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City of Carbondale v. Van Natta

OPINION FILED SEPTEMBER 26, 1975.

THE CITY OF CARBONDALE, APPELLANT,

v.

JOE VAN NATTA ET AL., APPELLEES.



Appeal from the Circuit Court of Jackson County; the Hon. Richard Richman, Judge, presiding.

MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 21, 1975.

In July 1974 the City of Carbondale, which under our constitution is a home-rule unit (Ill. Const. (1970), art. VII, sec. 6(a)), obtained a temporary injunction in the circuit court of Jackson County restraining the defendants, Joe Van Natta, Master Key Enterprises, Inc., and Cherry Construction, Inc., from acting in violation of a zoning ordinance of the City. Ordinance No. 1216 contains the City's zoning regulations, which by their terms apply within the municipality and to the area extending 1 1/2 miles beyond and contiguous to the boundaries of the City. The City's complaint alleged that the defendants, who were constructing a building within the 1 1/2-mile area contiguous to the City, were not complying with the setback provisions of the ordinance. The defendants moved to dismiss the complaint on the ground that the City had no authority to enforce setback lines outside its corporate limits. The court granted the motion to dismiss, and the appellate court affirmed. (22 Ill. App.3d 327.) We granted the City's petition for leave to appeal.

The City contends that it is empowered by section 11-13-1 of the Illinois Municipal Code (Ill. Rev. Stat. 1973, ch. 24, par. 11-13-1) to apply its zoning regulations, including setback regulations, within a 1 1/2-mile area beyond and contiguous to its boundaries. In the alternative, the City argues that without recourse to the statute it can regulate setback lines in such a 1 1/2-mile area under its home-rule powers granted by section 6(a) of article VII of the Constitution of 1970. As the City is a home-rule unit we shall consider first whether the City under its home-rule authority may by ordinance prescribe for setback lines in areas beyond its own boundaries.

The grant of powers to home-rule units is set out in section 6(a) of article VII of our constitution of 1970. It in part states: "* * * Except as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare; to license; to tax; and to incur debt." At the constitutional convention the Committee on Local Government recommended that the grant of powers in section 6(a) contain the specifically limiting wording "within its corporate limits." (7 Record of Proceedings, Sixth Illinois Constitutional Convention 1577 (hereinafter cited as Proceedings).) Though the language was not used when the section was adopted (4 Proceedings 3125), an examination of the proceedings of the convention shows that the intention was not to confer extraterritorial sovereign or governmental powers directly on home-rule units. The intendment shown is that whatever extraterritorial governmental powers home-rule units may exercise were to be granted by the legislature. See 4 Proceedings 3040-41, 3072-75; see generally Baum, A Tentative Survey of Illinois Home Rule (Part II): Legislative Control, Transition Problems, and Intergovernmental Conflict, 1972 U. Ill. L.F. 559, 582; see also Sandalow, The Limits of Municipal Power Under Home Rule: A Role for the Courts, 48 Minn. L. Rev. 643, 692-700 (1964); Sanders v. Snyder (1960), 113 Ohio App. 370, 178 N.E.2d 174, 17 Ohio Op.2d 392.

In People ex rel. City of Salem v. McMackin, 53 Ill.2d 347, we stated that a home-rule unit may acquire land outside its corporate limits under home-rule powers. However, we specifically distinguished extraterritorial acts which are proprietary in character from acts which are governmental. After observing that "acquisition of land by purchase or gift is not an exercise of a governmental power; it is an act of a proprietary nature," we said: "However, there is a distinction between the right to acquire property outside of its corporate limits and the power to exercise rights of sovereignty over such property. [Citations.] Under the Act in question, the city of Salem exercises no rights of sovereignty over the property under consideration." 53 Ill.2d 347, 365, 366.

The statute relied on by the City for legislative authority to establish setback requirements beyond its boundaries is section 11-13-1(2) of the Illinois Municipal Code. The statute provides in part:

"To the end that adequate light, pure air, and safety from fire and other dangers may be secured, that the taxable value of land and buildings throughout the municipality may be conserved, that congestion in the public streets may be lessened or avoided, that the hazards to persons and damage to property resulting from the accumulation of runoff of storm or flood waters may be lessened or avoided, and that the public health, safety, comfort, morals, and welfare may otherwise be promoted, and to insure and facilitate the preservation of sites, areas, and structures of historical, architectural and aesthetic importance; the corporate authorities in each municipality have the following powers:

* * * (2) to establish, regulate and limit, subject to the provisions of Division 14 of this Article 11, the building or set-back lines on or along any street, traffic-way, drive, parkway or storm or floodwater runoff channel or basin; * * *.

The powers enumerated may be exercised within the corporate limits or within contiguous territory not more than one and one-half miles beyond the corporate limits and not included within any municipality. * * *" Ill. Rev. Stat. 1973, ch. 24, par. 11-13-1.

Section 11-14-1 of the Illinois Municipal Code, which is referred to in section 11-13-1(2) as "Division 14 of this Article," provides:

"In addition to existing powers and to the end that adequate light, pure air, or safety may be secured and that congestion of public streets may be lessened or avoided, the corporate authorities in each municipality have power by ordinance to establish, regulate, and limit the building or set-back lines on or along any street, traffic way, drive, or parkway or storm or floodwater runoff channel within the municipality, as may be deemed best suited to carry out these purposes. The powers given by this Division 14 shall not be exercised so as to deprive the owner of any existing property of its use or maintenance for the purpose to which it is then lawfully devoted." Ill. Rev. Stat. 1973, ch. 24, par. 11-14-1.

The defendants contend that the general power to zone in the 1 1/2-mile area contiguous to the municipality granted in section 11-13-1 is limited by section 11-14-1 in that the latter section specifically limits the power to establish and regulate setback lines to the area "within the municipality." This argument has only superficial appeal and fails when we consider the legislative history of the statutes to ascertain the legislative intendments.

Provisions of the present section 11-13-1, which confer a general power to zone, were originally enacted in 1921. (Laws of 1921, p. 180, sec. 1; Smith's Rev. Stat. 1921, ch. 24, par. 66). The original version of section 11-14-1, granting municipalities the power to establish and regulate setbacks, was enacted in 1933 (Laws of 1933, p. 218, sec. 1; Smith-Hurd Rev. Stat. 1933, ch. 24, par. 73a), and its provisions have co-existed with the provisions of section 11-13-1 and its predecessors since that time. In 1943 the legislature added the power to establish building or setback lines to the original version of section 11-13-1 (Revised Cities and Villages Act, sec. 73-1; Laws of 1943, vol. 1, p. 320, sec. 1; Ill. Rev. Stat. 1943, ch. 24, par. 73-1), but it did not repeal the separate grant of power to establish setbacks (Revised Cities and Villages Act, sec. 30-1; Ill. Rev. Stat. 1943, ch. 24, par. 30-1). In 1961, the Illinois Municipal Code was enacted (Laws of 1961, p. 576), and section 11-13-1 of the Code became the successor to section 73-1 of the Revised Cities and Villages Act, and section 11-14-1 became the successor to section 30-1. Section 11-13-1 of the Code provided that the corporate authorities in each municipality had the power to establish, regulate and limit, the building or setback lines "subject to the provisions of Division 14 of ...


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