., Defendants-Appellees)

545 N.E.2d 140, 188 Ill. App. 3d 1060, 136 Ill. Dec. 616 1988.IL.1437

Appeal from the Circuit Court of Cook County; the Hon. Charles E. Freeman, Judge, presiding.

APPELLATE Judges:

JUSTICE MANNING delivered the opinion of the court. BUCKLEY and O'CONNOR, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MANNING

The plaintiff, Richard S. Butler, appeals from an order of the circuit court of Cook County entered pursuant to section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-615), dismissing with prejudice his complaint for declaratory judgment upon a finding that it was insufficient at law. Specifically, the complaint sought a declaration that a zoning ordinance affecting a two-story building in which plaintiff owned a beneficial interest, and in which he operated an accounting business, was unconstitutional as it applied to his property. The complaint further sought to have defendants rezone the premises and enjoined from interfering with plaintiff's use thereof. The issues presented for review are whether the dismissal order was an abuse of discretion and whether plaintiff's complaint was barred by principles of res judicata.

On August 19, 1985, the plaintiff filed a complaint which alleged, inter alia, that on July 7, 1980, he acquired the beneficial interest in a two-story brick commercial building located at 1645 East 53rd Street in Chicago, Illinois. When plaintiff purchased the property, it was split-zoned with the northern (3/4) portion of the building located in a B4-4 restricted service district and the southern (1/4) located in the more restrictive R-6 general residence district. Pursuant to article 5, section 5.1(2), of the Chicago Zoning Ordinance, the more restrictive R-6 classification governed the entire property.

On November 21, 1980, the Chicago zoning board of appeals granted plaintiff's petition for special use of his property as offices. Thereafter, on June 5, 1981, the Chicago department of inspectional services issued a permit authorizing plaintiff to partition the space into offices.

Plaintiff, under the name of 3R's Joint Venture, entered into a lease agreement with Ms. Orbie Cunningham on May 11, 1982, for the rental of the first floor of the premises to be used as a restaurant with a service bar. After a substantial portion of the first-floor remodeling was completed, the department of inspectional services revoked the permit issued to the plaintiff because the remodeling was contrary to the plans. Subsequently, Ms. Cunningham applied to the City of Chicago zoning administrator for a permit to operate a restaurant with a service bar on the first floor of plaintiff's building. The application was denied because of the aforementioned split zoning. Cunningham filed an appeal on behalf of 3R's Joint Venture with the Chicago zoning board of appeals on December 15, 1982, which upheld the decision of the administrator. On March 1, 1985, the zoning board of appeals' decision was affirmed by the circuit court of Cook County.

On January 17, 1984, Cunningham filed a second appeal on behalf of 3R's Joint Venture from a decision of the administrator denying the use of the building for a restaurant with a service bar. This appeal was denied by the zoning board of appeals, and on March 1, 1985, that decision was affirmed by the circuit court of Cook County. Thereafter, Alderman Lawrence Bloom sponsored a resolution for a change in zoning of the property from a split zone to an R-6 residential district. Subsequently, plaintiff filed an application to rezone the property to a B4-4 restricted services district. On May 21, 1985, the Chicago council committee on zoning denied plaintiff's application and passed Alderman Bloom's resolution, which was ratified by the city council, changing the zoning to an R-6 general residence district.

Plaintiff contends that the property is located in a predominantly commercial area and that the subject property has not been used as a residence for over 35 years. He further contends that the rezoning of the property as an R-6 residential district was discriminatory, arbitrary, diminished the property value and was unconstitutional. Plaintiff requested that the premises be rezoned as a B4-4 restricted service district and that he be permitted to operate the premises under such zoning provision.

On March 1, 1985, prior to plaintiff having filed his complaint, various neighborhood residents (hereafter intervenors) filed an action seeking to enjoin plaintiff from operating a restaurant, bar, nightclub or place of amusement activities on the subject premises. The intervenors alleged, inter alia, that they were property owners who resided within 1,200 feet of the subject premises, which was the sole commercial structure on the block. The intervenors further contended that contrary to the zoning ordinance, plaintiff was operating a restaurant, night club or bar on the premises and that the intervenors would suffer severe and irreparable harm if plaintiff was not enjoined from operating the premises in its present use. On March 13, 1985, a preliminary injunction was entered enjoining plaintiff from using the property for a restaurant or bar.

On September 5, 1985, an agreed order was entered to consolidate the intervenors' complaint for injunctive relief with plaintiff's complaint for declaratory judgment. Thereafter, on October 7, 1985, the intervenors filed a motion to dismiss plaintiff's complaint pursuant to section 2--615 of the Code of Civil Procedure. The motion to dismiss alleged that when plaintiff acquired the premises it was zoned R-6 residential district. Therefore, plaintiff had constructive notice of the zoning ...


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