delivered the opinion of the court:
Plaintiff, Builders Supply & Lumber Co., brought suit for declaratory judgment in the circuit court of Cook County to declare the zoning ordinance of the citv of Northlake null and void as it appliеs to plaintiff’s property, or in the alternative that the entire ordinance is null and void. Upon plaintiff’s motion for summary judgment the court held the ordinance was null and void as it applies to plaintiff’s property. The validity of a municipal ordinance being involved, the defendant city of Northlake appeals direсtly to this court.
Plaintiff filed its complaint alleging it was the owner of certain vacant property in the city of Northlake; that on May 8, 1956, the city council of the city of Northlake adopted an amended zoning ordinance which classified a portion of plaintiff’s property as “Specialty Shop” which permits, аmong other uses, apartments over stores as the only residential use. The remainder of plaintiff’s property was zoned “Residential” which permits one-family dwellings as the only residential use. The zoning ordinance, as amended, made no provision for construction of multiple-family dwellings. Plaintiff is a building contractor and allеged that it desired to erect multiple-family, dwellings on its property. The complaint further alleged that plaintiff’s property had little value for development of a specialty shop or single-family residences, that the classification of plaintiff’s property had no bearing upon public health, safety, cоmfort, morals or welfare, and that the highest and best use of the property was for multiple dwellings. The complaint was unverified.
The city answered, denying the material allegations of the complaint as to the lack of relationship of the zoning ordinance to the public health, safety, comfort, morals and welfаre, and the best use of the property, and prayed that the complaint be dismissed.
Plaintiff moved for summary judgment upon the pleadings and filed an affidavit of onе of its attorneys. That affidavit declared that plaintiff owned the subject property, that the property was classified as set forth in the complaint, that Grand Avenue, abutting the property on the south, is a heavily travelled traffic artery, that plaintiff desired to erect multiple family dwellings, and that the affiant would so testify.
The city moved to strike the motion for summary judgment which was denied. Defendant then filed its counter-affidavit, that plaintiff’s property is zoned as alleged, that permits were issued to plaintiff by defendant on December 18, 1958, for a portion of the subject property for the construction of one-story stores.
After argument by counsel the court declared the zoning ordinance of the city of Northlake, as amended, to be null and void insofar as the same prohibited the use of the plaintiff’s property for multiple-family dwellings.
Defendant appeals here contending (1) that the court erroneously erred in entering the summary judgment, (2) that the plaintiff failed to meet its burden of proving the zoning ordinance unconstitutional; and (3) that zoning ordinances excluding multiple-family dwellings have been upheld as constitutional.
The dеfendant first urges that the trial court erred in entering summary judgment for the reason that a genuine controversy remained between the parties subsequent to the filing of affidavits by the parties, and the plaintiff’s affidavit for summary judgment failed to meet the requirements of the rule of the court. The statute relating to summary judgments provides in pаrt that “The judgment or decree sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issuе as to any material fact and that the moving party is entitled to a judgment or decree as a matter of law.” Ill. Rev. Stat, 1959, chap, 110, par. 57.
The complaint аlleges and the answer admits that the zoning ordinance of the city of Northlake, as amended, makes no provision for the construction of a multiple-family dwelling. The zoning ordinance does not prohibit multiple-family dwellings, but fails to make any provision for such use. Plaintiff cites us to opinions of this court where we have determined that a zoning ordinance may not exclude or prohibit a legitimate use of the land. (People ex rel. Trust Company of Chicago v. Village of Skokie,
There are no allegations or affidavits as to the use and classification of surrounding and neighboring properties, the character of the neighborhood, the hardship imposed on plaintiff as compared to the gain to the public, or the extent to which plaintiff’s property is diminished in value bv this classification. The exclusion of multiple dwellings from this area may well be in the greater public interest, and a proper exercise of the police power. (Speroni v. Board of Appeals of the City of Sterling,
It is obviоus that genuine issues relating to several material facts remained to be determined subsequent to the filing of all pleadings and affidavits. It was necessary for much evidence to be presented to properly determine if this zoning ordinance was unconstitutional in any respect. (Ill. Rev. Stat., 1959, chap, 110, par. 57.) The summary judgment should thus not have been entered.
Moreover, Rule 15(1) of this court (Ill. Rev. Stat., 1959, chap, 110, par. 101.15(1)) provides that affidavits in support of a motion for summary judgment shall set forth with particularly the facts upon which the claim is based, and shall have attached thereto sworn or certified copies of all papers upon which the affiant relies, and shall not consist of conclusions but of facts upon which the affiant relies. Nowhere, either in the pleadings or the affidavit did the plaintiff set forth the complete zoning ordinance as amended, nor was a copy thereof attached. Nor does it appear that the affiant could testify as a witness to all of the matters stated in the affidavit. The facts necessary to a determination of the validity of that ordinance are lacking from bоth the pleadings and the affidavit. It thus appears that the affidavit was itself insufficient.
The court thus erred in entering summary judgment upon these pleadings and affidavits. It is unnecessary to further consider the other issues raised in the briefs submitted with this cause. The judgment of the circuit court of Cook County is reversed and the cause is remanded, with directions to deny plaintiff’s motion Tor summary judgment and to proceed to trial on the issues of the cause.
Reversed and remanded, with directions.