Appeal from the Circuit Court of Sangamon County; the Hon.
HOWARD LEE WHITE, Judge, presiding. Reversed and remanded with
CRAVEN, J., DELIVERED THE OPINION OF THE COURT.
This zoning case involves the same statutes and the same zoning ordinances as those discussed in Rebman v. City of Springfield, 111 Ill. App.2d 430, 250 N.E.2d 282, filed concurrently with this opinion. The order of the Supreme Court transferring the case is the same as the order in Rebman.
The Rebman case and this one involve all of the property on the west side of Ninth Street from Edwards to Jackson Streets in the City of Springfield. The lots involved here are located to the north of the Rebman and Page lots discussed in the Rebman opinion.
M & N Enterprises, Inc., an Illinois corporation, in which the plaintiff Joseph W. Miloncus is the principal stockholder, purchased the southernmost lots Lots 12, 13 and 14 in 1956, for a sum "in the neighborhood of $27,000.00." The lots were then improved with residences and then zoned as "B" Residence District. These lots were rezoned in 1956 to "C" Commercial Area, "C" Area District. Under this rather broad business classification commercial buildings were allowed to occupy the entire area of the lots.
An automatic car wash was built on Lot 12. Lot 13 was paved for parking and for access drives. Lot 14 was used to construct a store building for the sale and installation of automobile seat covers. These corporate enterprises were ultimately owned by Mr. Miloncus.
In February of 1963, Mr. Miloncus and his wife purchased on contract for deed Lot 16 the lot on the southwest corner of Ninth and Jackson at an indicated purchase price of $32,500. The lot was improved with two apartment houses. It was zoned "B" Residence Use District, "C" Area, and subject to an 85-ft. height district limitation under the then applicable 1924 zoning ordinance.
In December of 1965, Mr. Miloncus obtained an option to purchase Lot 15 from the plaintiffs Robert and Wilma Holvey for the sum of $40,000. This lot is improved with a residence converted to apartments. On the rear of the lot is a small garage of cement block construction used as an automobile repair shop. The zoning on this lot was and is the same as on Lot 16. The option was conditioned upon rezoning of the optioned lot so as to permit its use for a motel-hotel complex.
In March of 1966, Mr. Miloncus filed a petition to rezone Lots 12 through 16, inclusive, from the then zoning classifications to a classification known as "C-2" Commercial Use, "D" Area, with a 125-ft. height district limitation, or as an alternative, to the rezoning for a use variance so as to permit construction of the motel. The Zoning Board recommended a reclassification except for a height limitation of 45 feet. The City Council denied the reclassification and the plaintiffs instituted this proceeding. The complaint was filed June 21, 1966.
On June 28, 1966, the City Council adopted a new comprehensive zoning ordinance. The four-block area around the Lincoln Home, which included the plaintiffs' property, was placed in a district designated as "H-1" Historical District. The height restriction on buildings in the district is placed at 35 feet and the uses permitted include residences, churches, publicly owned information centers, auditoriums, historical museums and professional, governmental, or business offices, but not including retail sales. Architectural controls applicable to the area first imposed in 1961 were continued under the 1966 ordinance.
The zoning and use of the area surrounding the Historical District are detailed in our opinion in Rebman, and although applicable here, we see no need for repetition.
The original complaint was amended setting forth the zoning change by the 1966 ordinance, alleging that the new classification as to the plaintiffs' property was invalid and unconstitutional and constituted a confiscation of the plaintiffs' property without just compensation. The pleadings were further amended in February of 1968, reciting an application in October of 1967 for a conditional permitted use and variance to construct a commercial wax museum and a gift shop on the premises. It was alleged that the sought conditional permitted use would have exterior architectural features appropriate to the district and that the use was approved by the Zoning Board and the Historical Sites Commission. There is no allegation that this use was expressly approved or disapproved by the City Council. That body acted only by adopting a resolution reaffirming a policy aimed at eliminating commercial activity in the Lincoln Home Area.
A stipulation by M & N Enterprises, Inc., and the City of Springfield is in the record. That stipulation reads as follows:
"Plaintiffs on October 2, 1967 filed with Defendant an application for conditional permitted use and variance. Said application sought authorization to construct and operate a commercial wax museum and gift shop on the premises here involved. The structure to house such commercial wax museum and gift shop were [sic] represented to have exterior architectural features appropriate to the H-1 Historical District. Plaintiffs appeared before the Zoning Board of Appeals and the Historical Sites Commission of the Defendant. On or about November 14, 1967 the City Council of the Defendant adopted a resolution proclaiming the Council's policy of ultimate elimination of private commercialization in the H-1 Historical District. The City Council has taken no action on plaintiff's [sic] aforesaid application although the recommendations of the Zoning Board of Appeals and Historical Sites Commission were both submitted by December 5, 1967."
As to Lots 12, 13 and 14, the trial court found the "H-1" Historical District zoning to be arbitrary, unreasonable and confiscatory and that it bears no substantial relationship to public health, safety, morals, comfort and welfare, and further found that the plaintiffs proposed to raze the present improvements and construct and operate a motel on the property or in the alternative to construct and operate a commercial wax museum and gift shop, both of which uses were found to be appropriate and reasonable for the property. It therefore enjoined the defendant from enforcing the zoning regulations on the property so far ...