Columbus Park Congregation of Jehovah's Witnesses, Inc. v. Board of Appeals of City of Chicago

• Decision Date: 25 May 1962
• Docket Number: No. 36722,36722
• Citation: 25 Ill.2d 65,182 N.E.2d 722
• Parties: COLUMBUS PARK CONGREGATION OF JEHOVAH'S WITNESS, INC., et al., Appellants, v. The BOARD OF APPEALS OF the CITY OF CHICAGO et al., Appellees.
• Court: Illinois Supreme Court

Page 722

182 N.E.2d 722

25 Ill.2d 65

COLUMBUS PARK CONGREGATION OF JEHOVAH'S WITNESS, INC., et al., Appellants, v. The BOARD OF APPEALS OF the CITY OF CHICAGO et al., Appellees.

No. 36722.

Supreme Court of Illinois.

May 25, 1962.

Karl M. Milgrom, Chicago, and Hayden c, Covington, Brooklyn, N. Y., for appellants.

John C. Melaniphy, Corp. Counsel, Chicago (Sydney R. Drebin and Allen Hartman, Asst. Corp. Counsel, of counsel), for appellees.

SOLFISBURG, Justice.

This is an appeal from an order of the circuit court of Cook County, on administrative review, affirming the action of the defendant Board of Appeals of the City of Chicago in denying the application of plaintiff Columbus Park Congregation of Jehovah's Witnesses, Inc., for a special use permit pursuant to the Chicago zoning ordinance. Plaintiffs, alleging the unconstitutionality of the ordinance, appeal directly to this court.

Plaintiff corporation, herein sometimes referred to as the Congregation, purchased in 1957 two contiguous store buildings located at 5524-26 West Harrison Street, Chicago, for the sum of $20,000, for the purpose of conversion into a church. The property was in a B4-2 Restricted Service District, and the plaintiff Congregation applied for a special use permit pursuant to section 8.4-4 of the Chicago zoning ordinance. After hearing the Board of Appeals denied the application for a special use permit, and the circuit court affirmed.

The classification B4-2 under the Chicago zoning ordinance is denominated Restricted Service Districts and according to the preamble is 'designed primarily to furnish areas served by Restricted Retail Districts with a wide variety of necessary services (and goods) incompatible with the uses permitted in the Restricted Restricts and so not allowed therein.'

Forty-five different uses are permitted in B4-1 to B4-5 districts in addition to all uses permitted in B2, Restricted Retail Districts. The additional uses permitted in B4 districts include such diverse uses as dance halls, service stations, crematories, mausoleums, laundries, recreation buildings, pawn shops, taverns, trade schools and libraries. Among the uses permitted in B2 districts, and therefore in B4, are 'Clubs and Lodges (non-profit), Fraternal, of Religious Institutions.'

A church is not a permitted use in either B2 or B4 districts, but is denominated a special use which may be allowed in B4 districts only pursuant to the variation provisions of article 11 of the ordinance. Article 11 provides in part as follows:

'11.10-4 Standards. No special use shall be granted by the Zoning Board of Appeals unless the special use:

'(1) a. is necessary for the public convenience at that location;

'b. is so designed located and proposed to be operated that the public health, safety and welfare will be protected; and

'(2) will not cause substantial injury to the value of other property in the neighborhood in which it is to be located, * * *.'

The property sought to be used as a church by plaintiffs is located in a block containing 22 stores among which are a tavern, liquor store, service station, delicatessen, barber shop, laundromat, hardware store, shoe repair shop, pastry shop, grocery store, drug store, restaurant and beauty shop. Across the street there is a large Greek Catholic Church and a parochial school. The area behind the subject property is zoned residential.

At the hearing before the Board of Appeals it appears that the plaintiff congregation was assigned this territory in Chicago for their ministry. They were presently holding their meetings in a building of another congregation outside their territory. While the congregation had tried to purchase property in other localities, they found none suitable until they purchased this vacant store building which met the needs of the congregation. The congregation consists of 82 persons, and only 17 own automobiles. The average attendance at their meetings is between 55 and 60. The proposed meetings of the congregation would be on Sunday afternoon and evening; Tuesday evening and Thursday evening. Off-street parking is provided for eight automobiles, which is more than the minimum fixed by ordinance.

Harrison Street, on which the subject property is located, is of ordinary width, but carries an exceptional amount of traffic during ordinary business hours and it is difficult to find a parking place at these times. During the times of the plaintiff congregation's proposed meetings, the traffic is lighter and the parking problem less acute.

Twenty-three persons in the neighborhood filed written objections to the application and five appeared to testify at the hearing. Abe Brodsky owned a two-flat in the residential area behind the church property, and objected because, with the proposed use, 'the property value is going to drop there because it brings in all kinds of strange people in the section, and people like a residential neighborhood to be quiet.'

Elmer Jezek, who owned the hardware store next to the proposed location, objected because he didnt 'think it would help business.' He further ventured the opinion that if churches would help business, they would be in large shopping centers, and 'They would put a bunch of churches right in the middle of it (Hillside Shopping Center) if it would help business.'

Rose DiCicilia, who owned a three-flat in the residential area behind the property, feared that the use of parking facilities would lessen the value of her property. An attorney also testified that the proposed use would lessen the value of an apartment in the neighboring residential area because of traffic in the alley behind the church and a lack of parking. An owner of a bungalow also feared that the proposed church would lessen the value of his property.

Plaintiffs presented the testimony of two real-estate experts who testified that the proposed use would not substantially affect the value of neighboring property. Defendants also introduced the testimony of two qualified real-estate experts. One felt that by breaking the continuity of the business block, neighboring business property values would be lessened by 15 per cent. Defendants' other expert, James J. Curtis, was of the opinion that rental and sales values would be depreciated because there was a little colony of merchants in the block who sold their own peculiar type of food. He testified that a church would be out of place in almost all business districts.

The zoning administrator had previously denied the application for a special use on the ground that the 'proposed improvement does not conform with the requirements of the Chicago Zoning Ordinance.' The zoning Board of Appeals, after the hearing above referred to, denied the application, finding 'that the proposed church is not necessary for the public convenience at the location in question,' and that such use 'will cause substantial injury to the value of other property in the neighborhood.' Upon administrative review the circuit court of Cook County affirmed the decision of the board.

On this appeal plaintiffs contend first that the Chicago zoning ordinance as construed and applied to the facts in this case is unconstitutional in that it denies plaintiffs their property without due process of law, and denies them freedom of worship. Secondly, they contend that the refusal of the special use permit in this case was arbitrary and capricious.

Defendants insist that the ordinance is valid on its face; that its application to the facts of this case did not deprive plaintiffs of any constitutional rights; and that the denial of the special use permit was not arbitrary or capricious.

While the parties have not referred us to any Illinois case specifically considering the...