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Rothner v. City of Chicago

OPINION FILED OCTOBER 31, 1978.

ERIC ROTHNER ET AL., PLAINTIFFS-APPELLEES,

v.

THE CITY OF CHICAGO ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND K. BERG, Judge, presiding.

MR. JUSTICE BROWN DELIVERED THE OPINION OF THE COURT:

Plaintiffs, officers and directors of 10 nursing homes located in the City of Chicago, filed a complaint on February 28, 1977, for declaratory and injunctive relief against the City of Chicago, the Commissioner of the City's Department of Buildings, and the City's Corporation Counsel. They sought a declaration that an April 7, 1976, amendment to the Municipal Code, which amendment required all nursing homes in the city to provide automatic sprinkler systems, was unconstitutional; and temporary and permanent injunctions enjoining defendants from enforcing the ordinance as amended.

On April 27, 1977, the trial court, having heard argument, entered an order which granted plaintiffs' motion for judgment on the pleadings and a permanent injunction against enforcement of the amended ordinance, and which denied defendants' motion for summary judgment. The trial court found that the amended ordinance arbitrarily discriminated against a single type of Class B Institutional Units, nursing homes, by omitting from coverage all other types of Class B Institutional Units, and declared the amendment unconstitutional as violative of the equal protection clauses of the Federal (U.S. Const., amend. XIV) and State (Ill. Const. 1970, art. I, § 2) constitutions. The trial court did not reach other constitutional challenges presented by plaintiffs.

Defendants appeal from the entry of the April 27, 1977, order, pursuant to the trial court's finding therein that there was no just reason for delaying enforcement or appeal. Ill. Rev. Stat. 1975, ch. 110A, par. 304(a).

The parties raise the following issues for our review: (1) whether plaintiffs have standing to sue; (2) whether there was an issue of fact to be tried; (3) whether the amendment may be made applicable to buildings in existence prior to its enactment; (4) whether the amended ordinance effects a taking of property without due process and just compensation; (5) whether the amended ordinance is pre-empted by Federal and State health care policies; (6) whether the amended ordinance violates the equal protection clauses of the Federal and State constitutions; and (7) whether the amended ordinance constitutes special legislation in violation of the State Constitution.

On April 7, 1976, the City Council of the City of Chicago amended chapter 64 of the Municipal Code, entitled "Fire Protection," as follows:

"SECTION 1. Chapter 64 of the Municipal Code of Chicago is hereby amended by deleting the bracketed portion of Section 64-3(h) below and adding a new Section 64-3(1) in Italics below:

64-3. Automatic sprinkler systems shall be provided in the following buildings and areas:

(h) On or before December 31, 1963, in every existing, preordinance building and buildings hereafter erected, two stories or more in height, used in whole or in part as Type I school, or used in whole as Type II school, and hospitals, infirmaries, [nursing homes,] nurseries, orphanages, sheltered-care homes, sanitoria and homes for the aged, as defined in Section 48-3 of the Code as Class B Institutional Units, and each of construction Type III-A, III-B, III-C, IV-A, IV-B. Such installation shall include basement areas.

(1) On or before February 1, 1977, in every existing or preordinance building and building hereafter erected, used in whole or in part as a nursing home, as defined in Chapter 136 of this code. Such automatic sprinkler system shall be supervised.

SECTION 2. This ordinance shall be in full force and effect from and after its due passage."

Chapter 48 of the Municipal Code is entitled "Classification of Buildings by Occupancy." Section 48-3 provides that Class B Institutional Units "shall include, among others," the following: asylums; day-care centers (Class II); homes for aged; hospitals; infirmaries; jails; nurseries; nursing homes; orphanages; sanatoria; and sheltered care homes.

Chapter 49 of the Municipal Code is entitled "Classification of Buildings by Construction Type." Section 49-1 provides that all buildings shall be classified under four general types. Type I is "Fire Resistive Construction." Type II is "Non-Combustible Construction." Type III is "Exterior Protected Construction," Type III-A being "heavy timber" construction and Types III-B and III-C being "ordinary" construction other than heavy timber in which the structural elements of the interior framing are entirely or in part of wood or other materials not more combustible than wood. Type IV is "Combustible Frame Construction," Types IV-A and IV-B being construction in which the structural elements, including enclosing walls, are entirely or in part of wood or other materials not more combustible than wood.

An examination of the ordinance reveals that the effect of the April 7, 1976, amendment is to require nursing homes of fire-resistive or noncombustible construction to provide automatic sprinkler systems, while it does not require those systems in the other Class B Institutional Units specifically enumerated in the ordinance which are of fire-resistive or noncombustible construction. Furthermore, it continued the minimum height requirement for those other Class B Institutional Units while it abolished that requirement for nursing homes. We note that both prior to and after April 7, 1976, asylums, day care centers (Class II), and jails, designated as Class B Institutional Units in section 48-3 of the Municipal Code, were not required to provide automatic sprinkler systems under the ordinance. ...


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