City of Aurora v. Burns, No. 16137.

• Court: Supreme Court of Illinois
• Writing for the Court: DE YOUNG
• Citation: 149 N.E. 784,319 Ill. 84
• Docket Number: No. 16137.
• Decision Date: 16 December 1925
• Parties: CITY OF AURORA v. BURNS et al.

319 Ill. 84
149 N.E. 784

CITY OF AURORA
v.
BURNS et al.

No. 16137.

Supreme Court of Illinois.

Dec. 16, 1925.

Suit by the City of Aurora against Robert Burns and another. Decree for plaintiff, and defendants appeal.

Affirmed.

Farmer and Duncan, JJ., dissenting.

[319 Ill. 85]Appeal from City Court of Aurora; E. M. Mangan, Judge.

[149 N.E. 785]

John M. Raymond and Charles O'Connor, both of Aurora (Haight, Adcock, Haight & Harris, of Chicago, of counsel), for appellants.

Maurice F. Lord, Corp. Counsel, Theodore Worcester, and Hugh Parker, all of Aurora (Horace Kent Tenney, S. Ashley Guthrie, Walter D. Herrick, John Lyle Vette, Frank T. Murray, Henry Porter Chandler, and Walter F. Dodd, all of Chicago, of counsel), for appellee.

Francis X. Busch and Leon Hornstein, both of Chicago, amici curiae.

DE YOUNG, J.

The city of Aurora on January 3, 1924, filed its bill in the city court against Robert Burns and Albert W. De Latour, alleging that the city council on May 9, 1923, passed the building zone ordinance; that Burns and De Latour conducted several grocery stores in Aurora known as Piggly Wiggly stores, and had under construction at the northwest corner of Chestnut and Walnut streets a building, all or a part of which was designed as and intended to be used for a grocery store; that the site of the proposed building was located in a portion of the city zoned as B residential district, and that the operation and maintenance of a grocery store in that district were prohibited. The prayer was for an injunction restraining the defendants from prosecuting the construction of the building as a grocery store, and from their use of the building in any way violative of the building zone ordinance. Burns and De Latour filed an answer, in which they averred, on various grounds, that the ordinance, and the statute by authority of which the ordinance was passed, were void, and that in consequence the city was not entitled to the relief sought. A hearing was had, [319 Ill. 86]in which, among other things, it was shown that more than seven months of study and planning, with the aid of expert advice, had been given to the subject before the zoning ordinance was passed. A decree followed, which sustained the allegations of the bill, and found that the district in question was characteristically a residential neighborhood, in which private dwellings for one or two families predominated; that scattered through the district were 12 grocery stores; that the ordinance stabilized the value of property and promoted both the permanency of desirable home surroundings and the general welfare of the citizens of Aurora; that the use of the premises for grocery store purposes would increase the fire and police hazards, and would affect deleteriously the health of the inhabitants of the neighborhood; that the ordinance did not deny Burns and De Latour the equal protection of the laws or deprive them of their property without due process of law or just compensation therefor; that, so far as Burns and De Latour were concerned, the ordinance was not monopolistic, unreasonable, discriminatory, or oppressive, and that it was uniform in its operation and a lawful exercise of the police power of the city. The decree concluded by enjoining Burns and De Latour from constructing or using the building in violation of the provisions of the ordinance. They prosecute an appeal directly to this court because the case involves the validity of a statute and of a municipal ordinance, and with respect to the latter the chancellor has certified that the public interest requires that the appeal shall be so taken.

Section 1 of the act pursuant to which the ordinance was passed, provides:

‘In addition to existing powers, and to the end that adequate light, pure air and safety from fire and other dangers may be secured, that the taxable value of land and buildings throughout the city, village or incorporated town, may be conserved, that congestion in the public streets may be lessened or avoided, and that the public health, [319 Ill. 87]safety, comfort, morals and welfare may otherwise be promoted, the city council in each city, and the president and board of trustees in each village and incorporated town shall have the following powers: To regulate and limit the height and bulk of buildings hereafter to be erected; to regulate and limit the intensity of the use of lot areas, and to regulate and determine the area of open spaces, within and surrounding such buildings; to classify, regulate and restrict the location of trades and industries and the location of buildings designed for specified industrial, business, residential and other uses; to divide the entire city, village or incorporated town into districts of such number, shape, area and of such different classes (according to use of land and buildings, height and bulk of buildings, intensity of the use of lot areas, area of open spaces, or other classification) as may be deemed best suited to carry out the purposes of this act; to fix standards to which buildings or structures shall conform therein; to prohibit uses, buildings or structures incompatible with the character of such districts respectively; and to prevent additions to and alteration or remodeling of existing buildings or structures in such a way as to avoid the restrictions and limitations lawfully imposed hereunder. In all ordinances passed under the authority of this act, due allowance shall be made for existing conditions, the conservation of property values, the direction of building development to the best advantage of the entire city, village or incorporated town, and the uses to which property is devoted at the time of the enactment of any such ordinance. The powers by this Act given shall not be exercised so as to deprive the owner of any existing property of its use or maintenance for the purpose to which it is then lawfully devoted.’ Laws of 1921, p. 180.

Section 2 (Laws of 1921, p. 181), provides for a zoning commission, whose duty it shall be to recommend the boundaries of districts and appropriate regulations to be enforced[319 Ill. 88]therein. The commission is required to prepara

[149 N.E. 786]

a tentative report and a proposed zoning ordinance for the entire municipality. After the preparation of such report and ordinance the commission shall hold a hearing thereon and afford persons interested an opportunity to be heard. At least 15 days' notice of such hearing shall be given by publication in a newspaper of general circulation in the municipality, or, in the absence of such newspaper, by posting in four conspicuous places. The notice is required to state the time and place of the hearing, and where copies of the proposed ordinance will be accessible for examination by interested parties. The hearing may be adjourned from time to time. Within 30 days after the final hearing the commission shall make a final report and submit a proposed ordinance for the entire municipality to its authorities, who may enact the ordinance with or without change or refer it back to the commission for further consideration. The zoning commission shall cease to exist upon the adoption of a zoning ordinance for the entire municipality.

Section 3 (Laws of 1921, p. 181), provides that all ordinances passed pursuant to the act shall be enforced by such officer as may be designated by ordinance. Each municipality exercising the powers conferred shall provide for the creation of a board of appeals of not less than three nor more than five members, which shall have power (a) upon application, to review the actions of the enforcing officer of the municipality in order to determine whether they are in accordance with the ordinances passed pursuant to the act; and (b) to recommend to the city authorities such ordinances or amendments as they may deem necessary or desirable, including power, in specific cases of particular hardship, to recommend variations of the original ordinance or amendments thereto. Such variations or amendments in all cases shall be made by ordinance.

By section 4 (Laws of 1921, p. 181), it is provided that the regulations imposed and the districts created may be [319 Ill. 89]varied or amended from time to time by ordinance, but no such variations or amendments shall be made without a hearing before the board of appeals. The board is required to give notice and proceed in the manner provided by the second section with respect to the zoning commission. Upon its report the municipal authorities may adopt the proposed variation or amendment, with or without change, or may refer it back to the board for further consideration. Any proposed variation or amendment which fails to receive the approval of the board of appeals shall not be passed except by the favorable vote of two-thirds of all the members of the city council or village board. In case of written protest against any proposed variation or amendment, signed by the owners of 20 per cent. of the frontage to be altered, or by a like percentage of the frontage immediately adjoining or across an alley therefrom or directly opposite thereto, filed with the board of appeals or with the city council or board of trustees, such variation or amendment shall not be passed except by the favorable vote of two-thirds of all the members of the city council or board of trustees.

The first section of the building zone ordiance of the city of Aurora defines certain terms used in the ordinance. By the second section the city is divided into eight districts, namely: A residential district, B residential district, C residential district, D local business district, E commercial district, F commercial district, G industrial district, and H heavy industrial district. The boundaries of these districts are shown upon a map which is made a part of the ordinance. The section concludes with the paragraph that, except as provided, no building shall be erected or altered so as to exceed the heights established by the...