Chicago Title & Trust Co. v. Village of Palatine

• Decision Date: 06 November 1956
• Citation: 160 N.E.2d 697,22 Ill.App.2d 264
• Parties: CHICAGO TITLE & TRUST COMPANY, as Trustee under Trust Agreement dated
• Court: United States Appellate Court of Illinois

Page 697

160 N.E.2d 697

22 Ill.App.2d 264

CHICAGO TITLE & TRUST COMPANY, as Trustee under Trust Agreement dated November 6, 1956, and known as Trust No. 38796, and Standard Oil Company, a corporation, Appellees, v. VILLAGE OF PALATINE, a municipal corporation, Robert J Eppley, Village Manager, Richard Decker, Building Commissioner, and John W. Berlin, Wilfred A. Muller, John F Nelson, Louis Richter, Leo M. Breen, John S. Powers, G. M Sanborn, Members of Zoning Board of Appeals, Appellants.

Gen. No. 47568.

Appellate Court of Illinois, First District, First Division.

May 18, 1959.

Thomas A. Matthews, Byron S. Matthews, Chicago, for appellants.

Norman E. Visdal, Palatine, for appellees.

McCORMICK, Presiding Justice.

The plaintiffs filed a complaint for a writ of mandamus to compel the defendants to issue a permit for them to construct a gasoline filling station upon premises owned by them in the Village of Palatine. At the time when the application for the permit was made the use of the premises for a filling station was lawful, but was prohibited by a zoning ordinance upon which public hearings were being held when the application was made and which was passed three weeks afterward. The court ordered the issuance of a writ of mandamus as prayed.

The defendants contend that the mere fact that an application has been made to conduct a business before the ordinance excluding it has been passed does not give the applicant the right to operate the prohibited business. The plaintiffs urge that the rights of the parties crystallized and became firm and fixed on the date when they applied to the building commissioner of the Village of Palatine for a permit to construct the filling station and that any subsequent ordinance passed by the said village would have no effect upon their right to such a permit.

The case was decided on the complaint, answer and a stipulation entered into by the parties with reference to the facts. It appears that the plaintiffs were the owner and lessee of certain real estate located in the Village of Palatine upon which they desired to construct a gasoline filling station. On November 27, 1957 an application for a permit to construct this station was made to one of the defendants, the building commissioner of the defendant village. The application was returned with the request that a change be made in the plans and specifications submitted with the application. On November 29th revised plans and specifications were furnished to the building commissioner and he took no action on the application for a building permit. On November 29th, under the then existing zoning ordinance, a filling station would have been permissible on the premises involved. Prior to May 23, 1957 the village board of trustees and its president had referred to the zoning board of appeals the question of enacting a comprehensive amendment to the zoning ordinance. Subsequent thereto and before the passage of such ordinance many meetings and public hearings extending over a period of several months were held, and the ordinance was filed for public inspection. The ordinance prohibiting a retail gasoline station on the involved premises was passed on December 23, 1957, effective January 12, 1958. After the passage of the ordinance the issuance of the permit was refused. Following this refusal the plaintiffs, on April 8, 1958 appealed to the Zoning Board of Appeals of the village. A hearing was held on April 11th and continued to April 25, 1958, at which time the members of the zoning board of appeals refused to direct the issuance of such permit. Plaintiffs filed their complaint for a writ of mandamus on April 26, 1958. The court on May 14, 1958, after hearing, ordered the writ to issue, from which order this appeal is taken.

We do not consider whether the proper procedure in the instant case would be under the Administrative Review Act (Ill.Rev.Stat.1957, chap. 110, pars. 264 et seq.) rather than a petition for a writ of mandamus. This question was not raised either before the trial court or here.

The rule of law in this State is that where there has been a substantial change of position, expenditures, or incurrence of obligations made in good faith by an innocent party under a building permit or in reliance upon the probability of its issuance such party has a vested property right and he may complete the utilization of the premises for the purpose originally authorized irrespective of subsequent zoning or a change in zoning classification. People ex rel. Skokie Town House Builders, Inc. v. Village of Morton Grove, 16 Ill.2d 183, 157 N.E.2d 33, citing Fifteen Fifty North State Building Corp. v. City of Chicago, 15 Ill.2d 408, 155 N.E.2d 97, and Deer Park Civic Ass'n v. City of Chicago, 347 Ill.App. 346, 106 N.E.2d 823 (petition for leave to appeal denied 412 Ill. 629). Also see Ward v. Village of Elmwood Park, 8 Ill.App.2d 37, 130 N.E.2d 287.

In the case before us the plaintiffs contend that when they had filed an application for a permit, the issuance of which would have been valid under the then existing law, the administrative authorities of the municipality had no right to delay taking action on the application. It is their contention that the authorities authorized to deal with permits must under such circumstances forthwith issue the permit and if they do not so act they can take no advantage of subsequently enacted ordinances making the issuance of the permit invalid, and this irrespective of the existence of vested rights. There has been no decision in Illinois on this precise question. However, it has been considered in other jurisdictions, and the rule there laid down is that, while the municipal authority has no right to arbitrarily or unreasonably refuse or delay the issuance of the permit, the issuance may be delayed when there is under consideration or pending an ordinance under which the issuance of the permit would be prohibited. It is our opinion that this rule is supported by reason as well as by authority. Krugman v. Municipal Council of City of Clifton, 136 N.J.L. 32, 53 A.2d 803; Phillips v. Town of Belleville, 135 N.J.L. 271, 52 A.2d 441; Nagaven Realties v. Banzhaf, 149 Misc. 361, 267 N.Y.S. 729; McEachern v. Town of High land Park, 124 Tex. 36, 73 S.W.2d 487; Deerfield Realty Co. v. Hague, 8 N.J.Misc. 637, 151 A. 373; Butvinik v. Jersey City, 6 N.J.Misc. 803, 142 A. 759. We are aware that some few jurisdictions do not follow this rule.

Under the Illinois statutes (Ill.Rev.Stat.1957, chap. 24, Article 73, par. 73-2) a municipality, in order to enact zoning ordinances, must first provide for a zoning commission which shall prepare a tentative report and a proposed zoning ordinance for the entire municipality. Thereupon notice of a hearing must be given to the public either by publication or posting of notice, depending on the population of the municipality. A public hearing must then be held and persons interested afforded an opportunity to be heard. There is a further provision that within thirty days after the adjournment of such public hearing the commission shall make a final report and submit a proposed ordinance for the entire municipality to the corporate authorities, who will then consider it and either pass it or refer it back to the commission for further consideration. Paragraph 73-8 provides that a zoning ordinance may be amended from time to time by ordinance but that no amendment shall be made without a hearing before some commission or committee designated by the corporate authorities. The purpose of zoning, as expressed in the Act, is to limit the rights of a citizen to use his property in order to promote and protect the public health, safety, comfort, morals and welfare of the people. The theory underlying these statutory provisions is that in order to achieve such results there should be a careful and scientific study made by a competent commission and that after the commission has reached a conclusion there should be an...