Eggert v. Board of Appeals of City of Chicago

• Decision Date: 26 November 1963
• Docket Number: No. 37720,37720
• Citation: 195 N.E.2d 164,29 Ill.2d 591
• Parties: Warren EGGERT, Appellant, v. The BOARD OF APPEALS OF the CITY OF CHICAGO et al., Appellees.
• Court: Illinois Supreme Court

Page 164

195 N.E.2d 164

29 Ill.2d 591

Warren EGGERT, Appellant, v. The BOARD OF APPEALS OF the CITY OF CHICAGO et al., Appellees.

No. 37720.

Supreme Court of Illinois.

Nov. 26, 1963.

Rehearing Denied Jan. 20, 1964.

Raymond L. Jones, Chicago, for appellant.

John C. Melaniphy, Corporation Counsel, Chicago (Sydney R. Drebin and Rita Ivy Epstein, Asst. Corporation Counsel, Chicago, of counsel), for appellees.

SOLFISBURG, Justice.

Warren Eggert, the owner of a three-story building in Chicago containing seven apartments, applied for a permit to do certain repair work and improvements on the premises. The application was denied. The owner was further notified to reduce the number of apartments to two-one on the first floor and one on the second-and to discontinue the use of the third floor for living quarters. On administrative appeal the Board of Appeals denied relief, except that the owner was granted the right to continue use of the third floor as an apartment. He thereupon filed a complaint in the circuit court of Cook County to review the decision of the Board. The court affirmed the decision, and the plaintiff has taken a further appeal directly to this court on the theory that a constitutional question is involved.

The plaintiff is the present owner of a three-story frame building which was converted in 1946 and 1947 by his predecessor in title from a three-apartment dwelling to a seven-apartment dwelling. The conversion was made without acquisition of a required building permit and at a time when the Chicago Municipal Code permitted no more than four apartments in a wood-frame dwelling. In 1957, one year after the plaintiff purchased this property, the city enacted a zoning ordinance which imposes a minimum-lot-area requirement of 2500 square feet per dwelling unit. Since the lot area in question is only 7600 square feet, it is conceded that the provisions of the zoning ordinance are not satisfied. It is argued, however, that the plaintiff has a constitutionally protected right to continue his nonconforming use of the property. The instant controversy arises out of an application for a construction permit and brings for review a decision of the Board of Appeals ordering deconversion of the premises from seven apartments to three apartments.

We consider at the outset certain jurisdictional objections made by the defendants. It is contended that the plaintiff's appeal from the denial of two successive applications for a permit to make repairs was not timely. The Board's rules require that appeals from administrative decisions be brought within 90 days. Appeal in this case was filed on February 16, 1961, three days after the zoning administrator had rejected the second permit application. An earlier application had been denied on September 13, 1960, and was followed by an order, dated November 18, 1960, to deconvert the building. The defendants argue that, because of the similarity between the two permit applications, the first denial must be deemed the one from which appeal on direct appeal because the trial judge an attempt to confer jurisdiction on the Board to hear an appeal for which the filing time had elapsed. In addition, the defendants contend that this court lacks jurisdiction on direct appeal because the trdge made no express ruling on any constitutional question.

Both of these contentions must be rejected. It is, of course, clear that a valid time limit for appeal may not be defeated by the expedient of resubmitting the dispute for a new determination of issues already decided; and, in the instant case, the first permit application appears to differ from the second only in that the latter was filed by the plaintiff personally rather than by a contractor acting as his agent, and in that it modified the previous proposal for repairs in a manner so inconsequential as to have evidently no effect on their estimated cost. However, the plaintiff's complaint to the Board, and later to the circuit court, though labeled an appeal from the second denial of a permit, stated as the sole ground for reversal the alleged unconstitutionality of the order to deconvert. Accordingly, both the Board and the court treated this controversy as an appeal from the latter decision. We concur with that view of the case. Since the appeal filed on February 16, 1961, was made within 90 days of the November 18th deconversion order, the objection to the Board's jurisdiction is without merit.

It is also plain that the failure of the trial judge expressly to rule on the constitutional issues raised by the plaintiff does not preclude direct appeal to this court. The plaintiff insisted in the circuit court, as he had before the Board, that compulsory deconversion of the premises would result in an unconstitutional taking of property. The judgment below, in sustaining the order to deconvert, necessarily rejected that argument. If it were essential to our jurisdiction that a ruling on constitutional issues be explicit, the right of direct appeal would vary with differences of expression. Manifestly, what is required to bring a constitutional question to this court is merely that the issue be properly raised and an adverse judgment entered.

We turn, therefore, to the merits of the controversy. The Chicago zoning ordinance (art. 6, sec. 6.2) provides that 'Any non-conforming use, building or structure which existed lawfully at the time of the adoption of the comprehensive amendment or any subsequent amendment thereto, may be continued.' The issue in this case is whether the use of the plaintiff's property as a seven-apartment dwelling was a lawful one within the meaning of this provision and, if not, whether the application of the ordinance to that property is constitutional. The defendants argue that the use in question was not lawful because the conversion of the building from three apartments to seven apartments was made without a permit and because such a conversion violated provisions of the existing municipal code which, in relevant part, read: 'No multiple dwelling of wood frame construction shall contain more than four dwellings (section 48-38) * * * No building or structure shall be enlarged or increased in capacity or converted for any of the purposes of such units as described in chapter 51 of this code, unless the entire building or structure shall be made to conform to the requirements in the building provisions of this code for new buildings and structures. (Section 60-2.)' The plainiff in turn relies heavily on authorities which suggest that the failure to comply with formal permit requirements is 'cured when the work is proved' and is not incompatible with a legal nonconforming use.

Plaintiff's authorities, however, are not persuasive in the situation before us. Courts are closely divided on the question whether a failure to obtain a required permit which could have been lawfully issued is alone sufficient to preclude a status of valid nonconforming use. Compare Scavone v. Totowa, 49 N.J.Super. 423, 140 A. 238, with Mang v. County of Santa Barbara (1960), 182 Cal.App.2d 93, 5 Cal.Rptr. 724, and Smalls v. Board of Appeals, (1961), 28 Misc.2d 147, 211 N.Y.S.2d 212, aff'd 14 A.D.2d 548, 218 N.Y.S.2d 1005. But where, as here, a permit for alteration is not only unobtained, but legally unobtainable because the alterations are themselves unlawful, no right of nonconforming use can be acquired by doing the prohibited acts.

Heimerle v. Village of Bronxville, 168 Misc. 788, 5 N.Y.S.2d 1002, aff'd mem. 256 App.Div. 993, 11 N.Y.S.2d 367, is a case in point. The plaintiffs there, acting without a required certificate of occupancy, converted part of a frame residential building into a mortuary in a district where only fireproof and masonry buildings could then be erected. A provision in the building code forbade changes in the use of existing buildings except where the entire structure conformed to the requirements for new buildings. A dispute arose when a zoning ordinance was amended to exclude mortuaries from the district in question but made exceptions for 'lawfully existing' uses. Against the plaintiffs' assertion of a right of nonconforming use, the court held that violation of the building code and failure to obtain a certificate of occupancy made the use of the mortuary unlawful and subject to the new zoning provision. In so holding the court followed the commonly accepted rule that uses in violation of a statute are not protected under zoning clauses which exempt existing uses. See County of Cook v. Triem Steel & Processing, Inc., 19 Ill.App.2d 126, 153 N.E.2d 277; Arsenault v. City of Keene, (1962) 104 N.H. 356, 187 A.2d 60; Troutman v. Aiken, 213 Ga. 55, 96 E.2d 585; and 1 Yokley, Zoning Law and Practice,...