APPEAL from the Circuit Court of Du Page County; the Hon. MEL
ABRAHAMSON, Judge, presiding.
MR. JUSTICE DAILY DELIVERED THE OPINION OF THE COURT:
This direct appeal and cross-appeal, presenting issues relating to the zoning ordinance of the city of Wheaton, come to us from the circuit court of Du Page County upon a certificate of the trial judge that the validity of a municipal ordinance is involved and that the public interest requires the issues to be determined by this court.
The sequence of events leading to the litigation shows that the city of Wheaton adopted a comprehensive zoning ordinance in 1923. One district, designated as a Community Business District, was established on Roosevelt Road in the vicinity of Delles Road and Sunnyside Avenue. Delles Road crosses Roosevelt Road, but Sunnyside Avenue terminates at the north line of Roosevelt Road. The portion of the district located on the north side of Roosevelt, between Delles and Sunnyside, is approximately 385 feet in length and is bisected by the 66-foot right of way of the now defunct Chicago, Aurora and Elgin Railroad Company. The portion of the district on the south side of Roosevelt is situated between Delles Road and the railroad right of way. At present the part of the district lying west of the right of way is improved with two gas stations, one on either side of Roosevelt, while the part of the district on the east side of the right of way and on the north side of Roosevelt is improved with a one-story building which houses a drug store, paint store and grocery store.
In June, 1957, Charles Frazier Booth and Jean Booth King, individually, and as trustees with Herman H. King, were the owners of a tract of land on the south side of Roosevelt, directly adjacent on the east to the railroad right of way, which had a frontage of 273.5 feet on Roosevelt and a depth of approximately 191 feet. Contiguous to the Booth tract on the south was one owned by John Frazier Snyder which had a width of 273.5 feet and a depth of roughly 77 feet. Both the Booth and Snyder tracts were zoned and situated in a class A residential district. During June, 1957, both owners entered into written argeements to sell their property, subject to the condition subsequent that the premises would be rezoned by the city for commercial purposes.
Subsequently, in September, 1957, these owners filed a petition with the city requesting that their property be rezoned from class A residential classification by including all of the Booth tract and the north 40 feet of the Snyder tract in the Community Business District, heretofore described, and by changing the classification for the balance of the Snyder land to class A commercial. After a public hearing the city's zoning commission recommended to the city council that the ordinance be amended as requested. The favorable recommendation was based upon several considerations, one of which was the proposed use of the property for a building and parking lot to accommodate a supermarket.
It developed that the legal description in the notice of the public hearing was defective and, as a consequence, a new petition was filed in February, 1958. A second hearing was conducted by the commission in March and it again recommended that the petition be granted. This time, however, its report noted several factors militating against the public health, safety and welfare and expressed the opinion that the requested rezoning was a questionable or borderline case.
Harold L. Bredberg and Ruth N. Bredberg, his wife, were the owners of a tract of land on the south side of Roosevelt Road, also zoned class A residential, which had a frontage of 249.5 feet on Roosevelt and adjoined the Booth tract for its full depth of 191 feet. On April 7, 1957, the Bredbergs filed with the city clerk a written protest against the proposed rezoning in conformity with the appropriate statute and ordinances. However, when the ordinance effecting the proposed rezoning was considered by the five-man city council on April 28, 1958, three members voted in favor of the ordinance and two voted against it.
The next development occurred on May 14, 1958, when the Bredbergs filed a complaint in the circuit court of Du Page County against the city of Wheaton and the owners of the Booth and Snyder tracts. The complaint contained three counts. Count I alleged in substance that although the city council had declared the ordinance passed, it had not in fact passed in view of the protest filed because it did not receive the favorable vote of at least two thirds of the council members as required by section 73-8 of the Revised Cities and Villages Act (Ill. Rev. Stat. 1957, chap. 24, par. 73-8,) and the city code. Continuing, the count alleged that unless the ordinance was declared void the owners of the premises would sell it for commercial purposes, greatly damaging the Bredberg property, and prayed for a declaratory judgment that the amendatory ordinance was void. Count II is not at issue on this appeal. Count III realleged the allegations of count I, alleged irrevocable damage to the Bredberg property, and prayed that the amendatory ordinance be declared unconstitutional and void because it did not in any manner promote the public health, safety, morals or welfare.
All of the defendants, including the city of Wheaton, filed motions for summary judgment, the theory as to count I being that the Bredbergs were not the owners of twenty per cent of the frontage immediately adjoining the land involved, thus making the protest a nullity and requiring only a favorable majority vote of the council to pass the ordinance. The Bredbergs also filed a motion for summary judgment as to count I and, upon consideration of all the motions, the court entered an order ruling that the protest was sufficient and necessitated the affirmative vote of at least four members of the five-man council for the passage of the ordinance. On the same day the court granted leave to the owners of the Booth and Snyder tracts to file a counterclaim against the city of Wheaton, and ordered that the counterclaim should stand as an answer to count III of the Bredberg complaint.
The counterclaim had two counts, the first of which alleged that the failure of the city council to pass the ordinance by a vote of four to one was unreasonable, arbitrary and capricious and prayed the court to order that the Booth and Snyder owners be permitted to use their property as if it had been rezoned. Count II alleged that section 73-8 of the Revised Cities and Villages Act is unconstitutional and void insofar as it requires a two-thirds vote of the council in the event a written protest is filed, and prayed for judgment to that effect. The Bredbergs, having been granted leave to intervene, filed an answer to the counterclaim alleging that the statute was constitutional, and also that the use the Booths and Snyder proposed to make of their property was incompatible with the residential character of the area and would do great damage to the Bredberg property. In its answer to the counterclaim the city of Wheaton denied that the action of its council had been arbitrary and capricious, and denied the invalidity of the statute and ordinance requiring a two-thirds vote.
The cause was tried before the court without a jury and approximately six weeks after the conclusion of the trial, counterclaimants filed their first amendment to the counterclaim alleging for the first time that the highest and best use of the real estate involved is commercial and that its continued zoning for class A residential use had no relevancy to the public health, safety, welfare or morals.
On November 23, 1959, the trial judge addressed a letter to the attorneys directing counsel for the Bredbergs, or the city, to prepare a decree finding that the action of the city council was not unreasonable or arbitrary, and further directed that the decree should be presented on December 4, 1959. When the latter date arrived, the owners of the Booth tract moved for leave to file a second amendment to the counterclaim. Attached thereto was an amendment of two counts, counts III and IV. It will be recalled that the dimensions of the Booth tract were 273.5 feet by 191 feet, with the first figure being the frontage on Roosevelt Road. Count III alleged that the highest and best use of the tract was commercial, that the residential classification as applied to a part of the lot measuring 203.5 feet by 175 feet was unconstitutional and void, and that the failure of the city council to rezone the smaller portion of the tract was unreasonable. Count IV contained the same allegations except that it alleged the residential classification was unconstitutional as to a part of the tract measuring 150 feet by 150 feet.
Two months later the court entered an order permitting the second amended counterclaim to be filed, whereupon both the Bredbergs and the city filed motions to strike on the ground that the amendments constituted an attempt to have the court act as a zoning authority and to assume legislative functions, and was an attempt to interpose new and improper matters in the cause. Subsequently, on July 8, 1960, the court entered its decree that the issues of law and of fact under counts I and II of the counterclaim, and the issues of law under counts III and IV of the counterclaim, were determined in favor of the Bredbergs and the city. In short, the court found that the failure of the city council to pass the amendatory ordinance by a vote of four to ...