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Bd. of Ed. v. Surety Developers

OPINION FILED NOVEMBER 25, 1975.

BOARD OF EDUCATION OF SCHOOL DISTRICT NO. 68, DU PAGE COUNTY, APPELLEE,

v.

SURETY DEVELOPERS, INC., APPELLANT.



Appeal from the Circuit Court of Du Page County; the Hon. Phillip F. Locke, Judge, presiding.

MR. CHIEF JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 25, 1976.

The basic issue presented by this case concerns the authority of a county board to require a real estate developer to contribute land or money for school facilities as a condition to the issuance of special use permits necessary to development of a subdivision. The circuit court of Du Page County held that such authority did not exist, the appellate court reversed (24 Ill. App.3d 638), and we granted leave to appeal.

Defendant, Surety Developers, Inc., a building and land development corporation, acquired early in 1958 about 465 acres of unimproved farm land in an unincorporated area of Du Page County. At the time of purchase, defendant intended to divide the land into lots of one or more acres, to service the lots with individual septic tanks and wells, and to sell the vacant lots as so improved. Subsequent seepage tests, however, showed the land unsuitable for individual septic tanks.

The R-2 residential zoning of the area permitted defendant to develop an alternate plan involving dividing the land into lots of less than one acre, and building homes on the smaller lots. The zoning regulations, however, required that lots of this size be served by public water and sewage treatment facilities. No public facilities were available which could be economically extended to serve defendant's property. Consequently, in order to develop the land, defendant would have to build community water and sewer systems, permissible only if the County Board of Supervisors granted a special use permit.

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. A majority of the approximately 150 persons in attendance opposed the request, citing, among other grounds, that the school could not absorb the projected increase in enrollment. During the 1958-59 school year, plaintiff school district had only a five-classroom school located more than a mile from the proposed development, with an enrollment of 97 students.

The zoning board of appeals, by letter to the County Board of Supervisors, recommended denial of the special use applications, indicating:

"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 zoning board of appeals' recommendation was to be first considered by the building and zoning committee, which would then make its recommendation to the full Board of Supervisors. Defendant began to discuss this problem with individual Board members, was granted a hearing before the committee, and attempted without success to negotiate with plaintiff. On August 19, 1958, after meeting with the committee, defendant, by letter to it, proposed the following plan in response to the committee's expressed concern regarding schools:

"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 county board thereafter granted three of the four requested special uses, denying only the requested operation of the temporary sewage treatment plants. Each special use permit contained as a condition the verbatim proposals in defendant's letter to the committee. The board also approved defendant's first subdivision plat, and ...


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