APPEAL from the Circuit Court of Du Page County; the Hon.
GEORGE W. UNVERZAGT, Judge, presiding.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
Whether the defendant, the City of Naperville, can, by its ordinance (referred to as 72-20), require contribution of land, or money in lieu of land, to be used for school and park sites as a condition of approval of a plat of subdivision or planned unit development within defendant's boundaries or within 1 1/2 miles therefrom is before us in this appeal.
The plaintiffs filed a class action for declaratory judgment to declare the defendant's ordinance 72-20 void as being beyond defendant's constitutional home rule powers, unauthorized by statute and violative of the Illinois and United States constitutions. The trial court declared the ordinance valid, and the plaintiffs appeal.
The plaintiffs, O.L. Krughoff and James Krughoff, doing business as the K Company, acquired property within 1 1/2 miles of defendant's boundaries suitable for subdividing into residential lots. They submitted a final plat of subdivision which the defendant refused to approve without the dedications or donations required by ordinance 72-20. The Krughoffs did not comply and claim that as a consequence they were not able to proceed with their plans. The plaintiffs, Paul W. Hoffman, Harold E. Moser, the Oliver-Hoffman Corporation and The Macom Corporation (hereinafter referred to collectively as "Oliver-Hoffman") acquired land within the City of Naperville to subdivide and sell as residential lots. They were required to contribute $37,650 to be held in trust for acquisition of a school site, and they agreed in writing to contribute a lot for the Naperville Park District's use. These plaintiffs seek return of the money and nullification of the agreement, should the ordinance be declared invalid.
The plaintiff, Home Builders of Greater Chicago, is an Illinois not-for-profit corporation, some of whose members own or control real estate within 1 1/2 miles from the city's border.
Although entirely within adjoining Kane County, West Aurora Unit School District No. 129 was permitted to intervene in support of the appellee because Kane County and other municipalities in the county, in exercise of their alleged home rule powers, have passed ordinances similar to that of the City of Naperville.
There was evidence from planning studies that the City of Naperville has experienced a rapid population increase, from 12,933 in 1960 to 28,610 by the end of 1973. The city's population was projected to continue to increase to between 42,000 and 52,000 in 1980 and between 66,000 and 81,000 in 1990.
Ordinance 72-20, enacted by the city on June 19, 1972, imposes certain conditions precedent to the approval of a plat of subdivision or planned unit development within the city's jurisdiction. In accordance with existing standards establishing the optimum accessibility of different types of parks and recreational areas for every resident, the ordinance requires the dedication of land within the development for park and recreational purposes. The amount to be dedicated is 5.5 acres per 1000 of ultimate population in a proposed development. In recognition of the fact that private recreational areas within the development, such as swimming pools, may reduce the demand for comparable public facilities, the ordinance provides that credit may be given for the furnishing of private recreational areas.
The ordinance also requires the dedication of land to be used as school sites pursuant to criteria for optimum capacity, location, and site size of elementary, junior high, and high schools to serve the population of the development. Ultimate population is determined by reference to a table, incorporated in the ordinance, which estimates the number of persons and the age distribution of children who will occupy various types of new living units. A subdivider or developer has the option of submitting his own demographic study showing the additional estimated population to be generated if he objects to the use of the table in the ordinance.
In the event that land dedication is impractical due to the small size of the subdivision or the nature of the available land, the ordinance provides that cash may be donated in lieu of the fair market value of the land. Provision is also made for a combination of land dedication and monetary donations. Cash contributions may only be used for land acquisition or site improvements (but not for the construction of school buildings) of school grounds or recreational areas which will serve the particular development or subdivision. Fair market value is $15,000 per acre, according to the ordinance, but a developer may present evidence contesting the use of that figure.
The ordinance also permits combinations of dedications between small adjoining subdivisions where appropriate and the reservation of additional land, to be purchased from the developer within one year, where the city's comprehensive plan calls for more land in a particular subdivision than the developer may be required to dedicate under the ordinance.
The plaintiffs have stipulated that the various criteria, formulae, and values upon which the dedication or donation requirement is calculated are reasonable.
We first consider whether the subject matter of the ordinance was within the grant of powers to the City of Naperville as a home rule municipality.
• 1 Since the adoption of the 1970 Illinois Constitution, the power of a home rule municipality to regulate land use is derived primarily from the constitution. (See Cain v. American National Bank & Trust Co., 26 Ill. App.3d 574, 581 (1975).) Subsection (a) of section 6 of article VII of the Constitution (Ill. Const. 1970, art. VII, § 6) provides as material here:
"* * * [A] home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate the protection of the public health, safety, morals and welfare * * *."
Under prior statutes, requiring certain conditions precedent to the subdivision of land and the approval of plats of subdivisions was long characterized as involving the exercise of the police power. (See Petterson v. City of Naperville, 9 Ill.2d 233 (1956).) In addition, plaintiffs conceded that the mandatory requirement of the dedication of certain streets, curbs, sidewalks, gutters, sewers and like improvements, which are "uniquely, specifically and solely attributed to a specific subdivision," may be properly imposed by ordinance.
Plaintiffs contend, however, that ordinance 72-20 is not an exercise of the home rule municipality's police power in a matter "pertaining to its government and affairs," as provided by the constitution but is a pretended use of its home rule police powers to obtain land or money for the sole and exclusive use of independent school or park districts. Plaintiffs particularly note that school districts are expressly excepted from the definition of units of local government in article VII, section 1 of the 1970 Constitution and are made the subject of the separate article X.
It is a matter of common knowledge and experience, however, that a municipality is vitally interested in provisions for convenient and adequate educational and recreational facilities for the members of its urban community irrespective of the city's lack of control over the day-to-day operations of governing bodies which provide these services. In addition, there are a number of provisions in the Illinois statutes which appear to assume that provision for school and park sites pertains to the government and affairs of a municipality. For example, section 11-12-5 of the Illinois Municipal Code (Ill. Rev. Stat. 1973, ch. 24, par. 11-12-5) provides that the official plan "may include reasonable requirements with reference to streets, alleys, public grounds, and other improvements hereinafter specified. * * * Such plan may be implemented by ordinances (a) establishing reasonable standards of design for subdivisions * * * in respect to public improvements as herein defined; (b) establishing reasonable requirements governing * * * parks, playgrounds, school grounds * * *."
Section 11-12-6, which provides for the adoption by ordinance of an official map, states that the map shall be made part of an ordinance "which ordinance shall specifically state standard requirements of the municipality relating to * * * parks, playgrounds, school sites, other public grounds * * *."
Section 11-12-12 provides that no map or plat of any subdivision will be entitled to record "unless the subdivision shown thereon provides for * * * public grounds, in conformity with applicable requirements ...