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Zisook v. Maryland-drexel Corp.

OPINION FILED SEPTEMBER 23, 1954.

DAVID ZISOOK ET AL., APPELLANTS,

v.

MARYLAND-DREXEL NEIGHBORHOOD REDEVELOPMENT CORPORATION ET AL., APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. ROBERT JEROME DUNNE, Judge, presiding. MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:

Plaintiffs, David and Tybe Zisook, challenged the constitutionality of the 1953 amendments to the Neighborhood Redevelopment Corporation Law by their complaint in the circuit court of Cook County, which sought to enjoin defendants, Maryland-Drexel Neighborhood Redevelopment Corporation, the city of Chicago, and the members of the Neighborhood Redevelopment Commission of the city of Chicago, from taking any action, incurring any obligations, or expending any funds under the authority of those amendments. Defendants' motions to strike the complaint, as amended, and to dismiss the cause were sustained. Plaintiffs elected to stand on their amended complaint, and appeal directly from a decree dismissing the action.

Plaintiffs are residents and taxpayers of the city of Chicago. The Neighborhood Redevelopment Commission was appointed under the Neighborhood Redevelopment Corporation Law, and the defendant Maryland-Drexel Neighborhood Redevelopment Corporation was formed on October 23, 1953, under that law. (Ill. Rev. Stat. 1953, chap. 32, pars. 550.1 et seq.) Maryland-Drexel Neighborhood Redevelopment Corporation is authorized by its charter to redevelop only "conservation areas" and not "slum and blighted areas." It filed with the Neighborhood Redevelopment Commission of the city of Chicago an application for approval of a development plan and for a certificate of convenience and necessity. In its application it stated that it desired to redevelop an area in Chicago bounded by Cottage Grove Avenue on the west, Drexel Avenue on the east, Fifty-fourth Street on the north and Fifty-fifth Street on the south; that this development area was not yet a slum and blighted area but would become such unless redeveloped; that the area was a "Conservation Area," within the meaning of the Neighborhood Redevelopment Corporation Law, as amended, and was in need of redevelopment and conservation. It further stated in its application that it would exercise the right of eminent domain, if and when necessary to the proposed redevelopment plan, upon obtaining written consent to the development plan from the owners of 60 per cent or more of the area of land within the development area, and that it did not propose either to purchase, or to secure options to purchase, 60 per cent or more in area of the land within the development area.

The Redevelopment Commission ordered that the application be docketed in its conservation docket as Conservation Application No. 1, and that the commission proceed upon the application in accordance with the provisions of the Neighborhood Redevelopment Corporation Law, as amended. On December 11, 1953, the city council of Chicago appropriated $1000 for the expenses of the Redevelopment Commission in processing and proceeding upon applications for redevelopment of "conservation areas."

The constitutionality of the Neighborhood Redevelopment Corporation Law of 1943 was sustained in Zurn v. City of Chicago, 389 Ill. 114 (1945). The scheme of the statute is set forth in that case and need not be repeated here. In 1953, the General Assembly amended the law in several material respects. Amendments to section 3-4 extended the definition of "Development Plan" to include a plan for the redevelopment of a "Conservation Area," defined in section 3-12 as "an area in which the structures in fifty per cent or more of the area are residential having an average age of thirty-five years or more. Such an area is not yet a Slum or Blighted Area as defined in the Blighted Areas Redevelopment Act of 1947, but such area by reason of dilapidation, obsolescence, or deterioration, or illegal use of individual structures, overcrowding of structures and community facilities, conversion of residential units into non-residential use, deleterious land use or layout or any combination of these factors may become such a Slum and Blighted Area."

Section 42(1) (c) originally required as a prerequisite to the institution of condemnation proceedings that a development corporation should have acquired, by purchase or options, 60 per cent or more in area of the land within its development area. The 1953 amendments permit, as an alternative prerequisite, proof that the owners of 60 per cent or more in the area of land within the development area have assented to and agreed to be bound by the terms of the development plan of the redevelopment corporation as to themselves and their property. Sections 19, 30 and 31, providing for appeal to the circuit court and to the Appellate or Supreme Court were repealed in 1949, effective January 1, 1950, and section 30.01, providing for judicial review pursuant to the Administrative Review Act, was added. (Laws of 1949, p. 637.) And in 1953 the title of the act was broadened to include the prevention and conservation of slum and blight areas.

Plaintiffs contend that because of these material changes in the statute, our decision in the Zurn case is not controlling. They argue first that the 1953 amendments to the Neighborhood Redevelopment Corporation Law unlawfully delegate legislative powers to municipal Neighborhood Redevelopment Commissions without prescribing standards or rules to govern their determinations, and are so vague and indefinite as to threaten a denial of due process of law. The core of this contention is in the attack made upon the definition of "Conservation Area" in section 3-12. This definition differs from the definition of a "Conservation Area" in section 3 of the Urban Community Conservation Act in that the conservation area there involved must not be less than 160 acres. That definition also includes two additional factors not mentioned in the present act: "decline of physical maintenance" and "lack of community planning." In People ex rel. Gutknecht v. City of Chicago, ante, p. 539, decided this day, we have held that the definition of "Conservation Area" in the Urban Community Conservation Act is not vulnerable to constitutional attack on the ground that it fails to prescribe adequate standards and guides. While the reasons there stated apply with like force to the definition of "Conservation Area" in the statute here involved, a further word is appropriate.

In the act now before us, and in the Urban Community Conservation Act, the General Assembly provided for the creation of agencies which are designed to check the decline of urban areas into slums. The Urban Community Conservation Act contemplates action by governmental agencies. This act authorizes a pattern of action by private agencies, called redevelopment corporations, under governmental supervision. The pattern of action which the amended statute provides for the prevention of slums has been held valid when applied to the elimination of slums. Zurn v. City of Chicago, 389 Ill. 114.

In neither case has it been questioned that urban areas exist which are deteriorating into slums; nor has it been suggested that the existence of such areas is not a legitimate governmental concern. Both attacks have centered upon the alleged inadequacy of the legislative effort to capture the elusive characteristics of the areas with which it is dealing. Here it is argued, with respect to each of the distinguishing attributes which the statutory definition includes, that it is not stated "how much dilapidation," "how much obsolescence," and so forth, is required. The point would have significance if the techniques of the accountant were applicable. But the combinations of factors which produce the result at which the legislation is aimed cannot be appraised with that degree of precision. The situation here is like that presented in Department of Public Works and Buildings v. Lanter, 413 Ill. 581, in that the multitude of varying conditions to which the legislation is to apply makes mathematical certainty impossible in the fixing of standards. There an act was sustained which authorized the Department of Public Works to designate highways as freeways, and to limit access to them "when the safety and convenience of highway traffic will be promoted and the public interest subserved thereby." The arguments there advanced are applicable here.

Plaintiffs also argue that under section 24, as amended to cover conservation areas, the Redevelopment Commission is vested with unlimited discretion as to the size of a redevelopment area, which, in Chicago, shall not be "less than two city blocks nor more than 160 acres, * * * unless the Redevelopment Commission, in the interests of the orderly Redevelopment of a Slum and Blight or Conservation Area, shall * * * authorize a reduction or increase of the Development Area." Reading this provision literally, plaintiffs say that the commission is empowered to reduce a development area to but a single structure or to increase it by any number of blocks it chooses.

The 1953 amendments added the words "or Conservation" to the quoted portion of section 24 and increased the maximum size of a redevelopment area from 80 to 160 acres. Apart from these changes, the section remains the same as when its validity was sustained in Zurn v. City of Chicago, 389 Ill. 114. It may be observed that in the sentence which follows the quoted provision the General Assembly has explained the meaning of its use of the words "in the interests of the orderly Redevelopment of a Slum and Blight or Conservation Area" as follows: "It shall be in the interest of the orderly Redevelopment of a Slum and Blight or Conservation Area to increase or diminish the Development Area herein limited whenever the Development Areas of two or more Neighborhood Redevelopment Corporations operating or to operate in the same locality shall not encompass an intervening area or less than two city blocks, and the Redevelopment Commission in such instances shall by rule, pursuant to paragraph 2 of Section 25 of this Act, prescribe the conditions under which contiguity, and the extent thereof, shall be mandatory of the two or more Development Areas." It is manifest that Neighborhood Redevelopment Corporations have not been granted unfettered discretion with respect to the size of a redevelopment area but, on the contrary, are governed by precise standards.

Plaintiffs' next contention is directed at the definition of a "Development Plan." Section 3-4 defines at considerable length a development plan, enumerating fourteen requirements which may be included. Of these, twelve are for all practical purposes the same as those permissible in a conservation plan under the Urban Community Conservation Act. (Ill. Rev. Stat. 1953, chap. 67 1/2, par. 91.12.) Attention is directed to the opening portion of section 3-4 stating that a development plan "may include but is not limited to" the fourteen items set forth with particularity. From this, plaintiffs make the bald assertion that there are no limitations whatever upon the kind of development plan for a conservation area which may be accepted and approved by the commission. Section 17, however, describes in great detail the requirements of a development plan. Section 3-4, as amended, defines a development plan far more fully than did the original definition which was summarily held free from the same attack now made. (Zurn v. City of Chicago, 389 Ill. 114, 133.) The contention is without merit.

Relying upon Chicagoland Agencies, Inc. v. Palmer, 364 Ill. 13, plaintiffs urge that the failure of the statute to prescribe the qualifications required of members of the Redevelopment Commission renders the law unconstitutional. Section 4 of the law (Ill. Rev. Stat. 1953, chap. 32, par. 550.4,) provides that a redevelopment commission shall consist of from three to five members, who are to be appointed by the mayor, with the advice and consent of the city council. Each member of the commission shall hold office for a term of two years. Vacancies are to be filled by appointment by the mayor, again with the advice and consent of the city council. No person holding stocks or mortgages in any Neighborhood Redevelopment Corporation, or who is in any other manner directly or indirectly pecuniarly interested in such corporation, or in the development undertaken by it, may be appointed as a member of, or be employed by, the Redevelopment Commission to whose supervision and regulation such corporation is subject. If any such member or employee voluntarily becomes so interested, his office or employment becomes vacant, ipso facto. Members or employees, who become so interested otherwise than voluntarily, are given ninety days to divest themselves of such interests, and upon their failure so to do their offices or employments become vacant. Members of the commission receive salaries fixed by the city council.

Although section 4 was not changed by the 1953 amendments, the question raised here, not being mentioned in the briefs or the opinion in the Zurn case, is open for consideration.

Plaintiffs point to no constitutional provision which requires that affirmative qualifications be affixed to an office such as this. There is none. An office created by statute may be filled in the manner the legislature prescribes. (Groves v. Board of Education of the City of Chicago, 367 Ill. 91; People ex rel. Ahern v. Bollam, 182 Ill. 528; People ex rel. Akin v. Loeffler, 175 Ill. 585.) Reference to Department of Finance v. Cohen, 369 Ill. 510, 515, makes it clear that the basis of decision in the Chicagoland Agencies case was a ...


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