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05/08/89 Bat-A-Ball, Inc., v. the City of Chicago Et Al.

May 8, 1989

BAT-A-BALL, INC., PLAINTIFF-APPELLEE

v.

THE CITY OF CHICAGO ET AL., DEFENDANTS (MIDLAND WAREHOUSE ET AL., DEFENDANTS-APPELLANTS)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

540 N.E.2d 803, 184 Ill. App. 3d 776, 132 Ill. Dec. 881 1989.IL.689

Appeal from the Circuit Court of Cook County; the Hon. Robert L. Sklodowski, Judge, presiding.

APPELLATE Judges:

JUSTICE CAMPBELL delivered the opinion of the court. BUCKLEY and QUINLAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CAMPBELL

This is an administrative review action. Defendants, Midland Warehouse and Midwest Folding Products, appeal from the reversal by the circuit court of an order entered by the Zoning Board of Appeals of the City of Chicago which denied the request by plaintiff, Bat-A-Ball, Inc., for a special use permit to allow an outdoor amusement facility comprised of automatic batting cages, video games and a go-cart track to be built in a manufacturing district zoned M2-4. The sole issue on appeal is whether the circuit court erred in finding that the ZBA's decision was contrary to the manifest weight of the evidence. For the following reasons, we reverse the judgment of the circuit court.

The record sets forth the following facts pertinent to this appeal. Plaintiff owns vacant property located at the northwest corner of 15th Street and Western Avenue in Chicago. Directly to the south, across 15th Street, is the five-story brick Midland Warehouse Building, which provides leased space to small manufacturers. Defendant Midwest Folding Products is located to the north, along Western Avenue. To the west is a portion of the facilities of Inland Ryerson Steel, and to the east are the yard and trucking facility of Chicago and Northwestern Railroad. On September 16, 1987, pursuant to section 10.4 -- 2 of the Chicago Zoning Ordinance (Chicago Municipal Code ch. 194A, § 10.4 -- 2), plaintiff filed an application with the ZBA requesting a special use permit to establish an outdoor amusement facility at this location.

On December 11, 1987, a public hearing was held before the ZBA. At the hearing Michael Pelfresne, owner of Bat-A-Ball, Inc., testified that the facility would be open from mid-March to November, seven days per week, 8 a.m. until midnight. No food would be served. It was anticipated that the peak hours would be from 7 p.m. to 11 p.m. In addition to the batting cages, video games and go-cart track, there would be a parking lot which would accommodate 70 vehicles. The entire facility, including the parking lot, would be fenced and the facility would have a security system, but no security personnel. Pelfresne described the area as one having high traffic volume and no recreational facilities located nearby.

Pelfresne further stated that he owns similar facilities in Melrose Park and Tinley Park and testified that each attracted a cross-section of age groups and ethnic groups, and that he never had had any problems with fighting or complaints from surrounding property owners. In fact, he had never had to hire security personnel.

Anthony Miniscalco, president and design principal of Miniscalco Associates, architects and planners, testified on behalf of plaintiff that, in his opinion, the proposed use would not be harmful to the public health, welfare and safety of the area and would have no detrimental effect on the current manufacturing use of the surrounding area. Next, Terrence O'Brien, real estate appraiser, broker and consultant, testified on behalf of plaintiff that, in his opinion, the proposed use was harmonious with other uses in the area; would not create any extraordinary traffic; would not generate noise, odor or fumes; would not result in loss of air or light to adjoining property owners; and conformed to the trend in the area, which was moving away from manufacturing to commercial.

In opposition to the proposed use, Steve Vertin, commercial operator and industrial real estate appraiser, stated that his basic objection to the amusement facility was that it would increase the crime rate in the area and decrease property values. Vertin based this Conclusion on a detailed study which indicated, inter alia, that East Garfield Park, located one-quarter mile from the proposed site, has the highest juvenile delinquency rate in Chicago and that the proposed use would be directed to the under-20 age group.

Next, Tom McGinnes, attorney for defendant Midland, testified that Midland, which leases space to manufacturing tenants, has heavy truck traffic and he foresaw problems with traffic when Bat-A-Ball patrons would be trying to get in and out of the parking lot. As a result, McGinnes predicted that the building's tenants would suffer disruption in their pickups and deliveries and move their business elsewhere. McGinnes also expressed concern that Midland would have to hire additional security personnel and stated that police response time in that area was not very good. On cross-examination, McGinnes admitted that most of the deliveries to Midland are made during the day.

In addition to the testimony at the hearing, the record also contains the following letters which were written to the ZBA: (1) letter from Elizabeth Hollander, commissioner, department of planning, recommending that plaintiff's application for a special use permit for the amusement facility be approved; (2) letter from ward alderman, Juan Soliz, recommending that the permit be approved; (3) letter from the mayor of Melrose Park, stating that there have never been any problems with the Bat-A-Ball facility in his city; (4) letter from Steve Vertin, appraiser, detailing the reasons for his Conclusion that the proposed use would have a substantial adverse effect on market values of surrounding properties; and (5) letter from Chicago and ...


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