Appeal from the Circuit Court of Cook County; the Hon. JOHN J.
LUPE, Judge, presiding. Reversed and remanded with directions.
MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.
Rehearing denied August 11, 1969.
This is a zoning case. The property in dispute was formerly known as the Tam O'Shanter Country Club and consists of approximately 123 acres of land situated in the Village of Niles. The property, which was zoned for single-family residences, was purchased for about $3,250,000 in July 1965 by one of the defendants, J. Emil Anderson & Son, Inc., a firm specializing in industrial land development. Anderson immediately petitioned the Village to rezone the property from residential to limited manufacturing use.
The petition was referred to the Plan Commission of the Village of Niles. The commission held seven public hearings on the request, the first of which was in September 1965. In the Spring of 1966 Anderson amended the petition to exclude 37 1/2 acres of the property from the requested reclassification. At the last hearing, near the end of May 1966, the commission decided to recommend the rezoning. The board of trustees of the Village adopted the recommendation in late August 1966 and amended the Village's 1961 zoning ordinance accordingly.
The plaintiffs, homeowners in the Village, filed their complaint in this action the middle of the following September. The Village and Anderson answered. The pleadings were typical of zoning cases. The plaintiffs attacked the amendment on the grounds that it was arbitrary and capricious and bore no reasonable relation to the public health, safety and welfare. They prayed for a judgment declaring the amendment invalid and for temporary and permanent injunctions restraining the Village and the Anderson Company from developing the property for industrial purposes. The defendants denied that the amendment did not bear a reasonable relationship to the general welfare. They asserted that the rezoning was compatible to the established uses in the immediate vicinity, and that the development proposed for the property would bring increased employment to the citizens of the community and tax benefits to the Village without the corresponding increase in municipal burdens which would be incidental to a residential classification.
The property is rectangular in shape, extending lengthwise from north to south and is bisected by Howard Street, an east-west thoroughfare. Thirty-seven and one-half acres lie north of Howard Street and eighty-five acres south of it. It is bordered by a forest preserve on the west, a portion of the forest preserve and an area zoned for retail business on the north, Caldwell Avenue on the east and by a four or five-acre manufacturing district and Touhy Avenue on the south. The greater portion of the east side of Caldwell, opposite the property, is zoned and used for industrial purposes; the lesser portion, consisting of eleven residential lots, is zoned and used for single-family homes. One of these homes is occupied by plaintiff the only plaintiff who owns a home adjacent to the subject property. The southernmost industry on the east side of Caldwell abuts the north side of this home.
After a trial which included the testimony of both lay and expert witnesses, the court found that the plaintiffs had failed to establish that the amended ordinance was invalid in any respect. The court declared that the highest and best use of the property was for limited manufacturing and that the ordinance was a proper and valid legislative enactment.
The issue on appeal is not typical of zoning cases. The plaintiffs do not challenge the decree on the ground that it is contrary to the evidence or not in conformity with established principles of zoning law. They challenge it on the ground that the court erred in refusing to consider another issue which entered the case and in rejecting evidence in support of this issue: that the Village Plan Commission recommended, and the Village trustees adopted the zoning amendment in exchange for promises, concessions and contributions from the Anderson Company.
The plaintiffs did not raise this issue in their complaint. It came into the case, surprisingly enough, through Anderson's answer. Anderson denied that the entire property was to be developed for industrial purposes; it affirmatively alleged that the 37 1/2 acres north of Howard Street were to be developed as a public golf course. Also, as an affirmative defense, it stated that in between the plan commission's first and last public hearing Anderson conducted negotiations with the Niles Park District which resulted in an understanding that the park district could purchase the 37 1/2 acres for construction of a nine-hole golf course; that after this agreement was reached, park district officials appeared before the plan commission and recommended that Anderson's application to reclassify the property south of Howard Street be approved.
In his opening statement, the defendants' attorney elaborated on the agreement with the park district. He said that after it was made, the plan commission approved the proposed rezoning and recommended it to the board of trustees of the Village. The first witness for the defendants, the president of the Anderson Company, supplied the details of the agreement. He testified that the park district and the Village of Niles were given a seven-year option to buy the 37 1/2 acres; that if the district did not exercise the option within six and one-half years the Village had the right to do so within six months after the district's option expired. He said that the purchase price was $1,300,000, fifty percent of which was to be financed by the sale of revenue bonds; that Anderson had agreed to find a purchaser for the bonds and, after the expiration of ten years, to donate $550,000 of the purchase price back to the district. He further said that if the district did not exercise its option at once the agreement provided for Anderson to develop the 37 1/2 acres as a public golf course the cost of which was estimated at $175,000 without impairment of the right of the district or Village to exercise the option within the seven-year period at the original purchase price.
In addition to this arrangement, the witness testified that his company donated an acre of land to the Village for a fire station, gave the Village $75,000 for street improvements, agreed to pay for a traffic engineering survey and, at the cost of nearly $10,000, provided a water main which would increase the water pressure of the homes on the east side of Caldwell.
On cross-examination, counsel for the plaintiffs asked whether the agreement in reference to the 37 1/2 acres would have been entered into if the zoning had not been changed from residential to manufacturing. The defendants' counsel then stated that he would stipulate that the agreement was conditioned upon the zoning change.
Thereafter, the position of the parties changed abruptly. The plaintiffs, who had not raised the point in their complaint, seized upon the gifts to the Village as an additional reason for challenging the rezoning; and the defendants, who had been making capital of their generosity, quickly backed ...