APPEAL from the Circuit Court of Cook County; the Hon.
REGINALD J. HOLZER, Judge, presiding.
MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Mr. JUSTICE STAMOS delivered the opinion of the court:
Plaintiff, Noel H. Schallau, brought this action seeking a declaratory judgment that a certain ordinance of annexation and zoning passed by defendant City of Northlake (the City) is void and invalid. Plaintiff also requested an injunction, preventing improvement of the property, against defendants Melrose Park National Bank, as trustee; Parent Real Estate Organization, the developer; and the developer's principal, Leon Parent (hereinafter the developer).
All defendants answered, and the cause proceeded to a bench trial in the circuit court of Cook County. At the close of plaintiff's case, defendants moved for judgment in their favor, which the court granted. Following the denial of his post-trial motion, plaintiff appealed. In its brief on appeal, the developer for the first time argued that quo warrantor was the sole remedy for testing the validity of an annexation. Plaintiff then filed a motion in this court to amend his pleadings accordingly, which motion we have taken with the case.
In addition, one week before plaintiff filed his notice of appeal, the developer petitioned the circuit court for a writ of mandamus and for a rule to show cause against the city, for its failure to issue a building permit and to record the developer's plat of annexation. The court issued an order and a rule to that effect and, after a hearing, found various city officials in contempt and fined them. The city appealed to this court, which has stayed the effect of the contempt citation.
This controversy began on January 6, 1977, when the developer, Parent Real Estate Organization, petitioned the City of Northlake to annex a three-acre parcel of vacant real estate located on the south side of Rhodes Street in unincorporated Leyden Township. The developer simultaneously petitioned the city to rezone the property from R-1 single-family residence to R-3 multiple-family dwelling, so as to permit construction of a 56-unit apartment complex. Plaintiff owns a piece of property improved with a single-family residence and located at the northwest corner of Pearl and Rhodes Streets in Melrose Park, Leyden Township.
On May 7, 1977, after conducting a public hearing, the City's plan commission recommended that the property be annexed, but zoned as single-family rather than multiple-family dwelling property. At the request of the developer, the city sent the matter back to the plan commission for additional testimony. More public hearings were held, and numerous neighboring property owners submitted a written protest against the proposed rezoning. The plan commission once again rejected the request for annexation of the property with R-3 zoning.
On December 21, 1977, the Northlake city council met and voted on a motion to override the plan commission objections. The motion carried by a 7-1 vote, as did motions to annex the property as per the pre-annexation agreement and to rezone the property from R-1 to R-3. On January 10, 1978, at the next regular meeting of the city council, a motion was made to "spread in the minutes of December 21, 1977" the motion or ordinance annexing and rezoning the property, as it had not been reduced to writing at the time of the earlier meeting. This motion passed, but by a vote of 5-2, with one abstaining. The minutes of these meetings were attached to plaintiff's complaint as exhibits.
Plaintiff's complaint contended that the annexation and rezoning ordinance was invalid for the following reasons: (1) no written ordinance was in existence on December 21, 1977, the purported date of the ordinance's passage; (2) the city council permitted the developer to introduce additional testimony at its meeting of December 21, 1977, in violation of section 708(6) of the City's Code, which provides in part: "The City Council, upon report of the Plan Commission, and without further public hearing, may make, grant or deny any proposed amendment * * * or may refer it back to the Plan Commission * * *"; (3) the vote on January 10, 1978, approving by a 5-2-1 margin the ordinance purportedly passed on December 21, 1977, was insufficient to override the plan commission's recommendation under section 708(5) of the city code, which requires a favorable vote of two-thirds of all the city council; and (4) the same vote was also insufficient to override the formal written protests of the adjoining landowners under section 11-13-14 of the Municipal Code (Ill. Rev. Stat. 1977, ch. 24, par. 11-13-14), which requires a two-thirds vote of all the aldermen of a municipality when the requisite number of nearby landowners have protested. Plaintiff also pointed out that it was the developer who initially petitioned for annexation, when the record owner of the property was the Melrose Park National Bank as trustee under a land trust. Plaintiff additionally contended that the rezoning was unreasonable, arbitrary, and without any substantial relation to the public health, safety, or general welfare, and was invalid, void, and unconstitutional because, among other allegations, the property is in a flood plain, the surrounding area is improved solely with single-family residences, and a more intensive residential use would increase the hazards of flooding. Chief among the types of relief sought were a declaratory judgment that the annexation and rezoning ordinance was invalid and an injunction preventing improvement of the property.
All defendants answered. The City admitted the basic chronology of events but contended that the annexation ordinance was really passed on December 21, 1977, and the vote taken on January 10, 1978, was only to spread the written ordinance of record and not to approve or disapprove of it. The developer answered that its ownership interest was known and fully disclosed to all parties; that a valid ordinance of annexation and rezoning was enacted; that the minutes of the city council meetings spoke for themselves and their contents were admitted, but that the ordinance was passed by a 7-1, and therefore sufficient, majority. The developer also pleaded as an affirmative defense, among other things, that a duly enacted ordinance of annexation and rezoning from R-1 to R-3 had been passed by the city council, had never been vetoed, and remained valid. The trial court ruled this matter did not constitute an affirmative defense and inserted it in the main body of the answer. Both the city and the developer denied all plaintiff's allegations relating to the alleged invalidity of the rezoning.
At the trial of the cause, it was revealed that certain letters presented to the city council at its meeting on December 21, 1977, had never been presented to the plan commission. It was also stipulated that the Melrose Park National Bank, as trustee, was the legal titleholder of the subject property. The city's mayor testified that no annexation ordinance was presented to the city council and no rezoning ordinance was ever presented, though there had been motions. The mayor took no action on the city council's vote, but an objection to his stating the reason for his inaction, on the ground that it covered a matter of law, was sustained. *fn1 Defendants' objection to testimony by the mayor as to the advisability of the proposed project was also sustained.
As to the propriety of the rezoning, plaintiff offered testimony by James Jackson, a metropolitan sanitary district engineer, establishing that the entire subject property was located within a flood plain. William Lawrence, the author of the city's comprehensive plan and a city planning and zoning consultant to whose expertise the parties stipulated, also testified that the property is in a flood plain and in an area of single-family homes. Lawrence stated that the City's comprehensive plan included the land within 1 1/2 miles of the City's borders and therefore covered the subject property. In the plan the property was designated as open space, and in the witness' opinion the highest and best use of the land would be as open space to provide compensatory storage for storm water. When asked what factors he considered in coming to that opinion, the witness emphasized that most of the area was developed with single-family residences and multiple-family residences would be "incompatible * * * and would have an adverse effect upon the flood conditions." Plaintiff also offered his own testimony as to flooding on both the developer's and his own property. He stated that both properties had always been subject to flooding but flooding in adjacent areas had increased since fill had been dumped on the subject property.
Finally, the ordinance annexing and rezoning the land, bearing the December 21, 1977, date, was introduced by stipulation and plaintiff rested his case. The developer then moved for judgment in its favor. The motion contended that plaintiff had failed to submit sufficient evidence to sustain the allegations of his complaint or to show any particular injury or special damage, but the bulk of the developer's written motion addressed itself to plaintiff's failure to file a reply denying the allegations defendants made in their answer to the effect that a valid ordinance was duly enacted and passed by a 7-1 vote, a sufficient majority. However, during argument on the motion, the developer's attorney made more specific his contention that plaintiff had failed to prove any special damage, arguing that the area was already subject to flooding and plaintiff had failed to show that the proposed development would cause any additional flooding problems in the area.
Plaintiff requested leave to file a reply, but the court denied leave and granted the developer's motion for judgment, in favor of all defendants. Plaintiff filed a post-trial motion, again seeking leave to file a reply, arguing that he had presented a prima facie case as to the invalidity of both the annexation and rezoning, and asking the court to reconsider its rulings restricting the mayor's testimony. Plaintiff also sought leave to amend his complaint to conform it to the proof of several other purported violations of the city code by defendants, which ...