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Forestview Homeowners Ass'n v. Co. of Cook

MARCH 5, 1974.

FORESTVIEW HOMEOWNERS ASSOCIATION, INC. ET AL., PLAINTIFFS-APPELLANTS,

v.

THE COUNTY OF COOK ET AL., DEFENDANTS-APPELLEES — (THE VILLAGE OF NORTHBROOK, INTERVENOR-PLAINTIFF-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. WALTER P. DAHL, Judge, presiding.

MR. JUSTICE LEIGHTON DELIVERED THE OPINION OF THE COURT:

This appeal arises from a dispute concerning the validity of an amendatory zoning ordinance and a special use granted by the Board of Commissioners of Cook County. Plaintiffs Forestview Homeowners Association, Charlemagne Homeowners Association, Sutton Point Homeowners Association, Huntington Homeowners Association, all Illinois not-for-profit corporations, together with two individuals, George Wilson and Jane Wilson, his wife, filed a suit against the County of Cook, Raymond J. Welsh, its commissioner of buildings, Bernard J. O'Brien, its zoning administrator, Newton F. Korhumel, Thomas Origer, Origer Builders, Inc., a foreign corporation and the Cook County Recorder of Deeds, Sidney R. Olsen. Thereafter, the Village of Northbrook, an Illinois municipal corporation, was granted leave to intervene as a plaintiff.

In their respective complaints, the original plaintiffs and the intervenor sought a declaration that an ordinance which rezoned a 96-acre parcel of land from R-3 single family to R-6 general residence district, and a special use granted by the Board of County Commissioners of Cook County, were void. The plaintiffs and intervenor prayed for an injunction, preliminary and permanent, restraining the County of Cook and its officials from issuing any building permit for construction of a proposed multiple-family housing project which would have been permissible under the R-6 zoning created by the amendatory ordinance. They also prayed for an injunction restraining the owners of the 96-acre tract from constructing on the land the proposed housing project or devoting the land to any use other than one permitted under the R-3 zoning of the Cook County Zoning Ordinance. After disposing of preliminary motions and hearing evidence, the trial court found that equity was with the defendants and entered a decree in their favor.

The original plaintiffs and the intervenor then took separate appeals to this court. Thereafter, on motion of the intervenor pursuant to Supreme Court Rule 305(g), *fn1 we entered an order staying enforcement of the decree pending the appeals. Defendants (County of Cook, its officials, Thomas Origer and Origer Buildings, Inc.) filed cross-appeals limited to a review of the question whether the trial court erred when it granted the Village of Northbrook leave to intervene as a plaintiff in the original suit. However, neither the County of Cook nor its officials have appeared in this court and filed a brief, either in support of the decree below or in support of their cross-appeal. Thomas Origer and Origer Builders, Inc., have appeared and filed a brief, but they do not, in compliance with Supreme Court Rule 343(b)(i), *fn2 argue the issue they sought to raise as cross-appellants. Despite this fact, and without the assistance of a brief by the County of Cook, we will decide the appeals and cross-appeals, including whether the Village of Northbrook had standing to intervene in the suit. We begin with a summary of the material facts, concerning which, in the main, the parties appear to be in agreement.

I.

In 1968, near the end of the year, the defendant Thomas Origer purchased a five-parcel 96-acre tract of land in Cook County for $1,200,000. The tract was rectangular in shape, one-half in Wheeling Township, and one-half in Northfield Township, and the land which composed it was vacant. Its northern border was 600 feet south of Lake-Cook Road in an unincorporated area of the county; its southern border, Forestview Road, was about a mile and a half from the village limits of Northbrook, Illinois. Its eastern border was Sanders Road, a two-lane macadam-surfaced highway; and on the west it was bordered by some single-family homes and the Cook County Forest Preserve. The tract was then zoned R-3 single-family-residence district under the Cook County Zoning Ordinance. All of the land immediately surrounding it, except for one property on its northern border on which a riding stable was being constructed, was also zoned R-3 residential and was either vacant, had single-family homes on some of the lots, or was part of the Cook County Forest Preserve.

The tract was part of a 25-to-30-square-mile area patrolled by the Cook County sheriff's police. The patrol consisted of a one-man vehicle that operated 24 hours a day. In addition, the sheriff's police made specific requests for assistance from police departments of municipalities within the area. Fire protection was furnished by volunteer fire departments or by cooperation with other municipalities such as the Village of Northbrook. With regard to sewerage, it was contemplated that development of the tract would require connection with the Walters Avenue pumping station which serves the 1100 acres of land in the Des Plaines River watershed not served by gravity connections to existing interceptors. The pumping station discharges into an interceptor sewer that has a total capacity of 12.1 million gallons per day. The Metropolitan Sanitary District of Greater Chicago computes sewer design requirements by assuming that there will be a demand for 155 gallons of capacity for each person per day in the area served by the pumping station.

The 96-acre tract of land was partly in School District 27, an elementary school system that had three schools from kindergarten through the sixth grade. In addition, the system had one junior high school and a second junior high under construction. At the time of this litigation, the three elementary schools, including the one closest to the tract, were operating at capacity. School District No. 27 had almost exhausted its bonding power and did not expect to have money available for the construction of a new elementary school for at least 2 years. One elementary school in the district had been the subject of additional construction; and school authorities had been compelled to acquire a temporary kindergarten facility in a local church. Double shifts of school classes had been avoided by making use of classroom facilities available in an adjoining school district. The Board of Education could not determine whether, in the future, funds would be available to meet plans for expansion of facilities for the education of children who live in the district.

A short time after defendant Origer acquired the tract of land, an application was made to the Cook County Board of Commissioners that the applicable provision of the Cook County Zoning Ordinance be amended to reclassify the tract from R-3 single-family to an R-6 general-residence district and that a special use be granted to permit the construction of a multi-family housing development totaling 2,003 dwelling units to house a population between four and six thousand persons. There was to be a total of 2,982 parking spaces to accommodate automobiles owned by persons who were to live in the housing development. Cook County zoning authorities were informed by the developer that the one-bedroom units were to be rented for $200 to $225 per month; the three-bedroom units for $250 to $300 per month. Water for the development was to be provided by one or two deep wells drilled on the land. Sanitary sewer mains from the tract were to be connected with the Walters Avenue pumping station, a mile and a half to the south. Storm water drainage was to be through a retention basin; and from there, storm waters could flow by open or closed drainage to a river on the west.

The applications for the amendatory zoning ordinance and for grant of the special use were referred to the Cook County Zoning Board of Appeals, which held three public hearings between April 14, 1969 and May 2, 1969. The original plaintiffs, the intervenor Village of Northbrook, and municipalities which were one and a half miles from the tract, appeared and objected to grant of the applications. On May 13, 1969, the president and the board of trustees of intervenor Village of Northbrook adopted Resolution 69-R-42, in conformance with Ill. Rev. Stat. 1967, ch. 34, par. 3158, and objected to rezoning of the 96-acre tract and to grant of the special use. A certified copy of the resolution was filed with the clerk of Cook County, the secretary of the Cook County Zoning Board of Appeals, and the president of the Cook County Board of Commissioners. Thereafter, on October 27, 1969, the Zoning Board of Appeals submitted its findings and recommended to the Cook County Board of Commissioners that it adopt the amendatory zoning ordinance requested and grant the special use. On November 30, 1970, the Board concurred in these recommendations. Thereafter, the suit in this case was filed.

To sustain the allegations of their respective complaints, the original plaintiffs and the intervenor called 3 witnesses who were experts; 9 whose testimony bore on the claim that adoption of the amendatory zoning ordinance and grant of the special use was arbitrary and unreasonable; 11 who were owners of single-family residences contiguous to the 96-acre tract and who, according to their testimony, had relied on the R-3 single-family zoning of the area when they purchased their homes. Defendants called as their witnesses the defendant Thomas Origer and three experts. After hearing all the evidence, the trial court made oral findings and concluded that lack of a comprehensive zoning plan by the County of Cook did not render the amendatory zoning ordinance or grant of the special use invalid. Although the trial judge found the evidence tended to indicate that construction of the planned development would have some depreciatory effect on the homes of the plaintiffs along Forestview Drive, he said, "* * * I am unable to find on the basis of the conflicting evidence presented that the depreciatory effect would be in any specific percentage amount, and I can only find in a general way that the homes are not particularly benefited by the construction of this planned development." The court then entered a decree dismissing the complaints with prejudice.

Urging that the decree be reversed, the original plaintiffs and the intervenor present three issues for our review. 1. Whether the procedure followed in this case by the Board of Commissioners of Cook County invalidated the Board's adoption of the amendatory zoning ordinance and its grant of the special use. 2. Whether the failure of Cook County to plan comprehensively for the use and development of land in the county's unincorporated areas, and its failure to relate its rezoning decisions to data files and plans of other county agencies, weaken or destroy the presumption of validity which otherwise would attach to a county zoning ordinance. 3. Whether, measured by applicable standards of reasonableness, the decision of the Board of Commissioners of Cook County to rezone the 96-acre tract and grant a special use was an arbitrary and capricious exercise of its power to regulate the use and development of land within its jurisdiction.

II.

Before reviewing these issues, we will decide the question to which defendants restricted their cross-appeals; namely, whether the trial court erred in allowing the Village of Northbrook to intervene in the suit on file. In deciding this question, we must determine whether after July 1, 1971, the Village of Northbrook, a municipality which has a population of more than 25,000, had standing to intervene as a plaintiff in a suit to enjoin the enforcement of a ...


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