Bjork v. Safford

• Decision Date: 07 February 1929
• Docket Number: No. 19107.,19107.
• Citation: 164 N.E. 699,333 Ill. 355
• Parties: BJORK v. SAFFORD et al.
• Court: Illinois Supreme Court

333 Ill. 355

164 N.E. 699

BJORK

v.SAFFORD et al.

No. 19107.

Supreme Court of Illinois.

Dec. 20, 1928.

As Modified, on Denial of Rehearing, Feb. 7, 1929.

The zoning board of appeals of the village of Lake Bluff refused the application of David T. Bjork for a building permit, and he presented the case to the county court on writ of certiorari. From judgment ordering the issuance of the permit, the members of the Board of Appeals appeal.

Affirmed.Appeal from County Court, Lake County; Perry L. Persons, judge.

Max Przyborski, of North Chicago, and Daniel Riley McMaster, of Chicago (Walter F. Dodd and Henry P. Chandler, both of Chicago, of counsel), for appellants.

Marshall & Marshall, of Rock Island (Alexander H. Marshall, of Chicago, of counsel), for appellee.

HEARD, J.

This is an appeal by the zoning board of appeals of the village of Lake Bluff from a judgment of the county court of Lake county reversing the decision of that board and ordering the issuance of a building permit to appellee. The case was presented to the trial court on writ of certiorari, as provided by the Zoning Act. The trial court has certified that the validity of a municipal ordinance is involved, and that the public interest requires that the case be taken directly to this court.

Lake Bluff is a suburban residential community on the shore of Lake Michigan of about 1,500 inhabitants, lying about 30 miles north of Chicago, and is largely a one-family dwelling community, with no manufacturing, and a small local business area. The zoning ordinance of Lake Bluff came into effect on January 8, 1924, and has remained unchanged since that date. Five types of districts were created, ‘A,’ ‘B’ and ‘C’ residence districts, and business districts and commercial districts. The bulk of the village area is zoned in ‘A’ and ‘B’ residence districts for single family dwellings. Flats are expressly permitted in ‘C’ residence districts, business districts, and commercial districts. The property here involved belonging to appellee is in the ‘C’ residence district, as to which it was provided by the zoning ordinance: ‘No dwelling or group of dwellings shall hereafter be erected or altered to accommodate or make provision for more than fourteen (14) families on any acre of land, nor make provision for more than a proportional number of families on a fractional part of any acre of land.’ The lots in question are at the northwest corner of Center and Oak avenues. The village hall is immediately west of the lots. The fire station and jail are in the village hall. In the block there are three buildings which have stores on the lower floors and apartments on the second floor. North of the property there are stores that face the street north of it. These stores are barber shops and grocery stores. On the street west of the property there are four or five stores, including a drug store, hardware store, apparel store, electric shop, real estate office, and a vacant store building.

On November 10, 1927, appellee applied to the building commissioner of the village of Lake Bluff for a permit to erect an eighteen-apartment building upon the lots in question. The area of the lots is slightly less than 28/100 of an acre, and would have been entitled to accommodate only four families under the ordinance restriction of fourteen families to an acre, if the restriction applies to flats. The building commissioner, in writing, rejected the application for a permit on November 19, 1927, on the ground that it did not comply with the zoning ordinance as to intensity of use, stating that other features of the plan had not been examined. On December 2, 1927, appellee filed a written appeal with the zoning board of appeals of Lake Bluff asking that a building permit be issued, and accompanied this appeal with a statement from certain owners of neighboring property consenting to the use desired by appellee. On December 7, 1927, notice was given to appellee that his petition would be considered on December 12, 1927, at which time he appeared and was heard. The board of appeals, at a meeting on March 7, 1928, denied appellee's appeal on the ground that no practical difficulties or unnecessary hardship had been shown to warrant the varying or modifying of the application of the ordinance. On March 27, 1928, appellee filed in the county court of Lake county a petition for the statutory writ of certiorari to review the decision of the board of appeals. A return to this writ was made, and evidence was heard, which is in the record before this court.

It is contended by appellee that the fourteen-family restriction contained in the ordinance does not apply to flats, and that, if it be construed to apply to them, the ordinance is unreasonable, discriminatory, unconstitutional, and invalid. ‘The privilege of every citizen to use his property according to his own will is both a liberty and a property right. ‘Liberty’ includes not only freedom from servitude or restraint, but also the right of every man to be free in the use of his powers and faculties, to pursue such occupation or business as he may choose, and to use his property in his own way and for his own purposes, subject only to the restraints necessary to secure the common welfare. Ruhstrat v. People, 185 Ill. 133 [57 N. E. 41,49 L. R. A. 181, 76 Am. St. Rep. 30];Frorer v. People, 141 Id. 171 [31 N. E. 395,16 L. R....