Appeal from the Circuit Court of Peoria County; the Hon.
Robert E. Manning, Judge, presiding.
JUSTICE HEIPLE DELIVERED THE OPINION OF THE COURT:
This appeal concerns the validity of section 2-6.2013 of the permanent zoning ordinance of the city of Peoria. (Peoria, Ill., Code, app. B, sec. 2-6.2013 (1969).) The plaintiff, Betty L. Lakin, filed a complaint for declaratory judgment asking the circuit court of Peoria County to declare certain portions of section 2-6.2013 void. The plaintiff also sought a writ of mandamus to compel Roberto Rosado, senior zoning enforcement officer and designate of the director of community development of the city of Peoria, to approve her application for consent for two-family dwelling. The plaintiff appeals from the trial court's order holding that the ordinance was valid and constitutional in all respects.
• 1 We note initially that the defendants have not filed briefs on appeal. It is well established, however, that where the record is simple and the court of review can easily decide the claimed errors without an appellee's brief, the reviewing court may decide the merits of the appeal. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill.2d 128, 345 N.E.2d 493.
The facts pertinent to this appeal are as follows. The plaintiff owns certain property in Peoria and resides there. The property is improved with a two-story structure and is located in an R-1 low-density residential district. In January of 1982, the city of Peoria filed a complaint against the plaintiff alleging that she was in violation of section 2-6.5003 of the ordinance (Peoria, Ill., Code, app. B, sec. 2-6.5003 (1969)), in that she was using her property for a more-than-one-family dwelling and that her lot contained less than 7,500 square feet. Section 2-6.5003 provides that each two-family dwelling must be erected on a lot having an area of not less than 7,500 square feet.
Pursuant to an agreement reached by the parties in May of 1982, the plaintiff entered a plea of guilty to the complaint. In addition, the city of Peoria agreed not to prosecute the plaintiff further until the Zoning Board of Appeals (Board) made a final decision on a request to be filed by the plaintiff for a variance in lot area. The plaintiff filed an application with the Board requesting a variance in the 7,500 square feet lot area requirement. The Board granted the plaintiff's application and requested that she submit a "Consent for Two-Family Dwelling" application form.
Under the Peoria zoning ordinance, two-family dwellings are permitted uses within R-1 districts. However, in addition to meeting the lot area requirement, section 2-6.2013 provides that, before the location of a two-family dwelling will be approved, the applicant must obtain the written consent of all owners of property touching, adjoining, or abutting the applicant's property. The plaintiff submitted a "Consent for Two-Family Dwelling" application form, but was unable to obtain the consent of the property owners to the east of her property.
Since the consent provision of section 2-6.2013 was not met, the city, acting through its senior zoning enforcement officer, Roberto Rosado, denied the plaintiff's application. She was notified that, as a result of the denial, her property would be inspected by the city to insure that it was not in violation of section 2-6.1000 of the ordinance (R-1 low-density residential districts). (Peoria, Ill., Code, app. B, sec. 2-6.1000 (1969).) The plaintiff then filed her complaint in this cause seeking declaratory judgment and mandamus without pursuing any administrative remedies available to her.
The plaintiff's first contention is that she was not required to apply for a variance or for rezoning prior to instituting this cause in the circuit court.
• 2 The general rule is that where relief is sought from an ordinance on the ground that it is invalid in its terms, prior application for administrative relief is unnecessary. However, where it is claimed that the ordinance is unlawful and void merely as applied to a particular piece of property, and not that the ordinance is invalid as a whole, judicial relief is appropriate only after available administrative remedies have been exhausted. (Bright v. City of Evanston (1956), 10 Ill.2d 178, 184-85, 139 N.E.2d 270, 274.) Here, the challenge made by the plaintiff is to the constitutionality of the terms of section 2-6.2013 and not to the manner in which it is applied to her property. We hold, therefore, that the plaintiff was not required to exhaust her administrative remedies.
• 3 The plaintiff's second contention is that the requirement in section 2-6.2013 that she obtain the consent of all the owners of property touching, adjoining, or abutting her property is an unconstitutional delegation of legislative authority.
Section 2-6.2013 provides in part that:
"Locations for two-family dwellings on lots in subdivisions platted prior to August 17, 1971, and having the herein minimum square footage requirement for two-family dwellings shall be approved by the director of the community development or his designate. Before such approval can be given, the owner of such proposed two-family lot shall obtain the written approval of (1) the owners of property touching, adjoining, or abutting the proposed two-family lot * * *." Peoria, Ill., Code, app. B, sec. 2-6.2013 (1969).
In Valkanet v. City of Chicago (1958), 13 Ill.2d 268, 272, 148 N.E.2d 767, 769-70, overruled in part by Drovers Trust & Savings Bank v. City of Chicago (1960), 18 Ill.2d 476, 165 N.E.2d 314, the Illinois Supreme Court stated that "if an ordinance permits a certain percentage of the property owners to impose or create a restriction upon their neighbors' property by the device of consent provisions, such limitation constitutes an invalid delegation of legislative power, but if the consent provision merely waives or modifies a lawful and reasonable legislative restriction or prohibition, it is within constitutional limitations." The supreme court later held that this subtle distinction between "creating" and "waiving" a restriction could not be justified since each constitutes an invalid delegation of legislative power. Drovers Trust & Savings Bank v. City of Chicago (1960), 18 Ill.2d 476, 478, 165 N.E.2d 314, 315.
The ordinance in Drovers required the written consent of property owners representing a majority of the frontage within a prescribed distance of a proposed gas station before storage tanks could be installed and before a license would be issued for the station. The court held that the procuring of frontage consents had no bearing on the public health or welfare, and such a requirement was an unwarranted and unauthorized exercise of the police power.
In the instant case, section 2-6.2013 leaves the ultimate determination of whether a two-family dwelling will be detrimental to the public welfare to the whim and caprice of neighboring property owners rather than to a reasoned decision by the city. We hold, therefore, that the consent provision in section 2-6.2013 has no bearing on the public ...