People ex rel. Skokie Town House Builders, Inc. v. Village of Morton Grove

• Decision Date: 20 March 1959
• Docket Number: No. 34972,34972
• Citation: 157 N.E.2d 33,16 Ill.2d 183
• Parties: PEOPLE ex rel. SKOKIE TOWN HOUSE BUILDERS, INC., Appellee, v. VILLAGE OF MORTON GROVE et al., Appellants.
• Court: Illinois Supreme Court

Page 33

157 N.E.2d 33

16 Ill.2d 183

PEOPLE ex rel. SKOKIE TOWN HOUSE BUILDERS, INC., Appellee, v. VILLAGE OF MORTON GROVE et al., Appellants.

No. 34972.

Supreme Court of Illinois.

March 20, 1959.

John B. Moser and Thomas A. Matthews, Chicago, for appellant.

Richard Weinberger, Chicago, for appellee.

HOUSE, Justice.

The village of Morton Grove and Timothy Walsh, its building commissioner, appeal directly to this court from a summary judgment entered in the circuit court of Cook County upon the mandamus petition of Skokie Town House Builders, Inc., ordering the appellants to issue necessary permits for the construction of four town-house buildings. A constitutional issue was presented to and decided by the trial court.

The case was tried upon the pleadings and stipulations of facts. Appellee is engaged in the business of constructing and selling residential buildings. On June 20, 1957, it purchased certain lots in a class E commercial district which, under the ordinance then in force, were also available for group or row-dwelling usage. Immediately thereafter, it had plans and specifications prepared for the construction of four town houses upon the lots and had the property surveyed. On June 25 appellee applied for the necessary building permits which were issued the same day. A few days later the building commissioner revoked the permits. The village officials refused to reissue the permits and the appellee in March, 1958, filed its petition for a writ of mandamus. On April 22, 1958, the 1946 zoning ordinance was amended so as to prohibit the future construction of any dwelling units in districts other than those designated as dwelling districts.

The appellants in their answer to the petition contended that the deputy commissioner who issued the permits had no authority to do so and that they were properly revoked because the appellee's proposed buildings failed by some nine inches to meet the minimum rear-yard requirements. In addition, they pleaded the amended zoning ordinance as an affirmative defense.

In its reply, Skokie Town House Builders, Inc., argued that the rear-yard deficiency was not asserted by the village until after the mandamus action was instituted, and that upon being advised of this deficiency, it corrected its building plan to remove the objection, but the building commissioner refused to accept the revised plot plan. It also contended that the zoning amendment was void in that it violated the due process clauses of both the State and Federal constitutions, S.H.A.Const. art. 2, § 2; U.S.Const. Amend. 14, and was not, in any event, applicable to appellee's property because it had acquired a vested right in the 1946 ordinance by reason of its prior expenditures in reliance thereon.

Thereafter appellee filed its motion for summary judgment supported by the affidavit of its secretary which related in some detail the nature of the expenditures. The appellants filed motions to strike the reply and affidavit for alleged deficiencies and requested an extension of time to file counteraffidavits. Upon hearing, the court entered an order denying the motions of appellants and granting summary judgment to appellee.

Appellants' first contention is that the trial court erred in issuing the writ of mandamus because the appellee failed to exhaust its administrative remedies. At the time appellee applied for the permit, the zoning ordinance required a rear yard of 24.742 feet but the plans and specifications contained a plot plan showing a rear yard of only 24 feet. After appellee filed its petition for a writ of mandamus, it learned of appellants' objection and engaged an architect to prepare a revised plot plan showing a rear yard of a full 25 feet. It then tendered this amended plot plan to the building commissioner who refused to accept it for filing without even examining it. This fact was brought out in appellee's reply and it consented therein to the building permit being issued in accordance with the revised plot plan. The mandamus order of the trial court directs that the permits issue in accordance with the plans previously filed as amended by the revised plot plan.

Appellants argue that the court should not have ordered the writ to issue because the building commissioner had refused the amended plot plan and appellee failed to appeal to the zoning board of appeals as provided by section 73-3(D) of the Revised Cities and Villages Act. (Ill.Rev.Stat.1957, chap. 24, par. 73-3(D).) Section 73-3(D) provides that 'the board of appeals shall hear and decide appeals from and review any order, requirement, decision, or determination made by an administrative official * * *.' In this case, however, there was no order, requirement, decision or determination to appeal from. The record shows that the building commissioner refused to accept the revised plot plan for filing without even examining it. Thus, there was nothing for the board of appeals to review. We are of the opinion that the trial court did not err in considering the revised plot plan under the circumstances of this case. The only objection to the plans and specifications under the 1946 zoning ordinance was the rear-yard deficiency which was obviated by the revised plot plan. The order appealed from contemplates and provides for the rear-yard requirement and is, therefore, not in conflict with the 1946 zoning ordinance.

Appellants next contend that the trial court erroneously concluded that the amending ordinance was unconstitutional. Appellee argues that the trial court properly held this zoning ordinance excluding future residential development in commercial and industrial districts void per se. It asserts that such an ordinance conflicts sharply with the generally acknowledged principle that zoning is intended to preserve rather than to restrict dwellings.

Most of the earlier zoning ordinances were based upon this principle, and, generally, the districts of less restricted uses admitted the uses of the more restricted districts. (Babcock, Classification and Segregation Among Zoning Districts, 1954 Ill.Law Forum 186, 204; Baker, Legal Aspects of Zoning, p. 66; Yokley, Zoning Law & Practice, pp. 64, 66.) Recently, however, many municipalities have adopted noncumulative type zoning ordinances which exclude most, if not all, future residences from commercial and industrial districts. (Babcock, 1954 Ill.Law Forum 186; Kneier, The Future of Zoning, 1954 Ill.Law Forum 281; Rathkopf, The Law of Zoning and City Planning, 296 (3d ed. 1956).) This is the first case presented to us which involves such an ordinance. The primary question is whether such a limitation upon the scope of municipal powers is embodied as a limitation in law under the constitution and the zoning statutes.

It has long been the rule that zoning is a proper exercise of the police power of the State and that the power to zone can be exercised by the legislature or by the municipalities to which this power may be delegated. City of Aurora v. Burns, 319 Ill. 84, 149 N.E. 784. Governmental restrictions on the use of private property can be imposed, however, only if they bear a substantial relationship to the preservation of the public health, safety, morals or general welfare. Western Theological Seminary v. City of Evanston 325 Ill. 511, 156 N.E. 778. Thus, the only constitutional limitation upon a municipality's power to exclude future residences from commercial and industrial districts is that the exclusion bear a substantial relationship to the preservation of...