APPEAL from the Circuit Court of Lake County; the Hon. WILLIAM
M. CARROLL, Judge, presiding.
MR. JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT:
This action was brought in the circuit court of Lake County by plaintiff, the county of Lake, against Robert B. Mac Neal and his wife, owners of two adjoining tracts of land, (referred to herein as parcel 1 and parcel 2,) to enjoin them from violating the county zoning ordinance adopted in 1939. For defense, the defendants pleaded a legal nonconforming use as to parcel 1, and that the ordinance, as it applied to parcel 2, is unconstitutional and void. These allegations were denied by plaintiff's reply. In addition, defendants filed a counterclaim praying that plaintiff be enjoined from enforcing the ordinance against their property. This direct appeal, properly certified to us by the trial court, is from a decree deciding the issues in favor of defendants.
The property involved is located on and back from the shore of Wooster Lake, a small secluded lake with a circumference of one and one-half miles. Both parcels lie in an R-4 Residential District, a zoning classification which limits their use to single-family residence uses. Parcel 1, consisting of about 8 3/4 acres, (half in-shore and half off-shore,) was purchased by defendants from Louis Bosworth in 1952. Bosworth had owned the property for 11 years and during his occupancy the land was used for his home, the rental of two cottages, boat rental and for a small picnic grove with two or three picnic tables. It is undisputed that the parcel was used for the same purposes both prior to and after the adoption of the zoning ordinance. And while it was urged below that such nonconforming use was abandoned after the death of Bosworth's wife, that theory has not been pursued here and is deemed to be waived.
Subsequent to their acquisition of the parcel, the defendants expanded the useable area by digging a channel along the southerly edge and using the dirt obtained to fill in swampy portions. They also converted a two-car garage into a lunch and refreshment stand, did away with outdoor toilet facilities and modernized the cottages and residence thereon, and thereafter used the property for a picnic grove and beach, rental of cottages and boat rental.
In February, 1956, plaintiff filed a complaint for an injunction against defendants alleging that they were operating a business in a residential district in violation of the ordinance, that they had expanded the business in violation of the ordinance provisions relating to nonconforming uses, and that notices and orders had been given defendants to discontinue the operation of their business. After hearing testimony and argument, such complaint was dismissed by the circuit court for want of equity. In the instant case, a special master found that the prior proceeding established a legal nonconforming use on parcel 1 and that use of the parcel at the time of this suit, compared with the use being made at the time of prior adjudication, was not an unlawful expansion of the nonconforming use. The chancellor concurred in the findings of the master and entered a decree stating that the former decree was res judicata as to the right of defendants "to conduct a recreational resort, including a picnic grove, fishing and restaurant without limitation as to the number of facilities located thereon on `Parcel I.'"
Plaintiff does not contest the finding of res judicata but urges that the decree is too broad in that the language "without limitation as to the number of facilities" will restrict the county from all future regulation of the nonconforming use. We cannot agree that this is so. Manifestly, the decree cannot be construed as depriving plaintiff of the regulatory powers over nonconforming uses reserved in the ordinance, nor could it prohibit such reasonable future regulation as the public health, safety, welfare or morals might require. Further, the controverted language of the decree obviously refers only to the intensity of the use of parcel 1 as a recreational area, and in the ordinance before us there is no provision against an increase in intensity of a nonconforming use. It may be agreed that one of the functions of zoning is to prevent an undue concentration of people or a particular use in one area, but, as was aptly stated in People ex rel. Delgado v. Morris, 334 Ill. App. 557, 567, "merely because an area has been zoned does not justify a court in judicially legislating away the property rights granted to non-conforming property owners under the zoning law, in the absence of a specific restriction in the ordinance against any increase in intensity of use." Here, it does not appear that the decree entered deprives plaintiff of any of the regulatory powers it had reserved over nonconforming uses in its ordinance. Cf. Dube v. City of Chicago, 7 Ill.2d 313; Federal Electric Co. v. Zoning Board of Appeals, 398 Ill. 142; Village of Round Lake Park v. Dice, 6 Ill. App.2d 408; People v. Ferris, 18 Ill. App.2d 346.
Turning to parcel 2, the undisputed facts show that it was purchased by defendants in 1957, shortly after the order was entered confirming a legal nonconforming use of parcel 1. This parcel, which abuts on parcel 1, consists of about 18 acres, (11 out of the water and 7 in the lake,) and has a lake frontage of about 600 feet. Prior to its purchase by defendants it had been used solely for residential purposes. After its acquisition defendants filled in a slough area that had been used for dumping garbage and cans, then commenced using the parcel in conjunction with the recreation business conducted on parcel 1. In this regard, the record shows that parcel was used for an automobile parking lot, that picnic tables have been placed thereon, and that people use the beach for swimming and boating activities. It is unquestioned that defendants began making this use of parcel 2 without ever having applied to the local authorities for either rezoning or variance from the existing residential classification.
Upon the complaint of other property owners in the area, and after a public meeting had failed to produce a peaceful settlement, the plaintiff initiated this action to enjoin the ordinance violation. A group known as the Wooster Lake Improvement Association was permitted to intervene below, and has likewise filed a brief in this court seeking reversal of the decree.
Although it had joined issue on the validity of the ordinance by its pleadings, the plaintiff, relying upon our decision in Bright v. City of Evanston, 10 Ill.2d 178, took the position when the hearing started before the master that the validity of the ordinance as it applied to parcel 2 could not be challenged in this proceeding because defendants had not exhausted their administrative remedies to secure relief from the operation of the ordinance. On this basis, it was asserted the master could not properly hear any evidence proffered by defendants to establish the invalidity of the ordinance. As opposed to plaintiff's position, defendants contended that the rule of the Bright case, requiring an exhaustion of administrative remedies, does not apply where the litigation is started by the public body against the property owner or, that if it does apply, the plaintiff here waived the rule by joining issue as to the validity of the ordinance in its pleadings. The master, subject to plaintiff's objection, permitted defendants to introduce their evidence relating to invalidity but, at the conclusion of the hearing, applied the Bright rule to hold that no decision could be made on the merits, inasmuch as defendants had not exhausted their administrative remedies. Accordingly, the master recommended that an injunction should issue restraining defendants from violating the ordinance.
Upon consideration of exceptions filed to the master's report the chancellor disagreed and found, first, that application for local relief would be a useless act where an action is brought by the local authorities to enforce the zoning ordinance; second, that exhaustion of administrative remedies is not a prerequisite to the raising of a defense of the invalidity of the zoning ordinance as it applies to a certain property, particularly where, as in this case, the local authority did not attack such defense but, instead, joined issue and permitted the cause to go to a trial on the merits. Having made these findings, the chancellor further found from the proof adduced before the master that the ordinance, as applied to parcel 2, was arbitrary and unreasonable, and without substantial relation to the public health, safety, welfare, and morals. In accordance with these findings, he entered a decree enjoining the enforcement of the ordinance against parcel 2. The divergent views as to the scope and application of the Bright rule shape the first issue presented for determination.
The rule promulgated in Bright v. City of Evanston, 10 Ill.2d 178, (where the action was initiated by a property owner for a declaratory judgment,) is simply that before a property owner can go to court and challenge the validity of a zoning ordinance as it applies to his property, he must first have made an effort to obtain local relief when available. In contending that the same rule applies where the property owner is the defendant to an action by the local authority to enforce its ordinance, plaintiff first reasons that the Bright rule is jurisdictional or quasi-jurisdictional. This premise is not true, nor has the rule been so construed since its adoption. (See e.g., City of Loves Park v. Woodward Governor Co., 14 Ill.2d 623; County of Cook v. Glasstex Co. 16 Ill.2d 72.) The Bright rule did not stem from legislative or constitutional command, but is no more than an expression of judicial policy prompted by the circumstance that zoning is legislative and administrative in nature, not judicial, and which is aimed at providing the local authority an opportunity to correct error and to settle disputes locally before there is judicial intervention. (See: Bright v. City of Evanston, 10 Ill.2d 178, 185; Herman v. Village of Hillside, 15 Ill.2d 396, 408.) And whether the rule should be extended to defendant-owners, as well as to those who are plaintiffs, is again a matter of policy, not one of jurisdiction.
Although there is authority that the rule of exhaustion of administrative remedies has application whether the validity of a zoning ordinance is raised by a defendant or a moving party, (People v. Calvar Corp. 286 N.Y. 419, 36 N.E.2d 644; Provo City v. Claudin, 91 Utah 60, 63 P.2d 570,) there is at the same time the sound principle, based upon the assumption that one may not be held civilly or criminally liable for violating an invalid ordinance, that a proceeding for the violation of a municipal regulation is subject to any defense which will exonerate the defendant from liability, including a defense of the invalidity of the ordinance. (See: 10 I.L.P., Cities & Villages, sec. 1194, cf. Smith v. United States, (1st cir.) 199 F.2d 377.) Indeed, as one author has observed, "the tradition is deeply imbedded that * * * statutes may be challenged by resisting enforcement." Davis, Administrative Law Treatise, vol. 3, sec. 23.07 p. 320.
For our part, we believe there are substantial differences between a property owner who is the moving party in an action to declare an ordinance invalid as to his property, and one who is summoned into court and charged with illegally violating the ordinance. Whereas, in the first instance, it is the view that zoning litigation should not be initiated until the local authority has a chance to correct the errors that may have occurred in broad comprehensive ordinances, in the latter instance the very act of filing a complaint reflects a judgment on the part of the local authority that, as to the property concerned, they see no particular hardship and no necessity to correct the zoning regulation. To compel a property owner to first seek local relief in the face of the demonstrated attitude of the local authority, would be a patently useless step which would increase costs, promote circuitry of action and delay the administration of justice. So long as local authorities institute an action, a defendant should be entitled to defend on the ground of the invalidity of the ordinance and to have the issue determined. If it were to be otherwise, the result could be that judicial machinery would be used to enforce an ordinance that is unconstitutional.
Plaintiff argues that any refusal to extend the Bright rule to defending property owners will be an invitation to the unscrupulous to violate zoning regulations. However, such an ad terrorem appeal does not withstand either logical or historical examination. The alleged violation of the zoning ordinance in this case primarily involves a use of open land for recreation purposes. Most zoning litigation, to the contrary, involves proposed substantial investments in and improvements to real estate. In view of the judicial power to preserve the integrity of a zoning ordinance, by mandatory injunction if necessary, we do not foresee that money will be invested or properties substantially ...