Deer Park Civic Ass'n v. City of Chicago

• Decision Date: 18 June 1952
• Docket Number: Gen. No. 45696
• Citation: 106 N.E.2d 823,347 Ill.App. 346
• Parties: DEER PARK CIVIC ASS'N et al. v. CITY OF CHICAGO et al.
• Court: United States Appellate Court of Illinois

Page 823

106 N.E.2d 823

347 Ill.App. 346

DEER PARK CIVIC ASS'N et al. v. CITY OF CHICAGO et al.

Gen. No. 45696.

Appellate Court of Illinois, First District, Third Division.

June 18, 1952.

Jacob Shamberg, Chicago, for appellants.

Samuel T. Lawton, Richard James Stevens, Irwin J. Askow, Chicago, for appellees.

KILEY, Presiding Justice.

Plaintiffs' amended complaint and defendant company's counterclaim are brought under the Declaratory Judgment Act. Ill.Rev.Stat.1951, Chap. 110, Par. 181.1. Judgment was for defendant in most respects on its counterclaim and plaintiff has appealed. Defendant has cross-appealed from part of the judgment.

Plaintiffs are an association of resident property owners and several of its individual members from that area of West Rogers Park known as Deer Park in the city of Chicago. They seek judicial declarations that defendant company has no vested right by virtue of its building permit to construct a manufacturing building in an area in Deer Park zoned for family dwelling; that the building permit was revoked by a subsequent zoning ordinance amendment; and that the Building Commissioner had the duty to prevent, and to take appropriate action to prevent, use of the area involved for any purpose other than family dwelling.

The property involved is about 8 1/2 acres of vacant land bounded by Pratt Avenue on the north, an east-west line about 490 feet south of Pratt Avenue on the south, a north-south line about 125 feet west of North Whipple Street on the east, and by Kedzie Avenue on the west. In 1923 the property was zoned for apartment house use except for the adjacent 125 feet to the east which was zoned for commercial use. In the Comprehensive Zoning Ordinance of 1942, the area, except for the 125 feet, was zoned for manufacturing use. A permit to built its plant was issued to defendant company April 4, 1951. An amendatory zoning ordinance rezoning the area to family dwelling was passed March 2, and became effective April 19, 1951.

Defendant company designs, assembles and distributes electronic relays and has contracts to supply the United States for military and related needs. Its plant facilities were inadequate and it purchased the property subject of this suit January 16, 1950. Two amendments, one in 1937 to the ordinance of 1923 and the other in 1948 to the ordinance of 1942, had been introduced but no further action taken. On February 13, 1951 the council committee on housing and zoning sent out notice of a hearing upon the proposed amendment of March, 1948. On February 14, 1951 defendant applied for a permit to build and furnished the plans and specifications. On February 16 the city of Chicago Building and Zoning Committee considered the amendment introduced in March, 1948.

On March 2, 1951 three amendatory zoning ordinances were introduced in the City Council. One provided only for rezoning the area in this case from commercial and manufacturing use to family dwelling use. This amendment was passed on the day it was introduced. A second amendment provided for rezoning an area immediately north, the abandoned Illinois Brick Company clay hole, from commercial and manufacturing to family dwelling use. This ordinance was not passed that day but was set for hearing, and no further action has been taken. The third amendment providing for a similar change was set for hearing and no further action has been taken.

The questions presented here are whether plaintiffs are authorized to bring this suit; whether they were required to appeal to the Zoning Board of Appeals from the Commissioner's action before invoking the aid of the court; whether the amendment is invalid for non-compliance with statutory reqirements of notice and hearing; and whether the zoning amendment which became effective April 19, 1951 revoked the building permit issued April 4th.

Defendant claims plaintiffs have no direct or justiciable interest in the declaration sought and have shown no special damage to justify seeking what is, in effect, an injunction. Plaintiffs alleged that the individuals named as plaintiffs were residents of Deer Park, owners of real estate therein, and Chicago taxpayers, and that an actual and justiciable controversy existed between plaintiffs and defenants. Defendant admitted the second allegation. In its counterclaim, it asked for a judgment declaring, among other things, that there was an actual and justiciable controversy between plaintiffs and defendants. Defendant entered into a stipulation under the pleadings and proceeded to trial on the theory that plaintiffs' interest was justiciable. Under these circumstances we think defendant company is in no position to complain.

The relief sought by plaintiffs is a judicial declaration that the building permit has been revoked and that the Building Commissioner had the duty to prevent the use of the areas for manufacturing use. If the permit was not revoked, the second declaration could not be made and accordingly the main relief sought relates to the effect of the amendment. When the permit was issued April 4, 1951 plaintiffs had the right of appeal to the Zoning Board of Appeals, but they were probably awaiting the course of the amendatory ordinance, depending upon its force to offset the action of, the Commissioner. When the amendment became effective, a question of law arose determination of which is beyond the power of the Board of Appeals. We think the plaintiffs did not lose the right to bring this suit because they did not appeal to the Board. Illinois Life Insurance Company v. City of Chicago, 244 Ill.App. 185.

Cann v. City of Chicago, 241 Ill.App. 21, is not authority for defendant's point. There, plaintiff sought equitable relief but failed to show that he exhausted the statutory legal remedies of appeal to the Zoning Board and certiorari from a court. In Re Wolf v. Village of Mt. Prospect, 314 Ill.App. 23, 40 N.E.2d 778, the petitioner in mandamus had been denied a building permit, and he alleged the nonexistence of a Board of Appeals to excuse his failure to appeal from the order denying the permit. The evidence showed that a Board did in fact exist and the court said that the right to coerce the Commissioner by mandamus was more than doubtful. It cited the Cann case as authority for the statement that the remedy in a 'case of this kind is by certiorari to review the decision of the Board of Appeals.' 314 Ill.App. at page 27, 40 N.E.2d at page 780. In the instant case, plaintiffs' mandamus proceeding was abandoned.

In the record is a copy of the subject amendatory ordinance certified by the clerk. Nothing in the record shows that the ordinance was not regularly adopted. We presume, in the absence of a contrary showing, that the statutory requirements for validity...