Hartigan Oldsmobile Cadillac, Inc. v. City of Park Ridge

• Citation: 264 N.E.2d 386,130 Ill.App.2d 156
• Decision Date: 29 September 1970
• Docket Number: Gen. No. 53552
• Parties: HARTGAN OLDSMOBILE CADILLAC, INC., an Illinois corporation, Plaintiff-Appellee, v. CITY OF PARK RIDGE, a municipal corporation, Defendant-Appellant, Arthur Scheller, Intervenor-Appellant.
• Court: United States Appellate Court of Illinois

Page 386

264 N.E.2d 386

130 Ill.App.2d 156

HARTGAN OLDSMOBILE CADILLAC, INC., an Illinois corporation, Plaintiff-Appellee, v. CITY OF PARK RIDGE, a municipal corporation, Defendant-Appellant, Arthur Scheller, Intervenor-Appellant.

Gen. No. 53552.

Appellate Court of Illinois, First District, Second Division.

Sept. 29, 1970.

Albert A. Klest, Park Ridge, for defendant-appellant.

Arthur Scheller, pro se.

Gerald M. Chapman, Chicago, for plaintiff-appellee.

LOYONS, Justice.

Hartigan Oldsmobile Cadillac, Inc. brought an action for a declaratory judgment against the City of Park Ridge seeking to have a certain portion of the zoning ordinance of that municipality declared unconstitutional as applied to its property, and to have another portion of the ordinance likewise declared unconstitutional as being arbitrary and discriminatory in singling out a particular use, automatic car washes, and according it special treatment under a special use technique. Defendant has appealed from a judgment in favor of plaintiff.

Arthur Scheller, an intervening defendant, has also perfected an appeal in which he assigns as error the trial court's denial of certain of his pre-trial motions.

The subject property is located in the northern portion of a block bounded by Northwest Highway on the north, Busse Highway on the south, Morris Avenue on the west, and Meacham Avenue on the east. It is triangular in shape, having frontage on Morris Avenue, Northwest Highway, and Meacham Avenue. West of the subject property, across Morris Avenue, is Hinkley Field, a public park containing three baseball fields, a basketball court, swimming pool, tennis and handball facilities, and general playground area. South of the subject property on the east side of Morris Avenue, are the Hartigan Agency, a municipal garage, and a structure which at the time of trial had been partially destroyed by fire and remained unrepaired. On the west side of Meacham Avenue and south of the Hartigan complex are a fire station, a vacant parcel used for the storage of automobiles, and a dance hall which also fronts on Busse Highway. On the east side of Meacham Avenue between Busse and Northwest Highways are located the Busse Brademan Buick Agency, a hotel, barber shop and real estate office. In addition to the dance hall previously mentioned, a post office annex is located on the north side of Busse Highway between Meacham and Morris Avenues. The south side of Busse Highway is bounded by an embankment upon which runs the Chicago and Northwestern Railroad right of way. Northwest Highway, in the immediate vicinity of the subject property, is developed with retail sales uses.

Plaintiff proposed to erect an automatic car wash upon the subject property, which is classified under Chapter 256 of the Park Ridge Zoning Ordinance as 'D--D' commercial. Drive-in establishments are not permitted uses in the 'D-D' districts although such uses are, with the exception of automatic car washes, permitted in the 'D' commercial districts. Automatic car washes are not permitted as a matter of right in any district, but are subjected to a special use technique under section 261--5 of the Park Ridge Zoning Ordinance which provides in part:

In order to properly classify uses, including autowash facilities, which because of their unique characteristic cannot be properly classified in a particular district without consideration in each case, of the impact of those uses upon neighboring land and of the public need for the particular use at the particular location, the following regulations shall apply: * * *

The remainder of the section deals with procedural matters with respect to applications for special use permits and limitations which may be imposed attendant to the granting of a special use permit.

The automatic car wash which plaintiff proposed to erect on the subject property would consume 3600 square feet of the parcel's 7900 square foot area. Plaintiff applied for a special use permit as required by the ordinance. Following public hearings by the Plan Commission and Zoning Board, the City Council, the body to which the ordinance reserves the power to pass upon requests for special use permits, denied the request. The instant suit followed, resulting in findings by the trial court that the Zoning Ordinance of Park Ridge, as applied to plaintiff's property, was invalid, and that section 261--5 was also invalid as an unreasonable exercise of the police power in that it accorded special treatment to a single use. The defendant has challenged each of these findings.

We consider first the defendant's contention that the trial court erred in finding Chapter 256 of the Ordinance unconstitutional as applied to plaintiff's property insofar as it operates to exclude automatic car wash facilities from the 'D-D' district, since no properly justiciable issue would remain should defendant prevail on this issue. Should we find that the exclusion of the proposed use from the 'D-D' district is proper, consideration of the constitutionality of section 261--5 would be a futile act since no matter what that determination might be, plaintiff would not be entitled to develop the subject property with the proposed use.

It is the function of the ruling municipal legislative body to classify uses and draw the lines of demarcation between those uses which shall and those which shall not be allowed in particular districts. Legislative judgment in this area...