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Pioneer Trust & Sav. Bk. v. County of Cook





APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND K. BERG, Judge, presiding.


Plaintiff, Pioneer Trust and Savings Bank, as trustee, brought action in mandamus against defendants, County of Cook, its Department of Building, Zoning and Environmental Control, the department's commissioner and zoning administrator, and the secretary of the Cook County Zoning Board of Appeals, for the issuance of a zoning certificate and building permit for certain construction. The trial court ordered a writ of mandamus to issue. Thereafter, the order was vacated and the Village of Arlington Heights (Arlington) was given leave to intervene as a defendant. Later, the Village of Mount Prospect was also given leave to intervene as a defendant. Following further hearings, the trial court again ordered a writ of mandamus to issue compelling the county defendants to process, complete and issue a zoning certificate and building permit for the first phase of the proposed construction. Only intervenor-defendant Arlington appeals.

Arlington here contends that: (1) plaintiff was not entitled to a writ of mandamus for a zoning certificate and a building permit; (2) the 1966 zoning amendment reclassifying the subject property for R-5 purposes, subject to a restrictive covenant, was invalid; (3) the plaintiff was not entitled to prove change of position or vested right under the R-5 classification when no such allegations appear in its pleadings; and (4) the plaintiff did not substantially change its position in reliance upon the probability of a permit being issued.

We reverse. The facts adduced at trial in the instant case are quite involved, with much testimony concerning both the expenses incurred by plaintiff in preparing plans for his proposed construction and the possible deficiencies in the form of plaintiff's official permit application. In light of our disposition of the case we find a detailed recitation of such facts unnecessary. Those facts pertinent to our decision follow.

Plaintiff, as trustee, holds legal title to Magnus Farm, which is the subject property of this action. It consists of approximately 42 acres and is located on the southeast corner of Douglas Avenue and Central Road in Elk Grove Township in unincorporated Cook County. The beneficial owner, Alexander Magnus, proposes to construct a development consisting of 728 units and seeks a building permit for 132 units as the first phase of the development. The property is already improved with a nursing home operated by Magnus.

Prior to 1966 the property was zoned as R-4 Single-Family Residence District under the Cook County Zoning Ordinance. Thereunder, the nursing home constituted a legal nonconforming use. On August 4, 1965, Magnus applied for rezoning to the then R-5 General Residence District of the Cook County Zoning Ordinance, which would make the nursing home a conforming use. The stated motivation for seeking the rezoning was: (1) to allow, over a number of years, substantial enlargement and improvement of the property, including the addition of 37 single-family and seven two-family retirement units; and (2) to prevent the development of a situation in which the nursing home could not be rebuilt in the event of a disaster.

A hearing on the application for rezoning was held before the Cook County Zoning Board of Appeals on November 15, 1965. During the course of the hearing Magnus testified that he had no objection to executing a restrictive covenant as a condition for rezoning so long as the covenant would not interfere with the expansion or improvement of the nursing home, and that he had no plans for building any apartment buildings on the property. A restrictive covenant was then executed on November 21, 1965, under which use of the property would be that of a "nursing, convalescent and retirement home" for a period of 25 years.

Following this hearing the Board made its findings and recommendation, which stated in pertinent part that:

"The Board finds that the public interest in the maintenance of this nursing home and in the orderly expansion thereof amply supports the requested rezoning. The Board is of the view that the owner should not be placed in the position of having to re-apply for permission to expand the operation every time an additional building or enlargement thereof is contemplated. The Board is impressed with the operation and is of the view that it is a definite asset to the community and to the particular area which is involved. The Board makes the following findings as required by law:

1. Existing Uses in the Area: The subject property is largely vacant but is used for a nursing home and for a certain amount of truck gardening. The properties surrounding the subject property on all sides are used for single family residential and for farming.

2. Zoning Classification in the Area: The subject property is zoned R4. Properties adjacent on the west and south are also zoned R4. Properties to the north and east are in Arlington Heights and Mt. Prospect respectively and they are zoned for single family residential development.

3. Suitability for Use under Existing Zoning: The nursing home operation is a non-conforming use under the present R4 zoning. Accordingly, the present zoning is not suited to the use and conversely the use is not suited to the zoning. It is desirable to allow the use to be continued as a conforming use and the public interest is served in having the non-conforming use become a conforming use.

4. Trend of Development: The trend of development in this area is strictly residential. The nursing home ante-dates most of the residential development in the area. It is consistent with the residential development and no detrimental effects have arisen from the operation of the nursing home in the past and it is expected that there will be no such detrimental effects in the future operation of this home or in the expansion and enlargement thereof. On the contrary, substantial benefits to the immediate area will continue to be present because of the park-like atmosphere and in addition the community will have the advantage of the operation of the nursing home itself.

The Board recommends the rezoning of this property conditioned, however, upon the recording of the restrictive covenant aforesaid."

The property was subsequently rezoned to R-5.

In 1971 and 1972, Magnus constructed a four-unit prototype retirement building on Magnus Farm. Cook County had approved the plans for the prototype on July 1, 1971, and had issued a permit to build the structure. The prototype was built to test the market and to determine the best type of retirement facility to construct. After building the prototype the Magnus family continued to review other retirement facilities in California, Florida and Illinois.

In the late fall of 1973, Magnus met architect Rick Strusiner and discussed the program to develop Magnus Farm into a nursing home and retirement housing center. Strusiner was retained to develop the plans for the proposed project.

In the spring of 1974 Strusiner arranged a meeting with Mr. Bernard J. O'Brien, then the zoning administrator for Cook County. He brought in the pre-plans which he had drawn and O'Brien pulled out the file, read the covenant, and said he would get back to Strusiner. Despite contacting O'Brien during the following months, Strusiner received no response until approximately September of 1974.

At that time Strusiner contacted O'Brien and stated that he was ready to apply for the building permit. O'Brien informed Strusiner that in order to obtain a permit Magnus would have to (1) file a mandamus action, or (2) ask for a State's Attorney's opinion on whether the project met the zoning requirements.

In December of 1974 Strusiner was through with his drawings and ready to apply for a building permit. He had the formal permit application completed in late 1974 or early 1975 and went to the Cook County Building Department in order to start the processing for a permit. The department refused to take the application until directed by O'Brien that Magnus had the zoning.

Strusiner received a letter from O'Brien dated January 9, 1975. Attached to this letter was a copy of an opinion from the State's Attorney's Office which had been written by Assistant State's Attorney Jerome Schain. Schain testified that he examined the plans submitted by Magnus. His opinion, dated January 7, 1975, stated in part that:

"In our opinion, if the proposed construction is for a nursing, convalescent or retirement home, it will not violate the terms of ...

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