Appeal from the Circuit Court of the 17th Judicial Circuit,
Winnebago County, Magistrate Division; the Hon. STUART B.
NORDQUIST, Judge, presiding. Judgment reversed.
This is an appeal from the finding of a police magistrate of the City of Rockford against the defendant when she was found guilty of the charge and fined $100.
The action against the defendant was brought on by the City of Rockford by the complaint signed by a James Quinn charging the defendant with a violation of the city zoning ordinance, in that she operated a dancing school in the basement of her home in the area designated "A" residential. It appears that for some 24 years the defendant had instructed dancing classes at a former residence in Rockford under the name of Lund School of Dancing. In the fall of 1964 Mrs. Eisenstein moved to her present address in a residential section of Rockford consisting mainly of ranch type homes. In October of 1964 the defendant hired a contractor to remodel a portion of the basement of her home. No permit was secured. After a complaint was made to the building inspector, he issued a permit to finish the basement "for a family recreation room not to be used as a dancing school." When the remodeling was completed, the defendant commenced giving instructions in dancing.
All the witnesses produced by the city, including the complainant, James Quinn, indicated, and it was so stipulated by counsel for the City of Rockford, that the only annoyance caused by the dancing classes was the increased amount of traffic in the neighborhood. Mrs. Eisenstein had no one working for her and she did not display any signs on the premises. The only piece of equipment that was used was a hi-fi recorder on which music was played during the periods of instruction. No classes were conducted on the ground floor of the ranch style home. There were no sales of any kind made out of the home, other than if once the dancing season began, leotards and dancing costumes were not available from the local stores, Mrs. Eisenstein furnished a catalog from which such items could be selected and ordered. Mrs. Eisenstein conducted from 1 to 5 classes a day, Monday through Saturday, from approximately September through May of each year, and the number of students varied from 2 to 8 in each class.
The sole question presented in this case is whether these dancing classes held in Mrs. Eisenstein's home constituted a home occupation within the meaning of the phrase as used in Section 7, Chapter 44 of the Ordinances of the City of Rockford. That Ordinance provided as follows:
"In any `A' residence district, except as hereinafter provided, no building or premises shall be used and no building shall be erected or altered except for one or more of the following uses:
(1) Single family dwellings.
(2) Parks, recreation buildings, and country clubs not conducted as a business nor for profit.
(3) Temporary buildings and uses for construction purposes for a period not to exceed one year.
(4) Accessory uses incident to the above uses, including private garages, professional offices, home occupations and signs advertising premises for sale or rent, but not the conduct of any retail or wholesale business or manufacture.
Nowhere does it define in the Ordinance what a `home occupation' is."
Section 44-10 of the Rockford Code, entitled "local business districts," states:
"IN any local business district . . . no building or premises shall be used . . . except for one or ...