Hoerdt v. City of Evanston

• Decision Date: 25 February 1942
• Citation: 241 N.E.2d 685,99 Ill.App.2d 307
• Parties: August HOERDT as Trustee and Ross S. Welch as Successor Trustee under Trust Agreement dated
• Court: United States Appellate Court of Illinois

Page 685

241 N.E.2d 685

99 Ill.App.2d 307

August HOERDT as Trustee and Ross S. Welch as Successor Trustee under Trust Agreement dated February 25 1942 and known as Trust No. 102 Plaintiffs-Appellants, v. CITY OF EVANSTON, a Municipal Corporation, Buell Dutton and Wayne Anderson, Defendants-Appellees.

Gen. No. 52166.

Appellate Court of Illinois, First District.

Aug. 5, 1968.

Rehearing Denied Oct. 28, 1968.

Ross S. Welch, Chicago, for appellants.

Jack M. Siegel, Chicago, for appellees.

TRAPP, Justice.

Plaintiffs appeal from the order of the trial court which dismissed an action for a declaratory judgment, entering judgment in favor of the defendants, and against the plaintiffs. The complaint prayed that defendants be directed to issue a building permit, that the mandatory zoning ordinance of the City of Evanston be held inapplicable to plaintiffs' property, and that said City be restrained from enforcing such ordinance as to plaintiffs' premises.

It is alleged that plaintiffs, as trustees, acquired title to a parcel described as the East 20 feet of Lot 14 in Block 37 in a specified sub-division of blocks in 1949. The parcel has a frontage on Central Street in Evanston of approximately 20 feet and an approximate depth of 155 feet. It is further alleged that such parcel is unimproved 'and is not used for any purpose whatsoever', and that such parcel adjoins Lots 12 and 13 upon which is built an apartment building with 30 apartment units acquired by the plaintiff trustees in 1942.

The answer denies that the described 20 foot parcel is unused and alleges that it was, in fact, used as accessory to the apartment building. There is a denial that the parcel was acquired by the trustees separately from the apartment building in 1949. Nothing in the pleading or the record clarifies such issue as the stipulation in the record only states that 'it appears' that title to the respective parcels was acquired on the respective dates.

An issue is whether or not the two described parcels are separate in development of title and unrelated in use, and continued to be so disparate at the time of disposition in the trial court.

Plaintiffs allege that the City of Evanston first adopted an off-street parking ordinance applicable to the apartment building, then zoned commercial, in 1952. It is argued that such apartment building, at that time, became a non-conforming use.

It is alleged that on March 15, 1963, plaintiffs applied for a building permit to construct a two-story office and apartment building; that objections were made to the plans submitted, but the revised plans and application were denied in 1963 because of inadequate off-street parking provisions. Plaintiffs then filed for a variation before the Zoning Board of Appeals. Such application was denied in October, 1963, because of the non-conforming provisions for parking on the 20 foot parcel, and because of accessory use of such parcel with the apartment building.

It is alleged that, thereafter in April, 1965, plaintiffs again submitted plans for a generally similar building on the 20 foot parcel with an application for a building permit, but that such was refused 'in spite of the circumstances that such plans conformed in all respects with the zoning ordinances'.

The complaint alleges that in June, 1964, the zoning ordinance of Evanston was amended to provide:

'Where two or more adjoining lots shown in a plat properly recorded with the office of County Recorder have been held in common ownership at any time subsequent to the effective date of this ordinance and use of such adjoining lots as a single parcel would meet the requirements of this ordinance, the ownership of said lots shall not be separated nor shall any of the lots be used in any way to conflict with the regulations of this ordinance. No building permits shall be issued for the use of any lot or portion of lot sold, transferred or conveyed in violation of the provisions of this section.'

It is the apparent theory of the argument and the pleadings that plaintiffs acquired a right to a building permit upon the 20 foot parcel at the time of the application in 1963, but that the ordinance as amended in 1964 was employed to 'tack' or attach the 20 foot parcel to the apartment building for zoning purposes as an 'after the fact' amendment with the result that (1) the 20 foot parcel is taken without just compensation or due process when the public welfare did not require such restriction on plaintiffs' use of the land, and (2) the plaintiffs are injured in that a right in a non-conforming use of the apartment building was lessened, or reduced in scope. Defendants' answer alleges multiple affirmative defenses including: that an ordinance adopted in 1940, which required parking spaces on the premises or adjoining property, was effective to control both the apartment building and the parcel when plaintiffs acquired such property in 1942 and 1949; that an ordinance adopted in 1960 provided:

'Parking spaces accessory to buildings and uses which exist on the effective date of this ordinance shall not be reduced to less than the number required under this Section X for buildings hereafter erected.',

and that the 20 foot parcel had been used since purchase as an accessory use including off-street parking to the apartment building on Lots 12 and 13.

Such answer further alleges that the zoning ordinance as amended in 1963 provided in § 42--108 that no building permit should issue unless an approved recorded plat of the area was submitted with the application for the permit, and that no such instrument had been submitted. A plat identified as Plaintiffs' Exhibit No. 6, contained in the supplemental abstract, shows neither approval nor recording on its face, and there is nothing in the record upon the issue.

As a further affirmative defense, it is alleged that under an ordinance effective in 1960 the apartment building on Lots 12 and 13 became non-conforming in the required lot area for such number of dwelling units, and as to the area for each dwelling unit. Defendants deny that the plaintiffs acquired a right to build on the 20 foot parcel prior to the amendment of 1964, relating to 'common ownership'.

The reply filed by plaintiffs admits that the 20 foot parcel is used for drying laundry and the parking of automobiles, albeit characterized as occasional and random; it denies that § 42--108 of the ordinance (requiring an approved recorded plat to be on file before a building permit is issued) is germane, as the conveyance of the 20 foot parcel did not involve a subdivision. There is no reply to the affirmative defenses relating to the amendment of 1960 prohibiting the reduction of accessory parking spaces, and no reply to the allegations of the answer as to the non-conforming use of the apartment as to area.

This appeal is considered in the light of the nature of proceedings for declaratory judgment. The award or denial of relief, even where the controversy or some part of it will be settled, is discretionary with the court. Chap. 110, § 57.1 and Comment to Sub-section (1), Smith-Hurd Annotated Statutes. State Farm Mutual Automobile Ins. Co. v. Morris, 29 Ill.App.2d 451, 173 N.E.2d 590. That opinion holds that dismissal of the action is an appropriate judicial method of declining to grant relief; that procedure in declaratory judgment provides cumulative and additional remedies, but it neither provides a substitute for existing remedies nor creates new substantive rights. Interlake Iron Corp. v. Dravo Corp., 68 Ill.App.2d 167, 215 N.E.2d 137. The court's discretion is as to whether to enter or to decline to enter judgment. State Farm Mutual Automobile Ins. Co. v. Morris, and the issue upon appeal is whether there was such an abuse of discretion by the trial court as to require a reviewing court to intervene. Interlake Iron Corp. v. Dravo Corp.

Nothing in the record discloses what was passed upon by the trial court in the disposition of the several affirmative defenses. From the record presented we conclude that the trial court could very well have determined that the apartment building was non-conforming as to off-street parking under the ordinance of 1940; that the ordinance of 1960, prohibiting the reduction of accessory parking space, was applicable and authorized denial...