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City of Chicago Heights v. Old Orchard Bk. T.

OPINION FILED MAY 21, 1981.

THE CITY OF CHICAGO HEIGHTS, PLAINTIFF-APPELLANT,

v.

OLD ORCHARD BANK TRUST CO., TRUSTEES, ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES C. MURRAY, Judge, presiding.

MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Plaintiff, City of Chicago Heights, brought this action in the circuit court of Cook County seeking a declaratory judgment and an injunction against the various defendants. The basic controversy was over the interpretation of a zoning ordinance which provided that specific property could be used as a "nursing home" and whether defendants' use of the property complied with the ordinance. The trial court granted defendants' motion to dismiss the complaint, holding as a matter of law that defendants were not using the property in violation of the ordinance. Plaintiff appeals.

We affirm.

Background Data

The essential facts alleged in the complaint are as follows.

On June 24, 1974, plaintiff, a home-rule unit, entered into a contract with two companies, Farbeck Corporation and S & L Engineering (neither of these companies is a party to this action). At the time, Farbeck was the owner of land located within plaintiff's city limits, and S & L had an option to purchase that land. Also, at the time, the land was in an area zoned as a limited business district which did not allow for nursing homes. S & L wanted to purchase the land but would not do so unless it could construct a nursing home on it.

Under the agreement, plaintiff promised to enact an ordinance changing the land's zoning classification to a general residence district which allowed the construction of nursing homes as a special use. Plaintiff also promised to issue S & L a special use permit allowing it to "establish" a nursing home on the land.

In return, Farbeck and S & L promised to establish a nursing home on the land. The nursing home was to be built according to various plans incorporated in the contract.

The final term of the contract read as follows:

"This Agreement and the Ordinance providing for the zoning change and the Special Use Permit shall apply solely to the parties hereto and there shall be no assignments of this Agreement."

The interpretation and effect of this clause forms one of the issues raised in this case.

On the same day the agreement was signed, plaintiff enacted the zoning ordinance required by the agreement. The ordinance provided for the zoning change and for the issuance of a special use permit to "establish" a nursing home. One clause of the ordinance read as follows:

"[T]he owners of the [land], their successors and assigns, shall at all times provide and maintain a five to seven foot visual buffer consisting of a solid wall, fence or densely planted compact hedge to ...


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