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Village of Mount Prospect v. County of Cook

AUGUST 1, 1969.

VILLAGE OF MOUNT PROSPECT, A MUNICIPAL CORPORATION, PLAINTIFF-APPELLANT,

v.

COUNTY OF COOK, A BODY CORPORATE AND POLITIC, HERBERT C. WENSKE, BUILDING COMMISSIONER OF COOK COUNTY, BERNARD J. O'BRIEN, ZONING ADMINISTRATOR OF COOK COUNTY, WESTERN NATIONAL BANK OF CICERO, AS TRUSTEE UNDER TRUST NO. 2168, J.M. BRICKMAN MID-WEST CORP., A CORPORATION, AND SIDNEY R. OLSEN, RECORDER OF DEEDS OF COOK COUNTY, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County, Chancery Division; the Hon. JOHN J. LUPE, Judge, presiding. Affirmed.

TRAPP, P.J.

The trial court dismissed with prejudice the complaint of plaintiff for a declaratory judgment that the rezoning of certain property by the defendant county was void, and for relief against the Cook County Building Commissioner and Cook County Zoning Administrator enjoining the issuing of building permits or zoning certificates, and against the owners of certain parcels of property from using such pursuant to the zone classification, and certain other injunctive relief.

The three parcels referred to as "subject property" are located within the unincorporated area of Cook County and described as being contiguous to and within one and one-half miles of the corporate limits of plaintiff. The parcels at issue appear to be separated from plaintiff Village by a street designated Foundry Road, which lies partly within and partly outside the corporate limits of the plaintiff Village.

In 1960 the area had been zoned under County Ordinances as general residence. In 1966 the owners filed a petition for reclassification of the area. Following the publication of notice Mt. Prospect officials filed "resolutions of objection." Hearing was held on March 11, 1966, and thereafter the county's Zoning Board of Appeals recommended the proposed reclassification to a general service district. On April 10, 1966, the County Board of Commissioners adopted an ordinance for such rezoning. By this action the subject parcels may be used for an office building, a motel and a combined office and apartment building. As of such date, Mt. Prospect had no effective comprehensive plan for the contiguous area concerned.

The complaint alleges that in 1943 the Village adopted a certain plan establishing subdivision regulations which were applicable to land within one and one-half miles of its boundary, and that in 1965 the Village began the study of a comprehensive plan which was finally adopted in 1967. Such plan is said to have designated the subject property as suitable for annexation, and recommended that upon annexation it be zoned as multiple-family residence.

Defendant's motion to dismiss raised the issue that plaintiff, as a municipal corporation, lacked the standing to challenge the express statutory power of the County to zone or amend its zoning as to the parcels concerned, relying upon the authority of Village of Bensenville v. County of DuPage, 30 Ill. App.2d 324, 174 N.E.2d 403. Bensenville sought a declaratory judgment that the act of the county was void in the rezoning and granting of a special use as to a parcel in unincorporated territory and appealed from the order of the trial court sustaining a motion to dismiss the complaint. The issue stated was whether the village possessed the "power to attack" the zoning action of the county. The village contended that it possessed such standing through or by reason of certain statutes conferring certain extraterritorial powers upon a municipality. These powers did not include any provision relating to zoning beyond the village limits. The court noted that municipal powers are strictly construed and that the express statutory power of the county to zone was paramount against the authority of the village implied from other nonzoning extraterritorial powers.

Plaintiff argues that the rule of Bensenville is made obsolete by reason of the provisions of the Municipal Code of 1961 granting statutory powers to a municipality to adopt a comprehensive land-use plan for contiguous territory within one and one-half miles of its boundaries, and to implement such plans by ordinance. C 24, Art 11, Div 12, Ill Rev Stats 1965. It is expressly stated in argument that there is no claim by the Village under the powers to zone unincorporated territory within one and one-half miles of the village boundaries as provided in c 24, Art 11, Div 13, Ill Rev Stats.

We review the legislative action with respect to land use planning and zoning to ascertain any apparent change of legislative intent since the Bensenville opinion. The problem of adjusting the conflicting interests between cities and villages and the counties in matters of zoning was analyzed and discussed prior to the adoption of the Municipal Code of 1961. See The Proposed Improvements to Community Planning and Zoning Powers in Illinois, 48 Ill Bar Jour 670 at 681, June 1960.

Plaintiff alleges that a village plan was adopted in 1943. Chapter 24, § 53-2, Ill Rev Stats 1943, sets forth certain powers which authorized a municipal plan commission to establish reasonable requirements with reference to streets, alleys and public grounds in "unsubdivided land" situated within the corporate limits or any contiguous territory not more than one and one-half miles beyond the corporate limits but not included in any municipality.

The Municipal Code of 1961, c 24, § 11-12-5, Ill Rev Stats, expands such concept creating authority to establish reasonable standards of design for subdivisions of unimproved land in somewhat greater detail. Such section is primarily significant in the additional provision:

". . . and (c) may designate land suitable for annexation to the municipality and the recommended zoning classification for such land upon annexation."

Plaintiff agrees that there is no authority for the exercise of zoning powers prior to annexation.

It appears that the Legislature did contemplate that there would be conflicts between the plans of different municipal authorities in the provisions that where unincorporated land is within one and one-half miles of the boundaries of two or more corporate authorities they may agree upon the jurisdictional boundary line between them, and that in the absence of such agreement the jurisdiction of each should extend to a median line equidistant from the respective boundaries of such municipalities. In another aspect, the Legislature foresaw potential conflict between the several municipalities and made provision that if any municipality adopted a comprehensive plan pursuant to c 24, § 11-12-4 et seq., concerning contiguous territory not more than one and one-half miles beyond its corporate limits and not included within any municipality, then no other municipality should adopt a plan concerning the territory so covered. C 24, § 11-12-9, Ill Rev Stats 1967.

In another division, the Municipal Code of 1961 granted the power to zone contiguous territory not more than one and one-half miles beyond the corporate limits of a municipality which was not included within any other municipality. Such power seems to be coextensive with the power to zone within the corporate limits. C 24, § 11-13-1, Ill Rev Stats 1967. The area of potential conflict was again considered in the provisions of § 11-13-1, that if any part of the area outside the corporate limits of a municipality had ...


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