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Whitehead v. Village of Lombard

OPINION FILED SEPTEMBER 23, 1954.

L.E. WHITEHEAD ET AL., APPELLANTS,

v.

THE VILLAGE OF LOMBARD ET AL., APPELLEES.



APPEAL from the Circuit Court of Du Page County; the Hon. CASSIUS POUST, Judge, presiding.

MR. JUSTICE FULTON DELIVERED THE OPINION OF THE COURT:

This is an appeal from a decree of the circuit court of Du Page County. The suit was brought by the appellants and involves the validity of zoning and annexation ordinances of the village of Lombard. The trial court has certified that the validity of municipal ordinances is in question and that public interest requires an appeal directly to this court.

The property which is the subject matter of the zoning and annexation ordinances involved herein consists of approximately 40 acres of vacant land which adjoined the village of Lombard at its southern boundary. At the time the ordinances in question were enacted, the property was owned by Anna Von Poven and was sold by her to the American Can Company for the purpose of erecting thereon a research or experimental laboratory.

The action for a declaratory judgment was instituted by three residents and taxpayers of the village of Lombard, suing on behalf of all other citizens and residents of Lombard "equally affected," as well as on their own behalf.

The complaint sought to have two ordinances bearing numbers 588 and 589 declared invalid. Both were enacted by the board of trustees of the village of Lombard and approved by its president on September 2, 1952. Number 588 is an amendatory zoning ordinance applying to the 40-acre tract lying immediately south of the southern boundary line of the village between Main Street on the west and Hammerschmidt on the east, and described therein as "Lots 1 and 2 of Owner's Assessment Plat," etc.

Ordinance 589 is an ordinance annexing lot 2 of said tract, containing approximately 38 acres, to the village of Lombard.

Prior to the enactment of the challenged ordinances, the entire 40-acre tract lay outside of and adjoining the south territorial limits of Lombard — (the center line of Wilson Road) — and was owned by Mrs. Anna Von Poven.

On May 21, 1952, the appellee American Can Company, through its nominee, executed an agreement with Mrs. Von Poven by which she granted the nominee the option to purchase the entire tract for $92,500, of which $500 was paid at the time the agreement was executed. Mrs. Von Poven agreed to execute all applications and other papers necessary to secure the annexation of the tract to the village of Lombard and zoning to permit its use for the erection of a research laboratory.

The Lombard zoning ordinance at that time contained a provision to the effect that any additions to the corporate area of the village should be "automatically classified as in the `A' Single Family Regulations, until otherwise classified by amendment."

Thereafter on September 2, 1952, by ordinance No. 588, this provision was amended upon the recommendation of the Lombard zoning board of appeals, after a public hearing, to provide that any part or parts of said 40-acre tracts should, when annexed to the village, be classified as in the "F" Special Use District with respect to which the ordinance contained detailed provisions for use, height and area regulations appropriate to such use.

At the same meeting the president and five trustees then in office, comprising all the existing corporate authorities of the village, adopted the annexation ordinance No. 589, by a vote of four in favor of and two against.

The village board of Lombard had consisted of six members and a president, but prior to the date of the enactment of the questioned ordinances one member had resigned and his place had not yet been filled.

It is contended by the appellants that under section 7-6a of the Revised Cities and Villages Act, (Ill. Rev. Stat. 1953, chap. 24, par. 7-6a,) the annexation ordinance required the approval of two thirds of the elected corporate authorities; that although there was a vacancy on the board caused by the resignation of one of the trustees, the statute contemplates a two-thirds majority of a full board; and that, therefore, in the city of Lombard five and not four votes were required to validly enact the annexation ordinance.

Appellants rely primarily upon the decision of this court in the case of McLean v. City of East St. Louis, 222 Ill. 510. In that case the city council of the city of East St. Louis consisted of fourteen aldermen. One, however, had resigned. A special assessment ordinance was offered and passed by a vote of seven in favor and five against, and later approved by the mayor. The ordinance was one requiring a simple majority of the city council, and the question before the court was whether or not that meant a majority of the council as it existed at that time or whether it meant a majority of a full council as originally elected. This court held that it meant the latter and ...


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