APPEAL from the Circuit Court of Kane County; the Hon. ERNEST
W. AKEMANN, Judge, presiding.
MR. PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
The trial court dismissed the appeal of the defendants, intervenors Thomas J. Hendricksen, Anna Marie Hendricksen, May R. Simpson and John P. Simpson (intervenors) from a judgment declaring certain property restrictions invalid. The complaint to declare the invalidity of the restrictions was brought by the Aurora National Bank, as trustee under its trust No. 402, George C. Neri, John Nottolini, the beneficial owners under the trust, and Pizza Hut, Inc., purchaser under a conditional contract. The intervenors first appeal from the dismissal order, alleging that the trial court lacked jurisdiction to enter it, and ask that the prior appeal be considered on its merits, and then contend that the restrictions are valid and enforceable. The City of Batavia was made a defendant to the declaratory judgment action but has not appealed.
• 1 Preliminarily, we conclude that the order dismissing the appeal was without authority and was void. The dismissal order was entered on October 24, 1979, on the basis that the defendants had failed to file the record in the reviewing court until 35 days after the expiration of time granted by the trial court, with no motion having been made to extend time in the reviewing court. The order recited that it was entered pursuant to Supreme Court Rules 309, 323(b) and 323(e) (Ill. Rev. Stat. 1977, ch. 110A, pars. 309, 323(b), 323(e)).
• 2 The plaintiffs rely on Supreme Court Rule 309 as it existed prior to its amendment effective October 15, 1979, providing as material that an appeal may be dismissed in the trial court "[b]efore a case is docketed in the reviewing court * * * if 35 days have passed after expiration of the original or extended time to file the record in the reviewing court" (and with no motion for extension of time filed in the reviewing court). (Ill. Rev. Stat. 1977, ch. 110A, par. 309.) The amendment of Supreme Court Rule 309, however, became effective prior to the entry of the dismissal order and provides that the trial court may dismiss the appeal when a case is docketed in the reviewing court only on motion of the appealing party or by stipulation of the parties. (Ill. Rev. Stat. 1979, ch. 110A, par. 309.) Neither circumstance is present here and under the revised rule, delay in filing the record is no longer a ground for dismissal by the trial court. See Ill. Ann. Stat., ch. 110A, par. 309, Supplement to Historical and Practice Notes, at 321 (Smith-Hurd 1980 Supp.).
We have premised this result on our conclusion that, while the notice of appeal was filed on either June 28 or 29, 1979, *fn1 the fact that revised Supreme Court Rule 309 was in effect prior to the dismissal order is the controlling factor. The plaintiffs have not argued in this court that the change in a procedural rule is not intended to apply to the pending judgment when it is still subject to review. And we find it neither unjust nor unfeasible to apply the revised rule given the particular circumstances.
Before reaching the merits of the original appeal we will briefly state the material facts. Plaintiffs' amended complaint filed on May 19, 1978, recited that on April 18, 1977, plaintiffs entered into an agreement with Pizza Hut, Inc., for the sale of the subject parcel. Accordingly, Pizza Hut applied to the City of Batavia for the appropriate building permit, which the city refused to issue because of an agreement between the Aurora National Bank as trustee and the city entered into in 1968 placing a number of restrictions on the property. In the agreement it was provided that use of the property be restricted to "Hotels and Motels and attendant business purposes including the sale of alcoholic liquors and the serving of meals; also personal service shops." It was further agreed that no other use should be made of the property for a period of 15 years from July 1, 1968, and that the "agreement and covenants shall be binding upon the grantees, successors and assigns of the said Aurora National Bank * * * and shall be a covenant running with the land."
The intervenors filed a petition for leave to intervene on February 6, 1978. They alleged that they were the owners of properties located directly across the street from the subject premises and that if Pizza Hut was granted a building permit they would suffer severe curtailment of the right to quiet enjoyment of their property as well as loss in value and be subject to noise, traffic, litter and other "concomitants" of the operation. The petition was granted on June 9, 1978.
At the hearing evidence was adduced that the property consists of approximately 500 feet of frontage along Route 31 immediately south of the Lincoln Inn and north of the Moose Lodge in Batavia. Neri was the owner of the Lincoln Inn and purchased the property in question when it was zoned farming under the county's zoning ordinance. Neri and Nottolini requested of the county a zoning classification to allow them to erect a hotel-motel on the premises. The City of Batavia objected to the proposed rezoning. At the time of the hearing Batavia had adopted a downtown business development plan, which sought to avoid expansion of any business along Route 31, particularly car washes, gas stations, fast food restaurants or any use which would increase traffic along the route. It was apparent from the hearing that the city wished to prohibit any business inconsistent with the city's attempt to expand its downtown business district.
However, Batavia expressed the idea that a hotel-motel facility would not interfere with its master plan or central business development plan and that it would not object providing the use of the property was restricted to the hotel-motel and attendant uses. The city and the attorney for the owners entered into an oral agreement for the execution of a restrictive covenant at which time Batavia withdrew its objections to the proposed rezoning. The property was rezoned to County B-4 by an ordinance passed on May 14, 1968. The written document entitled "Restrictions" was later executed by the bank as trustee at the owners' direction. There was testimony that the agreement was intended to be a contingency imposed upon securing the desired rezoning.
Approximately eight months later a petition for annexation to the City of Batavia was filed and the property was subsequently annexed to the city on April 21, 1969, without reference to the agreement and in an unrestricted B-1 classification.
Following the hearings the trial court invalidated the restrictions and held that the plaintiffs and their successors in title were not bound by them. The appeal by the intervenors followed.
The intervenors contend that the agreement is a valid restrictive covenant and argue that the plaintiffs are barred from challenging its validity because they induced the city to enter into the agreement and profited by it. Plaintiffs, however, characterize the "Restrictions" document as an invalid pre-annexation agreement or, alternatively, as an invalid attempt at conditional rezoning.
We initially consider the intervenors' argument that the "Restrictions" are binding and enforceable based on principles of contract and estoppel. This argument raises the question whether the municipality had authority to enter into the contract. The agreement was entered into in 1968, prior to the new constitution and its home rule provisions. Therefore, the city must have derived its authority to act directly from the legislature. (See, e.g., Martin v. City of Greenville (1977), 54 Ill. App.3d 42, 44.) We can find no specific grant of legislative power to enter into this type of contract, nor have the intervenors directed our attention to such a grant.
Section 2-2-12 of the Illinois Municipal Code permitted Batavia to contract "for corporate purposes"; however, there is nothing in the Code to indicate that a contract to restrict the use of land outside the city's borders furthers a legitimate corporate purpose. The most nearly applicable grant of authority is found in section 11-12-5 of the Illinois Municipal Code (Ill. Rev. Stat. 1967, ch. 24, par. 11-12-5) in conjunction with section 5 of "An Act in relation to County Zoning" (Ill. Rev. Stat. 1967, ch. 34, par. 3158). These provisions give a municipality the right to draw up a comprehensive plan applicable to territory within 1 1/2 miles from its boundaries and to object, if it is the nearest adjacent city, to county rezoning as it affects land outside its boundary, thereby requiring a three-fourths vote of members of the county board to change the county zoning. But the city has ...