APPEAL from the Circuit Court of Champaign County; the Hon.
HAROLD L. JENSEN, Judge, presiding.
MR. JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:
This is an appeal from the involuntary dismissal of the City of Urbana's (City) complaint for a declaratory judgment praying that the developer of a Planned Unit Development (PUD) within 1 1/2 miles of its city limits be required to obtain the necessary approvals required by the City ordinances. The City argues that the dismissal of the complaint was improper. We agree and reverse and remand for reinstatement of the complaint.
The essential facts in this case are not in dispute. The developer, R & T, Inc., a Delaware corporation (R & T), owns approximately 50 acres of undeveloped property outside the corporate limits of Urbana, Illinois, but within 1 1/2 miles of the city. Pursuant to the Champaign County (County) zoning ordinance, the developer sought and obtained approval from the County for a PUD in this area. The development allegedly included a plan for a road which the City contends would be a dedicated public street. R & T contends the street has not been so dedicated.
The issue of whether a municipality may regulate the construction of a PUD within the 1 1/2-mile zone is a matter of first impression in Illinois. The parties concede that if this matter were purely a question of zoning, the county's zoning authority would preempt that of the city even within the 1 1/2-mile zone. (City of Canton v. County of Fulton (1973), 11 Ill. App.3d 171, 296 N.E.2d 97.) The parties also concede that if this matter was a typical subdivision development, rather than a PUD, the City of Urbana's subdivision ordinance would govern the regulation of construction within the 1 1/2-mile contiguous zone, even if it conflicted with the County's ordinance. Petterson v. City of Naperville (1956), 9 Ill.2d 233, 137 N.E.2d 371.
The thrust of the argument presented by the developer and the County is that the PUD is not a subdivision and thus the City's subdivision ordinance governing regulation of construction is inapplicable. It is necessary to set forth the statutory provisions from which the City derives its regulatory authority as well as a few definitions.
The relevant portions of the Illinois Municipal Code, which enable municipalities to develop a comprehensive plan for the present and future development or redevelopment of the municipality, are as follows:
"The plan, as recommended by the plan commission and as thereafter adopted in any municipality in this state, may be made applicable, by the terms thereof, to land situated within the corporate limits and contiguous territory not more than one and one-half miles beyond the corporate limits and not included in any municipality. Such plan may be implemented by ordinances (a) establishing reasonable standards of design for subdivisions and for resubdivisions of unimproved land and of areas subject to redevelopment in respect to public improvements as herein defined; (b) establishing reasonable requirements governing the location, width, course, and surfacing of public streets and highways, alleys, ways for public service facilities, curbs, gutters, sidewalks, street lights, parks, playgrounds, school grounds, size of lots to be used for residential purposes, storm water drainage, water supply and distribution, sanitary sewers, and sewage collection and treatment; * * *." Ill. Rev. Stat. 1975, ch. 24, par. 11-12-5(1).
The City of Urbana, pursuant to this statutory authority, adopted a subdivision ordinance which states its purpose to be:
"[C]ontrolling future development of the city and for the promotion of the public health and safety, comfort, morals, and welfare of persons living within the territory governed by the city, the provisions and regulations in this chapter shall govern the subdivision and platting of lands lying within the corporate limits of the city as now or hereafter existing and, to the extent that such provisions and regulations may be applicable, shall also govern the subdivision in platting of lands lying within contiguous territory which is not more than 1 1/2 miles beyond the corporate limits of the city." Urbana City Ordinance, ch. 30, § 30.1.
The definition of "subdivision," although not defined in the Municipal Code, was set forth in the City's ordinance:
"For the purposes of this chapter, the word `subdivision' shall mean the dividing of a tract of land into two or more lots, parcels, or tracts for the purpose, either immediate or future, of sale or building development, including a resubdivision for any such purpose." Urbana City Ordinance, ch. 30, § 30.2.
The developer and the County contend that the PUD in this case is not a subdivision since there was no division of land into two or more lots. They would narrowly construe the term "subdivision" to cover only those situations where land is, in fact, divided for the purposes of development or resale.
A PUD is a hybrid. It combines both zoning and subdivision regulations for the purpose of developing large tracts of land. Basically, this concept involves the development of land as a unit where it is desirable to apply regulations more flexible than those pertaining to other zoning classifications and to provide for a diversification in the location of structures and other site qualities. (Millbrae Association for Residential Survival v. City of Millbrae (1968), 262 Cal.App.2d 222, 69 Cal.Rptr. 251.) Thus, the regulation of a PUD does not fit neatly into either the County's zoning authority or the City's authority over subdivisions.
Champaign County has attempted to regulate PUDs by including regulations in its county zoning ordinance. The City of Urbana also has regulations governing PUDs and those regulations are a part of the City's zoning ordinance. The County therefore concludes that since they have primary authority for zoning and since the Urbana PUD regulations are "housed" in the Urbana zoning ordinance, they have the authority to regulate this PUD. This reasoning does not persuade. The County, in reaching this conclusion, has sought to expand its statutory authority by placing a pure zoning label on the hybrid concept of PUD, and has ignored the fact that Urbana is not prevented from regulating this area by means of its subdivision ordinance.
Although the trial court's memorandum opinion noted that a pure zoning label should not be placed on a PUD, the result reached in the opinion does just that. In effect, the trial court's order holds that the County's zoning authority preempts any regulation of a PUD in the contiguous zone by the City. ...