Phipps v. City of Chicago

• Decision Date: 17 April 1930
• Docket Number: No. 19387.,19387.
• Citation: 339 Ill. 315,171 N.E. 289
• Parties: PHIPPS et al. v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

339 Ill. 315

171 N.E. 289

PHIPPS et al.

v.CITY OF CHICAGO.

No. 19387.

Supreme Court of Illinois.

April 17, 1930.

Commissioner's Opinion.

Suit by John S. Phipps and others against the City of Chicago. Decree for complainants, and defendant appeals.

Affirmed.

Appeal from Circuit Court, Cook County; Harry M. Fisher, judge.

Samuel A. Ettelson, Corp. Counsel, Samuel B. King, and Barnet Hodes, all of Chicago, for appellant.

Sims, Godman & Stransky, of Chicago (Franklin J. Stransky and James S. Handy, both of Chicago, of counsel), for appellees.

PARTLOW, C.

Appellees filed their bill in the circuit court of Cook county in which they alleged that a certain zoning ordinance, of the city of Chicago passed on May 19, 1926, was void because it was unreasonable and not within the power of the city council to pass; that it was an amendment to the general zoning ordinance of April 5, 1923, and in terms reclassified a tract of land owned by appellees as beneficiaries under a certain declaration of trust, changing it from commercial and industrial uses to apartment and residential purposes; that the tract was unsuitable for apartment and residence purposes; that its highest and best use was for commercial and industrial purposes; that the effect of rezoning it was to damage its value $300,000; that prospective purchasers refused to buy any portion of the tract because of such rezoning ordinance; that the ordinance was a matter of public record and constituted a cloud on appellees' title, and the prayer was that it be removed as a cloud. The cause was referred to a master to take the evidence and report his conclusions. All of the facts were stipulated before the master and he recommended a decree as prayed. Exceptions to his report were overruled, a decree was entered as recommended, and an appeal has been prosecuted to this court.

The stipulation shows that the land in question consisted of twenty-eight acres in the northwest part of the city of Chicago and was known as the Keeney Industrial District. It was about 1,536 feet long east and west and about half as wide north and south. It was bounded on the north by the Galewood yards of the Chicago, Milwaukee and St. Paul Railway Company, on the east by North Central avenue extended, on the south by Bloomingdale avenue and on the west by North Mansfield avenue. Two main passenger tracks extended along the north side of this railroad yard. Between the main tracks and the land in question are about fifty lead, freight and loading tracks. In the center of the yards, opposite the land in question, is a large freight house extending from Central avenue almost to Mansfield avenue, which acts as a sounding board for the noise from moving trains and cars. For almost twenty-four hours each day freight cars are switched in these yards by coal-burning engines for the purpose of handling trains and loading and unloading cars at the freight house. All of these engines burn soft coal and emit large amounts of smoke and cinders and they make considerable noise. Surrounding these yards are numerous industrial manufacturing plants, twenty-five of which are served with cars by switchtrack connections with the yards. East of the Galewood yards are the Cragin yards of the same railroad, which serve numerous industries and have switching connections therewith. The location and elevation of the land in question are such as to make it easy and inexpensive to construct side tracks and switch tracks from the Galewood yards to serve manufacturing industries located thereon. East of this land, on North Central avenue, is a large bridge or viaduct extending almost the entire width of the tract and across the Galewood yards. It rises gradually to a height of approximately thirty feet above the elevation of the east part of the land in question. It is admitted that no residence or apartment could be constructed to advantage facing on Central avenue adjacent to this viaduct. There are no public highways or streets crossing Galewood yards except the viaduct on Central avenue.

On February 18, 1920, the city council of Chicago, pursuant to the Zoning Act of 1919, passed an ordinance creating a zoning commission, and, on July 22, 1921, twenty-two persons were appointed as such zoning commission. The commission began the preparation of a comprehensive zoning ordinance for the entire city. It employed expert help, sought the advice of various public organizations, and on January 5, 1923, after about eighteen months' investigation, presented to the city council a tentative report of its proceedings, including a draft of a proposed general zoning ordinance of the city, with maps and plats showing in detail a classification of territory as contemplated by the statute. After the ordinance was submitted hearings were had thereon, and Mills & Sons and the North Austin Manor Neighborhood Club made objections to the zoning of the tract in question, and the territory to the west and south thereof, as commercial and industrial areas. The commission, after hearing their objections, refused to change the ordinance. The ordinance was passed on April 5, 1923, and in it this tract of land, and the territory to the east, west, and south of the Galewood yards, were classified as manufacturing and commercial districts. The south 125 feet of the land in question was zoned as commercial and the balance of it as manufacturing. Mills & Sons owned part of the territory east and west of the tract in question, and they subdivided the same, erected small two-story apartments thereon, and sold the same. On November 19, 1924, an ordinance was passed changing part of the territory owned by Mills & Sons from a manufacturing to a residence use.

On January 7, 1925, Mills & Sons, for a consideration of $7,500, secured from Albert F. Keeney, who then owned the tract in question, a contract or agreement running with the land, whereby it was agreed that the west fifteen feet of the Keeney tract abutting North Mansfield avenue, and the south fifteen feet thereof abutting Bloomingdale avenue should at all times be kept free and clear of structures of all kinds; that no common brick should be used in the outside course of any exterior wall; that all fences should be of a type known as cyclone fences, and that soft coal should not be used for the production of power in any building erected on that area.

Appellees are the trustees of the Phipps Industrial Land Trust, which was created for the purpose of acquiring sites suitable for industrial and manufacturing purposes and advertising, subdividing, and selling the same for that purpose. Appellees have handled various tracts of land in Chicago in this manner and the tract in question was purchased for that purpose. Mills & Sons, whose names frequently appear in the stipulation, are real estate operators engaged in acquiring vacant real estate for subdivision purposes and the construction of small two-story apartment buildings thereon which they sell upon contracts. On January 14, 1925, appellees purchased the tract in question.

On October 28, 1925, certain persons caused to be introduced, into the city council of Chicago, the amendatory ordinance in question changing the classification of the land in question from commercial purposes to residence purposes. It is admitted by the stipulation that the board of appeals, appointed under the ordinance of April 5, 1923, did not give notice of a public hearing on the proposed amendment; that no such notice was published by the city clerk of the city or by any one for or on behalf of the board of appeals; that no hearing was had before said board concerning such amendatory ordinance, nor did said board make any finding or report as provided in section 4 of the zoning statute (Smith-Hurd Rev. St. 1929, c. 24, § 69); that the only notice of a public hearing was published on November 7, 1925, in one edition of a Chicago paper, which edition was not circulated generally among its subscribers, but was placed for sale only upon the news stands in the city and had a very limited circulation, and that such notice was not included in any of the other five editions of said paper on that date. What purported to be a public hearing was held before a committee known as the committee on buildings and zoning, which committee was never designated by the city council to conduct a hearing with reference to the adoption of zoning ordinances until January 19, 1927, more than a year after the hearing in this case. Section 29, of the zoning ordinance of April 5, 1923, provided that the regulations imposed for districts created in the ordinance might be varied or amended from time to time by ordinance, but no such variation or amendment should be made without a hearing before the board of appeals, at which persons interested should be afforded an opportunity to be heard; that any proposed variation or amendment which had failed to receive the approval of the board of appeals should not be passed except by the favorable vote of two-thirds of all members of the city council. The amendatory ordinance was passed on May 19, 1925. No land other than the tract in question was included.

As grounds for reversal, it is urged by appellant that appellees are precluded from equitable relief because they had an adequate remedy at law to which they did not resort, namely, application to the zoning board of appeals, and that the action of the city council in rezoning the tract was within the scope of the reasonable exercise of the zoning powers of the city.

Appellees insist that the facts set forth in the bill and the stipulation are sufficient to entitle them to equitable relief; that the amended zoning ordinance, of May 19, 1926, contravenes section 2 of article 2 of the state Constitution and the Fourteenth Amendment to the Federal Constitution, which provide that no person shall be deprived of his life, liberty, or property without due process of law; that it contravenes the...