APPEAL from the Circuit Court of Du Page County; the Hon.
GEORGE W. UNVERZAGT, Judge, presiding.
MR. JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 13, 1974.
This is an appeal from a decree of the Circuit Court of Du Page County enjoining the defendants (appellants) from conducting the operation of their paving contracting and landscaping business on their premises, including the keeping and maintaining of their equipment thereon.
The premises in question originally belonged to Norman J. Elia's father and have been in the possession of the Elia family for over 50 years. The evidence is somewhat conflicting in certain details but it seems clear that at an early age, possibly prior to the age of 15, Norman J. Elia, who was born in 1920, began doing small jobs in the nature of landscaping work for surrounding neighbors, having at that time only minimal equipment. He then went into military service and when he returned in 1945 he began to expand his landscaping business, adding some pieces of equipment from time to time. Whether he did any paving contracting in the early 1950's is not clear from the record, but it appears that about 1958 he began to acquire considerable equipment for use in the paving contracting business, which he stored and maintained in his home premises on the north side of 62nd Street (Lot 19) and another lot immediately south and west of the home premises on the south side of 62nd Street (Lot 18). Elia gradually expanded his business, apparently mostly in the direction of paving contracting, after 1958, and at the time of the trial was keeping, on his two lots, according to the complaint and the testimony of witnesses, a road grader, several tractors, several six-wheeled dump trucks and other grading and paving equipment. It also appears that he did some maintenance work on this equipment from time to time at the same location.
The lots in question and the entire surrounding area are zoned R-3 under the zoning ordinance of the Village of Burr Ridge enacted in 1965. This zoning does not permit the keeping and maintaining of equipment necessary for a landscaping and paving contracting business. The entire area, including the defendants' land, and the land surrounding it, is zoned for residential purposes only. The complaint recites that the storage, maintenance and repair of defendants' heavy equipment used in the business tended to substantially decrease the value of the adjoining and surrounding real estate. Expert testimony confirmed this and there was testimony by neighbors that the heavy equipment was a traffic hazard, especially to children in the neighborhood, and that the noise caused in the repairing and maintenance of the equipment was a nuisance as it was often done at night by floodlight.
There can be little doubt that the Burr Ridge zoning ordinance of March 8, 1965, prohibited the use being made of the defendant's premises; however, the evidence also clearly establishes that the defendants' use of the premises for storing and maintaining the paving contracting and landscaping equipment long antedated the Village ordinance.
The Village recognizes this in the third amended complaint on which the prayer for an injunction is based. Count I simply alleges the necessary facts to establish a present violation of the existing ordinance. Count II, which is set forth as an alternative pleading, after adopting Count I's necessary preliminary facts, alleges that:
"2. That the use of the real estate described herein for the operation of paving contracting and landscaping business, which use initially involved the parking of one truck on or about said real estate, pre-dates the BURR RIDGE ZONING ORDINANCE OF MARCH 8, 1965, and all prior Zoning Ordinances of the VILLAGE OF BURR RIDGE AND DU PAGE COUNTY. [Emphasis added.]
3. That the use of the real estate herein described for the operation of a paving contracting and landscaping business, initially involving the parking of one truck on or about said real estate, has expanded to include, among other things, the parking, maintenance and repair, thereon, of One Aust'n Western Road Grader, Three Tractors, Three 6 Wheel Dump Trucks, Two 4 Wheel Dump Trucks, Two Pickup Trucks, One Jeep, One Road Paver, and Three Rollers."
The defendants in their answer specially admitted the truth of paragraphs 2 and 3 of Count II but maintained, as an affirmative defense, that their use of the land was a legal, nonconforming use.
While questions of pleading are not usually of critical importance under our modern Civil Practice Act, under certain circumstances they can become so and we believe such a case is involved here. It will be noted that the pleadings in Count I of the complaint refer only to a violation of the Burr Ridge zoning ordinance of March 8, 1965. It is a straightforward allegation as to the violation of the ordinance by storing and maintaining certain heavy equipment used in connection with a landscaping and paving contracting business on said premises. No reference is made to the County zoning ordinance or any violation thereof. Count II does not deny the allegations of Count I, nor admit that the use was a legal, nonconforming use, but alleges that, (a) if it were a legal nonconforming use at the time of the enactment of the Burr Ridge Ordinance it has since expanded considerably, and (b) that in any event the Burr Ridge ordinance contains a provision for the discontinuance of a nonconforming, legal use of vacant land within 1 year of the passage of the ordinance, which period having passed, the use is now illegal under the ordinance. But, Count II also contains the allegation that the aforesaid use of the premises predated both the Burr Ridge zoning ordinance of 1965 and the county ordinance of 1935.
What makes so significant the allegation in the complaint that the defendants' use of the premises for a landscaping and paving contracting business predated the 1935 county zoning ordinance, is that the basis of the trial judge's decree was his finding as a matter of fact that the said business use of the premises began after the enactment of the 1935 county zoning ordinance and therefore the defendants, being in violation of the county ordinance, did not have a legal nonconforming use at the time the Burr Ridge ordinance was passed; therefore, they violated that ordinance and are subject to being enjoined.
• 1 Prior to the adoption of our modern Civil Practice Act a variance between the proof and the pleadings was, under certain circumstances where the adverse party was prejudiced thereby, held to be a fatal variance which would defeat a judgment even though the proof was sufficient to sustain it. (Stearns v. Glos (1908), 235 Ill. 290; Martin v. Frank (1930), 259 Ill. App. 417.) However, under modern practice, allowing pleading in the alternative, a variance between one count of the complaint and the proof is not fatal and may be disregarded if another count pleaded in the alternative accords with the proof. (McCormick v. Kopmann (1959), 23 Ill. App.2d 189.) Section 43(2) of the Practice Act (Ill. Rev. Stat. 1969, ch. 110, par. 43 (2)) states:
"(2) When a party is in doubt as to which of two or more statements of fact is true, he may, regardless of consistency, state them in the alternative or hypothetically in the same or different counts or defenses, whether legal ...