APPEAL from the Circuit Court of Cook County; the Hon. JAMES
MURRAY, Judge, presiding.
MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
This appeal challenges the validity of an amendatory zoning ordinance and special use granted by the Board of Commissioners of Cook County on May 21, 1979. The ordinance (79-0-11) rezoned a 176-acre tract in unincorporated Palos Township from R-3 Single Family Residence District (40,000 square feet residential lot sizes) to R-5 Single Family Residence District (10,000 square feet residential lot sizes). The special use permitted a planned unit development of 427 single-family homes. Plaintiffs, homeowners in unincorporated Palos Township, filed a seven-count complaint against the Cook County Board of Zoning Appeals and the Cook County Board of Commissioners seeking a declaratory judgment that the ordinance and permit were void. Plaintiffs also prayed for an injunction restraining the County of Cook and its officials from amending the official county maps and records and from issuing any building permits for construction of the proposed planned unit development which would have been permissible under the R-5 zoning created by the amendatory ordinance. Beverly Bank and Trust Company, the owner of the subject property, Lawn Builders, Inc., which had an option to buy the property from Beverly, and T.J. Cachey Builders and Hartz Construction Company, which had a contract to purchase the property from Lawn Builders, were granted leave to intervene as defendants.
On October 22, 1979, the trial court dismissed counts I through V of plaintiffs' second amended complaint for failure to state a cause of action and dismissed as defendants on all counts the Cook County Zoning Board of Appeals and its members. Following a bench trial, the court, on January 2, 1980, granted judgment in favor of defendants-appellees, the Cook County Board of Commissioners and its members, on counts VI, VII and VIII of plaintiffs' third amended complaint.
Plaintiffs appeal from the orders entered on October 22, 1979, and January 2, 1980, and present the following issues for our review: (1) whether the procedures followed in this case by the Zoning Board of Appeals and the Board of Commissioners invalidated the commissioners' adoption of the amendatory zoning ordinance and its grant of a special use permit; (2) whether the transcript of testimony taken before the Zoning Board of Appeals was properly admitted into evidence as a defense exhibit; and (3) whether the amendatory zoning ordinance and special use are arbitrary, unreasonable and without substantial relation to the public health, safety and welfare. For the reasons hereinafter set forth we affirm the judgments of the trial court.
In 1976 the Beverly Bank and Trust Company obtained through foreclosure the 176-acre tract of land which is the subject of this appeal. The tract is irregular in shape and is located entirely within the unincorporated area of Palos Township. Its northern border is 125th Street. Its southern border is 131st Street. Its eastern border is 104th Avenue, and on the west it was bordered by some single family homes. The tract was then zoned R-3 Single Family Residence District under the Cook County Zoning Ordinance. R-3 permits single-family residences on homesites of not less than 40,000 square feet (approximately one acre). Except for property owned by the Cook County Forest Preserve District on the northern boundary of the tract and a small area owned by Elementary School District 118 on the eastern side (zoned P-1), all of the land surrounding the tract was also zoned R-3 and was either vacant or had single-family homes on some of the lots.
When Beverly foreclosed on the property, the land was vacant and unimproved. A swamp covered an area of 15 to 20 acres in the middle of the tract. Approximately 700 feet north of the southern boundary of the property (131st Street) there is a 175-feet-wide Commonwealth Edison right of way which bisects the entire tract from east to west. High line transmission towers have been constructed on the right of way.
As part of unincorporated Cook County, the tract was in an area patrolled by the Cook County sheriff's police. The patrol consisted of a one-man vehicle that operated 24 hours a day. In emergencies additional police were available from neighboring municipalities. Fire protection was provided by a 50-man, 4-unit, volunteer fire department which was responsible for a 36-square-mile area. With regard to sewerage and water, most of the homes in the surrounding area used individual wells and septic tank systems. The tract was in Elementary School District 118 and Consolidated High School District 230.
On September 14, 1978, Beverly Bank filed applications with the Cook County Department of Building and Zoning for a map amendment to the Cook County Zoning Ordinance changing the zoning from R-3 Single Family Residence District to R-5 Single Family Residence District (single-family residences on lots of not less than 10,000 square feet) and for a special use permitting a planned unit development of 427 single-family homes. The applications were referred to the Zoning Board of Appeals. On October 20, 1978, the Zoning Board held a public hearing on the applications at the Palos Park Village Hall. Plaintiffs, local home-owners, appeared and objected to the proposed amendment and special use. Their written protest was submitted to the secretary of the Zoning Board on November 16, 1978.
On January 3, 1979, the Zoning Board, with Chairman Alex Seith abstaining, voted two to two on whether to recommend the applications to the Cook County Board of Commissioners. Before the commissioners had an opportunity to consider the proposed changes, plaintiffs brought a five-count suit for declaratory judgment and injunctive relief against the Zoning Board of Appeals and its members and the Board of Commissioners and its members. On April 2, 1979, this suit was dismissed as premature.
On May 21, 1979, the Board of Commissioners voted nine to six to approve the applications, whereupon plaintiffs again filed suit. Their seven-count second amended complaint was filed on June 4, 1979. As previously indicated, Beverly Bank, Lawn Builders, Inc., T.J. Cachey Builders and Hartz Construction Co. were given leave to intervene as defendants.
On October 22, 1979, the trial court granted defendants' motion to dismiss counts I through V of plaintiffs' second amended complaint for failure to state a cause of action and dismiss the remaining two counts (VI and VII) against the Zoning Board of Appeals and its members. The propriety of the trial court's order dismissing counts I through V, which questioned the procedures followed by the Zoning Board of Appeals and the Board of Commissioners, will be reviewed in part I of this opinion. Prior to trial on counts VI and VII, which challenged the reasonableness of the zoning amendment and special use, plaintiffs filed a third amended complaint adding as count VIII a claim that the Zoning Board's notice of public hearing was deficient.
To sustain the allegations of counts VI and VII plaintiffs called 11 witnesses and presented 23 exhibits. The witnesses included a licensed real estate broker and developer in Palos Township, a custom builder, an excavating contractor, seven owners of single-family residences contiguous or near the 176-acre tract, and the former owner of the entire parcel subject to development. At the close of plaintiffs' case defendants moved for a directed finding. After the trial court denied this motion, defendants offered into evidence as defense exhibits plaintiffs' exhibits Nos. 4 and 8 which, respectively, were the findings and recommendations of the Zoning Board of Appeals and the report of proceedings before that board. Plaintiffs objected, contending that the documents could not be considered as substantive evidence on the disputed issues in the case because they were inadmissible hearsay. The trial court, however, overruled this objection, finding that the plaintiffs previously had offered into evidence the same documents without placing any restrictions on their use. The admissibility of these exhibits will be considered in part II of this opinion. After the exhibits were received into evidence, defendants rested.
On January 2, 1980, the trial court entered judgment for defendants on all counts. The trial court's resolution of the substantive issues raised by counts VI and VII of plaintiffs' third amended complaint (relating to the reasonableness of the amendatory ordinance and special use) will be considered in part III of this opinion. The court's resolution of the procedural issue posed by count VIII (relating to the Zoning Board of Appeals' notice of public hearing) is reviewed in part I, together with plaintiffs' other procedural issues which we now address.
Plaintiffs contend that a valid written protest was filed with the Zoning Board of Appeals, thereby requiring a three-quarters vote of the Board of Commissioners to approve the applications.
Under sections 13.97(2) and 13.10-5 of the Cook County Zoning Ordinance, a three-quarters majority vote of the Board of Commissioners is necessary to approve an amendatory zoning ordinance or special use whenever a written protest has been submitted to the Zoning Board of Appeals in accordance with section 13.15 of the zoning ordinance. Section 13.15 provides in part that "written protests * * * will be accepted from the owners of twenty (20) percent of the frontage immediately adjoining the property proposed for receiving a[n] * * * amendment, or special use; or by twenty (20) percent of the owners of the property whose land has frontage across an alley or directly opposite therefrom * * *."
By unanimous vote the Zoning Board of Appeals ruled that the protest filed by the property owners (plaintiffs' exhibit No. 3) was invalid because, inter alia, "it * * * failed to indicate any percentage of frontage ownership by said protestors * * *." (Plaintiffs' exhibit No. 4, at 12.) The question presented by this record is whether the protest on its face satisfied the requirements of section 13.15 thereby necessitating a three-quarters vote of the Board of Commissioners. We hold that it did not because the protest failed to establish that the named protestors owned the requisite percentage of frontage.
• 1 Paragraph one of the protest, attached to plaintiffs' second amended complaint, states: "NOW COMES the owners of more than twenty (20%) percent of the frontage immediately adjoining the property proposed for receiving a compensatory development right and special use * * *." The final paragraph recites that the 20 private property owners whose names are listed in the appendix to the protest "are seized of lands comprising more than 60% of the boundary of the proposed site." The term "frontage," however, is not synonymous with "boundary" (or "circumference," which appears in plaintiffs' various complaints). "Frontage" does not mean any contiguous boundaries but "that part of the parcel sought to be rezoned that gives access frontage on a roadway, alley or other public way. Property that is adjacent and contiguous to a stream, highway or road may be said to have frontage thereon." Village of Bannockburn v. County of Lake (1959), 17 Ill.2d 155, 159, 160 N.E.2d 773; Chapman v. County of Will (1973), 55 Ill.2d 524, 529, 304 N.E.2d 287.
The protest filed in this cause was deficient. Many of the addresses given for the protesting property owners did not have frontage immediately adjoining the tract. For example, neither the Archambault property contiguous to the northwest corner of the tract nor any of the homes in the Post and Rail Farms subdivision on the tract's western border had "frontage" immediately adjoining the property proposed for receiving an amendment and special use. Many of the other addresses listed in the protest applied to property contiguous to the tract but not having frontage thereon. Based on our review of the protest, the exhibits submitted and the argument in this case we believe plaintiffs may have misconstrued the definition of "frontage." To accept plaintiffs' interpretation would permit, as the supreme court observed in Chapman v. County of Will, "an objection to be filed by any property owner who would have a common border on any portion of the perimeter of the property sought to be altered." (Chapman, at 528-29.) Plaintiffs failed to establish in their protest that they owned the requisite percentage of frontage. For that reason the Zoning Board of Appeals properly rejected the purported protest as invalid.
Plaintiffs next contend that the tie vote of the Zoning Board of Appeals required a three-quarters vote of the Board of Commissioners to approve the proposed zoning amendment. Since the amendment did not receive a three-quarters ...