Commercial Mortg. & Finance Co. v. City of Rockford

• Decision Date: 31 August 1965
• Docket Number: No. 64-152,64-152
• Citation: 210 N.E.2d 7,62 Ill.App.2d 160
• Parties: COMMERCIAL MORTGAGE & FINANCE CO., an Illinois Corporation, Appellee, v. CITY OF ROCKFORD, a Municipal Corporation, and Roy Hunt, Building Inspector of the City of Rockford, Appellants.
• Court: United States Appellate Court of Illinois

Page 7

210 N.E.2d 7

62 Ill.App.2d 160

COMMERCIAL MORTGAGE & FINANCE CO., an Illinois Corporation, Appellee, v. CITY OF ROCKFORD, a Municipal Corporation, and Roy Hunt Building Inspector of the City of Rockford, Appellants.

No. 64-152.

Appellate Court of Illinois, Second District.

Aug. 31, 1965.

Lawrence J. Ferolie, City Atty., Rockford, for appellants.

Wilbur E. Johnson, Alan G. Sumberg, Rockford, for appellee.

MORAN, Justice.

This is an appeal by the defendants from a judgment on the pleadings in a declaratory judgment action brought by plaintiff to determine its right to a building permit. The question before us is whether the pleadings raised any disputed question of material fact.

On the original complaint and answer, there was a question of fact raised as to whether plaintiff had in fact filed the necessary application for a building permit with the defendant City. This question arose because the defendants denied that the person who filed the application was acting for the plaintiffs. However, a new application was submitted by the plaintiff itself and a supplemental complaint was then filed, alleging this fact. There was no further dispute as to whether plaintiff had filed the necessary application, so that this question need not concern us.

The complaint, as supplemented, alleged that plaintiff was the owner of certain property in the City of Rockford; that the property was zoned for 'local business,' and that a retail grocery store is a permitted use under that classification; that the plaintiff filed with the defendant building inspector an application for a permit to construct a retail grocery store on the property, paid the required fee and submitted plans and specifications which were in conformity with the requirements of the zoning and building codes of the City. All of these allegations were admitted by the defendants' answer. The supplemental complaint further alleged that the defendant building inspector had refused to issue the requested permit. In answer to this allegation, the defendants stated that 'they admit that defendant refused to issue the requested building permit on the grounds that the premises are not properly zoned for uses set forth in the application.' The defendants contend that this portion of their answer raises a question of fact as to whether the property was zoned for the grocery store, and that this question of fact should have precluded entry of judgment on the pleadings.

The defendants' answer admitted that the application was for a grocery store, and that a grocery store was a permitted use under the zoning classification which applied to the property at the time. In view of this, we do not believe that the further statement in the answer to the effect that the permit was denied 'on the grounds that the premises are not properly zoned for the uses set forth in the application' can be regarded as raising a genuine fact issue. To plead that the premises were 'not properly zoned,' without specifying wherein the zoning was improper, is to plead a conclusion, not a fact. Moreover, this portion...