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Johnny Bruce Co. v. City of Champaign

DECEMBER 30, 1974.

JOHNNY BRUCE COMPANY, PETITIONER-APPELLEE,

v.

THE CITY OF CHAMPAIGN ET AL., RESPONDENTS. — (JOHN M. SCHORIE ET AL., RESPONDENTS-APPELLANTS.)



APPEAL from the Circuit Court of Champaign County; the Hon. BIRCH E. MORGAN, Judge, presiding.

MR. JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:

Johnny Bruce Company, a corporation, as the owner of a certain 73-acre tract of real estate located in Champaign County and within 1 1/2 miles of the city of Champaign, formulated a Planned Unit Development for its real estate. This PUD plan was submitted to the city of Champaign Plan Commission in February 1973 for approval under the terms of its general zoning ordinance as adopted in 1965 and as amended insofar as its related to PUD by ordinance 1086 adopted in November 1971. Objections were presented by persons in opposition to the approval of the PUD and by those objections they sought to invoke the provisions of section 11-13-14 of the Municipal Code (Ill. Rev. Stat. 1971, ch. 24, par. 11-13-14). This statute requires a vote of two-thirds of the city council for approval of an amendment to a zoning ordinance in the event that objections are filed by 20 percent of the affected adjoining or adjacent property owners. The general ordinance of the city of Champaign obviously patterned after this statutory provision required a favorable vote of two-thirds in the event of objections to a proposed change. In each instance, the two-thirds favorable vote is required in the event of an "amendment" to the zoning ordinance and the regulations imposed and the districts created by the ordinance.

The appellants, John M. Schorie and Judith H. Schorie and Champaign Park District, were objectors and adjacent property owners. On March 28, 1973, the Plan Commission, by a vote of 4-1, recommended approval of the PUD to the city council. On April 3, 1973, the city council considered the recommendation and a motion to approve the PUD received four favorable votes and three votes were cast against it.

This complaint for declaratory judgment followed that action. In the complaint plaintiff alleges that the city "believes a favorable vote of two-thirds of councilmen is necessary for approval of the plan." Plaintiff sought a declaration that its preliminary PUD plan could be approved by a mere majority vote. The circuit court so held. The court concluded that the PUD plan did not constitute an amendment to the zoning ordinance but rather, by analogy to a special-use ordinance, was a legislative procedure authorized under ordinance 1086 of the city and that ordinance was independent of, and in no way dependent upon, the general zoning ordinance.

Section 17 of ordinance 1086 amending the 1965 zoning ordinance, section 17, article VII, provides in part as follows:

"h. Council Action on Preliminary Application

Approval of the preliminary plan by the City Council shall constitute approval of the general arrangement of the plan, the provisions submitted by the applicant, and a waiver of only those items of policy or ordinance which have been brought specifically to the attention of the Plan Commission. Such approval shall be valid for six (6) months. In its discretion and for good cause, the City Council may extend for an additional [sic] (6) months, the approval of the preliminary plan.

"i. Final Application Submission

Within six (6) months following the approval of the preliminary development plan by the City Council, the applicant shall file the plan in accordance with the procedures for filing zoning amendments. Five (5) copies of the final development plan shall be filed containing all information, plans and data as required herein. Such submission shall be accompanied by a second fee equal to that required for petitioning for amendment to this ordinance."

It is provided specifically that the final plan may be approved by a majority vote of the city council.

The city of Champaign is a municipality which has a population of more than 25,000 and is, therefore, a home-rule unit under the provisions of article VII, section 6(a), of the 1970 constitution. This court requested supplemental briefs upon the issue of whether the exercise of zoning authority by a home-rule unit is dependent upon State enabling legislation or limited by it. Excellent briefs have been filed by counsel upon this issue.

• 1 During the time consumed in the appellate process, the land here involved has been annexed to the city of Champaign and the time for the final approval of a preliminary plan, if the same was approved upon receiving a majority vote, has expired. Thus the passage of time has rendered moot the extraterritorial-zoning-authority issue as well as the final approval of the preliminary plan. It is necessary, however, that we consider the application of the home-rule power to zoning in our disposition of this case.

• 2 Under the language of our 1970 constitution, a home-rule unit as defined in the cited section is authorized to "exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare; * * *." The parties in their supplemental briefs are in agreement that this grant of power encompasses zoning. We agree. In La Salle National Bank v. County of Cook, 12 Ill.2d 40, 46, 145 N.E.2d 65, the Illinois Supreme Court observed:

"It is well established that it is primarily the province of the municipal body to determine the use and purpose to which property may be devoted, and it is neither the province nor the duty of the courts to interfere with the discretion with which such bodies are vested unless the legislative action of the municipality is ...


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