Seminary v. City of Evanston

• Decision Date: 08 June 1927
• Docket Number: No. 17451.,17451.
• Citation: 156 N.E. 778,325 Ill. 511
• Parties: WESTERN THEOLOGICAL SEMINARY v. CITY OF EVANSTON.
• Court: Illinois Supreme Court

325 Ill. 511

156 N.E. 778

WESTERN THEOLOGICAL SEMINARY

v.CITY OF EVANSTON.

No. 17451.

Supreme Court of Illinois.

April 20, 1927.

Rehearing Denied June 8, 1927.

Suit by the Western Theological Seminary against the City of Evanston. From a decree of dismissal, complainant appeals.

Reversed and remanded, with directions.Appeal from Circuit Court, Cook County; Ira Ryner, Judge.

F. F. & J. V. Norcross, of Chicago (J. V. Norcross and Harry E. Smoot, both of Chicago, of counsel), for appellant.

Tenney, Harding, Sherman & Rogers, and William Lister, Corp. Counsel, all of Chicago (Horace Kent Tenney, Henry F. Tenney, and S. Ashley Guthrie, all of Chicago, of counsel), for appellee.

DUNN, J.

The circuit court of Cook county having dismissed for want of equity, after sustaining a demurrer thereto, an amended bill for an injunction filed by the Western Theological Seminary against the city of Evanston, praying that a certain ordinance of the city approved April 1, 1925, be decreed to be invalid and that the city be restrained from enforcing or threatening to enforce the provisions of such ordinance the complainant has appealed.

The bill averred that the city council of the city of Evanston adopted a zoning ordinance on January 19, 1921, which divided the city into five districts according to the use permitted of property in the respective districts. The A district was a residence district, in which the ordinance provided that all buildings and premises ‘should be erected for and used exclusively as (1) single family dwellings; (2) churches and temples; (3) libraries; (4) schools and colleges; (5) farming and truck gardening.’ Block 84 in Evanston is in this district.

The Western Theological Seminary is a corporation, not for profit, organized under the laws of the state of Illinois for the purpose of establishing and carrying on an institution of learning and religion, in association with the Protestant Episcopal Church of the United States, for school and educationalpurposes. Pursuant to the powers of its charter it acquired property on West Washington boulevard, in Chicago, on which it erected buildings and for over 40 years carried on an institution to educate men for the ministry of the Episcopal Church. During this term it acquired a valuable library and substantial endowment and has offered its students a regular course of study approperiate to its purposes. In 1923 it obtained a lease from the Garrett Biblical Institute and the Northwestern University of a part of block 84 in the city of Evanston in perpetuity, unless it should cease to maintain its corporate existence or to carry out and observe the objects for which it was organized, in which lease it was provided that the premised should be used by the complainant only as a site for such educational buildings as might be deemed necessary for carrying forward its work as provided by its charter, and not otherwise, and that the buildings to be erected upon the property so leased should be for the exclusive use of the lessee and for educational purposes only. Later in 1923 the complainant purchased another part of block 84 for $47,000, and in doing so, as well as in taking the lease, it relied on the zoningo ordinance, and particularly on the provisions authorizing the erection and use of buildings for schools and colleges in district A. In anticipation of moving its theological school to Evanston it sold its property on West Washington boulevard, in Chicago, and made preparations to erect in Evanston the buildings usual, necessary, and convenient for carrying of the purposes authorized by its charter, and it was and is its purpose to construct such buildings upon the premises in block 84. These buildings include a chapel, library, assembly room, students' commons or dining room, a group of students' dormitories for the accommodation of 56 students, and houses for the officers and employees of the complainant. All of the buildings are necessary in carrying on the theological school and caring for its expected expansion. The complainant intends them to be fireproof and permanent in character and of pleasing architectural design and arrangement, and proposes to build them in full accordance with all valid provisions of the Building Code and other ordinances of the city. The dormitories and students' dining room are not to be operated for profit, but are to be used solely by students of the complainant. In order to improve its property with buildings suitable for its purpose it was necessary for the complainant to conduct a campaign to raise sufficient funds by private subscription, and, in order to submit a plan to persons asked to subscribe, the complainant at great expense secured the services of an architect, who made preliminary sketches of the proposed buildings, showing their elevations, height, ground measurements, and their relation to streets and alleys, etc. A publicity campaign was prepared, and in all the advertising made it was stated that the proposed buildings would be located on block 84. The architect's plans were designed for said premises and were suitable and adaptable to no other site. The complainant's intention to build in Evanston upon these premises was widely circulated and large sums of money were subscribed for that purpose by residents of the city.

In December, 1923, the complainant asked the council to vacate a part of an alley running north and south through a part of block 84. The application was referred to a committee and a public hearing was held at which various objecting property owners opposed the vacation, and the committee, after full consideration, reported to the council on December 2, 1924, that it had decided to take no action on the vacation of the alley until the complainant had obtained a decision from the building commissioner as to whether the proposed buildings and use of the leased premises were within the uses permitted in A residence district. The council adopted this report, and the complainant, on December 9, 1924, applied to the building commissioner for a use and occupancy permit of the premises and filed with its application copies of sketches made by its architect showing the uses of the proposed buildings, including the students' commons or dining room and dormitories, together with a letter to the commissioner stating that the dormitories and dining rooms were not to be operated for profit, but for the convenience of the students of the complainant. On the same day it was presented the commissioner refused to issue the permit, stating that the proposed use was not in conformity with A use and restrictions. The complainant appealed from the decision of the building commissioner to the zoning board of appeals. A publichearing of this appeal was held on December 30, 1924, and various property owners appeared and objected to the granting of a use and occupancy permit. The board of appeals reversed the action of the building commissioner, and found, in substance, that the proposed group of college buildings would not violate the zoning ordinance, and the building commissioner should issue a certificate of occupancy therefor in accordance with the provisions of the zoning ordinance, and ordered the building commissioner to issue the necessary building permits to complainant for structures to be used as aforesaid when plans and specifications therefor had been filed with him. After the decision of the board of appeals an amendment to the zoning ordinance was presented to the city council on January 6, 1925, eliminating from the ordinance the words ‘And temples,’ ‘libraries,’ and ‘schools and colleges,’ and inserting in lieu thereof the words, ‘Publicinstitutions having the right of condemnation under the laws of eminent domain.’ On the same day the proposed amendment was referred to the zoning commission of the city of Evanston and the zoning committee of the councill, and motion was carried in the council ‘that the council direct the building commissioner to take no further steps on the application for a ‘use permit’ by Western Theological Seminary in view of the possible change in the zoning ordinance.' On January 8, certain property owners petitioned the board of appeals for a rehearing, and the petition was set for hearing on January 29, the order of the board to be held in abeyance during the interval. On that day a rehearing was held by the board of appeals. Evidence and arguments were presented by both sides, and on February 7 the board ordered that the order of December 30, 1924, reversing the action of the building commissioner be adhered to and be in full force and effect from that date. On February 12 the zoning commission conducted a hearing on the proposed amendment to the zoning ordinance, and on February 14 reported to the mayor and the council that it was the opinion of the commission that the adoption of the amendment as drawn would be unwise; that it would appear to be doubtful if a complete exclusion of all educational institutions from such districts would be a lawful exercise of the power delegatied to municipalities under the zoning statute, and that such indiscriminate exclusion might invalidated the zoning ordinance and thus defeat the desire of the city council to properly protect the single family dwelling area. Nevertheless, the council on March 31, 1925, adopted the amendment and it was approved on the next day by the mayor.

The complainant's leasehold interest was worth more than $150,000. The architect estimated the cost of the proposed buildings would be approximately $750,000, of which $400,000 had already been pledged. These pledges were all made for the erection of buildings on the leased premises. The passage of the ordinance has been widely published, reports, have been widely circulated that the complainant will be unable to make use of these premises for the proposed buildings, and doubt and uncertainty have been created in the mind of the public as to ...