Schneider v. Bd. of Appeals of City of Ottawa

• Decision Date: 16 March 1949
• Docket Number: No. 30890.,30890.
• Citation: 84 N.E.2d 428,402 Ill. 536
• Parties: SCHNEIDER v. BOARD OF APPEALS OF CITY OF OTTAWA et al.
• Court: Illinois Supreme Court

402 Ill. 536

84 N.E.2d 428

SCHNEIDER

v.BOARD OF APPEALS OF CITY OF OTTAWA et al.

No. 30890.

Supreme Court of Illinois.

Jan. 19, 1949.

Rehearing Denied March 16, 1949.

Appeal from Circuit Court, La Salle County; Louis A. Zearing, judge.

Certiorari proceeding by E. O. Schneider against the Board of Appeals of the City of Ottawa, and others, to review decision of Board affirming decision of city engineer, granting to E. Linwood Connellee and Anita N. Connellee, a permit to repair and make alterations in a building. From judgment reversing decision of Board of Appeals and affirming decision of the city engineer, the Connellees appeal.

Judgment reversed.

E. Linwood Connellee and Richolson, Wilhelm & Davies, all of Ottawa, for appellants.

John H. Armstrong and James L. Waring, both of Ottawa, for appellee.

THOMPSON, Justice.

This is an appeal from a judgment of the circuit court of La Salle County reversing and setting aside the decision of the board of appeals of the city of Ottawa, approving the action of the city engineer in issuing a permit to appellants to make certain alterations in a residence building owned by them on Pearl Street in said city. The presiding judge certified as to the validity of an ordinance being involved, and that the public interest required the cause to be reviewed. The cause is here pursuant to such certificate.

The controversy arose when the city engineer of Ottawa, on July 26, 1947, granted to E. Linwood Connellee and Anita N. Connellee a permit to make certain repairs and alterations in a three-story building located at 622 Pearl Street, thereby, enlarging it from five to ten apartments. An appeal from the decision of the city engineer to the board of appeals of the city of Ottawa was taken by E. O. Schneider, who lived three blocks west on Pearl Street. A hearing was had before the board of appeals and the decision of the city engineer affirmed. A writ of certiorari was sued out of the circuit court and after a hearing the court reversed the decision of the board of appeals and revoked the permit issued by the city engineer. The Connellees have appealed from that judgment.

Appellants, E. Linwood Connellee and Anita N. Connellee, purchased the property from Mrs. Rose Lucey in August, 1946. In the year 1939 Mrs. Lucey, after the death of her husband, converted it and also the stables in the rear facing on Chapel Street into apartments. The home was divided into five apartments and has been used continuously from 1939 to the present time as a five-family or five-apartment house.

The city of Ottawa adopted a zoning ordinance on August 25, 1941, dividing the city into five zoning districts. The Pearl Street property is located in that part of the city zoned as the ‘A’ residence district. The ordinance permits buildings and premises in that district to be used for one-family dwellings, two family dwellings and eleven other purposes, but does not include apartments or apartment houses. Section 8 of the ordinance is entitled ‘Nonconforming Uses,’ and provides: ‘Any lawful use existing at the time of the adoption of this ordinance of any building or premises may be continued, although such use does not conform to the provisions of this ordinance for the district in which the use is situated. The area occupied by such use may be enlarged, provided such enlargement shall not exceed an area equal to 50% of the area of the ground floor of that part of the building in which said non-conforming use is situated, or such use may be extended throughout the building, provided no structural alterations are made therein.’ Paragraph (kk) of section I of the ordinance defines ‘structural alterations' as ‘Any change in the supporting members of a building such as bearing walls or partitions, columns, beams or girders, excepting such alterations as may be required for the safety of the building.’

The zoning map of the city, which was adopted by the city council as a part of the zoning ordinance, and which purports to show the five zoning districts into which the city was divided and the nonconforming property in the district, does not designate the Pearl Street property as nonconforming, although it indicates that the stables on Chapel Street are nonconforming. The zoning map was made by the city engineer from classifications or record sheets containing information obtained through investigation of city employees. There was a sheet for each piece of property. The classification sheet for the 622 Pearl Street property contained the information that this was a five-apartment building housing five families and two roomers.

It is contended by the appellants that the ordinance is invalid because the map was not physically attached to and published with the ordinance. It is further contended that the ordinance is an invasion of their constitutional rights and amounts to the taking of their property contrary to constitutional prohibitions. They also claim that the repairs and alterations proposed do not constitute a violation of the ordinance.

The appellee, Schneider, challenges the jurisdiction of this court to take the case on direct appeal and urges that appellants, in their answer filed with the board of appeals, expressly admitted the ordinance was in full force and effect and based their defense solely on the theory that the proposed alterations were not in violation of its terms. He also claims that it was appellants' codefendant, the board of appeals and not appellants who objected in the circuit court that the ordinance was illegal because not fully published and claims that appellants never, at any time, either before the board of appeals or in the trial court raised any question as to the validity of the ordinance, but raised only the question of its application to their property.

We have held that where a defendant charged with the violation of an ordinance does not question its validity, but contends only that it does not apply to him and that the acts with which he is charged do not amount to a violation of the ordinance, he cannot, after judgment against him on the issues as presented, attempt for the first time to attack the validity of the ordinance either in the court below or on direct appeal to this court. Village of Riverside v. Kuhne, 397 Ill. 108, 73 N.E.2d 286. The certificate of the trial judge that the validity of a municipal ordinance is involved and that in his opinion the public interest requires the appeal to be taken directly to this court is ineffective to confer jurisdiction if it is contrary to what is shown in the record. Village of Riverside v. Kuhne, 397 Ill. 108, 73 N.E.2d 286;Akouris v. Village of Oak Lawn, 389 Ill. 582, 60 N.E.2d 99. We find, however, in the instant case appellants called as their witness the city clerk and attempted to prove by him that the zoning map was not filed or published with the ordinance. They also called Schneider as an adverse witness and questioned him concerning the publication and filing of the zoning map. They moved to dismiss the petition for certiorari and to quash the writ, alleging that if the prayer of the petition was granted, they would be deprived of the rights guaranteed to them under section 2 of article II of our State constitution, Smith-Hurd Stats. Before final judgment was entered they filed a motion asking the court to rule on every constitutional question presented and also to rule on the validity of the ordinance. The final judgment entered found that appellants had brought to the attention of the court two specific questions, namely, whether their constitutional rights had been violated and whether the zoning ordinance was illegal and void. The court further found in and by said final order that the zoning ordinance had been passed and adopted by the city council in compliance with the statute of this State and was a valid ordinance in full force and effect, of which appellants had full notice and knowledge at the time they purchased the property here involved, and that the property was classified on the zoning map, which was made a part of the ordinance, as a residence property in the ‘A’ residence district, and, based upon such finding, made and entered an adjudication that the ordinance was properly enacted and is a legal and valid ordinance, and that by reason thereof and by reason of appellants' knowledge of said ordinance at the time of the purchase, their constitutional rights have not been violated. Upon this state of the record showing that the question of the validity of the ordinance was not only presented to but decided in the trial court, it cannot be contended that the trial judge's certificate that the validity of a municipal ordinance is involved is ineffective to confer jurisdiction.

The right of cities and villages to enact zoning ordinances, thereby imposing a reasonable restraint upon the use of private property, is established beyond question or doubt. The right which every owner has to use his property in his own way and for his own purposes is subject always to the exercise of police power and it is in the exercise of this power that zoning ordinances are adopted. The police power, however, is limited to enactments having reference to the public...