Gilmore v. County of Du Page

567 N.E.2d 1111, 209 Ill. App. 3d 66, 153 Ill. Dec. 884, 1991 Ill. App. LEXIS 253
CourtAppellate Court of Illinois
DecidedFebruary 22, 1991
Docket2-90-0589
StatusPublished
Cited by2 cases

This text of 567 N.E.2d 1111 (Gilmore v. County of Du Page) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gilmore v. County of Du Page, 567 N.E.2d 1111, 209 Ill. App. 3d 66, 153 Ill. Dec. 884, 1991 Ill. App. LEXIS 253 (Ill. Ct. App. 1991).

Opinion

JUSTICE DUNN

delivered the opinion of the court:

The plaintiffs, Dr. Jeffrey C. Gilmore and Esther Gilmore, appeal a circuit court judgment affirming the determination of the Du Page County zoning board of appeals (Board) that the plaintiffs’ use of part of their home as a dentist’s office violated a 1980 amendment to the Du Page County zoning ordinance that restricts the use of property in single-family residential districts for “home occupations.” The issue before us is whether the Board erred in holding that the plaintiffs’ conversion of an addition to their house from a chiropractor’s office to a dentist’s office was a prohibited change from one nonconforming use to another and not the continuation of a lawful prior nonconforming use. We affirm.

The plaintiffs own a single-family residence at 2601 Maple Avenue in unincorporated Downers Grove. They purchased the house from Dr. Kowalkiewicz, a chiropractor, in December 1987. From 1972 until a few months before he sold the house to the plaintiffs, Dr. Kowalkiewicz used an addition measuring approximately 700 square feet as a chiropractor’s office.

On or about September 23, 1988, the plaintiffs, without obtaining a special use permit from the county, started to use part of the addition as a dentist’s office. On September 23, 1988, a county deputy zoning officer issued notice to the plaintiffs that they were violating the zoning ordinance by operating a dental office on property zoned R-4 (single-family residential district). The plaintiffs appealed, and on November 17, 1988, the Board held a hearing on the appeal. On December 12, 1988, the Board ruled that the plaintiffs’ use of the property violated the 1980 amendment to the county zoning ordinance and could not be validated as the continuation of the prior lawful nonconforming use of the addition as a chiropractor’s office. The circuit court affirmed the Board's decision on administrative review.

Most of the evidence in this case is undisputed. The parties stipulated before the administrative hearing that up until the amendment of the zoning ordinance on July 18, 1980, the use of the addition for the chiropractor’s office was lawful under the following provision of the zoning ordinance allowing for the operation of “home occupations” in residential districts:

“HOME OCCUPATION. Any gainful occupation or profession engaged in by the occupant of a dwelling at or from the dwelling. *** Permissible home occupations include but are not limited to the following: art studio; dressmaking; professional offices of a clergyman, lawyer, physician, dentist, architect, engineer, or accountant, when located in a dwelling unit occupied by the same.” Du Page County Zoning Ordinance §11 (19-)■

On July 18, 1980, the zoning ordinance was amended to limit home occupations permissible in single-family residential districts to those which, inter alia, “[are] operated in [their] entirety within the residence (not any accessory building) and only by the person or persons residing therein,” do not have “a separate entrance from outside the building,” do not “exceed three hundred (300) square feet in area,” and do not “utilize mechanical or electrical equipment other than the type normally found in the single-dwelling unit.” (Du Page County Zoning Ordinance §11 (amend. 1980).) The parties agree that neither the chiropractor’s office nor the dentist’s office is a permitted home occupation under the code as currently in force and that the use of the addition as a chiropractor’s office was a legal nonconforming use under the ordinance.

Section 37 — 5.2—8 of the zoning ordinance also provides:

“The nonconforming use of land, not involving a structure or building, or in connection with any building or structure thereon, is incidental or accessory to the principal use of the land, may be continued subject to the following:
* * *
c. The nonconforming use of land shall not be changed to any other use except to a use permitted in the district in which the land is located.” Du Page County Zoning Ordinance §37 — 5.2—8 (19-)•

At the administrative hearing, Dr. Gilmore testified that he had had dental equipment installed in his office in July and started seeing patients as of October 14, 1988. He was not yet busy enough to have established a regular schedule, but, as his primary occupation was as a professor at Northwestern University’s Dental School, he planned to see patients at his home office from about 6 p.m. to 8 p.m. on some weekdays and from about 9 a.m. to 2 p.m. on Saturdays. At the time of the hearing his office consisted of a reception room, an operatory with a dental chair and other equipment, and a laboratory.

Dr. Gilmore contrasted his use of the premises with the previous use by Dr. Kowalkiewicz. The chiropractor’s office had taken up the entire addition; the dental office used only about half as much space, 380 square feet, at best. Dr. Kowalkiewicz employed four assistants, could see up to three patients at once, and often had his parking lot filled. At the time of the hearing Dr. and Mrs. Gilmore were the entire dental office staff; although Dr. Gilmore expected to hire a receptionist eventually, he would normally be able to see only one patient at a time, and his parking lot would likely have no more than two patients’ cars in it at one time. Dr. Gilmore stated that his office used the same plumbing and electrical work as did the chiropractor’s office and that the house electric current was adequate to supply the dental office. Dr. Gilmore admitted that he did not know whether the chiropractor’s office had been open evenings and weekends. He stated that he was not allowed to dispense drugs but would be writing prescriptions where appropriate and would administer anesthetics to patients in the course of treatment. He stated that it was possible that he would encounter a medical emergency from a patient’s adverse reaction to the anesthetics.

Two of the Gilmores’ neighbors, each of whom had lived in the area for over 20 years, testified that Dr. Gilmore moved into the house less than a year after Dr. Kowalkiewicz moved out, that Dr. Gilmore appeared to be seeing fewer patients than had Dr. Kowalkiewicz, and that the presence of Dr. Gilmore’s office in the neighborhood had not brought any additional noises or smells and had not in any way made the residence at 2601 Maple Avenue less attractive for the neighborhood. Dr. Gilmore stated that none of his neighbors had objected to his use of the premises for his dental office. The Board received into evidence a letter dated November 16, 1988, from Betty M. Cheever, mayor of the Village of Downers Grove, stating that the plaintiffs’ use of the property appeared to be in compliance with the village’s regulations regarding home occupations.

Dr. Wayne Jacobson, a dentist who had practiced in his home until recently, testified that he was familiar with the type of dental equipment used by Dr. Gilmore and that such equipment would require installation of special plumbing. He acknowledged, however, that he had not visited Dr. Gilmore’s office.

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Related

Smith v. Town of Normal
605 N.E.2d 727 (Appellate Court of Illinois, 1992)
Gilmore v. Kowalkiewicz
600 N.E.2d 492 (Appellate Court of Illinois, 1992)

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Bluebook (online)
567 N.E.2d 1111, 209 Ill. App. 3d 66, 153 Ill. Dec. 884, 1991 Ill. App. LEXIS 253, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gilmore-v-county-of-du-page-illappct-1991.