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06/24/97 MARK CUMMINGS v. CITY WATERLOO

June 24, 1997

MARK CUMMINGS, RUSSELL WATTERS, SANDRA WATTERS, DONALD R. HAMMERS, DENNIS BAGBY, ALLEN MUELLER, AND KATHERINE MUELLER, PLAINTIFFS-APPELLANTS,
v.
CITY OF WATERLOO, A MUNICIPAL CORPORATION, DEFENDANT-APPELLEE, AND WAL-MART STORES, INC., INTERVENING DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Monroe County. No. 96-MR-9. Honorable Annette A. Eckert, Judge, presiding.

As Corrected June 30, 1997.

The Honorable Justice Hopkins delivered the opinion of the court. Maag, J., and Rarick, J., concur.

The opinion of the court was delivered by: Hopkins

JUSTICE HOPKINS delivered the opinion of the court:

Plaintiffs, Mark Cummings, et al., appeal from an order of the Monroe County circuit court dismissing their complaint against defendant, the City of Waterloo (the City) for failure to state a cause of action. Wal-Mart Stores, Inc. (Wal-Mart), was allowed to intervene and was made a defendant in the proceeding below and is also a participant in this appeal. We affirm in part, reverse in part, and remand the cause for the reasons set forth below.

FACTS

On June 17, 1996, the city council of the City passed ordinance number 1013 by a simple majority of the council. In ordinance number 1013 the City sought to amend an existing ordinance to include B-3 zoning, central business use, within areas zoned I-1, light industrial use. The amended ordinance would affect seven separate zoning districts. Prior to the city council meeting, protests were filed by owners of properties directly opposite the frontage of five of the districts to be rezoned, pursuant to statute (65 ILCS 5/11-13-14 (West 1996)) and the City's zoning ordinance (Waterloo City Code ยง 40-8-9 (1995)).

Following the passage of ordinance number 1013, plaintiffs filed a six-count complaint against the City, seeking declaratory judgments and injunctive relief. In four of the six counts of plaintiffs' complaint, plaintiffs asserted that the passage of ordinance number 1013 was invalid because proper protests were filed, amounting to the requisite 20% required by statute (65 ILCS 5/11-13-14 (West 1996)), to trigger a two-thirds vote to pass ordinance number 1013. Ordinance number 1013 was passed by a vote of five for and three against, while a two-thirds vote would require a vote of six to two. Plaintiffs also stated in the four counts that plaintiffs' protests were properly and timely filed with the City. Plaintiffs asked that ordinance number 1013 be declared invalid and that the City be enjoined from enforcing the ordinance and from issuing a building and occupancy permit to Wal-Mart under this ordinance.

In count IV of plaintiffs' complaint, it was alleged that ordinance number 1014, also passed on June 17, 1996, and ordinance number 1009, passed by the city council on April 22, 1996, were also invalid. Plaintiffs asserted that the two parcels of property involved in these ordinances were 4.31 acres and 1.85 acres, respectively, that the two parcels were zoned B-3, and that these ordinances violated the minimum-acreage requirement for B-3 zoning in the City's zoning code. In count VI of plaintiffs' complaint, plaintiffs alleged that ordinance number 1013 was also invalid because the application for zoning amendment was signed by the mayor on behalf of the City, an action outside the scope of his authority, as only the city council had this authority.

The City answered the plaintiffs' complaint, denying that ordinance number 1013 was invalid and arguing that a two-thirds vote was unnecessary to pass ordinance number 1013. The City also filed an affirmative defense that the two-thirds vote required by statute was not applicable to a "textual" amendment of an ordinance but only applied to "map" amendments. The City also denied that the undersized parcels zoned B-3 (the 1.85 acres and the 4.31 acres) were passed in violation of the City's zoning code and denied that a request for zoning amendment can be initiated only by the city council.

Wal-Mart filed a petition to intervene, which the court allowed. Wal-mart had purchased three tracts of land from the Schewe Family Partnership Trust and Glenn E. Schewe (the. Schewes). These three parcels are the subject of this lawsuit. The zoning classification of the 1.85-acre parcel and the 4.31-acre parcel is challenged in count IV. The zoning classification of the remaining, largest parcel is challenged in counts I, II, III, and V. Wal-Mart asserted in its petition to intervene that a 1993 annexation agreement between the Schewes and the City allowed for B-3 use in the I-1 parcel of property sold to Wal-Mart by the Schewes, because at the time of the execution of the annexation agreement, B-3 use was allowed in areas zoned I-1. The property was zoned I-1 in 1993 pursuant to this annexation agreement. Wal-Mart also filed a complaint for a writ of mandamus against the City, asserting its right to a building permit and a certification of zoning.

Subsequently, Wal-Mart and the City filed motions to dismiss plaintiffs' complaint for failure to state a cause of action, which the trial court granted. It is from this order that plaintiffs appeal.

ANALYSIS

The primary issue on appeal is whether the trial court erred in granting the motions to dismiss. Plaintiffs have raised seven issues in their brief; however, three of the seven issues concern the trial court's statutory construction of section 11-13-14 of the Illinois Municipal Code (65 ILCS 5/11-13-14 (West 1996)), as this was the basis of the trial court's dismissal of counts I, II, III, and V of plaintiffs' complaint. The remaining issues are that the trial court erred in finding (1) that ordinance number 1009 and number 1014 were valid, (2) that the service of two of the protests was insufficient, (3) that the mayor was authorized to sign ...


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