City of Champaign v. Roseman

• Decision Date: 26 November 1958
• Docket Number: No. 34913,34913
• Citation: 155 N.E.2d 34,15 Ill.2d 363
• Parties: The CITY OF CHAMPAIGN, Appellee, v. Leo L. ROSEMAN et al., Appellants.
• Court: Illinois Supreme Court

Page 34

155 N.E.2d 34

15 Ill.2d 363

The CITY OF CHAMPAIGN, Appellee, v. Leo L. ROSEMAN et al., Appellants.

No. 34913.

Supreme Court of Illinois.

Nov. 26, 1958.

Rehearing Denied Jan. 22, 1959.

Kenneth H. Lemmer, Richard W. Velde, Havana, and Norval Hodges, Urbana, for appellants.

Albert Tuxhorn, Champaign, for appellee.

HOUSE, Justice.

This appeal is from a decree of the circuit court of Champaign County permanently enjoining the defendants, Dr. Leo L. Roseman and his wife, from using lot 5 in block 1 of J. G. Clark's subdivision in the city of Champaign as a physician's and surgeon's office and further restraining them from using it for any purpose prohibited by the ordinances of the plaintiff city. The trial judge certified that the validity of a municipal ordinance is involved and that in his opinion the public interest requires an appeal to this court.

The complaint as amended alleged that the city passed its zoning ordinance on August 29, 1950, with four residential classifications: R-1, single family; R-2, two-family; R-3, multiple-family (3-story); and R-4, multiple-family (6-story). It further alleged that defendants acquired the lot on January 27, 1956, in the R-3 district, that the tract was improved with a two-story frame dwelling, that defendants obtained a permit from the city to remodel the dwelling to provide one apartment on the first floor and two apartments on the second floor, that the building was altered to provide office space on the first floor, and that upon completion the defendant Leo L. Roseman set up his physician's and surgeon's office on the first floor and has since continuously used it for that purpose, although notified to cease and desist.

Defendant's answer denied the passage, approval and effectiveness of the zoning ordinance, asserted the invalidity of the section which makes it unlawful to make alterations other than as authorized by permit, denied that the property was located in an R-3 district, and denied that the alterations were contrary to the permit. Other material allegations of the complaint were admitted, including the structural changes and use and occupancy charged. The answer affirmatively alleged that the restrictions upon defendants are unreasonable and arbitrary, that they constitute an unreasonable classification and that such restrictions have no substantial relation to nor adverse effect upon the health, safety, morals or welfare of the public.

Plaintiff served a written request under Rule 18 (Ill.Rev.Stat.1957, chap. 110, par. 101.18) for admission of the genuineness by defendants of the zoning ordinance and zoning map attached thereto, and the truth of the location of the subject property by address and street boundaries. Admission of the truth of the statements that the defendants do not reside on the premises and that a certain officer of plaintiff was duly appointed and acting was also requested. No denial of nor objection to the request was served upon plaintiff within 10 days thereafter.

A motion for judgment on the pleadings by plaintiff resulted in the decree appealed from. The trial court found that the allegations of the answer, together with facts admitted by the defendants, were insufficient as a matter of law to constitute a defense to the action, and that such allegations presented questions of law only and that no questions of fact existed for consideration by the court.

We see no error in the entry of judgment on the pleadings. The only issues of fact raised by the answer were admitted by failure to deny or object to the requests for admission of facts provided for in Rule 18. Thus, all allegations of the complaint having been admitted, there were no remaining issues of fact. The affirmative allegations of the answer were conclusions of the pleader and left only questions of law. A judgment on the pleadings is proper in such a case. Milanko v. Jensen, 404 Ill. 261, 88 N.E.2d 857.

The real question presented is whether an R-3 residential district which permits hospitals and clinics, nursing homes, institutions of an educational nature (which could include a medical college or school of veterinary medicine) and other uses, but prohibits the operation of a physician's and surgeon's office, is arbitrary and void as a matter of law. The defendants contend that the ordinance as it relates to their property violates the due-process clauses of the Federal and State constitutions, U.S.Const. Amend. 14; Const. art. 2, § 2, and also sections 13, and 14 of article II of the latter, S.H.A.

Zoning is the prerogative of municipalities by virtue of legislative grant. To be valid a zoning classification must bear some real and substantial relationship to the public welfare, health or safety. Gordon v. City of Wheaton, 12 Ill.2d 284, 146 N.E.2d 37. There is a presumption of validity of an ordinance adopted pursuant thereto (Krom v. City of Elmhurst, 8 Ill.2d 104, 133 N.E.2d 1), and where, as here, there are no questions of fact, the ordinance must appear to be arbitrary, unreasonable and confiscatory on its face before a court is justified in striking it down.

Defendants urge that a physician's and surgeon's office is no more detrimental to public health, safety or welfare than the permitted uses under the ordinance. Their particular target is the provisions permitting 'hospitals and clinics' used for the diagnosis and treatment of human ills, while denying them the use of their property for...