APPEAL from the Circuit Court of Cook County; the Hon. SAMUEL
B. EPSTEIN, Judge, presiding.
MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
Telemahos Psyhogios and Costas Sizopoulos (plaintiffs) filed an amended complaint for declaratory judgment and injunctional and other relief against the Village of Skokie (Village). The Village filed a motion to strike and dismiss the amended complaint. The trial court denied the motion upon the grounds therein stated but dismissed the suit for other reasons. Plaintiffs appeal.
The pertinent facts appear from the properly pleaded allegations of the amended complaint which are admitted by the motion to dismiss. (Acorn Auto Driving School, Inc. v. Board of Education, 27 Ill.2d 93, 96, 187 N.E.2d 722; Follett's Illinois Book & Supply Store, Inc. v. Isaacs, 27 Ill.2d 600, 603, 190 N.E.2d 324.) The first count of the amended complaint alleged in substance that, on March 1, 1965, plaintiffs acquired ownership of two contiguous pieces of real estate in the Village. The improvements on these parcels included a camera shop and a drug store. Plaintiffs applied for permission to remodel these portions of the premises for use as a restaurant. The Village Building Department denied this application for lack of sufficient off-street parking space.
At that time, there was an existing parking area in the rear large enough to accommodate 13 cars. When plaintiffs made this application, Village ordinances required off-street parking on the basis of one space for each 100 square feet of restaurant floor space. The proposed restaurant submitted to the Village by plaintiffs comprised 1650 square feet so that 16 parking spaces were prima facie required. The Village ordinance provided that "* * * additional parking or loading facilities are mandatory only in the amount by which the requirements for the new use would exceed those for the existing use * * *."
The first count further alleged that, after denial by the Building Department, plaintiffs appealed to the Village Zoning Board of Appeals. The Board indicated that the requested variation would be granted but only upon certain conditions. As a result, a written agreement was entered into on August 30, 1965 between plaintiffs and the Village. A copy of the agreement is appended to the amended complaint.
This agreement recited that plaintiffs had sought permission to convert the subject property into restaurant use; that the plans did not provide the number of off-street parking spaces required under applicable ordinances; that plaintiffs had applied to the Village Zoning Board of Appeals for a zoning variation; that the Board had indicated that the variation would be granted only upon condition that plaintiffs would raze a two-story frame building presently occupying a portion of the subject property and would convert the resulting vacant space into off-street parking spaces within 90 days after tenants in possession had vacated, but not later than January 1, 1969.
The agreement provided that plaintiffs did "irrevocably and unconditionally" agree to the above condition which would become binding upon them immediately upon granting of the variation. It also provided that, in event of failure of plaintiffs to perform this condition, the Village was authorized to raze the specified improvements and to convert them to off-street parking spaces. The agreement also provided for the filing of bond by plaintiffs.
The first count of the amended complaint further alleged that, under a proper interpretation of the above quoted ordinance, plaintiffs should have received credit for parking facilities then existing at the rear of the premises which were sufficient to park 13 cars and that plaintiffs were entitled to a further credit for seven parking spaces under the ordinances because of pre-existing uses which would have been replaced by the restaurant so that when the application for variation had been made, plaintiffs were actually entitled thereto under a proper construction or interpretation of the applicable ordinances.
The first count of the amended complaint further alleged that the agreement was null and void and lacking consideration since plaintiffs actually had ample parking spaces for granting of their application. It further alleged that the Village had threatened to demolish the property so that there was an actual controversy between the parties. The first count prayed for declaratory judgment that the agreement was void and for injunctional relief.
The second count of the amended complaint alleged that during 1969 the Village had granted a zoning variation to a competing restaurant across the street from plaintiffs' property. This was granted on the basis of a written agreement which provided that the restaurant owner pay the Village $2000 for each omitted parking space, being a total of $40,000, in annual installments of $3000 each. A copy of this agreement, dated March 6, 1969, was appended to the amended complaint. This procedure was authorized by a new amendment to the Village ordinance which provided for payments by owners to the Village for omitted parking spaces with such payments to be deposited in a special fund for creation of parking facilities in the business district of the Village.
The second count also alleged that plaintiffs had offered to comply with the provisions of this ordinance by making payment on the basis of a deficiency of three parking spaces but that the Village had refused to accept such an agreement and instead had demanded demolition of the improvements on plaintiffs' property. It was alleged that this refusal by the Village deprived plaintiffs of equal protection under the law and amounted to a taking of plaintiffs' property without due process of law.
The Village filed a motion to dismiss the amended complaint, pursuant to Sections 45 and 48 of the Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110, pars. 45 and 48). The Village stated that plaintiffs failed to exhaust their administrative remedies under the Administrative Review Act (Ill. Rev. Stat. 1969, ch. 110, pars. 265 and following). The motion then set forth a series of factual allegations. It stated that, on February 4, 1970, plaintiffs filed a petition in the Village Zoning Board of Appeals seeking permission to operate their restaurant with insufficient parking area. The Board of Appeals determined that plaintiffs lacked six parking spaces but recommended granting of a variance to permit operation without these spaces, provided that plaintiffs pay to the Village $2000 for each deficient parking space; and, provided further, that the agreement here in question between plaintiffs and the Village, dated October 30, 1965, be cancelled. A further condition was approved by the Board of Trustees of the Village. The motion further stated that the Board of Trustees considered this recommendation; that plaintiffs refused to pay the total sum of $12,000 and that the Trustees voted not to concur in the recommendation of the Zoning Board of Appeals but rather to enforce the provisions of the previous agreement. These factual allegations were not verified by affidavit. See Civil Practice Act, Section 48, and Supreme Court Rule 191. However, on oral argument, counsel for the parties stipulated to the accuracy of the facts stated in the motion.
The motion and amended complaint were submitted to the trial court. Legal authorities were cited by both sides. The court held that the contention of the Village regarding exhaustion of administrative remedies was not applicable because the ultimate ruling on the petition for variation was made by a legislative body, the Board of Trustees of the Village, so that the Administrative Review Act was not applicable. The court also held that the second count of the amended complaint failed to set forth sufficient grounds for relief.
The trial court further held that since plaintiffs had operated the restaurant for a period of some three years, pursuant to the original written agreement between the parties, and had thus accepted the benefits thereof, plaintiffs should not now be permitted to question the validity of the agreement. The trial court, therefore, held that there were no issues of fact raised by the pleadings and that the suit should be dismissed as a matter of law. The court ...