DocketNumber: No. 30791. Decree affirmed.
Judges: Crampton
Filed Date: 1/19/1949
Status: Precedential
Modified Date: 10/19/2024
This is a direct appeal from a decree of the circuit court of Du Page County, involving the validity of a zoning ordinance enacted under the authority of the County. Zoning Act. The county of Du Page sought to enjoin the *Page 181 defendants-appellants, Clare S. Henderson and his wife, Elsie, from using their property for a purpose contrary to the ordinance. The answer of appellants admitted such use but alleged the ordinance to be subject to various constitutional objections. The decree enjoined them from so using the property, and this appeal followed.
The board of supervisors zoned the unincorporated areas of the county into seven districts, (1) "E" (Estate), (2) "R" (Residence), (3) "F" (Farming), (4) "B-1" (Business), (5) "B-2" (Business), (6) "I-1" (Industrial) and (7) "I-2" (Industrial). The involved property is within the "F" zone. In that zone the uses permitted under "E" and "R" are also permitted in addition to 22 other uses, one of which is farming and truck gardening.
The basic facts can be summarized very briefly after we describe the territory wherein the properties of appellants and of appellee's witnesses are located, namely Lisle Township, which is a congressional one of 36 sections. In the west part thereof is Naperville, in the east is part of Belmont, the two being connected by U.S. Route 34. Cutting the township north and south is State Route 53. Where the two routes intersect is the unincorporated village of Lisle. Approximately two miles south of Lisle in the southwest quarter of section 23, Route 53 is crossed by an east and west highway known variously as "Good Ridge Road," "Goodrich Road," and "Hobson Road." We shall use the last appellation herein. Extending north from the intersection of the two roads along the east side of Route 53, the land is divided into lots of small acreage for assessment purposes, except for a plot at the intersection devoted to district school purposes. A subdivision covers territory on both sides of Route 53 between section 23 and Lisle. About one and one-half miles west of the intersection, and on the north side of Hobson Road is another subdivision in the southwest quarter of section 22. The testimony of witnesses and the maps in evidence clearly establish the fact that *Page 182 the township is largely devoted to farming uses. There are exceptions, such as areas adjoining Naperville and Belmont, and around Lisle, zoned for residential purposes. A considerable acreage is devoted to the use of Catholic orders. Small areas zoned for business are interspersed through the township, the closest of such to the intersection of Route 53 and Hobson Road being on the former in section 26. On the west side of Route 53 in section 23 are the abandoned grounds of a defunct golf club on which is a gravel pit of undetermined size and use. Small, but seemingly sufficient, industrial zones are found adjoining Naperville and Belmont, in Lisle, and in section 15.
Insofar as Lisle Township is concerned, the evidence demonstrates a progressive infiltration of people acquiring small acreages in the "F" district for residential purposes. Each instance required the outlay of considerable money for the procurement of the ground, construction of the dwelling and appurtenances. The infiltration is further evidenced by the establishment of the two subdivisions for residential use, both relatively close to the property of the appellants. The one to the north on Route 53 is laid out in 19 blocks containing 371 lots. The one to the west on Hobson Road has eight acreages ranging from 3 to 10 acres each in the part situated in the township. Additionally, there are the acreages of those township residents, living fairly close to defendants, who appeared as witnesses for the appellee. Those witnesses either resided on the lots created for assessment purposes along the east side of Route 53 north of its intersection with Hobson Road, or along the latter road west and east of the intersection.
The appellants said in the lower court, and say here, that the ordinance, insofar as it bears upon them adversely in this instance, contravenes sections 2 and 13 of article II of the constitution of 1870, because it (a) takes their property without just compensation, (b) is unreasonable and arbitrary, and (c) bears no substantial relationship to public *Page 183 safety, morals or general welfare. It is also charged to be a capricious invasion of their property rights; and, even though the ordinance be held valid, the decree should be reversed and the complaint dismissed for want of equity due to the slight public benefit, if any, as compared to the extreme hardship upon them. There are two other objections we will consider later.
The county zoning ordinance was adopted in 1935. The appellants purchased lot 4 of the assessment division in January, 1941, and erected a dwelling thereon. In that structure, appellant Clare S. Henderson installed machine tools for manufacturing machines under a contract with the army. Because of the war, the manufacturing activity was never challenged as a violation of the ordinance. Subsequently, in 1944, the equipment was moved from the dwelling to a building on the lot and the manufacturing continued. A punch press was installed in a garage on the lot in January, 1945, and was removed therefrom and sold in October of that year when neighbors objected to the noise from its operation. On the north 65 feet of lot 4 the appellants erected a building in the latter part of 1945, and in January, 1946, they installed machinery therein and used the premises and machinery for the processing of ground flat carbon tool steel stock, which they sell to manufacturers. This activity is not predicated upon any government contract. This particular building is about 105 by 41 feet and about 350 feet from the center of Route 53. In October, 1945, the appellant Clare S. Henderson applied to the zoning board of appeals of the county for a variation in zoning, so he could conduct his manufacturing business, subject to certain conditions we need not state. This application was denied.
The appellants also owned another tract of five acres north of and adjacent to lot 4. Thereon they built a new residence, and a son-in-law did likewise. In March, 1946, they sold all of lot 4, except the north 65 feet containing *Page 184 the factory building, to Norbert Rennecke for residential purposes. The appellants gave further recognition of the zoning ordinance, and of the fact they were restricted by it in respect to the manufacturing venture, when application was made for a permit to erect the building on the 65-foot strip of lot 4. The application was for the construction of a barn, 104 by 40 feet, to be used to "house stock, poultry and miscellaneous storage." If any such use was made of the structure, it was merely a token use, for it was almost immediately used to house the manufacturing venture. The type of construction used belies the professed use to which it presumably was to be put.
The police power of the State is that power required to be exercised in order to effectually discharge within the scope of the constitutional limitations its paramount obligation to promote and protect the public health, safety, morals, comfort and general welfare of the people. The enactment into law of "An Act in Relation to County Zoning" in 1935 (Ill. Rev. Stat. 1947, chap. 34, par. 152i et seq.) was a delegation of that power to the counties to be exercised by them for the accomplishment of those purposes in order to benefit county residents outside of incorporated cities and villages.
The owner of property does possess the right under the constitution of the State to use his property as he so desires; and this includes the engaging in any common occupation of life, for such is a part of his right to life, liberty, property and the pursuit of happiness. It is one of the natural rights guaranteed to him by the constitution. (Const. 1870, art. II, sec. 1; Frazer v. Shelton,
Euclid v. Ambler Realty Co.
On the basis of what is in the record regarding the origin of the county zoning ordinance, we conclude it was enacted only after a thorough survey by specialists in such matters of the relevant conditions in the county outside incorporated cities and villages. We are judicially aware *Page 187 Du Page County is just west of Cook County and the city of Chicago, and there has been for some years past a constantly accelerated migration westward, from the two places, of people seeking less congested and more comfortable living conditions; that industry is to a degree and for various reasons decentralizing, and business generally is seeking escape from the troublesome burdens which seem to be an end product of concentrations of people. All that has operated, and is operating, to bring about a change in the basic characteristics of the unincorporated areas of Du Page County. Country areas, especially those close to metropolitan areas, are feeling the impact of changing conditions of life, just as Mr. Justice Sutherland has observed the urban communities experienced a change in their ways of life. Under such circumstances, the imposition of new or additional restrictions on the way of life in country areas is inevitable.
The ordinance is presumed to be valid, and the burden of showing it unreasonable and oppressive, as applied to appellants, rested upon them. Their showing had to be clear and conclusive. All that they have shown is that they purchased the property knowing it was subject to the zoning ordinance restriction against carrying on a manufacturing business thereon. The violation of the ordinance is admitted. They have not shown that the particular restriction, as applied to them, is not a proper exercise of the police power in that it does not have a substantial relation to the general welfare of the people about them. If the property were located in an area which was static, as to conditions changing it from a rural to a suburban manner of life, the case for the restriction would be weak indeed, and the case against it stronger. The area is not static. In fact, it is kinetic with change to an extent which, at the least, leaves the question of the necessity of the ordinance restriction open to a fair difference of opinion. Under those circumstances, this court will leave the matter as it *Page 188
finds it — with a difference of opinion concerning the reasonableness of a particular ordinance, and will refuse to overthrow the considered findings of an impartial body which was presumably well equipped to decide the various issues involved.Village of Western Springs v. Bernhagen,
The worth of the defense offered by the appellants must depend upon the evidentiary value of the circumstances of their situation with respect to the ordinance. The fact the ordinance permitted a large number of uses within the district, which the appellants deemed more detrimental to the people and their property, can neither diminish nor enlarge their defense, for those other uses are not theirs. The fact that nonpermissive uses are carried on by others contrary to the ordinance neither fortifies nor weakens the case of appellants, but each alleged violation of the ordinance is a complete case within itself and must stand or fall upon the facts and circumstances of that case alone. The appellants charge in this court that the classification of their property as nonindustrial in the ordinance amounts to a capricious invasion and an unreasonable invasion of their property rights. The presumption of the validity of that classification must be overcome by proof made by defendants which is clear and convincing. (City of Springfield v.Vancil,
The appellants say if the ordinance is valid the decree should be reversed and the complaint dismissed for want of equity due to the slight benefit to the public, if any, as compared with the extreme hardship on the appellants. This is based upon the belief the evidence in the record clearly supports the contention. What extreme hardship, so-called, have the appellants suffered? Only this, they can no longer follow at the stated place a business activity they started in known violation of the prohibition contained in the ordinance, and they must, in the future, conduct that activity elsewhere, if they are to conduct it at all. InWelton v. Hamilton,
The benefit to the public because of the termination of the nonzoned activity of appellants is material. The evidence *Page 190 demonstrated that the business appellants conducted appreciably lowered property values in that portion of Lisle Township surrounding the appellants' property. Under those circumstances, we must hold it is not inequitable to compel them to cease violating the ordinance.
A claimed discrepancy between the ordinance and the map of the zoned territory is alleged to be sufficient to warrant the dismissal of the complaint for want of equity. This is not advanced in support of an assigned error relied upon for reversal, and was not briefed and argued in the main brief of appellants. It appeared for the first time in their reply brief, and the appellee had no day in court to answer the point. The court cannot, under those circumstances, entertain the matter.
It is alleged that section 3 of the County Zoning Act is an unconstitutional delegation of power by the legislature to an administrative body, and that paragraph 6 of section 17 of the ordinance, which is based on section 3, authorizing the board of appeals to vary or modify the zoning regulations, is invalid. Section 3 of the County Zoning Act is almost identical with section 3 of the City Zoning Act held unconstitutional in Welton
v. Hamilton,
The appellee especially asked that appellants be enjoined from using their premises for manufacturing, and also asked for any general relief the court should see fit to bestow. The court decreed the specific relief, and for general relief enjoined appellants "from in any way violating the zoning ordinance * * * in reference to the use of the * * * premises." They complain of the blanket restriction of the general relief granted, claiming it is not supported by any allegation of the complaint and proof of any other actual or contemplated violation.
A prayer for general relief is sufficient to warrant any decree supported by the facts alleged in the complaint. (Harmony WayBridge Co. v. Leathers,
The circuit court of Du Page County did not err in entering the decree, and that decree is affirmed in all respects.
Decree affirmed.
City of Springfield v. Vancil ( 1947 )
Speroni v. Board of Appeals ( 1938 )
Harmony Way Bridge Co. v. Leathers ( 1933 )
Village of Western Springs v. Bernhagen. ( 1927 )
Hadacheck v. Sebastian ( 1915 )
Virginian Railway Co. v. System Federation No. 40 ( 1937 )
2700 Irving Park Bldg. Corp. v. City of Chicago ( 1946 )
Neef v. City of Springfield ( 1942 )
Village of Euclid v. Ambler Realty Co. ( 1926 )
Keystone Driller Co. v. General Excavator Co. ( 1933 )
People Ex Rel. Kirby v. City of Rockford ( 1936 )
State Bank & Trust Co. v. Village of Wilmette ( 1934 )
Littlejohn v. City of North Chicago ( 1994 )
Trust Co. of Chicago v. City of Chicago ( 1951 )
DeCoals, Inc. v. BD. OF ZONING APPEALS, ETC. ( 1981 )
Cesena v. Du Page County ( 1991 )
Baird v. Board of Zoning Appeals ( 1952 )
Wesemann v. Village of La Grange Park ( 1950 )
County of Cook v. Glasstex Co. ( 1959 )
First National Bank and Trust Co. of Evanston v. County of ... ( 1958 )
Exchange Nat. Bk. of Chicago v. County of Cook ( 1955 )
Deschamps v. BOARD OF ZONING APPEALS ETC. ( 1961 )
Hoyne Savings & Loan Ass'n v. Hare ( 1974 )
Phillips Petroleum Co. v. City of Park Ridge ( 1958 )
MB Financial Bank, N.A. v. Allen ( 2015 )
MB Financial Bank, N.A. v. Allen ( 2015 )
Sinclair Refining Co. v. City of Chicago ( 1949 )
City of Aurora Ex Rel. Egan v. Young Men's Christian Ass'n ( 1956 )
Jacobson v. City of Evanston ( 1956 )
Kinney v. City of Joliet ( 1952 )
Fritzsche v. LaPlante ( 2010 )