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People Ex Rel. Gutknecht v. Chicago





APPEAL from the Circuit Court of Cook County; the Hon. HARRY M. FISHER, Judge, presiding.


This case presents constitutional issues arising out of the most recent effort of the State to deal with the problem of urban slums and blighted areas. The Urban Community Conservation Act was adopted by the General Assembly in 1953. It aims at the prevention of slums by the creation of Municipal Community Conservation Boards which are authorized to take steps designed to prevent the spread of slum and blight to new areas. Such a board was appointed for the city of Chicago, and the city council appropriated funds for its use. The validity of the act was challenged upon numerous constitutional grounds in this quo warrantor action instituted by the People on the relation of the State's Attorney of Cook County. The defendants, the city of Chicago, its mayor, and the members of the Conservation Board of the city of Chicago, filed a motion to dismiss the complaint which was sustained by the circuit court of Cook County. This direct appeal followed.

The act (Ill. Rev. Stat. 1953, chap. 67 1/2, pars. 91.891.16,) is concerned with deteriorating urban areas, called conservation areas, which are likely to become slum and blighted areas if their deterioration is not arrested. It describes such areas, provides for the appointment of municipal community conservation boards, and authorizes the boards to designate particular localities as conservation areas. Following the designation of a conservation area the board is authorized, after investigation and hearings, to adopt a conservation plan for the area embodying the steps required to prevent its transition into a slum. The board is authorized to nominate, for appointment by the presiding officer of the municipality, the members of a conservation community council, composed of residents of the area for each conservation area, whose duty it is to assist in the formulation of the area's conservation plan.

An area conservation plan may include, but is not limited to the following matters: (1) land uses, residential and nonresidential; (2) improvement, alteration, or vacation of major and minor streets and alleys, provision for restricted service access, and off-street parking; (3) locations and easements for public utilities; (4) community facilities; (5) landscaping and site engineering; (6) building restrictions; (7) recommended construction including new buildings, rehabalitation and conversions, demolition of designated structures, and elimination of nonconforming uses; (8) population density, ground coverage, and number of dwelling units recommended; (9) recommended standards of maintenance, and requirements of applicable health and safety ordinances; (10) zoning and/or rezoning required; (11) costs and financing arrangements of public portions of the plan. The plan is required to conform to the comprehensive plan, if any, of the municipality. Ill. Rev. Stat. 1953, chap. 67 1/2, par. 91.12.

After the conservation plan for an area has been approved by the board and by a majority vote of the community council concerned, it is to be submitted to the governing body of the municipality for adoption or rejection. If the plan is adopted, the board is authorized to acquire by purchase, condemnation or otherwise, any property the acquisition of which is necessary or appropriate for the implementation of the plan, to demolish or remove buildings from the property so acquired and to sell, lease or exchange such property. Ill. Rev. Stat. 1953, chap. 67 1/2, par. 91.13.

Section 7 of the act provides that if, after notice to parties in interest and an opportunity to be heard, an owner of property within the area fails to make such property comply with the minimum standards of applicable municipal ordinances, the board is authorized to apply to the circuit court for an order permitting the corporate authorities to make the necessary repairs, and to collect from the owners the cost of eliminating violations of the ordinances. The cost is made a lien upon the property, subordinate to prior liens, and enforceable by foreclosure as in the case of mortgages or mechanics' liens. Ill. Rev. Stat. 1953, chap. 67 1/2, par. 91.14.

The act is first attacked upon the ground that it authorizes the taking of private property for a private use in violation of section 13 of article II of our constitution. On this point, the act contains an explicit finding and declaration of public policy by the General Assembly that there exist in many urban communities, areas which are "rapidly deteriorating and declining in desirability as residential communities and may soon become slum and blighted areas if their decline is not checked." It is further found and declared that the existence of these areas is detrimental to the health, safety, morals and welfare of the public, and that the prevention of slums is a public use essential to the public interest. (Ill. Rev. Stat. 1953, chap. 67 1/2, par. 91.9.) The weight to be accorded such a legislative declaration has frequently been pointed out. Cremer v. Peoria Housing Authority, 399 Ill. 579, 588; People v. Chicago Transit Authority, 392 Ill. 77, 86; People ex rel. Greening v. Bartholf, 388 Ill. 445, 451; Hagler v. Small, 307 Ill. 460, 474.

The legislative declaration is buttressed by the Economic Report of the President of the United States, submitted to the Congress on January 28, 1954, which stated: "A successful fight against blight can be waged in these cities only if it is planned and carried forward on a basis sufficiently broad to improve the character of a whole neighborhood. * * In some cases, urban blight can be corrected only by the total clearance of an area and its subsequent redevelopment; more frequently, however, the need is for selective demolition and rehabilitation, thus conserving and renewing what is still useful in older neighborhoods." Title III of the recently enacted Federal Housing Act of 1954 makes available grants in aid from the United States to cities not only to eliminate existing slums and blighted areas but also to prevent new slums and blighted areas. Public Law 560, 42 U.S.C.A. 1401 et seq.

Plaintiff does not undertake to dispute the existence of the factual relationship between the prevention of slums and the public welfare upon the basis of which the General Assembly and the Congress have acted. Rather the argument is that because the act contemplates that properties acquired through the use of eminent domain may be sold or leased for private development, in accordance with the provisions of the conservation plan, the public purpose of the taking is nullified. It is said that in order to constitute a public use the contemplated improvement "must be one which the public to some extent have a right to use and not one which is merely a benefit to the public." Town of Kingston v. Anderson, 300 Ill. 577; Gaylord v. Sanitary District of Chicago, 204 Ill. 576.

The sweeping expressions in the cases relied upon, however, have been restricted to the particular factual situations there involved by our decision in People ex rel. Tuohy v. City of Chicago, 394 Ill. 477. Numerous decisions of this court clearly demonstrate that possessory use by the public is not an indispensable prerequisite to the lawful exercise of the power of eminent domain. In discussing a similar contention advanced in an attack upon the validity of the Neighborhood Redevelopment Corporation Law, the court said: "When such areas have been reclaimed and the redevelopment achieved, the public purpose has been fully accomplished. The fact that the act does not thereafter vouchsafe the continued use of the property acquired for public purposes, does not in any way affect the purposes of the act or render the taking of the property a taking for a use or purpose which is not public. The achievement of the redevelopment of slum and blight areas, as defined in the act, in our opinion constitutes a public use and a public purpose, regardless of the use which may be made of the property after the redevelopment has been achieved." Zurn v. City of Chicago, 389 Ill. 114, 129. See also, Chicago Land Clearance Com. v. White, 2 Ill.2d 216; People ex rel. Gutknecht v. City of Chicago, 414 Ill. 600, 611; Chicago Land Clearance Com. v. White, 411 Ill. 310, 316; Cremer v. Peoria Housing Authority, 399 Ill. 579, 589, 590; People ex rel. Tuohy v. City of Chicago, 394 Ill. 477, 487.

It is also contended that the "line of demarcation between a public and private use in the employment of eminent domain to eliminate slum areas * * * must be the elimination rather than the prevention of slums." But we are aware of no constitutional principle which paralyzes the power of government to deal with an evil until it has reached its maximum development. Nor is there force in the argument that if the use of eminent domain in the prevention of slums is permitted "every piece of property within the city or State can be condemned to prevent it from becoming a slum." Legitimate use of governmental power is not prohibited because of the possibility that the power may be abused.

In our opinion, the act does not violate section 13 of article II of the constitution.

Plaintiff also challenges the act as an unconstitutional delegation of legislative power to the Community Conservation Board of Chicago and upon the ground that it is so incomplete, indefinite and uncertain as to violate due process. The attack here centers upon the provisions relating to the designation of conservation areas and to the formulation of plans for particular conservation areas. Defendants suggest, and we agree, that what is here involved is not, technically speaking, a delegation of legislative authority. The action of the board in designating a conservation area carries with it no legal consequences until a conservation plan for the area becomes effective. And a plan approved by the board does not become effective until it is adopted by the city council. The critical action, which affects the rights of property owners, is thus legislative rather than administrative action. (Cf. Berry v. City of Chicago, 320 Ill. 536, 541.) In this respect the status and functions of the board resemble those of a board of local improvements, a zoning commission or a planning commission. (Ill. Rev. Stat. 1953, chap. 24, pars. 84-6, 73-2, 53-1; cf. Gray v. W.A. Black Co. 338 Ill. 488, at 495.) The objection made, however, may fairly be treated in this quo warrantor ...

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