Appeal from the Superior Court of Cook County; the Hon. DONALD
S. McKINLAY, Judge, presiding. Reversed.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT.
The National Bank of Austin holds title, as trustee, to the property here involved. E.L. Trendel and Associates, Inc., a corporation engaged in real estate development is the owner of the beneficial interest in the land trust. E.L. Trendel is president of E.L. Trendel and Associates, Inc.
These plaintiffs filed a petition for a writ of mandamus to direct the County of Cook, Daniel Ferrone, Zoning Administrator of Cook County, and Erwin Horwitz, Building Commissioner of said County, to issue zoning certificates and building permits for the construction of multiple-family dwellings on seven parcels of land in Lake Briarwood, a platted subdivision in an unincorporated area in Cook County, Illinois.
Lawrence DiLucchio, Stanley B. Adamson and Wilmer Teske are owners of property in said subdivision in close proximity to the subject property. Lake Briarwood Association, Inc., is a not-for-profit corporation composed of owners of property in the subdivision. These individual owners and the Association were granted leave of court to intervene.
The trial court heard the case and ordered the writ to issue. From this order defendants and intervenors appeal.
The essential facts are not in dispute. Lake Briarwood subdivision lies west of Des Plaines and south of Arlington Heights. The right of way of the Northwest Tollway adjoins the south boundary and the subject property abuts on the Tollway. A large lake is located in the center of the subdivision and subdivided lots are located around and abutting on the lake. The subject property is separated from the lake by a street and does not abut directly on this lake. Access to the subdivision is from Algonquin Road on the north.
The Trendel corporation purchased the land in 1958 when it was in a "F" Farming District under the Cook County Zoning Ordinance then in effect. In the spring of 1959 Trendel filed a petition to reclassify the entire area of the subdivision to R5 multiple-family District, and in August 1959 the request was granted. It was then the intent to develop the entire subdivision with multiple-family dwellings and it was so represented to the County Board of Zoning Appeals.
After the R5 zoning had been secured the Federal government increased interest rate requirements for lending institutions and Trendel found it impossible to obtain funds for the construction of multiple-family dwellings. Because the Trendel corporation had loan commitments on the purchase of the land, it became necessary to start some type of construction and Trendel proceeded with the development of the subdivision with single-family homes. Trendel anticipated, however, that multiple-family dwellings would be constructed, and throughout the entire period of developing the subdivision with single-family homes Trendel "kept in mind the possibility that (he) might some day have to build multiple-family dwellings" in Lake Briarwood. He said he always told anyone who asked him that it would be possible to construct multiple-family dwellings in Lake Briarwood.
The Trendel corporation did execute two documents entitled "Declarations of Protective Covenants" which restricted the erection of multipe-family dwellings to lots in the subdivision away from the subdivided lots immediately abutting on the lake in the center of the subdivision. Both "Declarations" were recorded in the Office of the Recorder of Deeds of Cook County. The Trendel corporation also prepared and distributed an advertising brochure which contained pictures of single-family dwellings. The brochure contained the legend, "(O)nly 123 Estate sites will be offered in Lake Briarwood. . . . Each home, whatever its architecture, will harmonize subtly with every other home in a contemporary styling that is gratifying to the eye."
There are about 123 lots in Lake Briarwood. At the time of the trial, approximately 70 of these lots were occupied with single-family homes, some 50 of which had been built by Trendel. The Trendel corporation did sell some vacant lots on which single-family homes were built by the purchasers. There are no multiple-family dwellings built in the subdivision.
In the Fall of 1962, residents of the subdivision learned that Trendel was planning to construct multiple-family dwellings. The Trendel corporation said it decided to go ahead with the construction on the subject property located at the southern end of the subdivision abutting on the northerly line of the Northwest Tollway right of way. The ensuing sequence of events followed:
1. Early February 1963: Allen Spiegler, a resident of the subdivision, learned from Mr. Trendel that he was planning to build apartments in Lake Briarwood. He told Trendel he was opposed to the construction of such apartments.
2. Late February 1963: Richard Buchman, a resident of the subdivision had a conversation with E.L. Trendel and in the course thereof was told by Trendel that he was going to build "some multiple units".
3. Late February or early March 1963: The proposed multiple-family development was brought to the attention of the Board of ...