Klumpp v. Rhoads

• Decision Date: 14 February 1936
• Docket Number: No. 23220.,23220.
• Parties: KLUMPP et al. v. RHOADS et al.
• Court: Illinois Supreme Court

362 Ill. 412

200 N.E. 153

KLUMPP et al.

v.RHOADS et al.

No. 23220.

Supreme Court of Illinois.

Feb. 14, 1936.

Suit by Martha Klumpp and others against Florence E. Rhoads and others. Decree for complainants, and defendants appeal.

Reversed and remanded, with directions.

Appeal from Circuit Court, Peoria County; Henry J. Ingram, judge.

R. H. Radley and John Radley, both of Peoria, for appellants.

Verle W. Safford, of Peoria, for appellees.

JONES, Justice.

This is an appeal from a decree of the circuit court of Peoria county, enjoining the defendants, Florence E. Rhoads, Frank S. Rhoads, her husband, and the Rhoads Oil Company, Inc., from operating a gasoline, oil, and ice service station on the rear of the premises at 120 North Orange street in the city of Peoria. The suit was instituted by Martha Klumpp, owner of a residence in the vicinity of the station and the owners of six other residence properties in the neighborhood.

The lot on which the station is located is at the southeast corner of the intersection of North Orange and Russell streets. It fronts on the east line of North Orange street and runs east on Russell street 150 feet to a 20-foot alley. The Rhoads dwelling occupies the west end of the lot. The gas station is in the rear at the intersection of Russell street and the alley. It is a small one-story frame building with cement floor, two retail gas pumps in front, and buried tanks. An icehouse holding three tons faces the alley. The title to the real estate is in Florence E. Rhoads. In August, 1925, she and her husband secured a permit from the city building commissioner to erect a garage on the premises and the building now standing was erected. In November of that year, Mrs. Rhoads applied for a permit to erect a garage for trucks, cars and storage of barreled oil, not to be used as a gas station. She filed a frontage consent purporting to be signed by the owners of two-thirds of the frontage on that block, but no permit was issued. Neither Frank S. Rhoads nor his wife ever applied for a permit to erect a gasoline or ice station. They began the sale of oil and gasoline in 1925 and have ever since operated a service station in the buildings. The retailingof ice was begun in 1930. On March 1, 1931, the business was incorporated.

The complaint charges and the decree finds that the occupancy and operation of the premises as a gas, oil, and ice station, are in violation of the permanent zoning ordinance of the city, adopted April 21, 1931; that the rest, comfort, and privacy of plaintiffs are disturbed and their property has been depreciated in value; and that they will continue to suffer such loss as long as the business is permitted to operate.

Section 9 of the permanent zoning ordinance exempts existing lawful nonconforming uses from its terms, provided no structural alterations, except those required by law or ordinance, are made in the building. Plaintiffs claim that the structures were erected contrary to the terms of a frontage consent ordinance which had been in effect from July, 1923, to the passage of the zoning ordinance. The defendants claim the frontage ordinance was invalid; that their business lawfully existed and is therefore exempt from the provisions of the zoning ordinance; and that no structural alterations have been made.

The frontage consent ordinance provided that it shall not be lawful to locate, build, construct, or maintain on any street in the city in any block in which two-thirds of the buildings on both sides of the street are used exclusively for residence purposes, any building for a livery stable, garage, gas, or oil station, and any other business or commercial industry not specifically mentioned, without the consent of two-thirds of the property owners, according to frontage, on both sides of such street. Under that provision, any one desiring to locate or conduct any such business must obtain the consent of two-thirds of the property owners, according to frontage, on both sides of the whole street, regardless of its length or the character of the occupancy of the other blocks. If the business is to be located in the first block of the street, the property ownersat the other end of the street, however distant, would have as much voice in the consent as the owners of property adjacent to the proposed location. Russell street is eight blocks long. A witness for plaintiffs testified that the value of property one block away from the station would not be affected by it. A requirement for the consent of property owners who have no interest in the matter is arbitrary, oppressive, and unreasonable. Such ordinances violate the due process clause of the State and Federal Constitutions (Const.Ill. art 2, § 2; Const.U.S.Amend. 14). Spies v. Board of Appeals, 337 Ill. 507, 169 N.E. 220;State of Washington v. Roberge, 278 U.S. 116, 49 S.Ct. 50, 73 L.Ed. 210, 86 A.L.R. 654. The principles underlying the holdings in those cases have been so...