{ "id": 1585467, "name": "Theodore A. Allen, Plaintiff-Appellee, v. Board of Appeals of the City of Chicago, a Municipal Corporation, Defendants-Appellants", "name_abbreviation": "Allen v. Board of Appeals", "decision_date": "1969-12-31", "docket_number": "Gen. No. 53,376", "first_page": "376", "last_page": "381", "citations": [ { "type": "official", "cite": "118 Ill. App. 2d 376" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "221 NE2d 34", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "75 Ill App2d 347", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2577870 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/75/0347-01" ] }, { "cite": "166 NE2d 601", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "19 Ill2d 181", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2743693 ], "opinion_index": 0, "case_paths": [ "/ill-2d/19/0181-01" ] }, { "cite": "232 NE2d 816", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "89 Ill App2d 257", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2546753 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/89/0257-01" ] }, { "cite": "193 NE2d 856", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "43 Ill App 2d 440", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5246847 ], "pin_cites": [ { "page": "450" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/43/0440-01" ] }, { "cite": "254 NE2d 814", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "118 Ill App2d 264", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1585450 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/118/0264-01" ] } ], "analysis": { "cardinality": 525, "char_count": 9345, "ocr_confidence": 0.628, "pagerank": { "raw": 2.7410904063613664e-07, "percentile": 0.8319396227347617 }, "sha256": "4de5ecd8f14e97823fa9369d6fa0a9ca915183193d8bce5022de5e53e84a67a0", "simhash": "1:8b8e59e2e28da450", "word_count": 1547 }, "last_updated": "2023-07-14T22:40:02.100969+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Theodore A. Allen, Plaintiff-Appellee, v. Board of Appeals of the City of Chicago, a Municipal Corporation, Defendants-Appellants." ], "opinions": [ { "text": "MR. JUSTICE ENGLISH\ndelivered the opinion of the court.\nThis is an appeal from a judgment in favor of plaintiff, in an administrative review action, reversing a decision of the Board of Appeals which had denied plaintiff\u2019s application for a \u201cspecial use\u201d permit.\nAlthough plaintiff-appellee has failed to file a brief in this court, we will nevertheless consider the appeal on its merits. See Daley v. Jack\u2019s Tivoli Liquor Lounge, Inc., 118 Ill App2d 264, 254 NE2d 814.\nPlaintiff originally filed an application for a \u201cspecial use\u201d permit with the Zoning Administrator. This was denied on March 2, 1967, and he then appealed to the Board of Appeals. After a hearing, the Board of Appeals, oil June 5, 1967, also denied plaintiff\u2019s application.\nThe application concerns the premises located at 5910-12, 5916-18, and 5922-24 West 63rd Street, Chicago, and requests that plaintiff be allowed to erect one two-story brick, nine-dwelling-unit apartment building and two three-story brick, eight-dwelling-unit apartment buildings. The premises in question are vacant and are zoned under the Chicago Zoning Ordinance as B4-2, restricted service district.\nPlaintiff\u2019s complaint for administrative review, filed July 10, 1967, alleged that the decision of the Board of Appeals was insufficient in law and contrary to the zoning laws and \u201cto the law applicable to the evidence received by the Board upon the hearing.\u201d It further alleged that the City\u2019s reliance upon discriminatory ordinances in refusing to allow the proposed use deprived plaintiff of due process and equal protection of the law. Plaintiff asked that the order of the Board be reversed and that a permit be issued in accordance with his application.\nDefendants\u2019 answer to plaintiff\u2019s complaint included among the exhibits six letters from residents of the area in which plaintiff proposed to erect the structures. These letters specified the objections of the residents, indicating that the proposed buildings and the consequent influx of more people and more automobiles would result in serious parking problems and conditions inimicable to children. The answer asked that the Board\u2019s findings be affirmed.\nThe hearing before the Board of Appeals produced the following testimony. Plaintiff testified that his proposed buildings would, in essence, comply with B4 zoning requirements. He stated that he was unable to obtain mortgage loans to provide for stores on the first floor, one of the requirements of the existing B4-2 zoning, and there were few stores in the area and many vacant ones. He has constructed other buildings on the south side of the street. When asked why he didn\u2019t \u201cgo in for an amendment to R4 instead of B4-2,\u201d plaintiff replied that \u201csuch applications for amendments were denied right and left. In essence we are lining up with R4 pretty closely.\u201d\nHe testified further that he thought the buildings would help the neighborhood. Except for a dry cleaner, tavern, and beauty shop, the block where the property is located was vacant. A large group of stores is located on the north side of 63rd Street from Central (5600 West) to Menard (5800 West). He further testified that stores are \u201cgone\u201d and that apartments have \u201ctaken over\u201d because of the demand.\nA resident of the area then testified and presented a petition signed by 45 local residents who objected to the proposed building. He stated that parking for residents in the area was presently very congested and that the recent erection of a drive-in restaurant and the presence of a nearby church had aggravated the problem. An alley behind the property is also heavily used, and the proposed apartments would constitute an additional hazard to the children in the area.\nAlderman Kuta testified in favor of the proposal, saying that the buildings would be an asset. He stated that it would have been a better procedure had application been made to the City Council to rezone to R4, but said that these have always been turned down in that Ward, although lately a few such applications have been granted.\nA member of the Board of Appeals engaged in a brief dialogue with plaintiff and suggested that plaintiff\u2019s proposal would not be in compliance with zoning requirements even if the property were rezoned R4, and also that, contrary to plaintiff\u2019s assertions, there had been substantial opposition to his plans. Plaintiff agreed that there would be a parking problem, and could point out nothing in his architect\u2019s proposal which was designed to alleviate that problem. Plaintiff\u2019s only suggestion was that he would help combat the traffic hazard in the alley by putting guard rails in back of the parking area.\nPlaintiff urged upon the Board that without the additional units which would not be in compliance with present zoning, he could not \u201ccome out as well,\u201d and that to \u201cget a good return on our money\u201d the additional units covered by the special use application would be needed. Another board member commented to plaintiff that since plaintiff had developed other property in the area, he had known what the zoning laws were at the time he had purchased this property four months earlier. Plaintiff did not reply.\nThe Board of Appeals, in denying the application for the special use, found:\n\u201cthat the use contemplated is not necessary for the public convenience at this location; that the subject property is located in a highly developed area in which there are now many successful business uses in existence; that there are no vacant stores in this block; that the addition of dwelling units on the ground floor at this location will not contribute to the public health, safety and welfare in the community; that the business uses in the block are needed and should not be interrupted with dwelling units on the ground floor, . . . .\u201d\nThe Circuit Court found that the decision of the Board of Appeals was contrary to the manifest weight of the evidence because the record showed:\na. That the Special Use and zoning variation sought by plaintiff is necessary for the public convenience at the location in question;\nb. That the Special Use and zoning variation sought by plaintiff is designed, located and proposed so that the public health, safety, and welfare will be protected;\nc. That the Special Use and zoning variation sought by plaintiff will not cause substantial injury to the value of other property in the neighborhood in which it is to be located;\nd. That the Special Use and zoning variation sought by plaintiff is within the provisions of \u201cSpecial Uses\u201d as set forth in said Zoning Ordinance of the City of Chicago; and\ne. That the Special Use and zoning variation sought by plaintiff conforms to the' applicable regulations of the zoning district in which it is to be located.\nDefendants contend that plaintiff has failed to introduce evidence sufficient to warrant the granting of a \u201cspecial use.\u201d Specific standards governing the granting of a \u201cspecial use\u201d are found in section 11.10-4 of the Chicago Zoning Ordinance (Municipal Code of Chicago, c 194A, par 11.10-4), which states that \u201cno special use shall be granted by the Zoning Board of Appeals unless the special use:\n\u201c(1) a. Is necessary for'the public convenience at that location;\n\u201cb. Is so designed, located and proposed to be operated that the public health, safety and welfare will be protected; and\n\u201c(2) Will not cause substantial injury to the value of other property in the neighborhood in which it is to be located; and\n\u201c(3) It is within the provisions of \u2018Special Uses\u2019 as set forth in rectangular boxes appearing in Articles 7, 8,9, and 10; and\n\u201c(4) Such special use shall conform to the applicable regulations of the district in which it is to be located.\u201d\nThis language being in the conjunctive, an application for a \u201cspecial use\u201d has the burden of proving that the proposed use will meet all of the standards required by the ordinance. See International Harvester Co. v. Zoning Board of Appeals of City of Chicago, 43 Ill App 2d 440, 450, 193 NE2d 856; Pioneer Trust & Savings Bank v. County of McHenry, 89 Ill App2d 257, 232 NE2d 816; Kotrich v. The County of DuPage, 19 Ill2d 181, 166 NE2d 601; and Audino v. Board of Appeals of City of Chicago, 75 Ill App2d 347, 221 NE2d 34.\nOur study of the record and examination of the accompanying exhibits force us to the conclusion that plaintiff\u2019s proof failed to satisfy any of the ordinance requirements, let alone all of them. The decision of the Board of Appeals was clearly dictated by plaintiff\u2019s failure to meet his burden of proof in this regard, and we find nothing in the record to justify the Circuit Court\u2019s conclusion that the Board\u2019s decision was contrary to the manifest weight of the evidence. The judgment of the Circuit Court is therefore reversed and the cause remanded with directions to enter judgment affirming the Board of Appeals\u2019 denial of plaintiff\u2019s application for a special use.\nReversed and remanded with directions.\nDRUCKER, P. J. and STAMOS, J., concur.", "type": "majority", "author": "MR. JUSTICE ENGLISH" } ], "attorneys": [ "Raymond F. Simon, Corporation Counsel of City of Chicago (Marvin E. Aspen and Howard C. Goldman, Assistant Corporation Counsel, of counsel), for appellants.", "No brief for appellee." ], "corrections": "", "head_matter": "Theodore A. Allen, Plaintiff-Appellee, v. Board of Appeals of the City of Chicago, a Municipal Corporation, Defendants-Appellants.\nGen. No. 53,376.\nFirst District, Fourth Division.\nDecember 31, 1969.\nRaymond F. Simon, Corporation Counsel of City of Chicago (Marvin E. Aspen and Howard C. Goldman, Assistant Corporation Counsel, of counsel), for appellants.\nNo brief for appellee." }, "file_name": "0376-01", "first_page_order": 382, "last_page_order": 387 }