City of Watseka v. Blatt

• Decision Date: 21 September 1943
• Docket Number: Gen. No. 9879.
• Parties: CITY OF WATSEKA v. BLATT.
• Court: United States Appellate Court of Illinois

320 Ill.App. 191

50 N.E.2d 589

CITY OF WATSEKA

v.BLATT.

Gen. No. 9879.

Appellate Court of Illinois, Second District.

July 8, 1943.

Rehearing Denied Sept. 21, 1943.

Appeal from Circuit Court, Iroquois County; Roscoe C. South, Judge.

Simon Blatt was charged in a complaint filed before a justice of the peace with unlawfully extending and operating a junk yard within a business district, in violation of a zoning ordinance of the City of Watseka. On appeal from the circuit court, Simon Blatt was found guilty, and he appealed to the Supreme Court, which transferred the case to the Appellate Court, 381 Ill. 276, 46 N.E.2d 374.

Reversed and remanded with directions.

Shapiro & Lauridsen, of Kankakee, for appellant.

David E. Oram, of Watseka, for appellee.

DOVE, Justice.

On a trial before a justice of the peace, under a complaint charging appellant with violating a zoning ordinance of the City of Watseka, “by unlawfully extending and operating a junk yard on premises within the business district” of the city, he was found guilty and fined $25.00 and costs. On appeal to the circuit court of Iroquois County there was a like result, after a trial by the court without a jury. On his appeal to the Supreme Court the cause was transferred to this court because there was no certificate of the trial judge that the public interests required a direct appeal to the Supreme Court, as required by section 75 of the Civil Practice Act (Ill.Rev.Stat. 1941, chap. 110, par. 199), and because the statement of errors relied upon for reversal did not specifically or sufficiently present any constitutional question so as to give the Supreme Court jurisdiction of a direct appeal. City of Watseka v. Blatt, 381 Ill. 276, 46 N.E.2d 374.

Sections 9 and 10 of the zoning ordinance in controversy provide:

“Section 9. Junk yards.--No junk yard shall be established or operated in the City of Watseka, Illinois, except in an Industrial District, and shall not be established or operated in an Industrial District unless consent is obtained in writing of seventy-five per cent of the property owners within a radius of Five Hundred (500) feet of the location of said proposed Junk Yard, and subject to the specific approval of the Board of Zoning Appeals both as to location and as to arrangement.

“Section 10. Definition of Junk Yard.--A Junk Yard shall be defined as a plot of ground, which may be covered with buildings; partly covered with buildings, or without any buildings, which plot is used for the buying, selling, storing, and trading of old iron, rags, hides, furs, old furniture, rubber, wool, used cars, used car parts, old metals, bottles and the like commonly called junk.”

The ordinance became effective on August 6, 1939. The facts hereinafter recited appear by stipulation of the parties: Walnut Street runs east and west, crossing the C. and E. I. railroad at a right angle. A short distance west of the railroad the street turns to the northwest. At and prior to the passage of the zoning ordinance, appellant conducted a junk yard and a used auto parts business on a lot designated in the record as lot A. This lot is located on West Walnut Street, the southeast corner of which was ninety-seven feet northwest of the point where Walnut Street turns to the northwest. It has one hundred feet frontage on Walnut Street. After the passage of the zoning ordinance, he purchased two other lots on the north side of the street which will be called Lots B and C. Lot B adjoins the easterly line of Lot A, with a frontage on Walnut Street of fifty-one feet and its lines roughly parallel the lines of Lot A. Lot C is about triangular in shape, with the apex to the north; its west line adjoins Lot B and its southerly line extends along the north side of Walnut Street for a frontage of ninety-six feet. By the terms of the zoning ordinance the westerly line of Lot A is the boundary line between two zones, the land east of the line being zoned as a business district, and the land west of the line being zoned as an industrial district. The main business section of the city is located on both sides of Walnut Street, and extends east four blocks from the railroad.

Appellant purchased Lots B and C with full knowledge of the zoning ordinance and its provisions relating to the operating of junk yards and used auto parts business. Thereafter, contrary to the provisions of section 9, he extended his nonconforming use onto the newly purchased lots in the area known as a business district under the ordinance. It is not claimed that he violated the terms of the ordinance by conducting his business on Lot A, such non-conforming use being in existence when the ordinance was passed and being exempted by section 1 of the zoning statute (Ill.Rev.Stat.1939, chap. 24, par. 66).

On the lot immediately east of Lot C there is a dwelling house. On the lot east of the dwelling there is a wholesale and retail poultry and produce business, and the next two lots east are improved by dwellings. All these premises are on the north side of Walnut Street west of the railroad. Going west and starting from the railroad on the south side of Walnut Street there are three dwellings, at the west one of which there is an unused oil station. On the lot next west there is a State garage, used for storage, maintenance and repair of State automobiles and trucks used by the road district in which the City is located. Immediately west of the garage there is a restaurant and the lot next west is vacant. There is a dwelling on the next lot west, across the street from Lots B and C. Then comes Yount Avenue which dead ends into Walnut Street, and across Yount Avenue on the south side of Walnut Street is Yount Park extending west and northwest one block. At the rear of appellant's newly acquired property there is a dwelling on a lot which fronts north on Oak Street. It is the only one of the properties mentioned which is in a residential zone. Appellant placed on the rear half of Lot B an eight foot wooden fence, painted white, and work done or goods placed behind the fence cannot be seen by a passerby or from the street in front of the premises. Prior to appellant's purchase of Lots B and C they were used for residential purposes.

It was further stipulated “that there is a relatively large area as set out by the said Zoning Ordinance in which the defendant could operate his junk yard and used auto parts business without violating any provision thereof, by complying with Section 9 of said Ordinance”; that either party might present any additional proper evidence, and that the term “newly acquired property” as used therein refers to Lot B.

The only testimony as to the stipulated extension of the non-conforming use is that appellant's business was expanding, and that since he bought Lots B and C, he has stored about forty to fifty used cars and trucks on the rear end of Lot B, took used parts from some of them over to the junk yard on Lot A, dismantled or wrecked two old cars behind the fence, and sold eight or ten of the other cars to be used again. Nothing was stored on Lot C, and other than the activities mentioned, no business was conducted on Lot B or C. Witnesses for appellee testified there was an offensive odor from the smoke of articles burned in the junk yard, but none of them testified there was any odor from Lots B or C, and appellant testified the only material burned was wood from old car bodies, which was burned only on Lot A. Appellee's witnesses mentioned seeing rats, but none of them testified the rats came from any part of appellant's premises, and one of them mentioned the nearby location of the poultry and produce business, and said there were rats before appellant acquired Lots B and C. From this testimony it does not appear that the business was conducted in such a way as to be a nuisance per se.

Appellant invokes the terms of section 95 of article 5 of the Cities and Villages Act (Ill.Rev.Stat.1939, chap. 24, par. 65.94) as amended in 1935, and as in force when the zoning ordinance was passed and when the alleged violation of the ordinance took place, as being the governing statute. That section, as then in force, gave municipalities the power “to tax, license, regulate and direct the location of all places of business of purchasers, traders and dealers in junk, rags and any second-hand article whatsoever”. Appellant claims that it does not, by the term “regulate”, authorize the city to prohibit the location of such places as junk yards. People v. Busse, 240 Ill. 338, 88 N.E. 831, and Nahser v. City of Chicago, 271 Ill. 288, 111 N.E. 119, L.R.A.1916D, 95, relied upon by appellant, hold that the power to “regulate” does not include the power to “prohibit”. The Busse case was decided in 1909 while the powers delegated by that section were only “To tax, license and regulate second hand and junk stores and yards” (J. & A. Anno.Stat. chap. 24, par. 1334(95) without any mention of power to direct location. That power was added in 1911. L.1911, p. 173; Smolensky v. City of Chicago, 282 Ill. 131, 135, 118 N.E. 410. The Nahser case, decided in 1915, held that under clause 41 of the same section, delegating power “to license, tax, regulate, suppress and prohibit * * * theatricals and other exhibitions, shows and amusements”, the city had power to enact an ordinance prohibiting a moving picture show within two hundred feet of a church. Neither of those cases support appellant's contention, and it is further to be noticed that they were decided prior to the enactment of the zoning law in 1921 (Ill.Rev.Stat.1939, chap. 24, par. 66 et seq.), the pertinent portion of section 1 of which provides: “In addition to existing powers *...