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Rasmussen v. Village of Bensenville

MARCH 2, 1965.




Appeal from the Circuit Court of the 18th Judicial Circuit, Du Page County; the Hon. WILLIAM C. ATTEN, Judge, presiding. Judgment reversed.


Rehearing denied April 9, 1965.

This is an appeal from a declaratory judgment, entered by the Circuit Court of DuPage County, that the Zoning and Location Ordinances of the Village of Bensenville, are unlawful and void in prohibiting the use of plaintiffs' real estate as a gasoline station. We find the Location Ordinance to be valid and reverse the trial Court without considering the validity of the Zoning Ordinance.

The location prohibition is contained in Section 5 of Article 9 of an Ordinance providing for issuing and revoking of licenses. It provides, in pertinent part, as follows:

"No tank for the storage of flammable liquids shall be installed in any lot or plot of ground where any of the boundaries of such lot or plot of ground are within two hundred feet of the nearest boundary of any lot or plot of ground used for a school, hospital, church, or theater."

Intervenor-Appellant, First Evangelical United Brethren Church of Bensenville, Illinois, herein called the Church, and the defendant, The Village of Bensenville, herein called the Village, by answer, pleaded Section 5 of said Ordinance as an affirmative defense, and alleged that the easterly boundary of plaintiffs' real estate is less than 200 feet from the westerly line of real estate owned and used by the Church. In reply to said answers, plaintiffs admitted such fact.

Plaintiffs further charged that the distance required by the Location Ordinance constitutes an unequal application of the law, is discriminatory as applied to plaintiffs' property, deprives plaintiffs of due process and equal protection of the law, and takes plaintiffs' property for public use without just compensation, all in violation of the 14th Amendment of the Constitution of the United States of America, and Sections 2 and 13 of Article II of the Constitution of the State of Illinois.

In addition, plaintiffs asserted that Sections 2 and 4 of Article 9 are invalid in that they do not provide any standards for guidance of the Village in determining whether a license should issue; that Section 6 thereof imposes such severe penalties as to deprive plaintiffs of due process of law; and that said sections are violative of the 14th Amendment to the Constitution of the United States, and Section 2 of Article II of the Illinois Constitution.

In Drovers Trust & Sav. Bank v. Chicago, 18 Ill.2d 476, 165 N.E.2d 314 (1960), frontage consent ordinances, or such provisions within ordinances, were held to be invalid and unconstitutional. Therefore, the frontage consent provisions of Section 5 of Article 9 are unconstitutional. Such fact, however, does not necessarily invalidate the remainder of section 5 or Article 9. These consent provisions are severable and do not render the remainder of the ordinance invalid. Yellow Cab Co. v. City of Chicago, 23 Ill.2d 453, 464, 178 N.E.2d 330 (1961); The People ex rel. Adamowski v. Wilson, 20 Ill.2d 568, 582, 170 N.E.2d 605 (1960).

The Municipal Code gives corporate authorities of each municipality the power to regulate and prevent the storage of combustibles (Ill Rev Stats 1963, c 24, par 11-8-4) and to classify, regulate and restrict the location of industries and the location of buildings designed for specified industrial, business, residential and other uses. (Ill Rev Stats 1963, c 24, par 11-13-1.) The Village had authority to adopt a regulatory ordinance of the type in question. Plaintiffs have asserted that this was a licensing, and not a location, ordinance. However, such exercise in semantics solves nothing; it is tilting at windmills.

The power of municipalities to provide for the location of gasoline stations at reasonable minimum distances from schools, churches, hospitals and other similar buildings, is no longer open to question. Under the police powers of the State, new burdens may be placed upon property and new restrictions upon its use when the public welfare so demands. Such ordinances are designed to guard against danger from fires and explosions, and unless the particular requirement is shown to be arbitrary and unreasonable, its validity will be upheld. Cities Service Oil Co. v. City of Des Plaines, 21 Ill.2d 157, 160, 171 N.E.2d 605 (1961); Chicago Title & Trust Co. v. Village of Lombard, 19 Ill.2d 98, 104, 166 N.E.2d 41 (1960); Bulk Petroleum Corp. v. Chicago, 18 Ill.2d 383, 385, 164 N.E.2d 42 (1960); and City of Ottawa v. Brown, 372 Ill. 468, 471, 472, 24 N.E.2d 363 (1939).

Ordinances of the type in question give special protection to places where people are apt to be congregated under circumstances that may impair their chances to escape from the dangers inherent to inflammable liquids. To attack the validity of this ordinance as applied to their property, plaintiffs must show that the purpose served by the ordinance is improper or that the means selected are not reasonably suited to effectuate this purpose.

Upon the trial, plaintiffs offered some evidence to challenge the propriety of the municipal objective or the reasonableness of the 200-foot requirement. The Village offered comprehensive and compelling evidence to sustain the validity of the Location Ordinance. Under these circumstances, the propriety of the location limitation, subject to valid constitutional objections, was established.

Plaintiffs assert that the ordinance is not equally applied because a presently operating Sinclair Service Station located at the southeast corner of York Road and Green Avenue is only 181 feet from plaintiffs' real estate. The evidence established that this gasoline station was erected in 1938 and that the Location Ordinance was adopted in 1946: it was therefore a non-conforming use. This gives rise to the question of whether legislative consideration for this existing property right furnished a valid basis for ...

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