SAMUAL A. WARD et al., Appellées, vs. THE VILLAGE OF SKOKIE, Appellant.
No. 36965
Supreme Court of Illinois
November 30, 1962
26 Ill. 2d 415
The decree of the trial court dismissing defendant‘s first counterclaim and refusing to allow the filing of the amended counterclaim is reversed with instructions to permit appellant to file his amended first counterclaim and to allow the introduction of extrinsic evidence relative thereto.
Reversed and remanded, with directions.
Opinion filed November 30, 1962.
KLINGBIEL and HOUSE, JJ., specially concurring.
MARVIN J. GLINK, Corporation Counsel, of Skokie, for appellant.
PAUL PETER BLACK, of Chicago, for appellees.
Mr. JUSTICE HERSHEY delivered the opinion of the court:
The village of Skokie appeals from a judgment of the
Plaintiffs are owners of vacant land fronting on the west side of Skokie Boulevard between Jerome Street and Birchwood Avenue. They desire to erect a motel thereon. Their property is situated in a B-2 Commercial District, in which motels were permitted under the Skokie zoning ordinance as it existed prior to October 1, 1957. On that date the amendment in question was adopted whereby motels were removed from the list of permitted uses in a B-2 district and placed in a “Special Use” category. Under the ordinance as amended the use of land for motel purposes is prohibited except as may be authorized by special permit from the president and board of trustees.
It is provided that the plan commission may recommend a motel in cases where it finds (a) that a motel would be compatible with existing and possible usage in the immediate area, (b) that the proposal for routing traffic from the principal vehicle routes in and adjacent to the village to and from the proposed motel will not interfere with the flow of traffic on the designated streets, (c) that the area of land for the motel shall be not less than 500 square feet of land per unit and that no structure is within 50 feet of a residential district line, (d) that specified numbers of off-street parking, loading and reception spaces shall be provided, (e) that no structure be erected closer to the street line than 40 feet and no curb cut shall exceed 20 feet in width, (f) that all external and flood lights be so located and focused as not to shine beyond the limits of the property, and (g) that signs shall not be flashing or intermittent and shall conform to specified size and height limitations. In the present case, the plan commission recommended the proposed motel.
Skokie Boulevard, on which the subject property is located, is a public street running in a north and south direction and is a heavily traveled traffic artery. Approximately 175 feet north of plaintiffs’ premises Skokie Boulevard intersects with Lincoln Avenue. Lincoln Avenue is a public street running in a northwesterly and southeasterly direction and is also heavily traveled as a traffic artery and carries a large amount of vehicular traffic. Approximately 400 feet north of plaintiffs’ premises, Skokie Boulevard intersects with Howard Street which runs in an east and west direction and also carries vehicular traffic. In the immediate vicinity of plaintiffs’ property on the east side of Skokie Boulevard there is a cut-rate gasoline station with an auto mechanic repair shop. Directly across from plaintiffs’ property is a drive-in restaurant and south of plaintiffs’ property on the east side of Skokie Boulevard is a large office building containing the home offices of the Allstate Insurance Company. Immediately south of plaintiffs’ property on the west side of Skokie Boulevard is an office building. North of plaintiffs’ property on the west side of Skokie Boulevard is an animal hospital. At the intersection of Skokie Boulevard and Howard Street there is a Shell gasoline station on the northwest corner and a large restaurant on the northeast corner. There are many other commercial and manufacturing uses on Lincoln Avenue and Skokie Boulevard within a distance of one thousand feet of plaintiffs’ property. To the west of the property there is an alley, beyond which is a highly developed residential area known as Fairview North.
George H. Kranenberg, a planning and zoning consultant, testified in behalf of the plaintiffs that the area in which the subject site is contained is a broad strip devoted to commercial and manufacturing uses, storage and warehousing, experimental laboratories, etc. He further testified
Certain educators testifying for defendant expressed the opinion that the proposed motel might or could have an effect on the morals of students, in view of the fact that one of the high schools is located about 100 feet north of Howard Street on Lincoln Avenue, close to the subject property. A consulting engineer testified that in his opinion a motel would not be compatible with the residential district across the alley to the west.
The village contends that the reasonableness of the ordinance as applied here is fairly debatable, and that the circuit court erred in not finding that the subject property takes its character from the residential area to the west, with which a motel use would be incompatible. We cannot accept the contention. The commercial character of Skokie Boulevard in the vicinity of this property is beyond dispute, and on this record the presence of single-family residences to the west, and the nearby location of a school, do not make reasonable the prohibiting of a use entirely in keeping with such commercial character. Under circumstances undistinguishable in essence from those in the present case, we have recently held void this identical ordinance as applied to motel use of certain property along Skokie Boulevard. (Hartung v. Village of Skokie, 22 Ill.2d 485.) In answer to contentions similar to those advanced by the village here, we set forth the applicable rules of law and the factors to be considered in determining validity. It is unnecessary to repeat them here. As we observed in the Hartung case, “the evidence adduced of a detrimental aura surrounding the existence of a motel and restaurant upon the subject premises is far too uncertain or minimal” to sustain a restriction so completely out of keeping with the character
The action of the village board of trustees in denying the proposed use was unreasonable, and the circuit court correctly held the amendatory ordinance arbitrary and void as applied to plaintiffs’ property.
The judgment of the circuit court of Cook County is affirmed.
Judgment affirmed.
Mr. JUSTICE KLINGBIEL, specially concurring:
I cannot accept the court‘s opinion, which I think misses the issue in the case. Ignored are the provisions of article XVII of the ordinance, making every use of land for motel purposes subject to special permission by the village board. The case is decided as if these provisions were not present at all, the amendment consisting merely in changing article X so as to eliminate motels as one of the permitted uses in a B-2 commercial district. If such were the extent of the amendatory ordinance, and the usual issue were presented whether the general restriction, though valid in its terms, is invalid in the particular application, I would concur in the opinion of the court. For reasons stated therein the application of such a prohibitory ordinance to plaintiffs’ property would be unreasonable and arbitrary.
But such are not the terms of this ordinance at all. The amendment does not merely prohibit motel use in a B-2 commercial district but makes it a subject of special permit on a parcel-by-parcel basis. What is involved here is the special permit procedure, or the attempt of a legislative body to assume a power, in its uncontrolled discretion, to grant or deny the right to this kind of land use whenever it is sought to be exercised. Section 1 of article XVII of the ordinance says that “The President and the Board of Trustees of the Village of Skokie may, by special permit and subject to such protective restrictions that are deemed
The difference is far more than a mere choice of grounds for invalidity. Since the zoning enactment must be valid in its terms before any question can be reached as to its validity in the particular application, the opinion in reality is adjudicating the propriety of placing motel use in a special permit category. And it is doing so without either discussion or the citation of authority.
As to the validity of a special permit procedure I think we should repudiate both Hartung v. Village of Skokie, 22 Ill.2d 485, where the question was similarly side-stepped, and Kotrich v. County of Du Page, 19 Ill.2d 181, where a special permit procedure for country club use was approved “as a means of implementing” the zoning powers conferred by statute. As the dissent in the latter case pointed out, there is nothing in the enabling statute which even remotely purports to authorize this kind of procedure. The scope of delegated powers does not extend to whatever may be convenient as a means of implementing them. The rule is too familiar to require citation that a municipality has only such powers as the legislature has expressly conferred upon it, or such as are necessarily incident to powers expressly granted. In my opinion the adoption of a parcel-by-parcel method of regulation can hardly be described as incident to zoning powers. Rather it is a substitute for such powers which, if sustained in principle, will eventually
Even if the enabling act authorized municipalities to make provision for special exceptions, the ordinance providing therefor would have to state the general facts or conditions under which exceptions would be permitted. Thus in Application of Devereux Foundation, 351 Pa. 478, 41 A. 2d 744 (1945), an educational institution for mentally deficient children was granted an “exception,” enabling it to erect a dormitory in a residential district. The ordinance empowered a Board of Adjustment to hear and decide special exceptions and also to grant a variance where literal enforcement would cause unnecessary hardship. It was held that the decision could not be sustained as a special exception because no rules had been prescribed to govern such action, and that it could not be upheld as a variation because the evidence failed to establish the requirement of unnecessary hardship. On the former point the court declared “We come to the question whether the Board of Adjustment was warranted in granting what it terms an ‘exception,’ and on that basis permitting the issuance of the certificate of occupancy requested by the Foundation. The Act of July 1, 1937, P.L. 2624, which authorizes townships of the second class to adopt and en-
It will be noted that the Pennsylvania statute specifically authorized the granting of special exceptions. Yet the local authorities were without power until rules were prescribed by ordinance. Illinois does not even have a statute on the subject. Yet the local authorities may provide for the granting of these dispensations and do so without stating any rules whatever.
Even if there were a statute purporting to authorize ordinances such as the one in this case its constitutionality would be open to serious question. The granting of special permits of this kind is an administrative or quasi-judicial function which can be exercised only in accordance with prescribed rules or standards. Ordinances providing for an unrestricted power to approve or reject are in violation of basic constitutional protections and cannot be sustained. In Concordia College Institute v. Miller, 301 N.Y. 189, 93 N.E.2d 632 (1950), a zoning ordinance of the village of Bronxville, New York, permitted educational buildings in residence districts. In 1941 an amendment was adopted removing them from the list of permitted uses but allowing the board of appeals to grant special permits with the consent of 80% of the owners in the particular square block.
In State ex rel. Synod v. Joseph, 139 Ohio St. 229, 39 N.E.2d 515 (1942), a zoning ordinance placed a number of uses, including churches, in a “special use” category such as that in the case at bar. A permit to build a church at a desired site was refused, and an action in mandamus was brought to compel its issuance. The relator contended, inter alia, that the special use provisions were unconstitutional because they lacked any standard or guide to govern the exercise of the power. The court held that was no standing to raise the objection, since “the relator cannot be heard to question the validity of the very power the exercise of which relator is, by this action, asking the court to compel.” In so holding, however, the court expressed “doubt as to the constitutionality of this portion of the
It is no answer to say that standards need not be prescribed because in this case the power is vested in a legislative body rather than an administrative one. Instead of obviating the objection this aggravates it. If a body is to act in an administrative capacity the law is clear that standards must be prescribed for the decision of particular cases. If it is acting in a legislative capacity it has no business deciding particular cases at all.
It is not a part of the legislative function to grant permits, make special exceptions, or decide particular cases. Such activities are not legislative but administrative, quasi-judicial, or judicial in character. To place them in the hands of legislative bodies, whose acts as such are not judicially reviewable, is to open the door completely to arbitrary government. I need not dwell at length on the obvious opportunity this affords for special privilege, for the granting of favors to political friends or financial benefactors, for the withholding of permits from those not in the good graces of the authorities, and so on. The rule is familiar enough that courts may not inquire into the motives or reasons on which the legislative body acted. See Village of Justice v. Jamieson, 7 Ill. App. 2d 113.
It is because of this immunity from review that legislative bodies must confine themselves to the prescribing of general rules. If they may undertake to confer upon themselves authority to decide what in fact amount to individual or particular cases, the foundations of our legal system will fast disappear.
Concededly it is difficult in zoning matters to formulate
What is an application for special permit but a particular case? The granting or refusal of the permit does not lay down a rule or prescribe any conditions. It is simply a decision on a concrete set of facts, affecting the property of particular parties only. It is the nature of the proceeding, not the identity of the body assuming to act in the matter, which should determine the necessity for standards. Otherwise basic constitutional protections can readily be circumvented by the simple expedient of placing quasi-judicial functions in a legislative body.
I do not suppose that a power to prohibit designated uses on a parcel-by-parcel basis would be upheld. Municipalities could hardly authorize themselves to prohibit, by special restriction, the use of land for motel purposes in any district in which they are permitted, even though in a particular case a general prohibition of motel use in the district would be reasonable as applied to the tract in question. But the same result is reached by everywhere prohibiting motel use, and then providing that it may never-
It seems to me that the vital issues involved here have not been adequately faced, let alone decided. With nothing more than a reference to the special permit provisions, the court in the present case proceeds to consider the propriety of the particular denial, on the necessarily implicit assumption that the ordinance itself is unobjectionable. In effect the opinion approves, sub silentio, an ordinance which in my opinion not only finds no sanction in the enabling statute but which flagrantly ignores the basic requirements of due process.
The result of course is that these arbitrary provisions remain undisturbed, obliging the next unfortunate owner to fight out the question of constitutional reasonableness as to his particular property, and so on as to every person who is denied the right to put up a motel.
I think that the real question of validity should be faced, and that the amendatory ordinance should be declared invalid in its terms.
Mr. JUSTICE HOUSE joins in this concurrence.