Appeal by respondents from the County Court of Vermilion
county; the Hon. HARLIN M. STEELY, JR., Judge, presiding. Heard
in this court at the October term, 1950. Reversed and remanded
with directions. Opinion filed November 2, 1950. Released for
publication November 28, 1950.
MR. JUSTICE DADY DELIVERED THE OPINION OF THE COURT.
This is an appeal by the Board of Appeals under the zoning ordinance of the City of Danville, by the City of Danville, and by the Interstate Water Company, from an order of the county court which reversed and set aside a decision of the board, which decision made certain findings of fact and recommended approval of a petition of the Water Company for a variation of the zoning ordinance of said city. The county court order was entered after a hearing on a writ of certiorari issued on petition of appellees, Nellie D. Rector, et al., who were and are owners of property adjoining the real estate in question.
At all times in question the city was operating under the commission form of government.
On April 5, 1948, the Water Company became the owner of two city lots which had theretofore been zoned as Class "A" residence property under the city's zoning ordinance. Without permission from the city, the Water Company commenced construction thereon of an elevated steel storage tank having a capacity for about one million gallons of water.
About June 22, 1948, the Water Company filed with the city clerk a petition which asked that an ordinance be passed amending such zoning ordinance so as to change the classification of the two lots from Class "A" residence to Class "D" heavy industrial. To that petition a written protest was filed by property owners representing more than 50 per cent of the adjoining frontage. Such petition and protest were heard on July 13, 1948, by a five-man committee of the city council, at which hearing a motion to deny the prayer of the petition was lost. Such action of the committee was then reported to the mayor and commissioners sitting as a city council, at which time a motion to deny the prayer of the petition was lost.
Thereafter and about October 26, 1948, the council held a further hearing on the petition, and a motion was made and seconded to grant the prayer of the petition. The motion failed to receive the necessary vote and was declared lost.
On November 16, 1948, the council, for the first time, by ordinance, duly appointed the members of the Board of Appeals created under such zoning ordinance. Thereafter, on the same day, the Water Company filed with the city clerk a petition, which, after stating certain alleged facts, asked that such zoning ordinance be varied to the extent that the Water Company might construct on the lots a similarly described storage tank. The petition prayed that the board set the petition for hearing together with a proposed ordinance to vary and modify the application of the zoning ordinance so far as it affected such lots, a copy of such proposed ordinance being attached to the petition. After a public hearing, at which evidence under oath was taken, the board on December 11, 1948, made a report and recommendation to the council by resolution, containing various findings and unanimously adopted, that the petition of the Water Company for such variation be approved. The report and recommendation was adopted by the council by a vote of three to two. The proposed ordinance was passed by the council by a vote of three to two on December 14, 1948, approved on the same date and published on December 16, 1948. Such ordinance stated that permission was thereby given the Water Company to construct and maintain on said lots such storage tank and that the zoning ordinance was thereby varied to the extent that such tank could be constructed on the lots.
The petition for the writ to reverse the action of the Board of Appeals was filed in the county court on January 10, 1949.
Not having the benefit of any opinion by the trial court as to its reasons for entering the judgment appealed from, we have to assume it sustained the contentions of the appellees as made before us.
Appellees contend that the ordinance passed December 14 was not "duly passed, because it was not passed either in due manner, adequately or sufficiently, not having proper grounds for passage."
In this connection they argue that there was no order of reference from the council referring the petition of the Water Company to the board for action, and that therefore the board did not have jurisdiction.
The petition for a writ of certiorari alleged that the petition was never referred to the board by any action of the council, but was merely by resolution accepted by the council. The answer of appellants alleged that the petition was duly referred to the board by resolution duly adopted by a vote of the council. At the trial and until the closing arguments no direct proof on such issue was offered by either side and the lack of such proof, if necessary, was not called to the court's attention until appellees' attorneys in their argument, after all of the evidence had been introduced, raised the point. The attorneys for the appellants then told the court that if the court was of the opinion that such proof was material the appellants wanted leave to file a certified copy of the council's proceedings showing the petition of the Water Company was duly referred to the board by the council. Apparently the court then made no ruling or comment on such request.
The verified return of the board stated that a copy of the petition was duly referred by the council to the board. The ordinance in question recited that whereas said petition "has been duly referred to the Board of Appeals provided for and created under said zoning ordinance. . . ." The ordinance, as passed, recited that the petition of the Water Company "has been duly referred to the Board of Appeals. . . ."
On December 29, 1949, the county court entered the order appealed from, which reads: "Action and decision of Board of Appeals under zoning ordinance is hereby reversed and set aside. Respondents move for a rehearing." Such ...