Appeal from the Circuit Court of Cook county; the Hon. HARRY
M. FISHER, Judge, presiding. Reversed and remanded with
JUDGE FEINBERG DELIVERED THE OPINION OF THE COURT.
Petitioners to intervene, hereinafter referred to as petitioners, appeal from an order denying them leave to intervene in the instant cause. The complaint is for a declaratory judgment to declare a county zoning ordinance unconstitutional as applied to plaintiffs' property. The hearing upon the complaint, to which the county of Cook was the only party defendant, resulted in a decree declaring the county zoning ordinance in question unconstitutional as applied to plaintiffs' property, restraining the county authorities from interfering with the construction of a drive-in outdoor movie theatre upon plaintiffs' property, and directing the authorities to issue a permit for the construction of said theatre.
Petitioners, upon this appeal, also assign as error the refusal of the trial judge to disqualify himself to pass upon the petition for leave to intervene. The judge's son filed the original action as attorney of record. Later the judge's son-in-law was substituted as attorney of record for plaintiffs. Because of the relationship of the trial judge to the attorney of record, petitioners moved that the judge disqualify himself and reassign the case to some other judge.
We allowed the separate petitions for leave to appeal from the decree by the defendant county of Cook and the petitioners. The three appeals have been consolidated for hearing.
The petition alleges, inter alia, that plaintiffs are the owners of an irregular tract of unimproved land, consisting of approximately 50 acres, acquired by them in 1955, located on the east side of Milwaukee Avenue between Dempster Street and Golf Road, in Maine Township, an unincorporated area of Cook county; that plaintiffs' property has a frontage of approximately 1,000 feet on Milwaukee Avenue, a frontage of about 653 feet on Washington Street, and approximately 666 feet of frontage on Church Street; that plaintiffs' property was and had been zoned by the county zoning ordinance adopted August 20, 1940, as an F-District (Farming); that certain of these petitioners (naming them) are the owners of contiguous property, which extends to the boundary line of plaintiffs' property, upon which the proposed outdoor movie theatre was to be erected; that some of the other petitioners (naming them) own adjacent property in close proximity to plaintiffs' property. The location and description of the property and the interests of the respective petitioners are clearly set forth in the petition. All of the property involved in the instant action is in Maine Township, within the boundaries of Cook county, and governed by the county zoning ordinance.
The petition further alleges that petitioner Ehrns maintains a residence on their property, which is contiguous to plaintiffs' property, valued in excess of $35,000; that the fence of the drive-in theatre runs along the west boundary line of their property; that the Allendale subdivision, zoned as an F-District (Farming), is subdivided into fifteen lots, on which there are located twelve existing homes and residences; that the homes and residences located along the west line of said subdivision on Ashland Avenue are directly contiguous to plaintiffs' property and to the fence which is intended to enclose said proposed outdoor motion picture drive-in theatre. Some of the other petitioners have residences which are contiguous and adjacent to the south boundary of the proposed drive-in movie theatre, ranging in value from $25,000 to $42,000.
The petition further alleges that nearly all of the petitioners acquired title to their properties in reliance upon the county zoning ordinances classifying their properties, and long before plaintiffs acquired their property. Petitioner East Maine Township Community Association is a corporation organized not for profit, consisting of a membership in excess of thirty-five real estate property owners and taxpayers, who live and have properties in said East Maine Township and adjacent and contiguous to plaintiffs' land.
Petitioner St. Mathews Evangelical Lutheran Church is a religious corporation and the owner of real estate adjacent to the property of plaintiffs, and having a frontage of 303.5 feet on the west side of Milwaukee Avenue, improved with both a church building and school structure, and located approximately 100 yards south of and across the street from plaintiffs' property. The congregation has approximately 275 to 300 persons in attendance from surrounding residential areas. Day and evening religious services are conducted at the church, and social and community affairs are conducted in said church and school buildings. About fifty-five students of grade school and kindergarten level are enrolled in the school conducted by said petitioner. The church has been located at the present site for the past fifty years or more.
All of the petitioners allege that the value of their properties will be materially and adversely affected by the construction of said drive-in movie theatre.
It is further alleged that plaintiffs, without applying to the Zoning Board of Appeals of Cook county for a variation of the zoning ordinance as applied to plaintiffs' property, filed their complaint for declaratory judgment; that no notice of the filing of the complaint was given to any of the petitioners, and that they had no knowledge of the bringing of said action or the hearing had upon the complaint, and did not discover until after the entry of the declaratory judgment that such an action had been brought; and that plaintiffs did not exhaust their legal remedies provided by the applicable statutes and the county zoning ordinance.
The authority of the county to enact a zoning ordinance and to establish a Zoning Board of Appeals is derived from Chapter 34, § 152i to 152o, Illinois Revised Statutes, 1955.
The county zoning ordinance, of which we must take judicial notice, (Chapter 51, par. 48a and 48b, Ill. Rev. Stat. 1955), provides with respect to variations (Section 21):
"B. Variations. Where in a specific case, after written denial of a permit by the enforcing officer, an application for a variation is made in writing to the Zoning Board of Appeals explaining that because of certain exceptional conditions peculiar to applicant's property or its environment the strict application of the regulations of this ordinance would result in practical difficulties and particular hardships upon the owner, the Zoning Board of Appeals shall consider the case at a public hearing, 15 days notice of which shall have been given as prescribed by statute, and shall determine whether or not the facts are such as to warrant a variation from the comprehensive zoning plan. If the Zoning Board of Appeals determines, by a concurring vote of not less than four members, that the proposed variation or some modification of it will not (1) reduce the minimum areas or dimensions, by more than 25 per cent, (2) impair an adequate supply of light and air to adjacent property, (3) increase the congestion in public streets unreasonably, (4) increase the hazard of fire, (5) endanger the public safety, (6) diminish or impair the values of property within the surrounding area, (7) or in any other respect impair the public health, safety, comfort, morals and welfare of the people, it shall adopt a motion embodying such findings, and shall direct the issuance of a permit.
"C. Appeals To Courts. Within 30 days after the filing of any decision or variation of the Zoning Board of Appeals in the office of said Zoning Board, any person or persons jointly or severally aggrieved by such decision or variation, or any officer, department, board or bureau of the ...