Appeal from the Superior Court of Cook county; the Hon. DONALD
S. McKINLAY, Judge, presiding. Reversed and remanded with
JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
This is an appeal from an order of the Superior Court of Cook county denying a writ of mandamus prayed for by the plaintiff and dismissing its petition. The question before us is as to whether a resolution of the city council of Park Ridge could prohibit the issuance of a permit for the erection and operation of a filling station which was a valid use of plaintiff's property under the then existing zoning ordinance of the city.
On August 11, 1956 Phillips Petroleum Company, the plaintiff herein, entered into a contract for the purchase of certain real estate located at the intersection of Talcott road and Vine avenue in Park Ridge, Illinois. On October 19, 1956 the plaintiff made application to the building department of the city of Park Ridge, one of the defendants herein, for a building permit for the construction and operation of a retail filling station on the said property. At the time the contract was entered into and the application for a building permit was filed, the area was classified as "D" Commercial under the then existing zoning ordinance of the municipality, and under that classification a retail filling station such as the one here applied for was authorized. The application for the permit was in due form and technically correct. The building commissioner referred the matter to the city council for consideration at its meeting on November 6, 1956, at which meeting the city council passed a resolution which set up a commission to review and study zoning within the city and during this investigation ordered the building department to refuse to issue any building permits for gasoline service stations. The plaintiff obtained a deed for the property in question on November 30, 1956, which deed was properly recorded. On December 18, 1956 an attorney for the plaintiff appeared before the city council of Park Ridge and orally demanded that the permit be granted, and on December 19, 1956 the plaintiff, through its attorneys, made a written demand on the city council, the mayor, the zoning board, the building board of review and the building department, all of Park Ridge, demanding that the permit in question be issued. No permit having been issued, on January 22, 1957 the plaintiff filed a petition for a writ of mandamus in the Superior Court of Cook county setting up in substance the foregoing facts.
On February 19, 1957 the zoning commission established by the November 6, 1956 resolution reported a proposed amendment to the zoning ordinance of Park Ridge, which was approved by the city council on February 19, 1957, and the council ordered that public hearings and notice be had pursuant to the requirements of chapter 24, article 73-8, Illinois Revised Statutes 1955.
On February 25, 1957 the defendants filed an answer to the petition. In their answer they admitted that the plaintiff owned the property; that plaintiff made application for a buildng permit to erect and operate a gasoline filling station in compliance with the building code; that demands were made for the issuance of such a permit; that at the time when the permit was applied for such filling station was a permitted use under the zoning ordinance of the city; and that the issuance of the permit has been withheld. As an affirmative defense they set up the passage of the resolution of the city council directing the building department to refuse to issue any building permits for filling stations pending the study of the problem and the submission of recommendations by the then appointed zoning commission, and assert that the officials of the city have a right to take no action for a reasonable time on applications for permits for a use which would be repugnant to an amended zoning ordinance then under consideration by the city council.
On March 4, 1957 plaintiff filed a reply to defendants' answer in which it denied that the city of Park Ridge had the power to suspend the operation of the existing zoning ordinance pending a consideration of zoning within the municipality, and asserts that the suspension of the existing zoning ordinance was invalid, particularly when such suspension was attempted by resolution and not in compliance with the dictates of the enabling act. With its reply the plaintiff filed a motion for judgment on the pleadings, premised on the contention that the November 6, 1956 resolution was invalid as a matter of law. Arguments were had, oral stipulations made and memoranda of law and authorities submitted on the motion, and on March 22, 1957 the court entered an order denying the petition for the issuance of a writ of mandamus and dismissing the petition therefor, from which order this appeal is taken.
The plaintiff contends that the city council of Park Ridge had no power to suspend the operation of the existing zoning ordinance by resolution pending a review of zoning within the municipality. This case does not involve a question of the validity of an interim ordinance; however, many cases concerning such ordinances from other jurisdictions have been cited by counsel in their briefs.
An interim ordinance is one passed with the intention of preserving the status quo until a subsequent zoning ordinance can be enacted. The decisions in the several states with reference to interim ordinances are in conflict. This conflict in the decisions is "due in part, at least, to the diversity of constitutional and/or statutory provisions in these states and it frequently serves no useful purpose to discuss generally whether or not an interim ordinance can be legally enacted without due inquiry being had to the constitutional or statutory requirements of the state wherein such interim ordinance is sought to be enacted." Yokley, Zoning Law and Practice, sec. 78. As was said in State ex rel. Fairmount Center Co. v. Arnold, 138 Ohio 259, 34 N.E.2d 777: "The decisions in other states on stopgap ordinances are in conflict. Owing to the lack of identity of constitutional and/or statutory provisions, it will serve no useful purpose to discuss such decisions."
In deciding the case before us it is not necessary to make any determination considering interim ordinances. The question which is squarely presented to us is as to whether or not a resolution passed by the city council of Park Ridge could suspend the zoning ordinance then in effect.
Zoning is one of several types of regulation of property by a local government, all of which are expressions of the police power. Monmouth Lumber Co. v. Ocean Tp., 9 N.J. 64, 87 A.2d 9 (N.J.). In Trust Co. of Chicago v. City of Chicago, 408 Ill. 91, the court says:
"Every owner has the right to use his property in his own way and for his own purposes, subject only to the restraint necessary to secure the common welfare. (Village of La Grange v. Leitch, 377 Ill. 99.) This privilege was not created by the constitution but existed before its adoption and is guaranteed by it. (2700 Irving Park Building Corp. v. City of Chicago, 395 Ill. 138; State Bank & Trust Co. v. Village of Wilmette, 358 Ill. 311.) This privilege of a citizen to use his property according to his own will is both a liberty and a property right, (Village of La Grange v. Leitch, 377 Ill. 99; People ex rel. Schimpff v. Norvell, 368 Ill. 325,) subject always, however, to the police power of the State, under which new burdens may be imposed upon property and new restrictions placed upon its use when public welfare demands. . . .
"The police power of the State is that power required to be exercised in order to effectually discharge within the scope of the constitutional limitations its paramount obligation to promote and protect the public health, safety, morals, comfort and general welfare of the people. (County of Du Page v. Henderson, 402 Ill. 179.) Zoning laws are enacted in the exercise of the police power. (58 Am. Jur., Zoning, # 2, # 3, # 18.) A city possesses no inherent police power and cannot legislate upon or with reference to that, or any other subject, unless authorized by the General Assembly to do so. (Father Basil's Lodge, Inc. v. City of Chicago, 393 Ill. 246.) The enactment of article 73 of the Revised Cities and Villages Act, (Ill. Rev. Stat. 1949, chap. 24, pars. 73-1 to 73-11,) by the legislature, is an express delegation of police power, under which municipalities are authorized to adopt and enforce zoning ordinances, thereby imposing reasonable restraints upon the use of private property." (Italics ours.)
Paragraph 73-1 of chapter 24, Illinois Revised Statutes, 1955, empowers municipalities to enact zoning ordinances. Paragraph 73-2 provides that the manner of effecting zoning is by the passage of an ordinance after review by a zoning commission established by the municipality, which commission will recommend a proposed zoning ordinance and conduct public hearings after due notice of such proposed zoning ordinance. Paragraph 73-8 provides for the method of changing existing zoning ordinances as follows:
"The regulations imposed and the districts created under the authority of this article may be amended from time to time by ordinance after the ordinance establishing them has gone into effect, but no such amendments shall be made without a hearing before ...