APPEAL from the Circuit Court of Cook County; the Hon. GEORGE
J. SCHALLER, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Defendant, appealing from an order of the trial court finding a municipal ordinance unconstitutional, contends that the ordinance was valid because (1) it was enacted under its express or implied statutory powers; (2) it was a proper exercise of its police powers; and (3) plaintiff failed to overcome the presumption of its validity.
It appears that in 1965 defendant adopted a comprehensive zoning plan in which a tract of land owned by plaintiff as trustee was rezoned commercial. The property is described as covering 5.6 acres and bounded on all sides by streets. Located in the surrounding area are a large factory and a quarry to the south, ground level railroad tracks to the west, an arterial highway and a railroad to the east, and a commercially developed area to the north. Multifamily dwellings were constructed in the adjacent areas, but the parcel itself is unimproved. A park lies immediately to the northwest, and other vacant sites are scattered throughout the area, including one to the north owned by the school district.
The owners of the property in question sought unsuccessfully to have it commercially developed from 1965 until 1976, when plaintiff as trustee of the property petitioned the Village Zoning Board of Appeals (Zoning Board) seeking to have 3.5 acres of the property rezoned to multiple residential while keeping the remaining 2.1 acres zoned commercial. The Zoning Board voted in favor of the petition when the testimony indicated that only a small scale commercial development could be sustained in the area. When this decision was reversed by the Village Board of Trustees, plaintiff brought this action to enforce the decision of the Zoning Board and, on August 11, 1978, the court found in favor of plaintiff which, in effect, required defendant to rezone the property to permit multifamily dwellings on a portion thereof with the balance remaining commercial. That order was not appealed.
This appeal, however, is from an order entered in the same case on December 17, 1979, finding unconstitutional an amendment by defendant of an ordinance which originally provided that any person seeking to connect into a sanitary sewer was to deposit with defendant $12 per front foot of the property sought to be serviced, for the construction of storm sewers. The amendment of March 26, 1979, required the deposit on a per foot or per lot basis of a substantially greater sum of money for various surface and underground improvements than was required previously. In return for a building permit issued to a construction contractor, a sum of $22,828.58 was deposited with defendant under the amended ordinance (ordinance) by the beneficiaries of the trust of which plaintiff is trustee.
Plaintiff then filed a petition in the same case on behalf of the beneficiaries challenging the constitutionality of the ordinance. In the order appealed from, the trial court held the ordinance to be unconstitutional and required defendant to refund the deposit. In the order, the court found that the ordinance conflicted with the Local Improvement Procedures Act (Ill. Rev. Stat. 1979, ch. 24, par. 9-2-1 et seq.) (Local Improvements Act), and that it was an improper exercise of defendant's police power and did not contribute to the public health, safety, or morals of the community.
We turn first to the question of defendant's express or implied statutory power to enact the challenged ordinance. Defendant initially contends that it required the deposit of a performance bond, which is expressly or impliedly authorized by State law. Plaintiff maintains, on the other hand, that the ordinance imposes a special assessment or special tax in derogation of various procedural requirements of the Local Improvements Act and as such is invalid.
The ordinance provides in relevant part:
"It shall be unlawful for any person to connect or to cause to be connected into any sanitary sewer within the Village limits located within the area bounded by Shields Avenue, 47th Street, Deyo Avenue and Custer Avenue until funds are deposited with the Village sufficient to cover the cost of installing streets, curbs, gutters, sidewalks, stormwater sewers, sanitary sewers and water mains which have not been installed by the builder or developer, but are required by the Village to be installed at a future date." (Book of Ordinances of the Village of Brookfield, Ill., ch. 28, art. IV, § 28-41 (1979).)
In support of its position that the ordinance requires the deposit of a performance bond, defendant points out that it provides for the escrowing of funds for the future installation of certain public improvements before a builder or developer will be permitted to connect into the sewer lines of the Village, and that the financial burden is borne by the builder or developer since the need for public improvements is attributed to his activities.
The form of bond in question here is predicated upon the performance of certain obligations undertaken by the principal obligor, and the obligation thereunder is extinguished by the obligor's performance. (12 Am.Jur.2d Bonds §§ 1, 31 (1964); also see United Mail Order, Warehouse & Retail Employees Union, Local 20 v. Montgomery Ward & Co. (1956), 9 Ill.2d 101, 137 N.E.2d 47, cert. denied (1957), 352 U.S. 1002, 1 L.Ed.2d 546, 77 S.Ct. 558.) We think it clear that the ordinance created a bond requirement. In return for the right to connect into the village sewerage system, the beneficiaries of the trust were required to deposit funds in a liquidated amount as determined from a fee schedule incorporated into the ordinance and based upon the estimated cost to install the improvements. Issuance of the building permit was conditioned upon performance of the obligation to escrow funds and was in recognition of the fact that the obligation was satisfied upon payment of the liquidated sum by the beneficiaries.
We turn then to the validity of defendant's contention that the ordinance in question was authorized under section 11-12-8 of the Municipal Code, which provides in relevant part:
"The corporate authorities may provide that any person, firm or corporation seeking approval of a subdivision or resubdivision map or plat shall post a good and sufficient bond with the municipal clerk in a penal sum sufficient to cover the estimate made by the municipal engineer, or other authorized person, of expenditures, including but not limited to reasonable inspection fees to be borne by the applicant, necessary to conform to the requirements established and conditioned upon completion of said requirements in a reasonable time. The corporate authorities may, by ordinance, prescribe the form of the bond and may require surety to be approved by the corporate authorities; provided, that a municipality may permit the depositing of cash or other security acceptable to the corporate authorities, to complete the improvements required in lieu of a bond if it shall so provide by ordinance; and further ...