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Bd. of Ed. of Sch. Dist. v. Surety Developers

DECEMBER 16, 1974.




APPEAL from the Circuit Court of Du Page County; the Hon. PHILIP F. LOCKE, Judge, presiding.


Rehearing denied January 8, 1975.

Plaintiff brought this action to collect damages for breach of a written contract entered into by the parties; the defendant filed a counterclaim. After a bench trial, the court entered judgments in favor of the defendant on both the complaint and the counterclaim. Plaintiff appeals contending that the trial court erred in finding that (1) the original agreement of March 24, 1959, and the later contract of February 15, 1960, were illegal, and (2) that defendant entered the contracts under duress.

Early in 1958, the defendant acquired about 300 acres of land with an option to purchase an additional 165 acres. (The unimproved, unsubdivided property was located in an unincorporated area and surrounded by farm land.) The purchase price of the 465 acres was approximately $500,000.

It was defendant's original intent to divide the land into parcels of 1 or more acres, to service the lots with individual septic fields and wells, and to sell the vacant lots so improved. The Du Page County Health Department, however, advised defendant that seepage tests showed the land unsuitable for individual septic fields and that the only alternative would be the installation of a community sewage-treatment plant. The department also informed defendant that if additional seepage tests at greater depths proved satisfactory, they would reconsider their decision.

Instead of making additional tests, the defendant instituted an alternate plan to divide the land into lots of less than 1 acre, to build homes, and to install a community sewage-treatment plant and water facilities. The land, however, was zoned residential (R-2) and, under that zoning, community sewage and water systems were permissible only by the granting of special-use permits from the County Board of Supervisors (Board). It is noted that without Board approval no plat could be recorded (Ill. Rev. Stat. 1957, ch. 109, § 2); thus, defendant's alternate plan depended upon approval of its applications for special-use permits.

Defendant filed applications for special-use permits to build a permanent community sewage-treatment plant, two temporary sewage-treatment plants, two permanent well sites, and a permanent water tower. On July 31, 1958, the County Zoning Board of Appeals held a public hearing to consider the special-use applications. The majority of the approximately 150 persons in attendance opposed the request on the grounds that the school could not handle the projected increase in enrollment, *fn1 that traffic and police problems would be created and that the value of adjoining property would be lowered.

The Zoning Board of Appeals, by letter to the Board, recommended denial of the special-use applications with the following findings:

"The Board finds that permitting the issuance of these Special Use Permits will allow the petitioner to reduce the frontage of his lots from 180 feet to 90 feet and to reduce them in area from 1 acre to 12,000 square feet, as provided under R-2-Single Family Residence District regulations. * * * The Board is unanimously of the opinion that the issuance of these Special Use Permits will allow a subdivision development that is entirely out of character with the uses of adjacent and adjoining property and which would tend to diminish their property values, add to the hazards on the public streets and highways and place a considerable burden on the country school which serves the area. * * *"

The defendant thereafter undertook a program of discussing his problem with as many of the Board members as possible. In addition, defendant, knowing that the recommendation would go before the Building and Zoning Committee (who then would make their recommendations to the Board), asked for and was granted a hearing before the Committee. The defendant at this time attempted to negotiate with the plaintiff but plaintiff would not meet with defendant.

On August 19, 1958, after meeting with the Committee and in response to its concern regarding schools, the defendant, by letter to the Committee, stated in part:

"Insofar as our development will create the need for additional class room facilities in the Goodrich School District, it is our intent to be cooperative with those needs. We therefore agree to the following:

1. We will furnish houses as temporary school facilities at a minimum rental to the School Board, if required, until permanent school facilities can be erected.

2. We will furnish the ground, build a permanent school facility and lease same to the Goodrich School District at a nominal rental of $1.00 per year for a period not to exceed five years, the School Board to purchase said facilities prior to the expiration of the rental term at 80% of the total cost of the facilities."

The Board accepted the defendant's offer and granted three of the four requested special uses, denying only the requested operation of the temporary sewage-treatment plants. Each of the special-use permits contained a condition taken verbatim from defendant's letter to the Committee. The Board also on this date approved defendant's plat of subdivision which was recorded, and subsequently, defendant's other plats were approved and recorded.

The defendant commenced construction, including contracting for installation of the permanent sewage-treatment plant, waterworks, and connecting pipelines. It planned to build houses that would sell in the $14,000 to $17,000 range, with Federal Housing Administration (F.H.A.) and Veterans Administration (V.A.) backing. Pursuant to this plan, the defendant, in early September, 1958, sent letters to the V.A. ...

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