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05/02/94 JOHN PRODROMOS AND DEBRA PRODROMOS v.

May 2, 1994

JOHN PRODROMOS AND DEBRA PRODROMOS, INDIVIDUALLY AND D/B/A G&J CO., AND GLENVIEW STATE BANK, AS TRUSTEE UNDER TRUST AGREEMENT NO. 1808, PLAINTIFFS/COUNTER-DEFENDANTS/APPELLANTS,
v.
FORTY EAST CEDAR CONDOMINIUM ASSOCIATION, AN ILLINOIS NOT-FOR PROFIT CORPORATION AND CONDOMINIUM ASSOCIATION, INDIVIDUALLY AND F/U/A/B OF ITS MEMBERS, DEFENDANT/COUNTER-PLAINTIFF/APPELLEE, AND PATRICK J. HALPERIN AND MARY BILLINGTON, DEFENDANTS/APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE EVERETTE A. BRADEN, JUDGE PRESIDING.

Released for Publication August 2, 1994.

Campbell, Buckley, Manning

The opinion of the court was delivered by: Campbell

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

Plaintiffs/counterdefendants, John Prodromos and Debra Prodromos, individually and d/b/a G&J Co. and Glenview State Bank, as Trustee under Trust Agreement No. 1808 (plaintiffs or Prodromos), owners of the "unit garage" at the Forty East Cedar Condominium Building (Building), and defendants, The Forty East Cedar Association (Association), Patrick J. Halperin and Mary Billington, brought cross-declaratory judgment actions to determine the validity of theAssociations' Amendments to the Declaration of Condominium Governing Parking Facilities (Amendments), which regulate the parking facilities within the building. The Amendments restrict the number of rental spaces in the unit garage available to non-residents of the building and require that the monthly parking fees charged to building residents not exceed the "neighborhood fair market value." On September 18, 1992, The trial court entered summary judgment in favor of the Association on counts I and II of its counter-complaint, declaring the Amendments valid and enforceable, and permanently enjoining plaintiffs from (1) renting more than nine parking spaces in the unit garage to non-residents; and (2) from refusing to rent unit garage spaces to building residents at rates not exceeding fair market value. The trial court also entered summary judgment in favor of the Association on count I of plaintiffs' complaint for antitrust violations regarding the monthly parking fee. Plaintiffs now appeal the order of the trial court. For the following reasons, we affirm in part, and reverse in part.

The following facts are relevant to this appeal. Forty East Cedar is a 75-unit condominium building located in the Gold Coast neighborhood of Chicago. The Building was built in 1967 and contains an indoor parking garage with 39 parking spaces (unit or lower garage) and an outdoor rooftop parking area with 14 spaces (upper garage), for a total of 53 parking spaces. The 14 spaces of the upper garage are operated as the "common elements" of the building and maintained by the Association. The Building has been subject to the provisions of the Illinois Condominium Property Act, (Ill. Rev. Stat. 1979, ch. 30, par. 300 et seq.) (now 765 ILCS 605/1 et seq (West 1992)) (Condominium Act), since it was converted from apartments to condominiums in 1979.

In addition, at all relevant times the Building has been subject to section 7.12 of the City of Chicago Zoning Ordinance, (Chicago Municipal Code ch. 194A, § 7, et seq. (1991)) (The Ordinance), which defines the Building as located in an R-7 Residential Zoning District. In 1969, the Ordinance required that buildings in an R-7 District have "accessory parking" for 60% of the number of dwelling units. In 1971, the Ordinance was amended to require that R-7 District buildings have:

"parking spaces equal in number to 100 percent of the number of dwellings units * * * for the first 50 units located within a building, and additional parking spaces equal in number to 55 percent of the number of dwelling units * * * exceeding 50 units." (Chicago Municipal Code ch. 194A, § 7.12-3(2) (1991).)

Thus, the Ordinance requires that the Building have available 64spaces (63.5), excusing the 11-space deficiency as a preexisting non-conforming use. (Chicago Municipal Code ch. 194A, § 6.2 (1991).) The Ordinance further provides that:

"not more than 25 per cent of the accessory parking spaces required for a dwelling, lodging house, or a hotel may be rented out on a monthly basis to occupants of other dwellings, lodging houses or hotels." Chicago Municipal Code ch. 194A, § 7.12(1) (1991).

In addition, operating a "public parking garage" is not a permitted use for the Building. See Chicago Municipal Code ch. 194A, § 7.3-7 (1991).

The record reveals that prior to the injunction entered September 18, 1992, plaintiffs rented the 39 available parking spaces in the lower garage on a monthly basis to residents of the building, as well as to non-residents, for $175. The record indicates that plaintiffs rented at least 14 and up to 19 spaces of the lower garage to non-residents.

Beginning in August 1990, the Association attempted to stop plaintiffs from renting spaces to non-residents in excess of the number allowed under the Ordinance. On May 29, 1991, the 75 unit owners of the Building adopted the Declaration of Condominium Amendment Governing Parking Facilities (Amendments). The "Non-Resident Parking Restriction," (Space Restriction) restricts the rental of the spaces in the lower and upper garages, limiting spaces available to non-residents of the building to a maximum of 9 spaces in the lower garage, and 4 spaces in the upper garage. (25%). The "Neighborhood Fair Market Value Parking Fee Restriction" (Fee Restriction) requires that the monthly parking fees charged building residents not exceed the "neighborhood fair market value."

On May 21, 1991, plaintiffs filed a four count complaint for declaratory judgment and antitrust violations against the Association. On September 6, 1991, plaintiffs filed an amended complaint in 10 counts, count I consisting of allegations of antitrust, and counts II through VII requesting declaratory relief. In count I, plaintiffs alleged that the Fee Restriction amounted to price fixing in violation of the Illinois Antitrust Act. In counts II through VII, plaintiffs sought declaratory relief from, inter alia, the Association's alleged discriminatory ...


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