Appeal from the Circuit Court of Cook County; the Hon. WALKER
BUTLER, Judge, presiding. Affirmed and remanded with directions
for modification of decree.
MR. PRESIDING JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.
Plaintiffs are the owner and the contract purchaser of the property in question. Defendant, Village of Skokie, and Intervenor, Board of Education, appeal from a decree which adopted (with one modification to be discussed subsequently) the report of a Master, and restrained enforcement by the Village of its zoning ordinance insofar as it applied an "R-2, R-3" classification to the property and authorized its development with multiple-apartment buildings.
The subject property is vacant land of approximately 13.36 acres in what would be a rectangular shape but for the exclusion of an area in the northeastern corner. As found by the Master, the land is bounded as follows:
North: South side of Simpson Street from the rear lot line of lots on the east side of Lavergne Avenue to a point about 185 feet west of unopened LaCrosse Avenue.
West: Rear lot line of residential lots on east side of Lavergne Avenue.
South: Middle line of Foster Avenue extended, undedicated and unopened for a distance of 654.80 feet, and along the north side of unopened Foster Avenue for a distance of approximately 313 feet.
East: The unopened north and south alley to the east of LaCrosse Avenue to the unopened east and west alley south of Simpson Street.
A small neck of the subject property extends east to the west side of Skokie Boulevard.
Directly across the street and north of the site is the large Old Orchard shopping center of Marshall Field & Co. To the west are the rear lot lines of a row of single-family homes facing onto Lavergne Avenue. To the south of the property are the Village refuse disposal site at the west end and, at the east end fronting on Skokie Blvd., a furniture store. Continuing south along the west side of Skokie Blvd. are a theatre, a second furniture store, a grocery, a discount store and a restaurant. Across the boulevard to the east, beginning at the southeast corner of Skokie Blvd. and Simpson Street and proceeding south, there are a drive-in restaurant, kiddy amusement park and golf driving range, a shopping center, a motel and restaurant and a gasoline station. Beginning on the northeast corner of Skokie Blvd. and Simpson Street and running north along the east side of Skokie Blvd. is the large Memorial Park Cemetery. Simpson Street and Skokie Blvd. are both heavily trafficked thoroughfares.
Old Orchard Estate Builders, Inc., purchased the land from the other plaintiff acting as trustee for Marshall Field & Co., for $1,000,000 under a contract dated March 4, 1963, amended September 30, 1963, limiting the purchaser to application for rezoning of the property to multiple-apartment use and barring it from applying for commercial use. (Cost of the proposed construction would run approximately $5,000,000.) At that time, the property was zoned for single and two-family use within the R-2 and R-3 classifications. Plaintiffs' proposed multiple-apartment development would require an R-4 classification. They sought and received approval of their plan at four different governmental levels of the Village of Skokie: The Department of Community Planning, the Department of Engineering, the Fire Department, and, finally, the Skokie Plan Commission, which held public hearings on plaintiffs' application and then, on July 2, 1963, unanimously recommended to the Village Board of Trustees that they approve plaintiffs' request. This the Trustees refused to do, and on October 7, 1963, plaintiffs filed this action in equity seeking injunctive relief. After extensive hearings, the Master, on October 15, 1965, filed his report which recommended "that the Court enter a decree granting relief to the plaintiffs for four story, multiple apartment buildings." On October 28, 1965, the Chancellor approved the Master's report but in his decree modified the Master's recommendations to allow buildings of five stories.
On October 25, 1965 (between the dates of the Master's report and the decree), the Board of Trustees adopted an amendatory ordinance which rezoned the subject property to "B-2 Commercial District zoning classification," in which zone multiple-apartments would also be prohibited. In regard to this action by the Village the Chancellor had the following to say:
With reference to the ordinance of October 25, I would like to make this comment, gentlemen:
That it is a longtime American tradition that I think is embodied in our law, that we just do not change the rules in the middle of the game, and this is a flagrant violation of that law, and in my judgment it is reprehensible conduct. Prepare the Decree.
The first point argued on this appeal by the Village and the Board of Education is that the amendatory ordinance was duly enacted by the Trustees after submission to and approval by the Plan Commission. They contend therefore that, regardless of whether or not the Chancellor should have been bound, he did not consider his decision in light of the ordinance and the case should at least be remanded for a hearing on the validity of the "B-2" classification, since this court is bound by the presently existing law under which the subject property is zoned "B-2" instead of "R-2, R-3" as attacked by the plaintiffs' complaint.
[1-3] It is true, as contended by the Board and the Village, that a reviewing court must dispose of a case upon the law as it exists at the time of its decision and not upon superseded law in effect at time of ...