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Bohan v. the Village of Riverside

OPINION FILED NOVEMBER 26, 1956.

HAROLD M. BOHAN ET AL., APPELLANTS,

v.

THE VILLAGE OF RIVERSIDE ET AL., APPELLEES.



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

MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:

Plaintiffs-appellants appeal directly to this court from a final order and declaratory judgment of the circuit court of Cook County in favor of the defendants, entered upon their motion for judgment on the pleadings, which held certain amendments to a zoning ordinance valid and denied plaintiffs' prayer for an injunction restraining the construction and use of a building for a youth center.

The trial judge certified that the validity of a municipal ordinance is involved and in his opinion the public interest requires a direct appeal. Consequently, this court properly has jurisdiction.

The ultimate question at issue is the validity of an amendment to the zoning ordinance of the village of Riverside adding to the specific uses permitted in a Residence District B-4 (an office-residence district) the following: "Clubs, associations, or recreation rooms and quarters not involving, however, the conduct of a retail business on the premises."

Prior to adoption of the zoning amendment in question, the permitted uses in Residence District B-4 included business and professional offices; medical clinics and hospitals; private, vocational and professional schools; portrait studios; funeral parlors and mortuaries, and uses permitted in more restricted residence districts. The more restricted districts permitted single, duplex and multiple family residences; municipally owned or operated public library, park, playground, recreation or field house or public utility; churches; public, private or parochial elementary or high schools; hotels, lodging or boarding houses; and free parking lots appurtenant to such uses.

The plaintiffs are owners of property adjacent to and in the vicinity of a tract of land purchased by defendant District 208 Youth Center, Inc., in Residence District B-4 on which it is proposed to construct and operate a youth center, with its usual activities including dancing and youth parties. Plaintiffs allege they purchased their property in reliance on the continued existence and benefits and advantages of the use limitations.

The amended complaint alleges that on August 17, 1955, the village board of trustees adopted an amendment to its zoning ordinance known as ordinance No. 833 which permitted club, association or recreation rooms or quarters in Residence District B-4 on which ordinance no hearing was ever had before a committee appointed by corporate authorities nor notice of hearing published as required by section 73-8 of the Revised Cities and Villages Act, (Ill. Rev. Stat. 1955, chap. 24, par. 73-8,) and that such ordinance was therefore invalid and void.

The amended complaint further alleges that subsequent to filing the original complaint the village adopted a new ordinance, No. 838, incorporating the same provisions as the prior ordinance, by publishing notice thereof in the form of a legal notice. It is charged such ordinance is illegal and void in that it was manipulated so as to avoid any notice of the pendency of such ordinance or hearing thereon reaching plaintiffs or their counsel by not giving personal notice or publishing notice in a spread two columns wide as such ordinances were normally published in the past.

The amended complaint further alleges that prior to adoption of the ordinances in question the use of the youth center property for dances for large numbers of persons was forbidden; that the youth center threatens and intends to construct on its property a building to accommodate 180 couples to be used primarily for dancing Friday and Saturday nights, or more often, for its members who are all under 18 years of age; that the village is aware of such intentions and proposes to permit the same; that the character of the neighborhood is overwhelmingly residential and peaceful; that the operation of the youth center will greatly increase traffic and traffic hazards on a road of narrow dimensions traversing the area, will disturb the peace and tranquility expected by bereaved relatives and friends of deceased persons from time to time in a funeral home adjacent to the youth center property, will seriously and detrimentally affect the business of the funeral home, will increase fire hazards, will cause the neighborhood to deteriorate seriously as a residential neighborhood, and will greatly damage the market value of plaintiffs' property.

By virtue of the foregoing, the amendments to the zoning ordinance were alleged to be unconstitutional, illegal and invalid in that they were not passed for the purpose of public health, safety, comfort, morals and welfare, were special legislation, and deprive plaintiffs of property without due process of law.

Answers by defendants, replies thereto by plaintiffs, motions to strike portions of answers, and defendants' motion for judgment on the pleadings were thereafter filed.

The trial court in its order and judgment found that ordinance No. 838 was legally passed and approved after lawful publication and hearing thereon, that the ordinance was valid and effective, that the youth center property was in Residence District B-4, and that the proposed use of such property was lawfully permitted under the ordinance.

Plaintiffs in their appeal argue that the action of the trial judge in allowing defendants' motion for judgment on the pleadings and in making findings of fact and law was improper and that the ordinances were invalid.

Plaintiffs first contend that the motion for judgment on the pleadings does not comply with the requirements of section 45 of the Civil Practice Act (Ill. Rev. Stat. 1955, chap. 110, par. 45,) that motions directed to pleadings shall point out specifically the defects complained of, and the motion was so transparently insufficient in law that the chancellor should have refused to entertain it, citing Lederer v. St. Clair Hotel, Inc. 339 Ill. App. 214. When the motion for judgment was filed, the case was pending on the complaint, answers thereto, and plaintiffs' motions to strike. Replies were later filed by leave of court before judgment was entered. Plaintiffs did not question the form of motion for judgment on the pleadings although they had ample opportunity. Even if the motion was questionable as to form, it could have been ...


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