People ex rel. Builders Supply & Lumber Co. v. Village of Maywood

• Decision Date: 18 May 1959
• Docket Number: Gen. No. 47672
• Citation: 22 Ill.App.2d 283,160 N.E.2d 689
• Parties: PEOPLE of the State of Illinois, ex rel. BUILDERS SUPPLY & LUMBER CO., an Illinois Corporation, Appellee, v. VILLAGE OF MAYWOOD, Illinois, a municipal corporation, and Harvey Meyer, Appellants.
• Court: United States Appellate Court of Illinois

Page 689

160 N.E.2d 689

22 Ill.App.2d 283

PEOPLE of the State of Illinois, ex rel. BUILDERS SUPPLY &amp LUMBER CO., an Illinois Corporation, Appellee, v. VILLAGE OF MAYWOOD, Illinois, a municipal corporation, and Harvey Meyer, Appellants.

Gen. No. 47672.

Appellate Court of Illinois, First District, First Division.

May 18, 1959.

As Modified on Denial of Rehearing Jury 10, 1959.

Louis Ancel and Jack M. Siegel, Chicago, for appellants.

Hoellen & Willens, Chicago, Sherwin Willens, Chicago, of counsel, for appellee.

McCORMICK, Presiding Justice.

This appeal is taken from a declaratory judgment entered in the trial court finding that the plaintiff, as the owner of certain property in a 'B' two-family district under the zoning ordinance of Maywood, Illinois, had a right to erect a single-family dwelling residence thereon with a three-foot side yard on each side of the residence in spite of the fact that the section of the ordinance dealing with two-family districts provides that the side yard be not less than five feet.

The plaintiff, after the building commissioner of the village had refused to issue a permit, filed a petition for a writ of mandamus. The plaintiff, by leave of court, filed an amended complaint praying for a declaratory judgment. The only question raised in this court is with reference to the entry of a declaratory judgment.

The allegations in the complaint, as amended, which are essential in determining the propriety of the summary declaratory judgment in the case before us are: The plaintiff had on October 3, 1957 petitioned the zoning board of appeals of the Village of Maywood for a variation from the requirements of the zoning ordinance to enable him to erect a single-family residence in a two-family district with a three-foot side yard. After hearing, on December 16, 1957 the request for the variation was denied. On December 19, 1957 the plaintiff filed an application with the department of buildings to erect a single-family dwelling on the lot, having a side yard of three feet on each side of the residence. The building commissioner refused to issue the permit on the ground that the erection of a residence with a three-foot side yard in a two-family district was not permissible under the ordinance requirements. The plaintiff prayed that the court declare that the erection by the plaintiff os a single-family residence upon its lot with a side yard of three feet is permitted under the zoning ordinance of the Village of Maywood.

The defendants filed an answer in which they alleged that under the ordinance the use to which the plaintiff purportedly wished to put its property is only permissible in a two-family district when a five-foot side yard is provided, and denied that the ordinance permitted the erection of a residence in such a district with a three-foot side yard. The answer raised the issue that the plaintiff had in its complaint failed to allege facts showing that it had exhausted the administrative remedies available to it under the ordinance and the statutes of the State of Illinois, and asked that the cause be dismissed.

On September 16, 1958 the plaintiff filed a motion for a summary judgment together with a supporting affidavit. On October 22, 1958, after hearing, the trial court entered a declaratory judgment finding that the plaintiff was the owner of the lot in question and that uner the zoning ordinance of the defendant Village of Maywood it was permissible for the plaintiff to construct a single-family dwelling on the lot with a three-foot side yard on each side of the residence and retained jurisdiction of the case to enforce the terms of the judgment.

The zoning ordinance which was in effect provided, among other things, for districts to be known as single-family and two-family districts. Article IV, dealing with single-family districts, provided in part:

'Section 1: The regulations set forth in this Article, or set forth elsewhere in this Ordinance when referred to in this Article, are the district regulations in the 'A' Single-Family Districts.

'Section 2: Use Regulations: A building or premises shall be used only for the following purposes:

'1. Single-family dwellings.'

Section 4 of Article IV, dealing with 'Area Regulations,' provided:

'2. Side Yard:

'(a) Except as hereinafter provided, there shall be a side yard on each side of a building, having a width of not less than three (3) feet.'

Article V, dealing with two-family districts, provided in part:

'Section 2. A building or premises shall be used only for the following purposes:

'1. Any use permitted in the 'A' Single-Family Districts.

'2. Two-Family Dwellings.'

Section 5 of Article V, pertaining to 'Area Regulations,' provided:

'2. Side Yard: The side yard regulations are not less than five (5) feet.'

Article XIII provided that the board of appeals had the power to permit variations in the yard requirements of any district where there were unusual or practical difficulties or unnecessary hardships in the carrying out of those provisions.

The plaintiff and the defendants disagree as to whether the plaintiff should have properly proceeded in court under the provisions of the Administrative Review Act. Therefore it becomes necessary to consider the provisions of both the Zoning Act and the Administrative Review Act.

The purpose of the adoption of the Administrative Review Act (Ill.Rev.Stat.1957, chap. 110, par. 264 et seq.) was to do away with the use of mandamus, certiorari, injunction and other actions as a means of reviewing the decisions of administrative agencies. Its purpose was to provide a single uniform method of review. The remedy for attacking the validity of a zoning ordinance is distinguishable from the remedy afforded securing a review from a decision of the zoning board of appeals.

The first comprehensive zoning ordinance in the United States was passed in 1916 in the City of New York. Metzenbaum, Law of Zoning, 2nd Ed., chap. 1, page 7. Zoning first began to take concrete form in the United States in the early and middle portion of the 1920's. Yokley, Zoning Law and Practice, 2nd Ed., sec. 5. It is a comparatively recent legal development, and the varied and sometimes contradictory decisions in Illinois prior to the adoption of the Administrative Review Act in 1945, as well as in other States, were the result of attempting to apply thereto common law remedies in many cases not specifically adapted to the problem.

Section 1 of the Administrative Review Act (chap. 110, par. 264) defines 'administrative agency' as a body having power under the law to make administrative decisions, and an 'administrative decision' as any decision, order or determination of an administrative agency rendered in a particular case which affects the legal rights, duties or privileges of parties which terminates the proceedings before the administrative agency. Section 11 of the Act (par. 274) provides that the court review of a final administrative decision shall extend to 'all questions of law and of fact presented by the entire record before the court.'

Section 73-3 of the zoning article of the Cities and Villages Act (Ill.Rev.Stat.1957 chap. 24, par. 73-3) provides for the appointment of a board of appeals, and further provides that such board shall hear and decide appeals from and review any order, requirement, decision or determination made by an administrative official charged with the enforcement of any zoning ordinance. Section 2 of the Administrative Review Act (chap. 110, par. 265), provides that the Act shall govern every action to review judicially a final decision of any administrative agency where the Act creating or conferring power on such agency by express reference adopts the provisions of the Administrative Review Act, and further provides that in all such cases any other statutory, equitable or common law mode of review of decisions of administrative agencies therefore available shall not be employed after the effective date thereof. Section 73-6.01 of the Zoning Act provides that all final administrative decisions of the board of appeals shall be subject to judicial review pursuant to the provisions of the Administrative Review Act. In Moline Tool Co. v. Department of Revenue, 410 Ill. 35, 101 N.E.2d 71, 73, the court, referring to the Administrative Review Act, said:

'Prior to its enactment, there was diversity and uncertainty in the methods by which judicial review of the decisions of administrative agencies might be secured. (Sullivan, Judicial Review in Illinois (1949) Illinois Law Forum, 304; Davis, Review of Administrative Action, 44 Ill.Law Rev. 565 at p. 625.) The statute was designed to provide a single uniform method by which the decisions of most of the administrative agencies of State government could be judicially reviewed. To that end, section 2 of the act prohibits the employment of the pre-existing methods of securing judicial review.'

In 222 East Chestnut St. Corp. v. Lakefront Realty Corp., 7 Cir., 256 F.2d 513, in construing the Illinois Administrative Review Act, the court holds that where the Illinois zoning board of appeals has heard the matter and rendered its decision authorizing a proposed construction by finding a permitted use, the only way in which such a decision can be reviewed is under the provisions of the Illinois Administrative Review Act.

Where the contention is made that a zoning ordinance is void in its entirety, relief may be sought without proceeding under the Administrative Review Act. Where the attack is made on the validity of the zoning ordinance or provisions thereof in their specific application to the property of a complainant he may, after he has first had a hearing before the board of appeals, go to the court in an action for independent relief and disregard the provisions of the Administrative Review Act, Bright v. City of Evanston, 10 Ill.2d 178, 139 N.E.2d 270, 274; Bank of Lyons v. County of Cook, 13 Ill.2d 493, 150 N.E.2d 97; ...