# Ward v. Village of Skokie > Illinois Supreme Court · November 30, 1962 · 26 Ill. 2d 415 URL: https://www.frixlaw.com/law-library/cases/9715862 ## Case - **Full name:** Samual A. Ward Et Al., Appellees, vs. the Village of Skokie, Appellant - **Court:** Illinois Supreme Court - **Decided:** November 30, 1962 - **Citations:** 26 Ill. 2d 415; 186 N.E.2d 529; 1962 Ill. LEXIS 415 - **Precedential status:** Published - **Opinion:** Concurrence by Klingbiel - **Judges:** Hershey, Klingbiel, House - **Cited by:** 32 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9715862 ## Opinion text Mr. Justice Klingbiel, specially concurring: I cannot accept the court’s opinion, which I think misses the issue in the case. Ignored are the provisions of article XVII of the ordinance, making every use of land for motel purposes subject to special permission by the village board. The case is decided as if these provisions were not present at all, the amendment consisting merely in changing article X so as to eliminate motels as one of the permitted uses in a B-2 commercial district. If such were the extent of the amendatory ordinance, and the usual issue were presented whether the general restriction, though valid in its terms, is invalid in the particular application, I would concur in the opinion of the court. For reasons stated therein the application of such a prohibitory ordinance to plaintiffs’ property would be unreasonable and arbitrary. But such are not the terms of this ordinance at all. The amendment does not merely prohibit motel use in a B-2 commercial district but makes it a subject of special permit on a parcel-by-parcel basis. What is involved here is the special permit procedure, or the attempt of a legislative body to assume-a power, in its uncontrolled discretion, to grant or deny the right to this kind of land use whenever it is sought to be exercised. Section 1 of article XVII of-the ordinance says that “The President and the Board of Trustees of the Village of Skokie may, by special permit and subject to such protective restrictions that are deemed necessary, authorize the location, extension or structural alteration of any of the following buildings or uses, or an increase in their height, in any district from which these are prohibited or limited by this Ordinance.” There follows a list of fifteen different kinds of use, including motels. That part of the amendment in question deleting motel use as a permitted one in B-2 districts is inseparably connected with that part placing it under this special permit procedure and can properly be considered only in conjunction therewith. The difference is far more than a mere choice of grounds for invalidity. Since the zoning enactment must be valid in its terms before any question can be reached as to its validity in the particular application, the opinion in reality is adjudicating the propriety of placing motel use in a special permit category. And it is doing so without either discussion or the citation of authority. As to the validity of a special permit procedure I think we should repudiate both Hartung v. Village of Skokie, 22 Ill.2d 485 , where the question was similarly side-stepped, and Kotrich v. County of Du Page, 19 Ill.2d 181 , where a special permit procedure for country club use was approved “as a means of implémenting” the zoning powers conferred by statute. As the dissent in the latter case pointed out, there is nothing in the enabling statute which even remotely purports to authorize this kind of procedure. The scope of delegated powers does not extend to whatever may be convenient as a means of implementing them. The rule is too familiar to require citation that a municipality has only such powers as the legislature has expressly conferred upon it, or such as are necessarily incident to powers expressly granted. In my opinion the adoption of a parcel-by-parcel method of regulation can hardly be described as incident to zoning powers. Rather it is a substitute for such powers which, if sustained in principle, will eventually displace the more difficult and cumbersome method of establishing districts with known uses. Zoning, as the name itself imports, is regulation by districts and not by individual pieces of property. (Weglarz v. Village of Villa Park, 21 Ill.2d 202 ; City of Aurora v. Burns, 319 Ill. 84, 98 .) The statute authorizes corporate authorities to divide the municipality into districts and to prohibit uses incompatible with the character of those districts. (Ill. Rev. Stat. 1961, chap. 24, par. 11 — 13—1.) It also authorizes them to provide for the allowance of variations in cases of particular hardship. (Ill. Rev. Stat. 1961, chap. 24, par. 11 — 13—5.) It says nothing about providing for uses “by special permit.” "Even if the enabling act authorized municipalities to make provision for special exceptions, the ordinance providng therefor would have to state the general facts or conditions under which exceptions would be permitted. Thus in Application of Devereux Foundation, 351 Pa. 478 , 41 A. 2d 744 (1945), an educational institution for mentally deficient children was granted an “exception,” enabling it- to erect a dormitory in a residential district. The ordinance empowered a Board of Adjustment to hear and decide special exceptions and also to grant a variance where literal enforcement would cause unnecessary hardship. It was held that the decision could not be sustained as a special exception because no rules had been prescribed to govern such action, and that it could not be upheld as a variation because the evidence failed to establish the requirement of unnecessary hardship. On the former point the court declared “We come to the question whether the Board of Adjustment was warranted in granting what it terms an ‘exception,’ and on that basis permitting the issuance of the certificate of occupancy requested by the Foundation. The Act of July 1, 1937, P.L. 2624, which authorizes townships of the second class to adopt and enforce zoning ordinances, provides in Section 7 that the board of township supervisors may appoint a board of adjustment and may provide that ‘said board of adjustment may in appropriate cases, and subject to appropriate conditions and safeguards, make special exceptions to the terms of the ordinance in harmony with its general purpose and intent and in accordance with general or specific rules therein contained.’ As far as the terms of the Easttown Township ordinance appear in the record there are no rules therein contained in accordance with which special exceptions may be made. An ‘exception’ in a zoning ordinance is one allowable where facts and conditions detailed in the ordinance, as those upon which an exception may be permitted, are found to exist.” It will be noted that the Pennsylvania statute specifically authorized the granting of special exceptions. Yet the local authorities were without power until rules were prescribed by ordinance. Illinois does not even have a statute on the subject. Yet the local authorities may provide for the granting of these dispensations and do so without stating any rules whatever. Even if there were a statute purporting to authorize ordinances such as the one in this case its constitutionality would be open to serious question. The granting of special permits of this Tcind is an administrative or quasi-judicial function which can be exercised only in accordance with prescribed rules or standards. Ordinances providing for an unrestricted power to approve or reject are in violation of basic constitutional protections and cannot be sustained. In Concordia, College Institute v. Miller, 301 N.Y. 189 , 93 N.E.2d 632 (1950), a zoning ordinance of the village of Bronxville, New York, permitted educational buildings in residence districts. In 1941 an amendment was adopted removing them from the list of permitted uses but allowing the board of appeals to grant special permits with the consent of 80% of the owners in the particular square block. The amendment was held void, first because of the provision requiring consents of neighboring owners, and second, because even without this feature “the board of appeals in the instant case was given no standards or guides to exercise its discretion as to what 'educational, religious or eleemosynary purposes’ may be permitted. Respondent in his brief suggests numerous instances of educational institutions which he deems objectionable, yet the board is given no guide; to it is committed an unfettered and unrestricted discretion to approve or reject proposed educatonal uses. It has been repeatedly held that this may not be done.” (Citations omitted.) ( 93 N.E.2d at 636 .) It was further held that invalidity of the special permit provision carried with it the invalidity of the accompanying repealing provisions, since the local legislature clearly did not intend to bar educational use but only to make it subject to special permit, and that the pre-existing provisions of the ordinance remained in effect insofar as the user in question was concerned. I think a like result should be reached in the case at bar. The 1957 amendment in its entirety ought to be declared invalid, leaving motels as permitted uses in commercial districts. In State ex rel. Synod v. Joseph, 139 Ohio St. 229 , 39 N.E.2d 515 , a zoning ordinance placed a number of uses, including churches, in a “special use” category such as that in the case at bar. A permit to build a church at a desired site was refused, and an action in mandamus was brought to compel its issuance. The relator contended, inter alia, that the special use provisions were unconstitutional because they lacked any standard or guide to govern the exercise of the power. The court held that was no standing to raise the objection, since “the relator cannot be heard to question the validity of the very power the exercise of which relator is, by this action, asking the court to compel.” In so holding, however, the court expressed “doubt as to the constitutionality of this portion of the ordinance by which the legislative body of a municipality has sought to delegate to itself, acting jointly with others in an administrative capacity, an unqualified permit-issuing power unaccompanied by any legislative prescription of the circumstances and standards which shall govern its exercise.” It is no answer to say that standards need not be prescribed because in this case the power is vested in a legislative body rather than an administrative one. Instead of obviating the objection this aggravates it. If a body is to act in an administrative capacity the law is clear that standards must be prescribed for the decision of particular cases. If it is acting in a legislative capacity it has no business deciding particular cases at all. It is not a part of the legislative function to grant permits, make special exceptions, or decide particular cases. Such activities are not legislative but administrative, quasi-judicial, or judicial in character. To place them in the hands of legislative bodies, whose acts as such are not judicially reviewable, is to open the door completely to arbitrary government. I need not dwell at length on the obvious opportunity this affords for special privilege, for the granting of favors to political friends or financial benefactors, for the withholding of permits from those not in the good graces of the authorities, and so on. The rule is familiar enough that courts may not inquire into the motives or reasons on which the legislative body acted. See Village of Justice v. Jamieson, 7 Ill. App. 2d 113 . It is because of this immunity from review that legislative bodies must confine themselves to the prescribing of general rules. If they may undertake to confer upon themselves authority to decide what in fact amount to individual or particular cases, the foundations of our legal system will fast disappear. Concededly it is difficult in zoning matters to formulate a precise test separating legislative from administrative or quasi-judicial functions. For one thing the legislative function of laying down general rules or regulating by dis-strict becomes less clear cut in its nature as the size of the district or the number of people affected decreases. It seems to me, however, that there can be no reasonable doubt about the special permit power with which the village attempts to invest itself here. Legislation is essentially prohibitory, operating by laying down general rules. It does not consist in the permitting of conduct or the granting of individual relief. Legislative bodies are not equipped, except in a very broad and general way, to ascertain factual questions which depend upon evidence of individual circumstances. Their function is not to grant permits but to say what facts and conditions should warrant the granting of permits. Stone v. Cray, 89 N.H. 483 , 200 A. 517 (1938). What is an application for special permit but a particular case? The granting or refusal of the permit does not lay down a rule or prescribe any conditions. It is simply a decision on a concrete set of facts, affecting the property of particular parties only. It is the nature of the proceeding, not the identity of the body assuming to act in the matter, which should determine the necessity for standards. Otherwise basic constitutional protections can readily be circumvented by the simple expedient of placing quasi-judicial functions in a legislative body. I do not suppose that a power to prohibit designated uses on a parcel-by-parcel basis would be Upheld. Municipalities could hardly authorize themselves to prohibit, by special restriction, the use of land for motel purposes in any district in which they are permitted, even though in a particular case a general prohibition of motel use in the district would be reasonable as applied to the tract in question. But the same result is reached by everywhere prohibiting motel use, and then providing that it may nevertheless be permitted on a parcel-by-parcel basis. From the record in the case at bar it appears that motels are no longer permitted as a matter of right in any district of the village. Instead they may, by special permit, be located “in any district from which these are prohibited." In other words, everywhere in the village motels, among other uses, are by special permit only. In my view this partakes far too much of the authoritarian formula under which everything that is not permitted is forbidden. A special' prohibition procedure would be bad enough. A blanket prohibition coupled with special permit procedure is worse. But in either case the element of generality essential to valid legislation is lacking. It seems to me that the vital issues involved here have not been adequately faced, let alone decided. With nothing more than a reference to the special permit provisions, the court in the present case proceeds to consider the propriety of the particular denial, on the necessarily implicit assumption that the ordinance itself is unobjectionable. In effect the opinion approves, sub silentio, an ordinance which in my opinion not only finds no sanction in the enabling statute but which flagrantly ignores the basic requirements of due process. The result of course is that these arbitrary provisions remain undisturbed, obliging the next unfortunate owner to fight out the question of constitutional reasonableness as to his particular property, and so on as to every person who is denied the right to put up a motel. I think that the real question of validity should be faced, and that the amendatory ordinance should be declared invalid in its terms. Mr. Justice House joins in this concurrence. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9715862. Public record. Not legal advice.