Appeal from the Circuit Court of Cook County; the Hon. JOHN J.
LUPE, Judge, presiding. Affirmed.
MR. PRESIDING JUSTICE LYONS DELIVERED THE OPINION OF THE COURT.
This is an appeal by the counterdefendant, Village of Skokie, (hereinafter referred to as the Village) from the entry below of an order of summary judgment upon the motion and in favor of the counterplaintiffs, John Brooke, George Eisermann, David Brooke, and Chicago Title and Trust Company.
This cause originated on June 30, 1964, when a group of Skokie residents and a local property owners' association filed a suit in the Circuit Court which prayed for injunctive relief against the Village and the eventual counterplaintiffs to this action as co-defendants. The action sought to enjoin the development and construction of a Holiday Inn Motel at the intersection of Niles Center Road and Touhy Avenue within the village limits of the municipality, a large northern suburb of the City of Chicago. The suit was commenced because construction of such a facility had been made possible in the Village by the granting of a special use permit to the instant counterplaintiffs pursuant to an amendatory zoning ordinance enacted by that Village's Board of Trustees on June 2, 1964. The granting of such a permit had been theretofore recommended by the local Plan Commission. The permit itself did not issue until June 19, 1964, seventeen days subsequent to the enactment of the amendatory ordinance.
The matter was thereafter referred to a Master in Chancery. The voluminous testimony and exhibits, which had been offered before the Master, showed that in February of 1964 counterplaintiffs, J. Brooke, Eisermann and D. Brooke, had entered into a contract for the purchase of a certain parcel of land situated in the Village of Skokie with counterplaintiff, Chicago Title and Trust Company, as Trustee under Trust No. 38036. The agreed purchase price was $334,566. Thereafter, $20,000 as earnest money deposit was advanced in escrow by the purchasers. The purchasers likewise advanced $10,000 to the Holiday Inns of America for a motel franchise, their intent being to erect a motel bearing the name of that parent organization at the location.
The Master, after hearing considerable testimony and argument on the subject, rendered his finding in August of 1965 upholding the amendatory ordinance of June 2, 1964, as a valid and reasonable exercise of the Village's legislative powers notwithstanding the protests of numerous property owners whose dwellings would be in proximity to the proposed motel. It was the Master's recommendation that a decree be entered accordingly. No objections to this Master's Report were filed by the Village as the Master's findings sustained the Village's then existing contention that a motel use was a proper subject property at the site in question.
Subsequent thereto, and after notice and hearing, the Village Board of Trustees (which then consisted of newly elected members other than those who had acted on the original amendatory ordinance, according to counsel on oral argument) on September 13, 1965, passed and approved a second amendatory zoning ordinance which repealed the prior ordinance of June 2, 1964, revoked the counterplaintiffs' special use permit, and restored the tract back to its original zoning classification of B-2. A B-2 classification in the Village is a commercial district classification wherein motel construction is prohibited, absent the granting of a special use permit of the B-3 (business district) category, by amendatory ordinance.
This second amendatory ordinance having been enacted and the counterplaintiffs' special use permit having been thereby revoked, the original plaintiffs to this cause, upon their own motion, were eventually dismissed from the litigation. In answer to that motion to dismiss however, and by leave of court, the counterplaintiffs filed this subsequent action against its then co-defendant, the Village. The counterclaim prayed that the second amendatory ordinance be declared a nullity, and that the Village be perpetually enjoined from further interfering with the use of the subject property for motel purposes.
The counterclaim alleged in substance that the complainants had expended in excess of $100,000 in reliance upon the amendatory ordinance of June 2, 1964, and that a motel use was, in fact, a proper use of the subject property. The Village, in its answer, denied the propriety of a motel use at the subject site, and further denied that the monies expended had been relinquished in reliance upon the first amendatory ordinance. Issue thereby being joined, the counterplaintiffs moved for a summary judgment accompanied by supporting affidavits. No counteraffidavits were filed by the Village. The Village thereafter filed a motion to strike the motion for summary judgment.
The Chancellor denied the motion to strike and granted the motion for summary judgment, concluding that the Village was estopped from withdrawing the counterplaintiffs' special use permit by virtue of their reliance upon the original amendatory ordinance, which conferred that permit and the resulting material change of position in the fifteen month interim that followed. The Chancellor rendered no opinion relative to the propriety of a motel use at the subject site. He did, however, expressly order the Master's Report which treated that issue to be made part of the record in the cause. Judgment was entered accordingly, from which the Village has taken this appeal.
It is the Village's theory of the case (1) that the expenditures made by the counterplaintiffs were not made in reliance upon the prior amendatory ordinance as they alleged hence no vested rights to that ordinance have attached; and (2) that there has been no binding determination made in the present litigation as to the propriety of the B-2 reclassification of the subject site.
It is the counterplaintiffs' theory of the case (1) that they have acquired a vested right in the original amendatory ordinance by virtue of their substantial outlay of commitments and monies in good faith reliance thereon; (2) that the Village is precluded from now changing its theory to deny that a motel use at the subject property is proper; and (3) that the testimony taken before the Master clearly established that a motel use at the site was one of the highest and best uses of which that property was susceptible.
The Village first contends that, notwithstanding the Master's finding which upheld the validity of a B-3 utilization of the property, the pertinent question is the propriety of the site's zoning classification in its present and existing state, there having been, as yet, no binding determination of the subject. While this court concedes that, in fact, no determination has to date been rendered relative to the validity and reasonableness of the B-2 reclassification of the would-be motel site, we do not attach any significance to this purported issue.
The reasoning is clear. Briefly, the propriety of a B-3 special use at the tract in question was considered in depth by the Master below at which time the Village vigorously advocated the validity of that special use. The Master resolved the issue in favor of permitting the motel use in his report. To that report, which has been properly made a part of the record before this court, the Village never filed objections so as to preserve the question for review. The Village has thereby waived its right to question the validity of a B-3 utilization of the property or to assert that the counterplaintiffs acted in bad faith in relying upon an invalid ordinance. Hiller v. Casey, 26 Ill. App.2d 261, 168 N.E.2d 44 (1960); Barrett v. Carter, 39 Ill. App.2d 400, 188 N.E.2d 736 (1963).
The counterplaintiffs and Village do not quarrel with the applicable law on the subject before this court; to wit, a property owner acquires a vested right in a municipal zoning ordinance when he makes a material change of position by incurring expenses or obligations in good faith reliance upon that ordinance, or as the case is here, a special use permit conferred by amendatory ordinance. Deer Park Civic Ass'n v. City of Chicago, 347 Ill. App. 346, 106 N.E.2d 823 (1952); River Forest State Bank v. Village of Hillside, 6 Ill.2d 451, 129 N.E.2d 171 (1955); Fifteen Fifty North State Bldg. Corp. v. City of Chicago, 15 Ill.2d 408, 155 N.E.2d 97 (1958); People ex rel. Skokie Town House Builders, Inc. v. The Village of Morton Grove, 16 Ill.2d 183, 157 N.E.2d 33 (1959); Nott v. Wolff, 18 Ill.2d 362, 163 N.E.2d 809 (1960); Cities Service Oil Co. v. City of Des Plaines, 21 Ill.2d 157, 171 N.E.2d 605 (1961); Cos Corp. v. City of Evanston, 27 Ill.2d 570, 190 N.E.2d 364 (1963); People ex rel. Interchemical ...