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Fiore v. City of Highland Park

MARCH 6, 1968.

VITO FIORE AND DELLA FIORE, HIS WIFE, PLAINTIFFS-APPELLEES,

v.

CITY OF HIGHLAND PARK, A MUNICIPAL CORPORATION AND BODY POLITIC OF THE STATE OF ILLINOIS, DEFENDANT-APPELLANT.



Declaratory judgment appeal from the Circuit Court of Lake County, Nineteenth Judicial Circuit; the Hon. CHARLES S. PARKER, Judge, presiding. Decree affirmed.

MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.

Rehearing denied April 4, 1968.

After giving due consideration to the peripheral contentions advanced by the appellant City, we are of the opinion that the issue on this appeal is whether the decree below conforms to the mandate of this court in Fiore v. City of Highland Park, 76 Ill. App.2d 62, 221 N.E.2d 323 (1966).

In that case the plaintiffs' basic contention was that their property was rendered virtually useless by the G-1 zoning, herein called O & R (Office and Research), and that such zoning ordinance bore no substantial relationship to the public welfare. The restrictive effect of defendant's O & R zoning restrictions was graphically portrayed by the exhibit set forth on page 70 of the opinion which indicated the size and location of O & R buildings permitted under such ordinance with reference to plaintiffs' land and the adjoining properties. At page 73 we stated:

"It is fair to conclude from the record that there is a need for additional apartment facilities in the community. . . . Clearly, in view of the apparent lack of need and interest in O & R land in the community, coupled with the severe effects of the setback restrictions on plaintiffs' land, there cannot be anticipated any reasonably immediate use of plaintiffs' land for O & R purposes. Under these circumstances, the zoning classification given plaintiffs' land serves no public purpose and most certainly deprives the plaintiffs' land of considerable value."

And at page 74, the court considered the City's contention that the plaintiffs' land was equally suitable for single-family residential development, in these words:

"Such fact, if true, would not be determinative of any issue in this case. When the plaintiffs first sought to have their property rezoned, it was zoned for single-family residential use. Had the property remained so zoned, the validity of such zoning, measured by the standards to which we have referred, would properly have been an issue in determining whether the plaintiffs' petition was rightly denied. By the time this matter came to trial, however, the legislative body had already made a determination as to the classification of this property. It had decided that it was in the interest of the general welfare that this land be zoned O & R — not single-family."

We there held that insofar as the trial court decreed that the single-family zoning restriction was void as applied to plaintiffs' land, its decree was obiter dicta and invalid; and that the further part of the decree which provided that "The defendant is hereby ordered to permit the said portions of plaintiffs' property to be used for multiple-family dwellings under the classification `F' of the Highland Park Zoning Ordinance . . .," was likewise improper and void in that it was too broad. It was our belief, and we stated, that the most that a court may do after declaring an existing zoning ordinance void as applied to certain property is to find that the specific use contemplated by the owner is reasonable and may be permitted.

At pages 76 and 77 we stated:

"In the case at bar, the plaintiffs presented evidence as to the nature of the apartment complex they intended to construct on these premises. The decree of the trial court should be framed with reference to the evidence of this intended use and permit such use only, rather than any permitted under the applicable multiple-family zoning restriction. If the court finds that such evidence is not sufficient to enable it to intelligently frame its decree, it should hear additional evidence pertinent to such use.

"That part of the decree of the trial court which declared the existing zoning void, as applied to the property in question, is affirmed; and that part of the decree which adjudged the single-family zoning restriction void as applied to plaintiffs' land, and which ordered the defendant to permit the said portions of plaintiffs' property to be used for multiple-family dwellings under the `F' classification of the zoning ordinance, is reversed; and the cause is remanded to the trial court with directions to frame its decree pertaining to the permissive use of the land in question with reference to the evidence of plaintiffs' contemplated use and to hear further evidence in this regard, if necessary.

"Affirmed in part and reversed in part; and remanded with directions." (Emphasis ours.)

On November 16, 1966, while the Petition for Rehearing was still pending before this court, the City published a notice that a hearing would be held before the Plan Commission on December 6, 1966, for the purpose of considering a rezoning of plaintiffs' property back to a single-family classification. The Petition for Rehearing was denied on November 30, 1966. The scheduled "hearing" before the Plan Commission was held on December 6, 1966, at which time the plaintiffs appeared by their counsel, and filed objections to the jurisdiction of the Plan Commission to take any action with respect to the property. No witnesses appeared at the "hearing," no one spoke in favor of the "rezoning," and the Plan Commission simply announced that it would take the matter under advisement.

Meanwhile, the City filed a Petition for Leave to Appeal to the Supreme Court, and there again sought to uphold the validity of the "O & R" Zoning Ordinance. The plaintiffs answered this petition and, on March 28, 1967, the Supreme Court denied it. Thereafter, on April 10, 1967, the City passed an ordinance purporting to "rezone" plaintiffs' property back to the same single-family classification it had in 1963. On May 18, 1967, the trial court entered its supplemental decree, providing for a specific type of multiple-family ...


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