Appeal from the Circuit Court for the 18th Judicial Circuit,
DuPage County; the Hon. WILLIAM C. ATTEN, Judge, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.
Rehearing denied March 11, 1966.
Plaintiffs, Maywood-Proviso State Bank, as Trustee; The Flame, Inc.; and Peter G. Makris and Gloria Makris, as beneficiaries under the aforementioned trust, brought this suit against the defendants, The City of Oakbrook Terrace and certain city officials, to enjoin the enforcement of a general liquor control ordinance in its application to the property held in said trust with reference to closing hours in connection with the sale of alcoholic beverages. The plaintiffs appealed from a decree rendered in favor of the defendants.
The plaintiffs contend that by virtue of a preannexation agreement entered into in December of 1962 between their predecessors in title to the real estate in question and the defendant municipality, it was agreed, among other things, that any liquor license granted to the owners of the real estate in question would permit the serving of alcoholic beverages up to 3:00 a.m. on Monday through Friday and up to 4:00 a.m. on Saturday, Sunday and holidays; and that by virtue of this agreement, a subsequent general liquor ordinance, adopted by the city in October of 1964, which prohibited the sale of alcoholic beverages after 1:00 a.m. on Monday through Friday and after 2:00 a.m. on Saturday, Sunday and legal holidays, could not be applied to the real estate in question. Defendants urge that the provisions of the agreement relative to the liquor license are contrary to the Liquor Control Act and therefore are void and unenforceable.
The preannexation agreement entered into between the city and plaintiffs' predecessors in December of 1962 provided that the owners of the land in question would cause it to be annexed to the city, and the city would cause certain ordinances, relative thereto, to be enacted. The city agreed it would "cause the property to be given a zoning classification as a special use permit" and would adopt such other ordinances as would be necessary to permit the following uses on the property:
"1. b) 1. The serving of alcoholic beverages for consumption on the premises.
2. The granting of a liquor license for purposes of allowing alcoholic beverages to be served on said premises which said license shall permit the serving of alcoholic beverages up to 3 A.M. on Monday, Tuesday, Wednesday, and Thursday and Friday and up to 4 A.M. on Saturday and Sunday and legal Holidays.
4. It is expressly understood that any changes in the requirements of any relevant ordinances which may affect the premises shall conform to the spirit and intent of this agreement and that this agreement is made as an inducement to `Ellison' to annex, develop and operate said property and the establishment thereon in the manner above described and `Ellison' is entitled to further change his position in reliance upon this agreement."
The agreement further provided:
"2. 6. Upon execution of this agreement by the parties hereto, the City agrees to enact such resolutions or ordinances as may be necessary to permit the City to comply with the terms of this agreement."
The city adopted a contract ordinance authorizing the execution of the agreement on behalf of the city and thereafter adopted an ordinance annexing the property in question.
In 1963, the legislature added to the Municipal Code, division 15.1 relating to annexation agreements (Ill Rev Stats 1965, c 24, pars 11-15.1-1 through 11-15.1-5). Section 11-15.1-1 provides:
"The corporate authorities of any municipality may enter into an agreement with one or more of the owners of record of land in any territory which may be annexed to such municipality as provided in Article 7 such agreement to be valid and binding for a ...