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Broccolo v. Village of Skokie

NOVEMBER 8, 1972.




APPEAL from the Circuit Court of Cook County; the Hon. EDWARD J. EGAN, Judge, presiding.


Rehearing denied September 14, 1973.

This is an appeal from an order that dismissed a declaratory judgment suit. Plaintiffs Sam Broccolo and Goldie Broccolo filed a two-count complaint against the Village of Skokie and Topco Associates, Inc. In Count I, they prayed for a declaration of rights and an injunction decree against the Village. In Count II, they prayed for compensatory and punitive damages against Topco.

In separate motions, defendants moved to dismiss the complaint: Village on the ground that plaintiffs had not exhausted their administrative remedies nor stated a cause of action against it; Topco, on the ground that no relief was sought against it in Count I and no cause of action was stated against it in Count II. After hearing the parties, the trial court sustained both motions and dismissed the suit. The issue is whether the dismissal was error. To resolve this issue, we must determine the legal sufficiency of the allegations in plaintiffs' two-count complaint; and from the sources of law, decide whether either count stated a cause of action.


The Allegations

According to Count I, plaintiffs live in the Village of Skokie where, since May 12, 1927, they have owned a 25 x 125 foot lot. Village is a municipal corporation. Topco is a business corporation and does business in the Village. It owns interests in land adjoining and surrounding plaintiffs' lot. On March 2, 1965, Village enacted a zoning ordinance that has been amended from time to time. Under it, plaintiffs' lot was zoned M-1, "Office Assembly Industry District." On February 14, 1969, plaintiffs asked Topco to sell them its land adjoining plaintiffs' lot. Topco refused. On February 25, 1969, plaintiffs applied to the Village of Skokie Zoning Board of Appeals for a zoning variation. Hearing on plaintiffs' application was postponed until November 5, 1969. Then, on February 18, 1970 the application was denied.

Before plaintiffs made their application, Topco acquired substantially all of the 25 foot lots surrounding plaintiffs', with exception of a few which owners refused to sell. To coerce and compel those owners to sell, Village, through its Boards and Commissions, caused the property in the vicinity of plaintiffs' lot to be classified and zoned M-1. This zoning classification required a front yard of not less than 50 feet in depth, two side yards not less than 25 feet in width, a rear yard not less than 25 feet in depth (except one abutting an alley), land coverage of not more than 50 percent of the lot area and provisions for off-street parking and loading. Village and Topco knew that owners of 25 foot lots could not comply with these requirements. To further coerce them, Topco and Village entered into an oral agreement to deprive plaintiffs of their property. Topco filed a petition before the Village Plan Commission praying for a recommendation that Village enact an ordinance vacating certain streets and alleys so that Topco could consolidate its 25 foot lots. Under this plan, Village and Topco proposed to reroute Gross Point Road within the village in such manner as to necessitate the taking of private property from those persons who had refused to sell their land to Topco. This was done after plaintiffs filed their petition for a variation. Topco and Village caused hearing on plaintiffs' application for variation to be withheld until they could first proceed with Topco's application in order to attempt to confiscate plaintiffs' property.

On May 15, 1969, the Village Plan Commission granted Topco's application to vacate the streets and alleys. On June 2, 1969, the village trustees concurred. Under Topco's plan, it dedicated property to Village and acquired certain land for which it paid the sum of $20,750. This sum was far below the appraised value of the land. As a result of the vacature ordinance which Topco successfully obtained, Village has threatened to institute condemnation proceedings to acquire plaintiffs' 25 x 125 foot lot. The rerouting of Gross Point Road as proposed and the threatened condemnation of plaintiffs' property, would deprive plaintiffs of their property, benefit the owners of adjacent property but would not benefit the public. M-2 zoning classification, "Light Industry District," permits substantially the same uses as M-1, but differs in that it requires a front yard of not less than 25 feet in depth. A side yard is not required unless a side yard lot adjoins a residential district. Land coverage may not exceed 60% of lot area. Substantially all of the properties adjoining and surrounding plaintiffs' lot are vacant, with exception of the area designated in the exhibit [attached to the complaint].

There is a dispute between the parties concerning plaintiffs' rights, particularly as applied to plaintiffs' land, its classification as M-1, "Office Assembly District" and the denial to plaintiffs of the right to build in manner as proposed. Action of Village bears no relation to public health, safety, comfort, morals and public welfare. The action of defendants is designed to deprive plaintiffs of the use of their property, although the same is annually assessed for tax purposes, which plaintiffs are obligated to pay. If enforced against plaintiffs' property, Village of Skokie zoning ordinance will actually deprive the public of benefit. The highest and best use of plaintiffs' property is for a building of a size not permitted by the present ordinance. If plaintiffs' property is utilized as proposed, the public will derive substantial tax benefit to help public needs; but depriving plaintiffs of the use of their property for their proposed purpose, will cause it to have only limited or no value so that the tax revenue therefrom would harm not only plaintiffs but the general public as well. The highest and best use of plaintiffs' property is for a restaurant or other use compatible with the area. Plaintiffs are without a remedy except in a court of law as prayed for in this Count.

According to Count II, 19 paragraphs of the 26 in Count I are realleged. Then it is alleged that for many years prior to 1966, Topco was interested in acquiring, and did acquire, many of the 25 foot lots in the area where plaintiffs owned their lot. On and after February 14, 1969, Topco became and has been the owner of property adjacent to that owned by plaintiffs. By reason of Topco's conduct, described in the realleged paragraphs of Count I, plaintiffs are deprived of the right to use the property owned by them since 1927 on which they have expended considerable sums in the payment of annually assessed taxes. The conduct of Topco was willfully and maliciously instituted for the purpose of depriving plaintiffs of their right to use their property and thereby coerce plaintiffs into selling their lot to Topco.


The Law

• 1 Count I discloses that plaintiffs applied for a zoning variation from the Skokie Board of Zoning Appeals. In a final administrative decision, the Board denied the application. Our law provides that all final administrative decisions of zoning boards of appeals shall be subject to judicial review pursuant to the Administrative Review Act. (Ill. Rev. Stat. 1969, ch. 24, par. 11-13-13.) When the Act applies, it is the sole and exclusive method for obtaining judicial review of an administrative decision. (Ill. Rev. Stat. 1969, ch. 110, par. 265.) Where a landowner's application for variation from a zoning ordinance is denied by a zoning board of appeals, his only remedy ...

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