APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. DOWNING, Judge, presiding.
MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
Oak Forest Mobile Home Park, Inc. (plaintiff) filed an action for declaratory and other relief in connection with various problems arising from the zoning ordinances of the City of Oak Forest (City). The City filed a counterclaim to enjoin various alleged ordinance violations by plaintiff in the operation of its premises. After a full trial, the circuit court entered judgment which denied the relief sought by plaintiff and permanently enjoined five specified ordinance violations by plaintiff in the maintenance and operation of its trailer park. Plaintiff appeals.
Plaintiff contends here that the zoning ordinance of the City is unconstitutional and void because it excludes a legitimate use of land from every zoning district; the gain to the public from the zoning restriction is small compared to the hardship imposed upon the individual property owner so that the ordinance is arbitrary, unreasonable and without substantial relation to the public health, safety, morals or general welfare; once the ordinance has been found arbitrary, unconstitutional and void, the landowner need only show that his proposed use is reasonable; and, finally, that equitable estoppel should prevent the City from obtaining relief against plaintiff by virtue of alleged ordinance violations. The City takes the position that even though the zoning ordinance may be unconstitutional as regards the area in question, that does not render the entire enactment unconstitutional; homeowners had a right to rely on the zoning that existed when they purchased their property and to depend on this zoning not being changed except for the public good; equitable estoppel will not be applied without positive acts by municipal officers which induced the action of the adverse party; and, finally, even though the City did not have a certificate of exemption issued by Cook County, plaintiff must abide by the city ordinances.
Plaintiff is the owner of the entire subject property which is located in the vicinity of 159th Street and Laramie Avenue within the City. For better understanding, a plat of the entire property is presented herewith.
The property consists of two separate parcels. Parcel One, generally located more to the south, consists of Lots 98 to 105 inclusive. As appears from the plat, the southeastern corner of the parcel is excluded. Plaintiff acquired this property by deeds dated September 1, 1965, and December 30, 1967. At that time, and since approximately 1941 or before, this portion of the subject property has been used as a trailer park, except Lot 105 which was adapted to this use shortly after its acquisition.
Parcel Two consists of Lots 97 and 110, which constitute the entire northern portion of the property. The extreme southwestern corner of Lot 110 is not included. As indicated, Lot 110 has a 60-foot frontage on Laramie Avenue, and Lot 97 has a frontage of 120 feet on LeClaire, which is the next street to the east. The total length of these two lots from east to west is 600 feet. Plaintiff acquired Lot 97 by a deed dated May 25, 1967, and purchased Lot 110 during 1968.
The record shows, without objection, that plaintiff paid $140,000 for Lots 98 to 104 inclusive; $9000 for Lot 105 and $15,000 for Lots 97 and 110 combined; a total consideration of $164,000.
It is next necessary to consider the zoning of the subject property. The situation is rather unique, as determination of the existing zoning classification raises contested issues. Plaintiff purchased Parcel One as an operating trailer park. It is undisputed that the City had issued a license to plaintiff to operate the park for 1968, 1969 and 1970. Plaintiff made applications for subsequent years but the licenses were never issued. Plaintiff alleged that the property was partly zoned B-3 for general business uses and partly R-2 for single family uses. The City admitted this in its answer. However, both sides introduced evidence of the actual zoning, and, after hearing all of the pertinent evidence, the trial court found that the entire tract was zoned R-3, a general residence district.
In connection with proof of the zoning, neither party offered a copy of an ordinance certified by the city clerk under the city seal. (Ill. Rev. Stat. 1973, ch. 24, par. 1-2-6). However, a deputy clerk of the City produced a large bound pamphlet, or volume, consisting of 103 pages labeled "Zoning Ordinance Oak Forest Illinois." It bears No. 300 and shows upon the flyleaf that it was adopted by the President and Board of Trustees of the Village of Oak Forest, Cook County, Illinois, September 23, 1964, and that it was prepared by the Oak Forest Planning and Zoning Commission. It is in ordinance form containing the ordaining clause required by statute. (Ill. Rev. Stat. 1973, ch. 24, par. 1-2-2.) There is no map appended to this copy of the ordinance. No subsequent or later zoning ordinance of the City appears in the record.
The pertinent portions of the Municipal Code of the State of Illinois provide that all ordinances of cities which impose any fine or penalty, as does the ordinance in question, shall "be printed or published in book or pamphlet form, published by authority of the corporate authorities * * *." (Ill. Rev. Stat. 1973, ch. 24, par. 1-2-4.) The statute further provides (Ill. Rev. Stat. 1973, ch. 24, par. 1-2-6):
"Whenever municipal ordinances are printed in book or pamphlet form, and purport to be published by authority of the corporate authorities, such book or pamphlet shall be prima facie evidence of the contents, passage, and legal publication of such ordinances, as of the dates mentioned in such book or pamphlet, in all courts and administrative tribunals."
• 1 Pursuant to this provision of the statute, the only essential to authorize admission in evidence of an ordinance in pamphlet form is the fact that it purports to be published by authority of the president and board of trustees of the municipality as required in the statute. Illinois Central R.R. Co. v. Warriner, 229 Ill. 91, 94, 82 N.E. 246.
The statute also provides that a new municipal zoning ordinance may be enacted only after public hearing and submission of a proposed ordinance by a zoning commission appointed by the mayor or president subject to confirmation by the corporate authorities. (Ill. Rev. Stat. 1973, ch. 24, par. 11-13-2.) The deputy clerk testified that she could not locate any ordinance or resolution establishing a zoning commission for the 1964 ordinance. She presented a copy of a legal notice for a zoning hearing before the "Zoning Commission of the Village of Oak Forest" to be held on September 18, 1964, without any certificate of the making of such publication. She testified that the notice was published in a local newspaper on September 3, 1964. In addition, she produced a series of minutes of meetings of the board of trustees which took place when the City was still a village, as well as minutes of the planning commission and of the zoning board of appeals. One set of these minutes recites the holding of public hearings and the making of a report to the board of trustees recommending adoption of the ordinance above described as No. 300. The minutes also show adoption of the ordinance in pamphlet form by a motion which was approved by four trustees, stating their names, with two trustees absent, whose names are stated, and without dissent.
• 2 We have concluded that the record amply shows the regular and valid adoption of this ordinance. The ordinance thus produced in pamphlet form is presumptively valid and the burden rested upon plaintiff to overcome that presumption by contrary evidence. (Bigham v. City of Rock Island, 120 Ill. App.2d 381, 386, 387, 256 N.E.2d 897.) This was not done. In addition, the record here amply shows proper recordation of the vote of the individual trustees on adoption of the zoning ordinance. Village of Bourbonnais v. Herbert, 86 Ill. App.2d 367, 229 N.E.2d 574.
There is a statutory requirement that corporate authorities publish, not later than March 31 of each year, a map which will clearly show existing zoning uses and divisions, restrictions, regulations and classifications for the preceding year. If there are no changes in zoning uses during any year, no map is required for that year. This map constitutes the official zoning map. (Ill. Rev. Stat. 1973, ch. 24, par. 11-13-19.) No zoning map is appended to the copies of Ordinance No. 300 as above described. However, section V-B-1 thereof describes a zoning district map dated September 23, 1964, which is incorporated and made a part of the ordinance with the same force and effect as if fully set forth therein. There is in evidence a pamphlet copy of Building and Zoning Ordinances of the City, approved in April of 1948 prior to incorporation of the City when it was a village. There is a zoning map appended to this ordinance. It shows the area of the entire subject property to be zoned as a business district as regards the southern portion thereof, and as a residential district as regards the northern portion and more recently acquired Parcel Two. That ordinance, however, was supplanted by the completely new ordinance of September 23, 1964, known as No. 300.
There is in evidence a zoning district map dated 1964 of the entire village. It also has a typewritten statement, "Adopted by the President and Board of Trustees of the Village of Oak Forest, Illinois, this 23rd day of September A.D. 1964" together with the facsimile signature of the president after the word "Approved" and that of the village clerk after the word "Attest" together with a copy of the village seal. This map shows the entire property to be zoned under R-3 or general residence district. What appears to be at least a part of the area here involved also bears the capital letters "T.P." and there is testimony that this has reference to "Trailer Park."
There are two other maps offered in evidence by plaintiff. One is a zoning district map containing the same designations as the map above described as regards official signatures, together with a statement "Revised January 1, 1966." This map shows the subject property to be zoned R-2, or single-family residence, as regards its upper or northern half, and B-3, or general business district, for the southern portion. Another zoning district map has similar designations as regards the facsimile signatures of the mayor and city clerk of the City. It also states thereon "Adopted by the City Board of Trustees." The names of six trustees are printed below this statement. This map shows its date to be "Revision 3/72." The subject property is shown to be zoned B-3, general business district, for the southern portion, and R-1, single-family-residence district, for the northern portion. The map purports to be issued in March of 1972, which is the month designated for issuance of zoning maps by the statute above quoted.
• 3 The pertinent statute and decided cases require that all amendments and changes of zoning districts must be made "from time to time by ordinance after the ordinance establishing them has gone into effect, but no such amendments shall be made without a hearing before some commission or committee designated by the corporate authorities." (Ill. Rev. Stat. 1973, ch. 24, par. 11-13-14.) The same statute provides for notice by publication in a newspaper published in the community prior to such hearings. It has been held that the amendment is a mandatory requirement and that even a resolution by a city council "cannot substitute for the passage of a formal ordinance which is required by the zoning statute." Western Pride Builders, Inc. v. Koraska, 91 Ill. App.2d 458, 462, 235 N.E.2d 313.
• 4 The city clerk could not produce any ordinance purporting to show amendments to the zoning districts of defendant City at any time after September 23, 1964. Also, the clerk was unable to produce any ordinance, resolution or other evidence of approval by the City authorities of the two subsequent maps dated January 1, 1966 and March 1972. Thus, all maps, after the one dated September 23, 1964, appear to lack official authority for their publication. In addition, it does not appear that any proper amendatory zoning action was taken by the City with reference to the subject property at any time after the adoption of Ordinance No. 300 and the publication of the first map dated September 23, 1964. The city clerk could not produce any evidence of a public hearing regarding change of zoning of the subject property at any time after September 23, 1964. It has been held that the publication of a zoning map "does not constitute the passage of an ordinance giving validation, as variations, to such differences as may exist between the classifications appearing on the map and those existing under the local municipal zoning ordinances." See Western Pride Builders, Inc. v. Koraska, 91 Ill. App.2d 458, 463.
A number of experts called by plaintiff and by defendant testified that the portion of the property last acquired by plaintiff, above described as Parcel Two, is zoned R-2 and the balance is zoned B-3. In our opinion, the evidence shows, as the trial court specifically found, that the property in the proposed addition to the subject property (Parcel Two) is zoned R-3, as a general residence district which includes multiple apartments within the list of proper uses.
Parcel One of the subject property, the southern portion thereof, is now used exclusively as a trailer court. Parcel Two, the northern portion, consisting of Lots 97 and 110, is now vacant. Immediately abutting to the north of the northern boundary of the subject property there is a series of lots which front upon 158th Street. According to the official zoning map dated September 23, 1964, these lots are zoned R-2 for single-family residence use. There are about eight homes built upon certain of these lots. Virtually all of them have rear yards and face to the north upon 158th Street.
LeClaire Street constitutes the eastern boundary of the subject property with the exception of the small piece on the southeast corner which is not included. Parcel Two, being vacant, has a frontage of 120 feet on LeClaire. On the east side of LeClaire, progressing in a southerly direction from 158th Street, there is an area of single-family residences, then a parking lot and then an apartment complex of 124 units. The northeast corner of 159th Street and LeClaire is occupied by a gasoline station.
The southern boundary of virtually all of the subject property, except for the omitted portion at the extreme southeast tip, is formed by 159th Street, a four-lane highway designated as State Route No. 6. On the southeast corner of LeClaire and 159th Street is another apartment complex consisting of five buildings containing 160 units.
Progressing now to the block comprising the south side of 159th Street, between LeClaire and Laramie, there is a series of business uses such as a real estate office, jewelry store, a fine-arts store, a bar and an automobile repair shop. It should be noted that, although the official map of September 23, 1964, shows 159th Street in the area of the subject property as being included within an R-3 zone, there is evidence that on both sides of this street the uses are predominantly business and commercial. The depth of these uses on both sides is not constant but varies. One parcel, 1300 feet deep, is used as an automobile dealership at a location about one-half mile west of the subject property. There is a small shopping center built on the southwest corner of 159th Street and Laramie.
Laramie Street is an improved highway with four traffic lanes. On the northeast corner of 159th Street and Laramie, which is not included within the subject property, there is a restaurant in the process of construction. North of the restaurant, and south of Lot 110, there are three single-family homes fronting on Laramie. The value of each of these homes has been estimated from $18,000 to $22,500.
As would be expected, the testimony of expert witnesses differed as to the highest and best use of the subject property. John H. Pittroff, Jr., a qualified real estate appraiser, was called by plaintiff as an adverse witness and also testified for the City. In his opinion, the highest and best use of the entire subject property was for a mobile-home park. However, he conditioned this opinion upon the requirement that there should be a reasonably low density of use. He cited the mobile homes and mobile-home-park ordinance of Cook County to the effect that each site in a mobile-home park had a minimum-size requirement of 2500 square feet, with 1000 square feet for parks existing prior to August 21, 1967. (Cook County Ordinance of June 5, 1972, sec. 9.3.) After visiting the plaintiff's park, he expressed the opinion that the density of mobile homes there should not exceed 10 units per acre. This would be equivalent ...