“There was then and there is now no constitutional right of trial by jury in equity.”
How later courts described this case
- “There was then and there is now no constitutional right of trial by jury in equity.”
Written by the judges who cited it.
The opinion
Mr. Justice House, specially concurring:
The majority opinion illustrates the fallacy that special use techniques can be confined to unique situations. In Kotrich v. County of Du Page, 19 Ill.2d 181 , it was conceded that granting a special use was an ad hoc determination, and it was recognized that unlimited application of the device would undermine the protection contemplated by the statute. In an attempt to cushion the impact, it was there said: “Only those infrequent uses which are beneficial, but potentially inconsistent with normal uses in the various zones, need by included.” Therefore, in Hartung v. Village of Skokie, 22 Ill.2d 485 , motels were prohibited in any zoning district by the ordinance except by special permit; in Columbus Park Congregation v. Board of Appeals, 25 Ill.2d 65 , churches were similarly treated as were motels in Ward v. Village of Skokie, 26 Ill.2d 415 ; and in Camboni’s, Inc. v. County of Du Page, 26 Ill.2d 427 , trailer parks were permitted in B-4 (commercial) districts, but only by special permit. This case, involving locating a hospital only by special use appears to be the ultimate in misuse of the device. How hospitals, which normally are permitted in any zoning district, can be placed in an “unusual” or “unique” or “infrequent” use category is beyond my perception. It is noteworthy that while in the Hartung, Columbus Park and Ward cases the ordinances provided for construction only by special permit, the ordinance in each case was stricken down as invalid by this court.
In view of the history of misuse of the special use technique since Ko trick, I urge that we reappraise our position. As pointed out in my dissents in Kotrich and Camboni’s and Mr. Chief Justice Klingbiel’s special concurring opinion in Ward, the enabling statute does not authorize this kind of procedure and consequently no safeguards are available. If we continue to approve special uses, which are nothing more or less than spot zoning, the entire structure and purpose of zoning may fall.
Mr. Chief Justice Klingbiel joins in this concurrence.