APPEAL from the Circuit Court of Cook County; the Hon. ELMER
J. SCHNACKENBERG, Judge, presiding.
MR. JUSTICE DAILY DELIVERED THE OPINION OF THE COURT:
This is an appeal from a judgment of the circuit court of Cook County which found subparagraph (2) of section 8 of the Chicago zoning ordinance, (Municipal Code of Chicago, sec. 194A-8(2),) to be unconstitutional and void. The trial court has certified that the validity of a municipal ordinance is involved and, that in its opinion, the public interest requires a direct appeal to this court.
The leading facts show that appellee, which is the Ronda Realty Corporation, applied to the commissioner of buildings of the city of Chicago, for a permit to remodel appellee's apartment building at 4201-15 North Sheridan Road, from twenty-one to fifty-three apartments. Accompanying the application was a certificate, by the secretary of the appellee, to the effect that on the premises there would be off-street facilities for parking eighteen automobiles. The commissioner issued the permit, whereupon thirteen tenants of the building, who are some of the appellants here, appealed to the zoning board of appeals seeking to reverse the action of the commissioner. The ground of the appeal was that the remodeling would result in the creation of fifty-three apartments; that section 194A-8(2) of the Municipal Code of Chicago requires an apartment building to provide off-street automobile parking facilities on the lot where the apartment building is maintained at the ratio of one automobile for each three apartments; that there is only space on appellee's lot for parking eight automobiles; that fifty-three apartments would require eighteen parking spaces and therefore the commissioner should not have issued the permit.
A hearing was held before the zoning board of appeals, which body, after hearing evidence and viewing the premises, concluded that there were not enough off-street parking facilities on appellee's property to comply with the ordinance and entered an order reversing the action of the commissioner and revoking the permit. Appellee then filed a complaint in the circuit court for review under the provisions of the Administrative Review Act, (Ill. Rev. Stat. 1951, chap. 110, pars. 264-279,) setting forth the facts and pleading the invalidity of the ordinance relied upon by the board. On the hearing for review, the court stated that it was deciding the case purely on a question of law and not on questions of fact, and entered its judgment that the section of the ordinance relied upon was unconstitutional and void in that it discriminated against appellee and deprived it of equal protection of the law. The order of the zoning board of appeals was reversed and the issuance of the building permit sustained. The tenants, the commissioner of buildings, the zoning board of appeals and the city of Chicago have perfected the appeal to this court.
The errors assigned in this court present but one decisive issue, namely, whether subparagraph (2) of section 8 of the zoning ordinance is invalid because it creates an unlawful classification, discriminatory in its nature. The complete provisions of section 8 of the ordinance are as follows:
"194A-8. (Section 8.) Apartment House Districts. Permitted uses in Apartment House districts are:
(1) Any use permitted in a Family Residence district without restrictions except such as are applicable to auxiliary uses and any other use permitted in a Duplex Residence or Group House district;
(2) Apartment house, provided that where there are more than two apartments in the building a private garage or automobile compound for the storage of one passenger automobile for each of 33 per cent of the number of apartments shall be erected or established and maintained on the lot used for the apartment house;
(3) Boarding or lodging house, hotel, hospital, home for dependents or nursing home;
(4) Boarding school, vocational school, college or university, when not operated for pecuniary profit;
(5) Club, fraternity or sorority house, when not operated for pecuniary profit;
(6) Public art gallery, library or museum;
(7) Auxiliary uses, subject to the following limitations:
A sign may be maintained on any lot area or building, if the sign is not more than 2 square feet in area and if it is located not nearer to the street line than the building line and if it does not advertise anything except the names and occupations of the occupants;
A restaurant may be maintained in a hotel, if the public entrance to the restaurant is from the lobby of the hotel and no sign advertising the restaurant is ...