Appeal from the Circuit Court of Sangamon County; the Hon.
CREEL DOUGLASS, Judge, presiding. Reversed and remanded with
CRAVEN, J., DELIVERED THE OPINION OF THE COURT.
Rehearing denied September 12, 1969.
The plaintiffs were successful in the Circuit Court of Sangamon County in their attack upon the validity of that part of the zoning ordinance of the City of Springfield which placed their property in "H-1" Historical Zone. This zone, under the Springfield zoning ordinance, relates to a four-block Historical District extending from Seventh to Ninth Streets and from Edwards to Capitol Avenue. The home formerly owned and occupied by Abraham Lincoln is at the northeast corner of Eighth and Jackson Streets, the central intersection of the area. The Lincoln Home faces on Eighth Street (now closed to vehicular traffic in the Historical District) and the lot extends east to a north-south alley between Eighth and Ninth. The Historical Zone or District permits the property located therein to be used for residences, churches, publicly owned centers, auditoriums, historical museums and professional, governmental or business offices not used for retail sales. The zone classification is subject to a height restriction of 35 feet, the same as that fixed for residential districts designated "R-1" through "R-4" of the city zoning ordinance, and the yard and lot requirements are the same as those for "R-4" General Residence Districts. Certain architectural controls are applicable to the district, those being a continuation of controls imposed under a 1961 ordinance. (Those controls, as we see it, are not in issue here.) At the time the plaintiffs acquired the property in question it was zoned under a 1924 zoning ordinance of the City as "B" Residential, "B" Area, with a 45-ft. height limitation.
In 1966, the City of Springfield adopted a comprehensive zoning ordinance and the plaintiffs' property was placed in the Historical Sites Area. Prior to the adoption of the 1966 zoning ordinance plaintiffs filed a petition to reclassify their property from "B" Residential to "C-2" Commercial and from "B" Area to "D" Area. Before a hearing was held on the petition the new ordinance was adopted and the plaintiffs filed an amended petition to reclassify their property from Historical Sites District to a classification in the new ordinance designated as "B-2" General Business Service District. A hearing was held on the amended petition by the Springfield Plan Commission. That Commission recommended its rejection and the City Council did reject the petition in August of 1966. Thereafter, in July of 1967, the plaintiffs made application for a building permit to construct a masonry and frame commercial building, proposed to be used as a restaurant, on the property. This application was referred to the Historical Sites Commission which conducted a hearing and recommended to the Council that the application be denied. The Council adopted this recommendation and the application was denied.
This action was originally instituted in October of 1966, challenging the right of the City to retain the "H-1" classification for the plaintiffs' property. After the denial of the building permit for construction of the restaurant, known as a "Top Boy" drive-in restaurant, plaintiffs amended their original complaint adding counts challenging the denial of the building permit.
The pleadings as thus ultimately established consisted of six counts. Count I sought administrative review of the City Plan Commission recommendation and the City Council action in denying the petition for reclassification of the property of plaintiffs; Count II sought a declaratory judgment declaring the existing zoning of the plaintiffs' property to be invalid; Count III attacked the validity of the statute authorizing cities to establish historical sites or areas and the action of the City Council pursuant to that statute; Count IV sought injunctive relief against the enforcement of the zoning classification; Count V sought to review the action of the Historical Sites Commission and the City Council denying the building permit; and Count VI was a count for damages asserting that the zoning classification amounted to a taking of plaintiffs' property for public use for which they were not compensated. Motions by the defendants to dismiss these various counts were denied, although ultimately the trial court did dismiss Count VI and no cross-appeal has been perfected as to that action.
Extensive hearings were held and ultimately the circuit court, by its decree, determined the zoning ordinance of the City of Springfield to be invalid as applied to plaintiffs' property and enjoined the City from enforcing the provisions of the ordinance as to the property. The decree further determined and ordered:
"3. That the fair, reasonable and proper classification of Plaintiffs' property is hereby declared to be B-2 Business District, and Plaintiffs are entitled to devote their property to such uses as are permitted under such B-2 Business District classification of the Zoning Ordinance of the City of Springfield adopted June 28, 1966."
A memorandum opinion of the trial court expressed a like conclusion.
At the time of the adoption of the 1966 zoning ordinance by the City, the City was authorized by the provisions of section 11-13-1 of the Municipal Code (Ill Rev Stats 1965, c 24, § 11-13-1) to enact zoning ordinances. In addition, section 11-48.2-2 was added to the Illinois Municipal Code (Ill Rev Stats 1967, c 24, § 11-48.2-2) by the Legislature in 1963, as amended in 1965. The substance of this legislation was to authorize municipalities to enact regulations protecting historical areas. We will discuss this statutory authorization in detail in the course of this opinion.
The defendants originally appealed to the Illinois Supreme Court and a portion of their brief is devoted to the proposition that the Supreme Court did have jurisdiction of this case which, while a zoning case, has some unique aspects by reason of the statutory authorization to protect historical areas. The Supreme Court declined a direct appeal and transferred the case to this court on its own motion. Its order of transfer reads:
"This is an appeal from a judgment holding that the provisions of the City's Zoning Code including plaintiffs' property in an Historical District were invalid as applied to plaintiffs' property. While the zoning classification is unique, the issue decided by the trial court and the issue before a reviewing court is no different than that in the typical zoning dispute and no substantial constitutional question is presented. (First National Bank v. Evanston, 30 Ill.2d ...