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Nott v. Wolff





APPEAL from the Circuit Court of Cook County; the Hon. JACOB M. BRAUDE, Judge, presiding.


Plaintiffs, William A. Nott and William T. Krause, are in possession of lots 30 and 31 in Lakota, a subdivision of parts of blocks 1 to 5 in Gages Addition to the village of Wilmette, under a 35-year lease with option to purchase. These lots are vacant except for a refreshment stand on the front of lot 31. The lots have a frontage of 260 feet along the west side of Sheridan Road in the portion of the village known as No Man's Land. The plaintiffs planned to build a modern motor hotel on these lots. They executed the lease, and had an architect prepare the plans and specifications for the motor hotel at a fee of $11,250. Thereafter, on October 16, 1956, Nott and the architect presented the plans and specifications to the village building commissioner, and on forms provided by the village applied for a permit to build the said motor hotel. The then zoning classification of the property permitted the erection of a motor hotel on these premises, although no motel, hotel, or other transient lodgings had ever been developed within any part of the village.

The building commissioner recommended two changes in the plans, which were made on October 21, 1956, on the face of the plans, to bring them into full compliance with the village codes. At the meeting of the village board on October 16, 1956, the village president instructed the village manager to delay approval of the requested building permit. On November 8, 1956, Nott tendered payment of the fee for the permit to the building commissioner, who refused the fee. On November 13, 1956, a request for the permit was made to the village manager, who informed the applicants that processing was not completed.

Plaintiffs had entered into a construction contract for $90,000 on November 3, 1956. A petition signed by village residents was presented to the village president and board of trustees on November 6, 1956, requesting the permit be denied and that the zoning ordinance be amended to prohibit motels and hotels in "E" Commercial Districts, as these premises were then zoned. On November 20, the village board referred a proposed zoning amendment to bar motels from "E" Commercial Districts to a special committee for public hearing.

Plaintiffs, on November 21, filed a petition for writ of mandamus commanding the village manager and the commissioner of buildings of the village of Wilmette to approve the plans submitted to them and to issue a building permit as requested. A supplemental petition for writ of mandamus was filed on December 20, 1956. In the meantime the village had held a hearing on the proposed amendment to the zoning ordinance, and on January 2, 1957, the board received the report of the special zoning committee. On January 7 the amendment was adopted, the ordinance as amended was published on January 10, 1957, and became effective 10 days later.

On February 25, 1957, an amended supplemental petition for mandamus was filed, alleging the passage of the amended ordinance, and praying that the court declare the amendatory ordinance void, or void as applied to the subject property, and that a writ issue commanding the issuance of the building permit. The cause was referred to a referee for hearing. Hearing was had and evidence presented. The referee found the amendatory ordinance bore no reasonable relation to the public health, safety, comfort, morals and welfare, and was discriminatory, arbitrary, unreasonable and void as applied to the subject property. The referee's report recommended the court declare the amendatory ordinance void as applied to the subject property, and that the writ be issued as prayed. Objections to the report of the referee were filed by the defendant village, village manager and commissioner of buildings. The referee thereupon amended certain findings but did not vary his recommendations. On March 20, 1959, the cause was heard by the circuit court of Cook County upon the report of the referee and the exceptions of the defendants to the report, the transcript of testimony and evidence before the court, and upon arguments of counsel. The court thereupon overruled all exceptions to the referee's report, adopted the said report and all of its findings and recommendations and directed the writ to issue as prayed. The court additionally found that the validity of a municipal ordinance was involved and certified that the public interest required that an appeal be taken to this court. The permit was issued on March 26, 1959.

The defendants have not prosecuted an appeal, but on April 13, 1959, notice of appeal was filed by appellant, La Salle National Bank, a national banking association, as trustee under trust agreement dated November 21, 1956, and known as trust No. 19815. Appellant was not a party to the proceedings below, but purports to be the owner of a lot adjoining the subject premises, and alleges that the construction of the motel proposed by plaintiffs would substantially and materially injure and detract from the value of its property, and that the judgment of the court entered March 20, 1959, is erroneous and should be reversed.

Plaintiffs filed their motion to dismiss this appeal, and a supplemental motion to dismiss, both of which are taken with the case. Plaintiffs assert that the appellant (1) is not a party of record, is not injured by the judgment, does not have an appealable interest and is thus without standing to appeal, and (2) that the question involved has become moot and an actual controversy does not exist.

It is provided in section 74(1) of the Civil Practice Act (Ill. Rev. Stat. 1957, chap. 110, par. 74) that the right heretofore possessed by a person not a party to the record to review a judgment or decree by writ of error is preserved by notice of appeal. We have held that before a person can successfully prosecute an appeal his interest in the suit must appear in the transcript of record or be alleged in the points relied upon for reversal. (People ex rel. Yohnka v. Kennedy, 367 Ill. 236; Grennan v. Sheldon, 401 Ill. 351.) It is essential that it appear that such person is injured by the judgment, or will be directly benefited by its reversal, or that he is competent to release errors. Gibbons v. Cannaven, 393 Ill. 376; People ex rel. Altorfer v. City of Peoria, 378 Ill. 572.

The village of Wilmette, and its village manager and buildings commissioner defended against this petition for writ of mandamus. The local authorities represented the public, including this appellant, and raised the same issues in defense of public and private interests now asserted by this appellant. However, the local authorities determined not to appeal the judgment below. This appellant has asserted the same issues in regard to its own property and interests that the named defendants generally asserted for the public. They were sufficient issues upon which to base the trial of this cause, and should be adequate, in view of the failure of the public authorities to proceed, upon which to appeal a private interest which the village no longer purports to represent. This appellant owns an adjacent property and asserts that its interest and property rights will suffer injury and damage from the building of the proposed motel.

A prime issue in the cause is the validity of a village ordinance affecting an important segment of the general area, and justice appears to require a final and complete determination of the same. In view of the importance of this issue, the circumstances, and the assertions of interest and injury, we believe the motion to dismiss should be denied in this case, and the appellant permitted to proceed.

Appellant urges (1) that the plaintiff failed to overcome the presumptive validity of the questioned zoning ordinance by clear and convincing evidence; (2) that the findings of the referee do not support the judgment; and (3) the ordinance applies to plaintiffs' property, although enacted after plaintiffs applied for a building permit. In answer thereto plaintiffs assert the ordinance is unconstitutional and void; and that they substantially changed their position in reliance upon the probability of issuance of the permit and are entitled to build their motel.

It is true that where proper authorities adopt a zoning ordinance pursuant to legislative grant, a presumption favoring validity always obtains. (First National Bank v. County of Lake, 7 Ill.2d 213.) When one challenges the validity of a zoning ordinance which has been adopted pursuant to legislative grant, it is incumbent that he prove by clear and convincing evidence that it is, as applied to him, arbitrary and unreasonable and without substantial relation to the public health, safety or welfare. Jacobson v. City of Evanston, 10 Ill.2d 61.

It appears from the evidence that the area where the subject property is located is known as "No Man's Land," being a triangular area of twenty-two acres formerly wedged between Wilmette and Kenilworth. In January, 1942, it was annexed to Wilmette and the area north of Seventh Avenue, wherein the subject premises lie, was zoned as Commercial "E," permitting, among other uses, motels and motor courts. The general area of "No Man's Land" was improved with a fourteen hundred seat theater, several Spanish style, brick two-story buildings used for shops and residence apartments, an apartment building, gas stations, restaurants, auto sales, and parking areas, and the remainder was vacant. It is generally a commercial area which has not ...

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