Appeal from the Circuit Court of Cook County; the Hon. JOHN J.
LUPE, Judge, presiding. Affirmed.
Plaintiffs' action sought to have the zoning ordinance of the defendant Village and the ordinance provisions for "special uses" within the business zoning classifications declared unconstitutional and void, and also sought to have the ordinance declared void as applicable to the land of the plaintiffs. The trial court approved the Master's report which recommended dismissing the action for want of equity, entered judgment for the defendant and taxed the costs against the plaintiffs. They appeal.
Plaintiffs' property is classified under the ordinance as B-1, a retail business zone. An automobile service station or "gas" station is not a "permitted use" in this classification, but such use may be authorized as a "special use." The ordinance also has a B-2 classification designating service business zones. In the latter zone a "gas" station is a permitted use.
The Village Ordinance adopted in 1961 is comprehensive in detail. As the disposition of the case turns upon the validity of the "special use" feature of the ordinance, we note that there is provision for a "special use" in two aspects: First, Section III sets forth certain definitions. A "special use" is defined as a building or use which complies:
". . . with the applicable regulations governing Special Uses of the zoning district in which such building . . . is located."
Secondly, Section XI of the ordinance provides certain administrative procedures. Paragraph H includes the statement:
"The development and execution of the Comprehensive Zoning Ordinance is based upon the division of the village into districts, within any one of which the use of land and buildings and the bulk and location of buildings or structures, as related to the land, are essentially uniform. It is recognized, however, that there are special uses which, because of their unique character, cannot be properly classified into any particular district or districts without consideration in each case of the impact of those uses upon neighboring lands, and upon the public need for the particular use of the particular location. Such special uses fall into two categories:
"a. Uses operated by a public agency or publicly-regulated utilities, or uses traditionally affected with a public interest.
"b. Uses entirely private in character, but of such a nature that the operation may give rise to unique problems with respect to their impact upon neighboring property or public facilities."
Plaintiffs filed a petition with the Village Trustees which requested that the property classification be changed from B-1, retail business, to B-2, service business. Notice was published of a hearing to be held on September 26, 1963, by the Village Plan Commission and the Zoning Board of Appeals, which included hearing on such petition. The pleadings admit that reclassification of the property was denied.
Plaintiffs argue that the zoning classifications should be held unconstitutional as being arbitrary and capricious and actually designed to control the kind and number of businesses so as to create an area monopoly. So far as we can ascertain, such argument is bottomed on the notion that the "permitted uses" of the two classifications are essentially similar to the "special uses" which are specified. The retail business classification purports to limit service activity to that performed indoors or under cover, but the service business classification permits service activity without such limitation. While the designation of particular businesses as retail or service might produce some differing views, there is nothing inherently arbitrary in such classification. The rule is stated to be that where there is a reasonable ground for difference of opinion as to the basis of classification, the legislative judgment expressed in the ordinance will be sustained. Williams v. Village of Schiller Park, 9 Ill.2d 596, 138 N.E.2d 500.
It is argued that the "special use technique" cannot be applied to uses which are capable of being placed in a regular classification as is a "gas" station. By amendment in 1967, c 24, § 11-13-1.1, Ill Rev Stats, appears to grant specific authority to a city to create the "special use" concept present in this ordinance. Plaintiffs urge that such amendment does not authorize the provision of the 1961 ordinance at issue and in fact shows that there was no legislative authority to make the provision for "special use." It is further argued that the ordinance at issue does not meet the definition of a "special use" stated by the Supreme Court in Kotrich v. The County of Du Page, 19 Ill.2d 181, 166 N.E.2d 601. In Kotrich it was contended that there was no statutory authority for the "special use" provision of a county zoning ordinance. The Supreme Court, however, accepted as desirable the flexibility provided by the "special use technique," and upon the facts there at hand defined a "special use" as being within a residual category of uses which might be employed, albeit, usually infrequently and generally upon large areas of land for uses which cannot be categorized in a given use zone without the possibility of excluding a beneficial use but which are potentially incompatible or dangerous within a given zone. The terms of limitations announced by the Court were in the context that such uses were necessarily of an ad hoc quality which must not be permitted to erode the protective procedures in the provisions for amendment of or variation in an ordinance classification.
The Niles ordinance provides for a "special use" not only in the function and with like procedures stated in Kotrich but by its legislative action it also permitted uses defined specifically as "special uses" within the designated classifications which might be authorized through regular procedures. The ordinance provides for an application, notice and hearing designed to protect property owners from piecemeal changes in the zoning scheme. Having in mind the goal of flexibility while maintaining protection, it cannot be said that the language of the Court in Kotrich, delimiting one category of "special use" creates a constitutional barrier to the municipal creation of a distinct category of use which bears the same label.
While the legislative amendment of 1967 authorizes zoning in almost the precise concept of "special use" at issue, such fact cannot rationally be interpreted to mean that the Niles ordinance of 1961 is void for want of specific prior legislative authority. The "special uses" defined in the Niles ordinance for the B-1 classification would seem ...