Appeal from the Circuit Court of Cook County; the Hon. EZRA J.
CLARK, Judge, presiding. Reversed.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT.
Rehearing denied April 27, 1964.
The Village appeals from a summary judgment order directing the Recorder of Deeds of Cook County to record a plat of subdivision as finally submitted by the plaintiffs even though not approved by the corporate authorities. A summary judgment of this nature is provided for by ch 24, sec 11-12-8, Illinois Revised Statutes 1961. It is therein provided that:
"The plan Commission shall approve or disapprove the application for preliminary approval within 90 days from the date of the application or the filing by the applicant of the last item of required supporting data, whichever is later, unless such time is extended by mutual consent. If such plan is disapproved, then within said 90 days the plan Commission shall furnish to applicant, in writing, a statement setting forth the reason for disapproval and specifying with particularity the aspects in which the proposed plat fails to conform to the ordinances including official map. If such plat is approved the corporate authority shall accept or reject said plat within 30 days after its next regular stated meeting following the action of the plan Commission. Preliminary approval shall not qualify a plat for recording.
". . . . If the proposed plat is disapproved, the order or resolution shall state the reasons for the disapproval, specifying with particularity the aspects in which the proposed plat fails to conform to the official map. A copy of the order or resolution shall be filed in the office of the municipal clerk.
"If the corporate authorities fail to act upon the final plat within the time prescribed the applicant may, after giving 5 days written notice to the corporate authorities, file a complaint for summary judgment in the Circuit Court and upon showing that the corporate authorities have failed to act within the time prescribed the Court shall enter an order authorizing the Recorder of Deeds to record the plat as finally submitted without the approval of the corporate authorities. . . ."
Plaintiffs alleged in their complaint that they did, in the middle of August 1961, submit to the plan Commission of the Village a proposed plat of subdivision, a copy of which they attached to the complaint as plaintiffs' Exhibit "A"; that the plan Commission considered said plat at its meeting of October 2, 1961; that it arbitrarily and contrary to the statute, and for reasons extraneous to, and outside the Village plan, contrary to the existing revised subdivision regulations as provided by ordinance, recommended a rejection and forwarded its recommendation to the Board of Trustees of the Village. Plaintiffs further charged that the plan Commission failed to furnish the applicant, in writing, a statement setting forth with particularity its reason for disapproval, and the aspects in which the proposed plat failed to conform to the Village ordinances and official map. The complaint further alleged that the Village Board of Trustees held a regular meeting on December 13, 1961, and purportedly acted upon the plat disapproving it, but the order or resolution stating the reasons for its disapproval specifying with particularity the aspects in which the proposed plat failed to conform to the official map had not been filed in the office of the municipal clerk nor had the plaintiffs received a notice to that effect. Plaintiffs prayed for summary judgment.
The answer of the Village set forth that its Board of Trustees, on December 8, 1954, committed the Village to rezone plaintiffs' land as requested by them in reliance on plaintiffs' written commitment, dated December 3, 1954, not to subdivide the property into parcels smaller than 12,500 square feet and in reliance on plaintiffs' commitment to appropriately revise a subdivision plat proposed in 1954 in order to provide access to said lots by a roadway; that it rezoned the property and plaintiffs properly revised and submitted a plat which the plan Commission approved (Village Exhibit "A" attached to the answer); that from time to time thereafter, plaintiffs presented various proposed changes in the approved plat, none of which conformed to plaintiffs' original commitments or to the Village ordinances and all of said proposals were disapproved. In its answer the Village further contended that plaintiffs' plat, described as plaintiffs' Exhibit "A" to the complaint, was never submitted or considered by the plan Commission; that this plat was submitted to the Board of Trustees after the meeting of said Board on October 11, 1961. The tentative plat submitted to the plan Commission in August 1961 was attached to the answer as Village Exhibit "B." This plat was disapproved by the plan Commission and it's recommendation was forwarded to the Board. The answer further stated that the meeting minutes of the plan Commission dated October 2, 1961 were made available to the plaintiffs at the Board meeting on October 11, 1961 in accordance with the specific written request of plaintiffs' attorneys. The minutes of said Board meeting contained the following:
"Mr. Peet and his attorney, Mr. Raphael Fine, then came before the Board to request changes in Lagoon Terrace subdivision plat approved in 1954 but never recorded. A report of the plan Commission dated October 2, 1961 was read to the Board which report disapproved the proposed changes. After discussion, Mr. Peet was requested to furnish a sketch drawn to scale so that an investigation of fire and police protection requirements could be completed. The matter then was taken under advisement."
Plaintiffs' Exhibit "A" was subsequently furnished pursuant to the request. The answer further alleged that plaintiffs' attorney was advised in writing on December 28, 1961 that the Board at its regular meeting of December 13, 1961 took the action set forth in the minutes of that meeting:
"President Boylston then brought up the question of the plan Commission's rejection of Mr. Peet's proposed subdivision. The minutes of the plan Commission meeting of October 2, 1961, insofar as said minutes pertained to Mr. Peet's subdivision, were then read. A discussion was had on the public safety problems the proposed street location would create and the Village attorney advised that the proposed subdivision did not meet the requirements of the subdivision regulations. Thereupon, it was moved by . . . and seconded by . . . that the action of the plan Commission in rejecting the proposed subdivision plat be approved. The motion was carried."
The answer of the Village then averred that the plats described as plaintiffs' Exhibit "A" and Village Exhibit "B" show, on their face, that they fail to meet the requirements for a plat entitled to record under sec 11-12-8 (Ill Rev Stats 1961, c 24) and also that they fail to meet the requirements of the Village ordinances and plaintiffs' commitments to the Board.
Plaintiffs filed a reply admitting that the Village was committed to rezone the property on December 8, 1954 as requested by plaintiffs and that said commitment was made in reliance on plaintiffs' stated desire and written commitment dated December 3, 1954 not to subdivide into smaller parcels than 12,500 square feet, but denied that the Village acted upon reliance of an alleged commitment of plaintiffs to appropriately revise the subdivision plat proposed in 1954 in order to provide access to said lots by a roadway. Plaintiffs said they made no such commitment but on the contrary they, from time to time, discussed with the Commission a number of alternate plans to which objections were raised or which the parties agreed were not suitable for the purposes required.
Plaintiffs moved for summary judgment on the ground that the only question involved was whether the Village, in acting upon plaintiffs' application complied with the statute. Attached to said motion was the affidavit of plaintiff, Clifford R. Peet, to the effect that his letter of December 18, 1954 (a copy of which was attached) initiated his request for zoning approval of a subdivision; that a second letter (a copy of which was also thereto attached) guaranteed that in the event the above property was rezoned as alleged, the individual lots would contain a minimum of 12,500 square feet; that this was the only representation made as a consideration for rezoning of said property. Peet further stated that in July 1958 he, on behalf of the plaintiffs, presented a first tentative plat; that thereafter many discussions were had with respect to the feasibility of the location of a means of ingress and egress to said lots and several tentative plats were considered; that in the middle of August 1961 plaintiffs submitted to the Commission a final proposed plat, as alleged in the complaint, and that the plat described in the answer, as Village Exhibit "B," was the last item of supporting data required by said plan Commission. The affidavit then reiterated plaintiffs' charges that the plan Commission disapproved their aplication for preliminary approval and failed to furnish to plaintiffs within 90 days a statement in writing setting forth the reasons for disapproval. Further, the affiant said that ...