People ex rel. Joseph Lumber Co. v. City of Chicago

• Decision Date: 19 January 1949
• Docket Number: No. 30863.,30863.
• Citation: 402 Ill. 321,83 N.E.2d 592
• Parties: PEOPLE ex rel. JOSEPH LUMBER CO. v. CITY OF CHICAGO et al.
• Court: Illinois Supreme Court

402 Ill. 321

83 N.E.2d 592

PEOPLE ex rel. JOSEPH LUMBER CO.

v.CITY OF CHICAGO et al.

No. 30863.

Supreme Court of Illinois.

Jan. 19, 1949.

Appeal from Circuit Court, Cook County; Thomas J. Courtney, judge.

Mandamus by the People, on relation of Joseph Lumber Company, against City of Chicago and others, to compel commissioner of buildings of defendant city to examine building plans and specifications for a lumber yard and to issue a permit for proposed buildings, notwithstanding an amendment to zoning ordinance which changed the area involved from a manufacturing zone to a residential zone. From a judgment denying the writ, plaintiff appeals.

Reversed and remanded, with directions.

J. Herzl Segal and Werner W. Schroeder, both of Chicago, for appellant.

Benjamin S. Adamowski, Corporation Counsel, of Chicago (L. Louis Karton and Sydney R. Drebin, both of Chicago, of counsel), for appellees.

FULTON, Chief Justice.

This is an appeal from a judgment of the circuit court of Cook County denying a writ of mandamus sought by the Joseph Lumber Company, hereinafter referred to as plaintiff, and finding the issues for the city of Chicago, hereinafter referred to as defendant.

Plaintiff filed a complaint on January 22, 1948, to compel the commissioner of buildings of the defendant city to examine building plans and specifications for a lumber yard and to issue a permit for proposed buildings if the plans and specifications complied with all the valid building ordinances. The complaint in substance alleges that the plaintiff is an Illinois corporation, duly licensed by the city of Chicago to engage in the business of operating lumber yards; that on July 25, 1946, plaintiff purchased the property involved herein covering an entire city block, bounded on the south by the right of way of the Chicago, Milwaukee, St. Paul & Pacific railroad, on the west by Narragansett Avenue, on the north by Dickens Avenue, and on the east by Mobile Avenue; that plaintiff applied for and received a permit to construct and thereafter constructed a one-story office building upon the property; that on April 5, 1923, the Chicago zoning ordinance was passed, which ordinance has, from time to time, been amended; that on July 11, 1946, the zoning for residence use was changed to manufacturing; that at the time of the purchase of the property in question by the plaintiff on July 25, 1946, it was zoned for manufacturing use and that one of the uses permitted in such a district is a lumber yard; that plaintiff purchased this property in reliance upon the fact that the same was zoned for manufacturing; that on June 25, 1947, the zoning ordinance of the defendant city was amended changing the use of the property involved from manufacturing back to family residence; that on December 29, 1947, plaintiff applied to the building commissioner of the defendant city for a permit to construct a lumber yard upon the property and filed plans and specifications which, in all respects, complied with the provisions of the building code; that the building commissioner refused to approve such application upon the ground that the property was zoned for family residence under the amendatory ordinance of June 25, 1947, and that such improvements were not permissible because section 19 of the ordinance prohibits the extension of a nonconforming use; that the amendatory ordinance of June 25, 1947, as applied to plaintiff's property, is void and results in a denial to the plaintiff of equal protection of the laws and deprives the plaintiff of property rights without due process of law.

The defendant's answer to the complaint admits the corporate status of the plaintiff; that the plaintiff is licensed to operate lumber yards in the defendant city; admits the purchase of the property involved; admits the existence of the Chicago zoning ordinance and also that at the time of the purchase of the property by the plaintiff, said property was zoned for manufacturing use, which includes use as a lumber yard; admits that plaintiff purchased the property in reliance upon the fact that it was zoned for manufacturing use; admits the passage of the amendment to the zoning ordinance on June 25, 1947, and denies that said ordinance is void. The answer also admits the filing and denial of the application for a permit, but denies that the plaintiff made application in form prescribed by the commissioner of buildings or that plaintiff had otherwise complied with requirements of the municipal code of Chicago. The answer further states that all other allegations of the complaint are conclusions of law and arguments which the defendant city is not required to answer.

The evidence in the record discloses that the property in question covers an area of 346,000 square feet or approximately 8 acres, having a frontage of 597 feet on Dickens Avenue and the railroad right of way, and 579 feet frontage on Narragansett Avenue and Mobile Avenue.

On Narragansett Avenue is a bus line with heavy traffic. The busses are electric feeder busses, operating from trolley wires and during the day they run every 8 or 10 minutes, with more frequent service being provided during the rush hours. A traffic count made on March 3, 1948, showed that between 8 A.M. and 6 P.M. 1,888 passenger cars and 402 trucks passed the property on Narragansett Avenue. On Dickens Avenue, passing the same property, there were 362 passenger cars and 57 trucks. Spot checks made about once a week since 1946 showed a count of about 4 cars per minute passing the subject tract on Narragansett Avenue.

There are five railroad tracks along the line of railway west of Narragansett Avenue. At Narragansett Avenue the tracks increase to twelve in number and occupy an area 400 feet in width. To the east of Narragansett Avenue these tweleve double tracks increase to 49 tracks in the yards at Galewood and in these yards there is a roundhouse used for the storage and repairing of engines. The Galewood station of the railroad is just east of Narragansett Avenue with 42 passenger trains passing this station daily. Also, using the tracks past the property in question there are 50 scheduled freight movements and approximately 15 or 20 unscheduled and irregular train movements daily. The use district map No. 12, showing the zoning of the entire area under the 1923 ordinance discloses that all of the property from Central Avenue on the east to Oak Park Avenue on the west along the railroad right of way was zoned for manufacturing purposes, as well as a strip partially bordering on Narragansett Avenue from the right of way to the north to Diversey Avenue. At this time the subject property, with the exception of 125 feet on Dickens Avenue and a small strip on Narragansett Avenue, was zoned for manufacturing and the except strips were zoned for commercial use. The use district map of 1942, whereby the property in question was zoned for single-family use, discloses that the only change over the 1923 map relates to the subject property and the portion occupied by the Burbank elementary school, which was constructed in 1930. The evidence indicates that all of the area shown on both the 1942 and 1923 use maps has been taken over by manufacturing companies, and that the entire area along the railroad right of way, with the exception of the subject property, the property occupied by the school, and two blocks bordered by Narragansett Avenue on the east, Natchez Avenue on the west, Dickens Avenue on the north, and McLean Avenue of the south, has either been completely occupied by manufacturing plants of all types, or has remained vacant.

Harry Joseph, the president of the plaintiff company, testified, as to matters germane to the issues here, that he purchased the property for $68,000 on July 25, 1946, when the property was unimproved; that he erected an office building at a cost of approximately $5000, but that he wished to use the property for a lumber yard, and improvements would run about one-half million dollars. He further stated that he first became acquainted with the property early in 1946, and did not buy it at that time because it was zoned for residential purposes. When he discovered the property had been rezoned for manufacturing, he bought the property with the intention of using it for the operation of a wholesale and retail business, and that his firm had no other use for that property. He further stated that approximately 100 automobiles use his present yard for business purposes, and that his trucks make a total of 36 deliveries per day, or a total of 136 deliveries in and out of his yard each day. This would hold true in the new location.

The witnesses produced by the defendant, other than expert testimony, consisted of residents of the neighborhood who testified that they built their homes in the area in reliance on the single-family zoning of the neighborhood; that their children attend school at the Luther Burbank School, and that they objected to a lumber yard occupying the property in question. These witnesses further stated that they felt that a lumber yard would affect the safety of the children attending the school.

Photographs were introduced by both parties to the cause showing the tracks, the vacant property, the manufacturing areas, the school, residences on the west side of Narragansett Avenue and residences on Mulligan Avenue, which is north of Dickens Avenue. An aerial photograph of the area in question was also introduced, beginning at a point approximately 14 or 15 blocks west of Narragansett Avenue, and reaching a point of approximately the same number of blocks to the east of Narragansett. The photograph shows an area of three or four blocks south of the railroad right of way at Narragansett Avenue and to the north of the railroad right of way, a distance of five or more blocks. This photograph, which is numbered as plaintiff's exhibit 21, shows that the railroad right of way enters the territory from the northwest,...