Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. Raymond K. Berg, Judge, presiding.
MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:
The question is whether or not the circuit court of Cook County should have ordered a writ of mandamus directing the defendants, Cook County and its Department of Building, Zoning and Environmental Control (hereafter building department), to issue a zoning certificate and building permit to Alexander Magnus (hereafter plaintiff), the beneficial owner of 42 acres, located in Elk Grove Township, which is an unincorporated area in Cook County, contiguous to Arlington Heights and Mount Prospect, and held in trust by Pioneer Trust and Savings Bank. Beginning in 1974 plaintiff proposed the construction of 728 units and applied for a permit to build the first 132 units of a retirement-housing project. The building department denied the permit. The property was already improved with a nursing home. The circuit court had ordered a writ of mandamus to issue; vacated that order and allowed the village of Arlington Heights, and later the village of Mount Prospect, to intervene as defendants; and again ordered the writ to issue after further hearings. Arlington Heights, the sole appellee before us, alone appealed to the appellate court, which reversed (49 Ill. App.3d 630). We granted plaintiff leave to appeal. 58 Ill.2d R. 302.
The facts must be set out in some detail. Prior to 1966, plaintiff's property was zoned R-4 (single-family residence). Because his nursing home constituted a legal nonconforming use, plaintiff applied for rezoning to R-5 (general residence) which would have made the nursing home a conforming use and allowed for enlargement and more improvement. On November 15, 1965, the zoning board of appeals of Cook County (hereafter zoning board) held a hearing on the application during which Arlington Heights and Mount Prospect expressed their objections to the change in zoning unless plaintiff executed a restrictive covenant running with the land for 25 years. (A letter of November 16, 1965, from Jack Siegel, counsel for Arlington Heights then and in the case before us, to the zoning board confirms this.) Plaintiff executed the covenant under which the property would be used only for the purpose of "nursing, convalescent and retirement home until the expiration of a period of 25 years." The zoning board recommended that the zoning change to R-5, with the restrictive covenant, be made, found the public interest supported the change, and believed plaintiff "should not be placed in the position of having to reapply for permission to expand the operation every time an additional building or enlargement" is planned. The zoning board, in its findings of December 27, 1965, said it was "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," found the operation had no detrimental effects nor anticipated any "in the expansion and enlargement" of the complex, and felt "the park-like atmosphere" was beneficial to the area. The Cook County board of commissioners (hereafter county board) adopted the recommendation.
In July 1971, Cook County and its building department approved plaintiff's plans and issued a building permit for the construction of a four-unit prototype retirement building on the property. The prototype was constructed to determine whether there was a market for retirement housing. Plaintiff and his wife and mother visited other retirement developments after the prototype was built. In the fall of 1973, plaintiff met architect Rick Strusiner, who was retained in February 1974 to develop plans for a nursing and retirement-housing complex. In the spring of 1974, Strusiner contacted the zoning administrator for Cook County's building department regarding the plans. In September 1974, having received no response, Strusiner told the zoning administrator that plaintiff was ready to apply for a permit. The administrator replied that plaintiff first would have to file a mandamus action or receive an opinion from the State's Attorney to determine whether the projected development was proper under the present zoning. Strusiner, while waiting for the requested opinion, attempted to file in December 1974 the application for the permit but the building department refused it.
In January 1975, the State's Attorney gave his opinion:
"* * * if the proposed construction is for a nursing, convalescent or retirement home, it will not violate the terms of the restrictive covenant.
The determination of whether this particular construction as retirement home is a factual one that should be made by your department [building department]. It would appear to us that if the building were constructed and actually used as proposed, it would be defined as a retirement home."
The zoning administrator notified Strusiner of the opinion and suggested that plaintiff's application for a zoning certificate and building permit be made. When the application was made in July 1975, it was again refused because no application for a permit from the Metropolitan Sanitary District was on file. In December 1975, the permit was refused because of an anticipated change in the comprehensive zoning plan.
The comprehensive amendment to the Cook County zoning ordinance was under consideration apparently since 1973. At the end of August 1975, an interim ordinance for special review of all applications for building permits, a "moratorium," went into effect for three months. After public hearings, the county board, sitting as a committee, on January 14, 1976, voted to approve the zoning amendment under which plaintiff's property would be zoned R-6 (allowing only eight units per acre in contrast to the 17.4 units per acre allowed under R-5). On January 19, the county board adopted the amendment.
Plaintiff filed his action for mandamus on January 14. Two days later, the defendants filed their answer, a trial was held, and the circuit court ordered the writ to issue. At the beginning of February, the circuit court vacated the January 16 order and allowed Arlington Heights to intervene. After the second trial, the order granting the writ of mandamus was entered on April 1, 1976. Other facts and evidence will be set out as is necessary.
The standard for review of zoning cases, as in other cases, is that the findings of the trial court will not be disturbed unless against the manifest weight of the evidence. La Salle National Bank v. County of Cook (1957), 12 Ill.2d 40, 48; Standard State Bank v. Village of Oak Lawn (1963), 29 Ill.2d 465, 471.
The appellee, Arlington Heights, contends before this court what it contended before the appellate court: Plaintiff was not entitled to a writ of mandamus for the issuance of a zoning certificate and a building permit. Arlington Heights further contends that plaintiff was not entitled to prove change of position or vested right under the R-5 classification when no such allegations appear in the pleadings; plaintiff did not substantially change his position in reliance upon the probability of a building permit being issued; and the 1966 reclassification of plaintiff's property to R-5, subject to certain conditions and a restrictive covenant, was invalid.
At the time of trial, plaintiff's property was zoned R-6. Arlington Heights maintains that for a writ of mandamus to issue, the one seeking it must show a clear right to it (People ex rel. Interchemical Corp. v. City of Chicago (1963), 29 Ill.2d 446, 450; cf. Daniels v. Cavner (1949), 404 Ill. 372, 375-76); and under the R-6 classification, plaintiff's request for a building permit and hence the mandamus must fail because a retirement complex was not a permitted use. Plaintiff argues that the R-5 classification of his property, in effect from 1966 until January 19, 1976, is the correct classification because he substantially changed his position during that decade in reliance upon the R-5 classification. Plaintiff agrees that a property owner has no right in the continuation of a zoning classification; that each case must be decided on the basis of the ordinance in effect at the time of decision by a court. However, there is an exception to this rule where one has substantially changed his ...