Opinion
Gen. No. 44,114.
Opinion filed February 25, 1948. Rehearing denied March 25, 1948. Released for publication March 25, 1948.
1. BUILDINGS AND BUILDING RESTRICTIONS, § 44.4 — abatement of use constituting nonconforming use. Where evidence, adduced before zoning board of appeals and trial court on certiorari brought by property owners to review order of board directing lessees' use of premises be abated, clearly showed that, although processes used by lessees in manufacturing fuel and water tanks were similar to processes used previously by property owner in manufacturing water boilers, lessees' use constituted nonconforming use different from that of owner, that it disturbed peace and comfort of residents in vicinity in violation of ordinance, and that no such disturbances were complained of when owner conducted business, order of trial court sustaining decision of board and quashing writ was proper.
See Callaghan's Illinois Digest, same topic and section number.
2. BUILDINGS AND BUILDING RESTRICTIONS, § 44.4fn_ — right of lessees of nonconforming user. Lessees have right to use premises for nonconforming use to extent of prior nonconforming use of lessor, but city has power to limit extension of such nonconforming use.
Appeal by plaintiff from the Circuit Court of Cook county; the Hon. JOHN PRYSTALSKI, Judge, presiding. Heard in the third division of this court for the first district at the April term, 1947. Affirmed. Opinion filed February 25, 1948. Rehearing denied March 25, 1948. Released for publication March 25, 1948.
JOHN D. O'CONNOR, of Chicago, for appellants.
BARNET HODES, Corporation Counsel, for appellees; J. HERZL SEGAL, Head of Appeals and Review Division and HERMAN SMITH, Assistant Corporation Counsel, of counsel.
Plaintiffs filed a petition for a writ of certiorari in the circuit court of Cook county to review an order entered by the zoning board of appeals of the City of Chicago which directed that the use of the premises involved in this proceeding be abated. The circuit court affirmed the decision of the board of appeals and quashed the writ. Plaintiffs appealed directly to the Supreme Court of Illinois and there urged as grounds for reversal that the city zoning ordinance in question as applied to the facts of the instant case violates rights of plaintiffs protected by the State and Federal constitutions. The Supreme Court upon holding that none of the grounds stated in plaintiffs' petition for writ of certiorari included a constitutional question, transferred the cause to this court. Dube v. Allman, 396 Ill. 470.
Plaintiff Luella Dube is the present owner of the premises in controversy which are commonly known as 1244 East 73rd street, Chicago, and are located on the north side of 73rd street and adjoin the east side of the Illinois Central Railroad right-of-way. For about fifty years her husband Theophiloris Dube manufactured garbage burners, hot water boilers, and small boilers, and made boiler repairs on the premises. During this period he usually employed three men. On June 17, 1944, Theophiloris Dube and Luella, his wife, leased the premises to plaintiffs who went into immediate possession. After taking possession plaintiff lessees made gun turrets for M-4 army tanks and gun recoils until the summer of 1945. Thereafter they manufactured fuel tanks for Diesel locomotive engines and water tanks. Since plaintiff lessees have taken possession of the premises they have employed continuously about forty or fifty men.
Under section 12 of the Chicago zoning ordinances as amended December 3, 1942, the uses of the premises permitted under the ordinance are "manufacturing, processing, packing, bottling, and distributing of cement products; ice; ink; and metal products (excepting smelting by employment of cupola, snap riveting, and processes used in bending and shaping which produce noises disturbing the peace and comfort of occupants of adjacent premises); . . . ." It is not disputed that under the city zoning ordinance the premises in question are located in a manufacturing district, and that under section 19 of the ordinance any lawful use of the property on the effective date of the ordinance which is a nonconforming use is permitted thereafter.
The question of fact presented is whether the present use by plaintiff lessees is the same as the prior use by Dube.
Residents of the area along 73rd street lying east of Kimbark avenue, which is the first intersecting street east of the premises, charge plaintiffs with violation of the foregoing ordinance as to the use of the premises. On September 25, 1945, John M. Sheehan and other residents in the neighborhood appealed to the zoning board of appeals from an adverse decision of the commissioner of buildings of the City of Chicago. Upon a hearing the board of appeals found "that the premises affected are located in a manufacturing district; that the processes used in bending, grinding, chipping and hammering of metals produce noises disturbing the peace and comfort of occupants of adjacent premises and that a violation of the zoning ordinance exists and is contemplated."
In the certiorari proceedings in the circuit court additional evidence was heard as to whether plaintiffs lessees' use of the premises was the same as it had been by Dube. From an examination of the record we think the evidence adduced before the board of appeals and the trial court clearly shows that immediately after the plaintiff lessees went into possession of the premises the operation and conduct of their business constituted a different nonconforming use; that the noises emanating from plaintiff lessees' plant disturb the peace and comfort of the residents in the vicinity, many of whom appeared as complaining witnesses, and that during the period Dube conducted his business there no such disturbances as here complained of were made. Since the substance of the testimony of the witnesses who appeared before the board of appeals and at the certiorari hearing in the circuit court appears in the opinion of the Supreme Court ( 396 Ill. 470) it would serve no useful purpose to recite it again.
No doubt plaintiff lessees have a right to use the premises for a nonconforming use to the extent of the prior use by Dube. But, on the other hand, the city has the power to limit the extension of a nonconforming use. ( Mercer Lumber Co. v. Village of Glencoe, 390 Ill. 138.)
For the reasons stated, the order sustaining the decision of the board of appeals and quashing the writ is affirmed.
Affirmed.
KILEY and BURKE, JJ., concur.