Bank of Waukegan v. Village of Vernon Hills

• Decision Date: 22 December 1993
• Docket Number: No. 2-92-0814,2-92-0814
• Parties: , 193 Ill.Dec. 212 BANK OF WAUKEGAN, as Trustee, et al., Plaintiffs-Appellants, v. The VILLAGE OF VERNON HILLS, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 245

626 N.E.2d 245

254 Ill.App.3d 24, 193 Ill.Dec. 212

BANK OF WAUKEGAN, as Trustee, et al., Plaintiffs-Appellants, v. The VILLAGE OF VERNON HILLS, Defendant-Appellee.

No. 2-92-0814.

Appellate Court of Illinois,

Second District.

Dec. 22, 1993.

Rehearing Denied Jan. 28, 1994.

William A. Cogley, Joseph T. Morrison (argued), Morrison & Morrison, P.C., Waukegan, for Bank of Waukegan, Kernel Parikh, Arvind Shah and Rashmikant Gardi.

Adeline J. Geo-Karis (argued), Adeline J. Geo-Karis & Associates, Zion, Berle L. Schwartz (argued), Jill Kaar, Highland Park, for Village of Vernon Hills et al. Presiding Justice INGLIS delivered the opinion of the court:

Plaintiffs, the trustee of an Illinois land trust and its beneficiaries (the developers), sued the Village of Vernon Hills (the village) after the village denied approval of the developers' site plan for the construction of two four-story apartment buildings in the village. The developers sought a declaratory judgment stating that they have a vested right to develop the apartment complex, and a writ of mandamus requiring the village to approve their site plan. After a trial, the circuit court of Lake County denied relief, and a timely appeal was taken. In this court, the developers argue: (1) that the trial court erred in finding that a general zoning ordinance repealed prior specific zoning ordinances; (2) that the trial court erred in refusing to find a vested right in favor of the developers; (3) that a writ of mandamus should have issued; (4) that the trial court erred in determining that a discrepancy existed between certain village zoning maps and village zoning ordinances and that the ordinances controlled; (5) that the village should have been estopped from denying approval of the site plan; (6) that the trial court should have struck testimony relating to the relative values of the subject property; and (7) that the trial court should not have admitted testimony on the issue of whether a building permit application had ever been submitted to the village for the subject property. We affirm.

On April 6, 1971, the village approved an annexation agreement for over 500 acres of land which included the 8.62-acre parcel of property at issue in this case (the property). The original purchasers of the land covered by the annexation agreement are not parties to this lawsuit. The annexation agreement did not provide for an expiration date, but by statute its validity was limited to five years. (Ill.Rev.Stat.1971, ch. 24, par. 11-15.1-1.) The land was annexed to the village that same day, April 6, by village ordinance No. 110. Also on April 6, the village passed ordinance No. 108, which zoned the land B-1 with a special use for a planned-unit development. This zoning permitted multiple-family residential use.

The annexation agreement was first amended on March 26, 1976, and its term was thereby extended to April 5, 1981, in conformance with a 1973 statutory amendment allowing annexation agreements to survive for 10 years. (Ill.Rev.Stat.1975, ch. 24, par. 11-15.1-5.) The second amendment to the agreement was on June 28, 1977, and it, inter alia, incorporated a new development plan dated May 12, 1977. Concurrent with this amendment, ordinance No. 108 was amended to incorporate the new development plan dated May 12, 1977. The agreement was amended for a third time on June 5, 1979. Changes made in the third amendment are not germane to this appeal. The annexation agreement expired on April 5, 1981.

On June 15, 1982, the village adopted a comprehensive revision of its zoning code. This revision is known as ordinance No. 402. Under the new code, B-1 zoning no longer permitted residential uses. Moreover, residential uses were not listed under permissible special uses for B-1 districts. Article 26 of ordinance No. 402 repealed all conflicting ordinances or parts thereof.

In August 1986, the developers started to inquire about obtaining the property and constructing apartments on it. In December 1986, the developers signed a contract to purchase the property. They filed an application for site plan approval on December 26, 1986. There is a dispute over what the developers were told by village officials concerning their plans to build apartments. The village manager, Larry Laschen, testified that he told the developers' agent, Kernel Parikh, that the special use for a planned-unit development had expired. Mr. Parikh testified that Mr. Laschen told him that he (Lachen) was unsure about the property's zoning and that he would contact the village attorney about the matter. On January 28, 1987, a colleague of the village attorney wrote a letter to Mr. Laschen stating that the special use for a planned-unit development was still in effect for the property. The developers subsequently obtained a copy of this After several hearings resulting in revisions to the site plan, the village board of trustees denied approval of the third revised site plan on May 5, 1987. On August 7, 1987, the developers completed their purchase of the property. On September 29, 1987, after this suit had been filed, the village passed ordinance No. 601, which repealed the special-use permit for the property granted by ordinance No. 108. Further facts will be furnished when needed in this opinion.

[193 Ill.Dec. 215] letter, either from Mr. Laschen or an associate of theirs. Mr. Laschen denied ever forwarding a copy to the developers. The village attorney later gave a contrary opinion and her colleague then came to the conclusion that the special use had expired. The village attorney's opinion was communicated to Mr. Laschen and village board members, but we can find no record of her opinion being communicated to the developers. Mr. Parikh testified that he could not remember whether the village attorney had told him of her opinion that the special use had expired.

EXPIRATION

Before considering the developers' claims of error, we address the village's contention that the special-use permit bestowed by ordinance No. 108 was unenforceable after the expiration of the annexation agreement. The village contends that a suit to enforce an ordinance adopted pursuant to an annexation agreement is tantamount to a suit to enforce the agreement itself and that an annexation agreement is not enforceable after it expires. Thus, the village argues, the developers' suit here is not viable.

We hold that ordinance No. 108 and ordinance No. 228 expired with the annexation agreement. Thus, when the developers sought to develop the property years later, there existed no special use for a planned-unit development on the property.

The Illinois statute governing the validity of annexation agreements now provides, in pertinent part:

"Any annexation agreement executed prior to October 1, 1973 which was executed pursuant to a two-thirds vote of the corporate authorities and which contains provisions not inconsistent with Section 11-15.1-2 hereof [making zoning a permissible subject of annexation agreements] is hereby declared valid and enforceable as to such provisions for the effective period of such agreement, or for 20 years from the date of execution thereof, whichever is shorter." (65 ILCS 5/11-15.1-5 (West 1992) (the annexation statute).)

At the time the annexation agreement was first amended in 1976, section 11-15.1-5 (Ill.Rev.Stat.1975, ch. 24, par. 11-15.1-5) read almost identically to the present annexation statute, except that it limited the terms of annexation agreements to 10 years. The 10-year limit was still in force when the annexation agreement was due to expire in 1981. (Ill.Rev.Stat.1981, ch. 24, par. 11-15.1-5.) Thus, the annexation agreement at issue here, executed on April 6, 1971, was amended to provide for an expiration date of April 5, 1981.

The annexation agreement provides:

"Upon annexation of the PROPERTY to the VILLAGE, the PROPERTY shall be classified as a B-1 District subject to a special use for a planned unit development, to be developed in accordance with the Development Plan in preliminary form, which Development Plan has been identified by the parties and is made a part hereof and is hereby approved by the Board of Trustees of the VILLAGE pursuant to the VILLAGE Zoning Ordinance."

Further, the annexation agreement states that the village zoning ordinance has been amended to classify the property as a B-1 district subject to a special use for the annexation applicants' planned-unit development. The annexation agreement also states that the village "will not, during the period of five years following the execution of this agreement, * * * enact, modify or amend provisions of the VILLAGE ordinances and regulations relating to zoning, subdivision controls, official plans, building Ordinance No. 108, which, as stated, was enacted the same day the annexation agreement was executed, specifically states that it is approving an application to zone certain property "upon the annexation thereof" as B-1 with a special use for a planned-unit development.

[193 Ill.Dec. 216] housing and related restrictions of any nature of the VILLAGE so that the provisions applicable to any portion of the property would be more restrictive or impose greater obligations or other burden than the provisions applicable to such portion as contemplated by this Annexation Agreement."

When the annexation agreement was later extended until April 5, 1981, it also was amended to extend the village's promise to refrain from making zoning changes until the agreement's expiration. Later, when the agreement was amended again, it provided that the term "development plan" as used in the agreement's zoning article would henceforth refer to a later-dated development plan submitted by one of the annexation applicant's successors in interest. The same day that the second amendment to the annexation agreement was executed, ordinance No. 228 was approved. Ordinance No. 228 amended ordinance No. 108, which granted the...