Appeal from the Circuit Court of Kane County, Sixteenth
Judicial Circuit; the Hon. JOHN S. PAGE, Judge, presiding.
Affirmed in part, reversed and remanded in part, with directions.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT.
Plaintiffs appeal from a judgment order dismissing a complaint for mandamus (for the issuance of a building permit), and for injunction (against the enforcement of the zoning ordinance and a certain prohibitory ordinance of the City of Aurora). Plaintiffs elected to stand on their complaint so that final judgment was entered.
The dispute arises from a refusal by the city to approve plaintiffs' building plans for a community building, with manager's residence attached, to be built in connection with a proposed Mobile Home Park on land in Aurora of which the plaintiff, Patrick Scully, is the contract seller and the plaintiff, High Meadows Park, Inc., is the contract purchaser and applicant for the building permit. The property is zoned M-1, Limited Manufacturing.
The pleadings establish that on September 8th, 1967, High Meadows Park, Inc. made application to the building inspector of the city of Aurora for the issuance of a building permit for the construction of a community building in connection with the development of the Mobile Home Park, and submitted a development plan for the Mobile Home Park together with a list of the proposed site improvements. On November 21st, 1967, the building commissioner denied the permit by letter which acknowledged the application for a building permit to construct a community building "for a Mobile Home Park" and advised that the application was denied for a number of reasons including,
1 Mobile homes and trailer parks are prohibited within the corporate limits of Aurora by a specific ordinance.
2 The Aurora Zoning Ordinance has no provisions in any zoning category for Mobile Homes Parks or trailer park.
3 The City Council of the City of Aurora has recently unanimously refused to consider an Ordinance providing for the construction and regulation of such parks.
4 In all events, mobile homes, trailer parks and all other dwellings used for residential purposes or human habitation are not permitted under Zoning and Building Codes in areas such as yours, Zoned M-1, limited manufacturing except those specifically allowed under Ordinance 3100, as amended, Section 13.2 and its subsections.
5 Since your application states that this building is the first step to the development of a mobile home trailer park, the permit is denied in that the land for the park has not been subdivided in accordance with the Aurora subdivision Control Ordinance and other applicable City Ordinances and State Statutes.
6 Since this property is Zoned M-1 limited manufacturing, all construction must comply with standard specified in Fire District number 2. . . . .
Defendants' motion to dismiss the complaint charged that the application for building permit was signed by the wrong party; that neither plaintiff was a proper party to the action; that plaintiffs failed to exhaust their administrative remedies; that the proposed construction did not meet the requirements of the Building Code; that the relief prayed was beyond the authority of the court; and that both counts of the complaint fail to state causes of action.
The court, in its order of September 3rd, 1968, granting defendants' motion to dismiss, found that the application for building permit was not proper in that it was not filed by the owner in fee simple as required under the Building Code ordinance; that both plaintiffs were proper parties; that plaintiffs had not failed to exhaust their administrative remedies; that the application did not conform to the Building Code; that the zoning ordinance of the city of Aurora was not invalid as to this particular property or all property for failure to provide for a particular use; and that there were no allegations in the complaint that the ordinance was arbitrary, unreasonable and without relation to the public health, safety, welfare and morals of the community.
The several ordinances of the city of Aurora placed in issue by the pleadings included a 1937 ordinance which completely prohibits the owner of land to permit the use thereof for the purpose of parking a trailer if used as a dwelling; and the Aurora zoning ordinance which classifies all land into zoning districts, but nowhere lists mobile home parks as a permitted use, either under the various zoning classifications or under the special use provisions. The Building Code sets forth in an M-1 ...