Appeal from the Circuit Court of Cook county; the Hon. HARRY
M. FISHER, Judge, presiding. Reversed and remanded with
PRESIDING JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
Rehearing denied and opinion modified July 10, 1959.
This appeal is taken from a declaratory judgment entered in the trial court finding that the plaintiff, as the owner of certain property in a "B" two-family district under the zoning ordinance of Maywood, Illinois, had a right to erect a single-family dwelling residence thereon with a three-foot side yard on each side of the residence in spite of the fact that the section of the ordinance dealing with two-family districts provides that the side yard be not less than five feet.
The plaintiff, after the building commissioner of the village had refused to issue a permit, filed a petition for a writ of mandamus. The plaintiff, by leave of court, filed an amended complaint praying for a declaratory judgment. The only question raised in this court is with reference to the entry of a declaratory judgment.
The allegations in the complaint, as amended, which are essential in determining the propriety of the summary declaratory judgment in the case before us are: The plaintiff had on October 3, 1957 petitioned the zoning board of appeals of the Village of Maywood for a variation from the requirements of the zoning ordinance to enable him to erect a single-family residence in a two-family district with a three-foot side yard. After hearing, on December 16, 1957 the request for the variation was denied. On December 19, 1957 the plaintiff filed an application with the department of buildings to erect a single-family dwelling on the lot, having a side yard of three feet on each side of the residence. The building commissioner refused to issue the permit on the ground that the erection of a residence with a three-foot side yard in a two-family district was not permissible under the ordinance requirements. The plaintiff prayed that the court declare that the erection by the plaintiff of a single-family residence upon its lot with a side yard of three feet is permitted under the zoning ordinance of the Village of Maywood.
The defendants filed an answer in which they alleged that under the ordinance the use to which the plaintiff purportedly wished to put its property is only permissible in a two-family district when a five-foot side yard is provided, and denied that the ordinance permitted the erection of a residence in such a district with a three-foot side yard. The answer raised the issue that the plaintiff had in its complaint failed to allege facts showing that it had exhausted the administrative remedies available to it under the ordinance and the statutes of the State of Illinois, and asked that the cause be dismissed.
On September 16, 1958 the plaintiff filed a motion for a summary judgment together with a supporting affidavit. On October 22, 1958, after hearing, the trial court entered a declaratory judgment finding that the plaintiff was the owner of the lot in question and that under the zoning ordinance of the defendant Village of Maywood it was permissible for the plaintiff to construct a single-family dwelling on the lot with a three-foot side yard on each side of the residence and retained jurisdiction of the case to enforce the terms of the judgment.
The zoning ordinance which was in effect provided, among other things, for districts to be known as single-family and two-family districts. Article IV, dealing with single-family districts, provided in part:
"Section 1: The regulations set forth in this Article, or set forth elsewhere in this Ordinance when referred to in this Article, are the district regulations in the `A' Single-Family Districts.
"Section 2: Use Regulations: A building or premises shall be used only for the following purposes:
"1. Single-family dwellings."
Section 4 of Article IV, dealing with "Area Regulations," provided:
"(a) Except as hereinafter provided, there shall be a side yard on each side of a building, having a width of ...