Deynzer v. City of Evanston

• Decision Date: 16 December 1925
• Docket Number: No. 16305.,16305.
• Citation: 149 N.E. 790,319 Ill. 226
• Parties: DEYNZER v. CITY OF EVANSTON et al.
• Court: Illinois Supreme Court

319 Ill. 226

149 N.E. 790

DEYNZER

v.CITY OF EVANSTON et al.

No. 16305.

Supreme Court of Illinois.

Dec. 16, 1925.

Suit by Sarah V. Brown Deynzer against the City of Evanston and others. Decree for defendants, and plaintiff appeals.

Affirmed.

Farmer and Duncan, JJ., dissenting.

Appeal from Superior Court, Cook County; Oscar Hebel, Judge.

Malcolm B. Sterrett, of Chicago, for appellant.

Tenney, Harding, Sherman & Rogers, and Frank T. Murray, Corp. Counsel, all of Chicago (Horace Kent Tenney and S. Ashley Guthrie, both of Chicago, of counsel), for appellees.

DE YOUNG, J.

Sarah V. Brown Deynzer, on June 15, 1923, filed her bill of complaint in the superior court of Cook county against the city of Evanston, Harry P. Pearsons, its mayor, Frank S. Anderson, its building commissioner, and Charles W. Leggett, its chief of police, seeking to have the zoning ordinance of that city declared unconstitutional and removed as a cloud upon the title to certain real rpoperty, and for an injunction against the enforcement of the ordinance. An amended bill was filed, which was subsequently amended and answered by the defendants. A cross-bill by the defendants followed, in which they alleged that the complainant had brought another suit against them by which she sought the same relief with respect to another parcel of real estate, that the suit had been determined against her, and that the adjudication in that suit was conclusive against her right to a decree in this case. An answer denying that such was the effect of the prior adjudication was interposed to the cross-bill, and replications to the answers to the bill and cross-bill were filed. After a hearing the bill was dismissed for want of equity, and the complainant prosecutes this appeal.

The council of the city of Evanston on November 18, 1919, adopted a resolution appointing a committee for the study of the subject of zoning. On September 21, 1920, it passed an ordinance by which a zoning commission was appointed. The commission held a number of meetings and visited the entire city, studying existing conditions and considering future developments. Upon notice to the property owners, public hearings were given in various parts of the city. An expert, with experience in the preparation of comprehensive zoning plans for a number of cities throughout the country, was employed to assist the zoning commission in the study of the subject and in the formulation of the draft of an ordinance. Under his supervision a series of maps was prepared which showed, first, the uses to which the various parcels of property in the whole city were put; second, the different types of structures used for residential purposes; third, commercial and industrial uses, and the location and classification of every store or industry within the city limits; fourth, the heights of buildings by stories; fifth, the percentage of lot occupancy by each building in the city; and, sixth, all new buildings erected since 1915. The preparation and verification of these maps occupied about three months. The survey of the city showed the following divisions of property among various uses:

+--------------------------------------------------+
                ¦                               ¦       ¦Percentage¦
                +-------------------------------+-------+----------¦
                ¦Uses.                          ¦Acreage¦of City's ¦
                +-------------------------------+-------+----------¦
                ¦                               ¦       ¦Area.     ¦
                +-------------------------------+-------+----------¦
                ¦One-family dwellings           ¦902.5  ¦19.2      ¦
                +-------------------------------+-------+----------¦
                ¦Two-family flats               ¦2.7    ¦.06       ¦
                +-------------------------------+-------+----------¦
                ¦Tenements and apartment houses ¦45.6   ¦1.        ¦
                +-------------------------------+-------+----------¦
                ¦Hotels                         ¦4.0    ¦.1        ¦
                +-------------------------------+-------+----------¦
                ¦Schools, churches, etc         ¦113.3  ¦2.4       ¦
                +-------------------------------+-------+----------¦
                ¦Public garages                 ¦4.6    ¦.1        ¦
                +-------------------------------+-------+----------¦
                ¦Stores                         ¦36.9   ¦.7        ¦
                +-------------------------------+-------+----------¦
                ¦Light industries               ¦64.3   ¦1.4       ¦
                +-------------------------------+-------+----------¦
                ¦Industries of the nuisance type¦42.9   ¦.9        ¦
                +-------------------------------+-------+----------¦
                ¦Vacant property                ¦2279.8 ¦48.7      ¦
                +--------------------------------------------------+
                

After the completion of this work a tentative draft of a zoning ordinance was preparedand submitted to the zoning commission. It was considered by the commission at a series of conferences, changes were made in it, and a draft of the ordinance as changed was published. Public hearings upon the revised draft followed, at which persons interested were heard, and further changes were made in the draft. After these hearings had been concluded the proposed ordinance in its final form was submitted to the city council. It was passed by that body January 18, 1921.

The first section of the zoning ordinance contains definitions of various terms used in the ordinance. The second section, in order to classify, regulate, and restrict the location of trades, industries, and buildings erected or altered for specified uses, divides the city into five ‘use districts,’ known as A residence district, B residence district, C commercial district, D industrial district, and E unrestricted 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:

‘Except as hereinafter provided, no building shall be erected or altered, nor shall any building or premises be used for any purpose other than is permitted in the use district in which such building or premises is located.’

Section 3 provides that all buildings and premises in the A residence district, except as otherwise provided, shall be erected for and used exclusively as (1) single-family dwellings; (2) churches and temples; (3) schools and colleges; (4) libraries; and (5) farming and truck gardening. The usual accessories located on the same lot are permitted. By the fourth section all buildings and premises in the B residence district, except as otherwise provided, shall be erected for and used exclusively as: (1) Any use permitted in the A residence district; (2) tenement houses; (3) hotels; (4) private clubs and fraternity houses; (5) boarding and lodging houses; (6) institutions of an educational, philanthropic, or eleemosynary nature; (7) nurseries and green houses; and (8) public garages and their accessories, subject to compliance with present or future ordinance requirements. In the fifth, sixth, and seventh sections, the uses to which buildings and premises may be put in C commercial district, D industrial district and E unrestricted district, respectively, are defined, but it is not necessary for the purposes of this case to specify them here. The eighth section provides:

‘The lawful use of a building or premises existing at the time of the adoption of this ordinance or thereafter destroyed or partially destroyed by fire or other casualty or by voluntary act of the owner may be continued, although such use does not conform with the provisions hereof; and such use may be extended throughout the building or premises,subject to lawful regulations now or hereafter enacted. Whenever a use district shall be hereafter changed, any then existing, nonconforming use in such changed district may be continued or changed to a use of a similar character, provided, all other regulations governing the new use are complied with. Whenever a nonconforming use shall be changed to a conforming use, such premises shall not thereafter be changed to a nonconforming use.’

By section 9 of the ordinance the city is divided into three ‘height districts,’ known as the 35-foot height district, the 45-foot height district, and the 80-foot height...