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Andres v. Village of Flossmoor

OCTOBER 24, 1973.

EMIL ANDRES ET AL., PLAINTIFFS-APPELLANTS,

v.

THE VILLAGE OF FLOSSMOOR ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS T. DELANEY, Judge, presiding.

MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

This is an appeal from an order of the circuit court of Cook County, dismissing appellants' petition for (1) an injunction against enforcement of a zoning amendment which rezoned an 8.5 acre tract of land in the Village of Flossmoor and (2) for a declaratory judgment that said ordinance was void on its face for reasons, among others, that such ordinance constituted "contract" zoning, and because it was allegedly not passed by the necessary two-thirds majority of the Board of Trustees of the Village of Flossmoor as required by law.

The trial court ruled against appellants' contentions that said ordinance constituted "contract" zoning or that it was not passed by the required number of votes. In addition, it held that said ordinance was a reasonable exercise of the legislative zoning power and that appellants failed to disprove the presumptive validity of that legislative action.

The issues on appeal are:

(1) Whether the ordinance which contains an express provision requiring the execution of a contract between the village and property owner is valid;

(2) Whether the ordinance which contains special limitations not imposed on other land is valid;

(3) Whether the failure to comply with the written express requirements of the ordinance renders it null and void, and

(4) Whether the ordinance was properly passed by the village.

Ordinance No. 500 became effective on July 15, 1971, and this suit was filed July 19, 1971, by two owners of property adjoining the rezoned tract (known as the "Markey Estates" subdivision) on behalf of themselves and all other property owners similarly situated or who, although not immediately abutting the Markey Estates tract, will nevertheless suffer special damage as a result of the rezoning. This entire section was, until the passage of Ordinance No. 500, zoned R-2, single-family residential, and the Markey Estates had been subdivided for single-family residence development.

The owner-developer filed a petition which asked "to have said property rezoned for two-family one-story ranch dwellings for residential purposes containing 36 units." It was this petition which resulted in the passage of Ordinance No. 500 rezoning the particular parcel of property involved to R-6, but containing some eight restrictions and conditions on the property in addition to restricting its use to only one of the uses permitted in the regulations governing R-6 districts.

Section One of Ordinance No. 500 gives the full legal description of the particular property involved, "presently zoned R-2," and states that it is "hereby rezoned to an R-6 Multiple-Family Residential District, subject to Article IX, Section 7, of the Amended Zoning Ordinance of the Village of Flossmoor, and to all of the restrictions and conditions hereinafter set forth in this Ordinance."

Article IX, Section 7 of the Comprehensive Amendment of the Zoning Ordinance of the Village of Flossmoor, which defines the "R-6 Multiple-Family Residential District" and specifically permits two-family dwellings, duplex dwellings, three-family dwellings, multiple-family dwellings and apartment houses, was in no way amended, supplemented or repealed by Ordinance No. 500.

Section Two of Ordinance No. 500 is entitled "Restrictions and Conditions" and expressly lists, in subsections (a) through (e) and (g) through (j), the following nine conditions imposed on the particular property described in Ordinance No. 500 but not imposed by the regulations of the R-6 multiple-family residential district or other R-6 zoned property:

(a) None of the uses permitted in the R-6 multiple-family residential district (Section 7 of Article IX of the Comprehensive Zoning Ordinance of Flossmoor), to which the property is rezoned, except the one use of "a single-story attached two-family dwelling," is permitted.

(b) These units must be constructed according to the building designs and representations made in the owner-developer's promotional brochure, which brochure was expressly attached to and made part of the ordinance itself.

(c) Fencing, screening and general landscaping is subject to future approval by the village.

(d) The placing of the buildings is to be as shown on the site plan prepared by the owner-developer, which site plan was expressly attached to ...


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