dissenting:
In this case I am constrained to dissent from the majority opinion. An examination of the record reveals that we have presented to us a very unique situation in that prior to 1968 the village of North Chillicothe had within it a subdivision known as Santa Fe Second Addition. The subdivision had been so platted that all lots contained therein were only 25 feet wide and 142 feet in depth. All the lots contained 3,550 square feet. To me it is noteworthy that the subdivision contained several hundred lots, all of which were identical in size.
On November 8, 1968, the plaintiff city of Chillicothe annexed the village of North Chillicothe and thus rendered it subject to the plaintiff s R-l zoning requirements which had been enacted on November 4, 1960. The R-l zoning classification required that all buildings constructed in an area so designated be single-family residential dwellings and that such dwellings be constructed on lots containing 7,500 square feet, at least 60 feet wide, and that there be a front yard depth of at least 25 feet.
The trial court found the plaintiffs zoning ordinance unconstitutional as it applied to the Santa Fe Second Addition in the city of Chillicothe. I agree with the trial court’s determination, since it is patently clear that not a single lot in the entire Santa Fe Second Addition could meet the requirements of the R-l zoning regulation. The defendants purchased Lot 17 in said addition which could only be used for a single-family residence and required a 60-foot frontage. It was impossible for the defendants to meet the requirements of the plaintiff’s zoning ordinance. As a result of the impossibility of the defendants to comply they were never granted a building permit or a variance. The plaintiff city did accept and retain the defendants’ payment of $185 for sewer and water connections. The plaintiff city is attempting to enforce a zoning regulation which applies to every lot in the Santa Fe Second Addition to the city of Chillicothe when it well knows that compliance with the applicable regulations is an impossibility. Under such circumstances we can only be reminded of the old Latin maxim, impossibilium nulla obligatio est — there is no obligation to do impossible things.
It is true that some residences are built in the addition in question and apparently the zoning regulation pertaining to frontage and square footage was circumvented by the acquisition of more than one lot, yet it could well be asked, is this not too a violation?
The trial court stated as follows:
“It is impossible under the ordinance to construct the residence on this lot so the City has in effect said to the Defendant, ‘the only thing you can do with this lot is to use it for residential purposes, but it’s too small and we are not going to allow you to build a residence on it.’ Now, that’s taking property without compensation and so in its application it is unconstitutional application as to this Defendant and as to this property and accordingly the Court finds the issues to be with the Defendant, and in favor of the Defendant # # # ”
I subscribe to the sentiments expressed by the trial court, since I am of the opinion that the plaintiff’s zoning regulations in the instant case reflect an unreasonable and arbitrary intermeddling with the private ownership and use of property.
The majority opinion relies on several cases in their determination that the plaintiff’s zoning ordinance is constitutional. We first note the case of Grobman v. City of Des Plaines (1975), 59 Ill. 2d 588, 322 N.E.2d 443. In Grobman the zoning ordinance required an area of 6,875 square feet and a frontage of 55 feet in order to qualify for a building permit. The landowner possessed a 25-foot-wide lot with a total area of 3,150 square feet. Our supreme court held that the landowner failed to meet the burden of proving that the ordinance was unreasonable. I, however, cannot equate the case of Grobman with the instant case. In Grobman there was testimony that the average lot in the landowner’s neighborhood had an area of 7,000 square feet and a frontage of 60 feet. In the instant case none of the lots in the Santa Fe Second Addition can meet the zoning requirements.
The majority opinion also relies on the case of Reitman v. Village of River Forest (1956), 9 Ill. 2d 448,137 N.E.2d 801. We note that in Reitman the landowner purchased a piece of property which at one time met the zoning requirement that the area be at least one-fifth of an acre; however, prior to the landowner Reitman’s purchase of the property in question a previous owner had conveyed a portion of the lot so that the remainder was insufficient to meet the one-fifth of an acre test. Again we have an isolated case completely unlike the situation in the instant case.
For the reasons stated I believe that the judgment of the circuit court of Peoria County should have been affirmed.