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05/21/87 the City of Pekin, v. William Kaminski

May 21, 1987

THE CITY OF PEKIN, PLAINTIFF-APPELLANT

v.

WILLIAM KAMINSKI, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

508 N.E.2d 776, 155 Ill. App. 3d 826, 108 Ill. Dec. 465 1987.IL.658

Appeal from the Circuit Court of Tazewell County; the Hon. Charles J. Perrin, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE BARRY delivered the opinion of the court. HEIPLE and SCOTT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BARRY

The city of Pekin appeals from judgment entered by the circuit court of Tazewell County in favor of defendant William Kaminski. In its amended complaint, the city alleged that defendant had refused to obtain a home occupation permit for the conduct of his insurance business in violation of section 401 --7(f) of city ordinance No. 1568. Defendant denied the complaint and moved for summary judgment in his favor. In support of his motion, defendant filed a verified statement alleging, inter alia : (1) that he had never conducted any insurance business with any persons inside of his home; (2) that he had an insurance office at Town Hall Square in Peoria, where his telephone number was 691-4255; (3) that on a single occasion since April of 1985, when he was employed by Mutual of Omaha Insurance Company, a gentleman had appeared at defendant's residence for a business purpose; (4) that he has never executed any insurance contracts in his home; (5) that he does not maintain files or records of contracts of insurance in his home; (6) that he does not receive payments of premiums for contracts of insurance in his home; (7) that he lists his home address and telephone number in the Central Telephone Company directory for Pekin, Illinois; and (8) that he lists his home telephone number in his television advertisements.

The city, pursuant to the court's instruction, filed in response to defendant's motion a statement signed by Richard Jost, code enforcement officer for Pekin, alleging: (1) that defendant "solicits business at his home" in the yellow pages of the Central Telephone Company directory for Pekin; and (2) that defendant further "solicits business in his home" on Continental Cablevision Channel 11. The matter was heard by the circuit court, and on August 6, 1986, the court granted summary judgment for defendant, finding as a matter of law that no violation of the zoning ordinance had been shown.

Summary judgment is properly granted where the evidence, construed most strongly against the moving party, establishes clearly and leaves no doubt that the movant is entitled to such relief. "Where the movant supplies well-pleaded facts in an affidavit in summary judgment which, if not contradicted, would entitle him to judgment, the opposing party cannot rely upon his complaint or answer alone to raise issues of material fact." Komater v. Kenton Court Associates (1986), 151 Ill. App. 3d 632, 502 N.E.2d 1295, 1298.

Article IV of city of Pekin ordinance No. 1568 provides as follows:

" Sec. 400. Intent. The R-1 through R-4 One-Family residential Districts are designed to be the most restrictive of the residential districts. The intent is to provide for an environment of predominantly low density, one-family detached dwellings along with other residentially related facilities which serve the residents in the district.

Sec. 401. Principal uses permitted: In a One-Family Residential District, no building or land shall be used and no building shall be erected except for one or more of the following specified uses unless otherwise provide [ sic ] in this Ordinance:

1. One-family detached dwellings.

2. Farms on those parcels of land having an area of not less than five (5) acres, . . ..

3. Municipal buildings and uses necessary to service adjacent residential areas, publicly owned and operated libraries, parks, parkways and recreational facilities.

4. Cemeteries.

5. Public, parochial and other private elementary schools offering courses in general education.

6. Accessory buildings and uses, customarily incident to any of the ...


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