APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR
L. DUNNE, Judge, presiding.
MR. PRESIDING JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
This appeal is brought by defendant and defendant-intervenor from a judgment entered on an order of the circuit court of Cook County granting plaintiff's motion for summary judgment and denying defendant's and defendant-intervenor's cross-motions for summary judgment.
We reverse. The facts in this case are undisputed.
Plaintiff, Village of Northbrook, and defendant, Village of Glenview, are two municipal corporations located in Cook County north of Chicago. It appears that in 1967 the southern boundary of Northbrook was located between two and three miles from the northern boundary of Glenview. Between these two boundaries was a stretch of unincorporated territory which was essentially undeveloped.
In 1967, both villages had official comprehensive plans for the present and future development of their villages. By law, such comprehensive plans, and ordinances implementing those plans, may be made applicable to any unincorporated land located within 1 1/2 miles of the boundaries of the municipality. (Ill. Rev. Stat. 1979, ch. 24, par. 11-12-5.) It is evident that on frequent occasions unincorporated land is located within 1 1/2 miles of the respective boundaries of two municipalities. To avoid conflicts between the plans of two municipalities and between the ordinances implementing those plans, those municipalities are legally permitted to enter into jurisdictional boundary line agreements to establish a line within the overlapping territory beyond which line neither village will exercise planning control. Ill. Rev. Stat. 1979, ch. 24, par. 11-12-9.
In 1967, it appears that a stretch of unincorporated land approximately four miles long and one-half mile wide was land located within 1 1/2 miles of both the southern boundary of Northbrook and the northern boundary of Glenview. Hence, in 1967, Northbrook and Glenview entered into an alleged jurisdictional boundary line agreement. Under the terms of this agreement, Willow Road, which ran down the center of the overlapping territory, became the jurisdictional boundary line between the two villages, with Northbrook exercising control over the unincorporated land north of Willow Road and Glenview exercising control over such land south of Willow Road.
Besides establishing a jurisdictional boundary line, the parties agreed to several other terms, one of which is the essence of the controversy here. The parties agreed that Willow Road was not to be the ultimate boundary between the two villages and both villages could, in the future, annex any land north or south of Willow Road subject to a certain condition. That condition provided that if the land annexed by either village was located within one-quarter mile south of Willow Road or one-quarter mile north of Willow Road then that land "may be rezoned for single-family residence development on lots not less than 12,000 square feet." (Emphasis added.) At the time of the agreement most of the land in this Willow Road corridor was zoned under a Cook County zoning ordinance for single-family units on lots not less than 20,000 square feet.
Between the years 1967 and 1979, both Northbrook and Glenview annexed territory within this Willow Road corridor. From the record it appears that Glenview annexed one tract of land and rezoned it as a public lands district and another tract of land and rezoned it as R-18, a residential classification allowing multiple-family units. Northbrook appears to have annexed 11 tracts of land, five of which were rezoned as single-family residential districts with minimum lot sizes of 12,000 square feet or more. The other six tracts were rezoned as follows: (a) three tracts were rezoned R — 8, a residential classification which allows forty percent of the units to be two-family and multiple-family units with the balance of the units to be single-family residences, all with allowable minimum lot sizes of a much greater density than 12,000 square feet per unit; (b) one tract was rezoned R-6, a general residence district allowing two-family and multiple-family units on minimum lot sizes of 5,000 to 7,500 square feet per unit; (c) one tract was rezoned R-5, a residential classification allowing single-family units on minimum lot sizes of 7,500 square feet; and (d) one tract was rezoned M-1, a manufacturing classification. The officers of both Glenview and Northbrook had pre-notice of each village's annexations and rezonings and none of these officers ever objected to any of these rezonings.
Sometime in 1979, Glenview and defendant-intervenor, Harris Bank, entered into a pre-annexation agreement pursuant to Glenview's power to do so under section 11-15.1-1 of the Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 11-15.1-1). Under the terms of this agreement, Glenview promised to annex an undeveloped 45-acre tract of land legally owned by Harris Bank and to rezone it as a commercial district upon annexation. These 45 acres were located in the Willow Road corridor just north of Willow Road.
Subsequently, Glenview began the necessary hearings required to annex and rezone the 45 acres. An officer of Northbrook attended one of these hearings and read into the record Northbrook's official protest of the proposed annexation and rezoning. The basis of Northbrook's protest was the jurisdictional boundary line agreement entered into between Northbrook and Glenview in 1967. Northbrook alleged that Glenview could not annex the land and rezone it commercial, but, because of the 1967 agreement, Glenview could only annex the land and rezone it for single-family units on minimum lots of 12,000 square feet per unit. Glenview denied the validity and effect of the 1967 agreement and Northbrook subsequently brought this action in the circuit court of Cook County.
Northbrook's complaint sought both a declaratory judgment and an injunction. It asked the court to declare that the 1967 agreement was legally binding and still in effect and that the terms of this agreement prohibited Glenview from annexing the 45 acres and rezoning them for any use other than single-family units on minimum lots of 12,000 square feet per unit. Northbrook asked the court to enjoin Glenview from proceeding with its hearings to annex the property and rezone it commercial.
Glenview's answer denied that the 1967 agreement was legally binding and as a defense asserted that Northbrook had repeatedly annexed and rezoned property in the Willow Road corridor for uses other than single-family residences on minimum lots of 12,000 square feet per unit. Subsequently, Harris Bank petitioned to intervene as a defendant and a group of homeowners residing on unincorporated land next to the 45 acres petitioned to intervene as plaintiffs. Both of these petitions were granted subject to the condition that neither intervenor could raise issues not raised by Northbrook or Glenview. Thereafter, the homeowners filed a complaint which essentially restated Northbrook's allegations. Harris Bank filed an answer restating Glenview's contentions and adding as a defense that the 1967 agreement, if interpreted as Northbrook alleged, was not validly entered into because two municipalities cannot enter into an agreement that prevents one of those municipalities from being able to exercise exclusive zoning power over land annexed to that municipality.
Thereafter, Northbrook moved for summary judgment. Glenview and Harris Bank filed separate cross-motions for summary judgment. Glenview alleged that the term of the 1967 agreement which said that any land annexed by either village in the Willow Road corridor "may" be rezoned for use as single-family residences on minimum lots of 12,000 square feet was intended by the parties to be entirely permissive and hence unenforceable. Glenview also alleged that, if the term was a mandatory restriction, Northbrook's conduct between 1967 and 1979 constituted either a repudiation or waiver of the agreement and that Northbrook should be estopped from asserting the agreement was enforceable or be barred by the "clean hands" doctrine from seeking equitable relief.
Harris Bank's motion reiterated Glenview's contentions and also asserted that the agreement was not validly entered into for the reason given in its answer to the complaint.
After a hearing, the trial court granted Northbrook's motion for summary judgment and denied Glenview's and Harris Bank's cross-motions. Thereafter, the trial court entered judgment for Northbrook and enjoined Glenview from proceeding ...