175 N.E. 391 | Ill. | 1931
Lead Opinion
Sidney Cain, appellee, the owner of certain premises in Rockford, Illinois, applied to Forrest A. Lyddon, appellant, the building commissioner of that city, for a permit to erect a gasoline and oil station thereon. Such use of the property was permissible if it lay within an area zoned for commercial purposes. The permit was denied. Thereupon appellee filed his petition for mandamus in the circuit court of Winnebago county praying that appellant be commanded to issue the permit, and after a hearing by the court an order was entered granting the writ. Lyddon prayed an appeal, and the case is here on certificate of the trial court that the validity of a municipal ordinance is involved and that the public interest requires appeal to this court.
The original zoning ordinance of the city was passed in 1923. On January 14, 1929, the board of appeals recommended to the city council that the classification of the property in question, then and previous to 1923 devoted in part to a non-conforming use, be changed from "C residential" to "Commercial." On January 28, 1929, an ordinance presented January 21, 1929, which amended the ordinance of 1923 by making such change in classification, was passed. On January 29 this amending ordinance was approved and it was published on February 20, 1929. On June 10, 1929, the city council passed an ordinance repealing this amending ordinance, and this repealing ordinance was published on June 27, 1929. The court, however, refused to admit this repealing ordinance in evidence. Appellee's application for the permit was made on or about October 29, 1929.
Appellant contends that the amending ordinance of January 28, 1929, was not effective because it did not comply with the requirements of a certain section of another ordinance which was passed December 5, 1927. By the terms of the section in question it was provided that ordinances *219 proposing amendments, supplements or changes in connection with existing zoning regulations should not be offered for passage until ten days after presentation to the city council, unless such ordinances were accompanied by a communication from the board of appeals advising that all property owners directly affected had filed written consents to the amendments or changes proposed. The requirements thus laid down were not met. If they were valid the ordinance making the change in classification was not duly enacted and conferred no rights on appellee. Appellee challenges their validity on the ground that the Zoning act has specified in section 4 the methods and manner by which amendments to regulations imposed and districts created may be made and that it is not within the power of a city council to prescribe any different rule than section 4 provides.
Section 4 of the Zoning act (Cahill's Stat. 1929, chap 24, par. 524,) is as follows: "The regulations imposed and the districts created under the authority of this act may be amended from time to time by ordinance after the ordinance establishing same has gone into effect, but no such amendments shall be made without a hearing before some commission or committee designated by such council or board of trustees. At least fifteen days' notice of the time and place of such hearing shall be published in an official paper or a paper of general circulation in such municipality. In case of written protest against any proposed amendment, signed and acknowledged by the owners of twenty per cent of the frontage proposed to be altered, or by the owners of twenty per cent of the frontage immediately adjoining or across an alley therefrom, or by the owners of twenty per cent of the frontage directly opposite the frontage proposed to be altered as to such regulations or district, filed with the clerk of the city, village or incorporated town, such amendment shall not be passed except by the favorable vote of two-thirds of all of the members of *220 the city council in cities or of the members of the board of trustees in villages or incorporated towns."
Certainly a city council could pass no ordinance or rule setting up requirements inconsistent with those prescribed by section 4. On the other hand, the section does not expressly prohibit the enactment by a city council of ordinances or rules not inconsistent with the statutory provisions thus made, nor may it fairly be said that any prohibition of ordinances or rules not inconsistent therewith must be implied. Indeed, the references to "some commission or committee designated by such council or board of trustees," and to "at least fifteen days' notice of the time and place of such hearing," apparently denote an intention that a city council or village board of trustees may exercise powers in the premises, and that, within the statutory limits laid down, the details as to hearings and notice thereof may be prescribed by such municipal bodies. Under the general law (Cahill's Stat. 1929, chap. 24, par. 65, sec. 102,) city councils and village boards have power to pass all ordinances and rules and make all regulations proper or necessary to carry into effect the powers granted to cities and villages, and this court has said that under the general law a city council or village board shall determine its own rules of procedure in the matter of adoption of ordinances, subject to the statutory requirements therein referred to. (People v. Strohm,
Appellee insists that Chicago Coach Co. v. City of Chicago,
The judgment of the circuit court is reversed and the cause remanded, with directions to dismiss the petition.
Addendum
The foregoing opinion reported by Mr. Commissioner Edmunds is hereby adopted as the opinion of the court, and judgment is entered in accordance therewith.
Reversed and remanded, with directions.