Tim Thompson, Inc. v. Village of Hinsdale

• Decision Date: 15 July 1993
• Docket Number: No. 2-92-1166,2-92-1166
• Citation: Tim Thompson, Inc. v. Village of Hinsdale, 617 N.E.2d 1227, 247 Ill.App.3d 863 (Ill. App. 1993)
• Parties: , 187 Ill.Dec. 506 TIM THOMPSON, INC., et al., Plaintiffs-Appellants, v. The VILLAGE OF HINSDALE et al., Defendants-Appellees (Presidents and Fellows of Harvard College, Defendant).
• Court: Appellate Court of Illinois

Page 1227

617 N.E.2d 1227

247 Ill.App.3d 863, 187 Ill.Dec. 506

TIM THOMPSON, INC., et al., Plaintiffs-Appellants, v. The VILLAGE OF HINSDALE et al., Defendants-Appellees (Presidents and Fellows of Harvard College, Defendant).

No. 2-92-1166.

Appellate Court of Illinois Second District.

July 15, 1993.

Tenney & Bentley, Chicago, Michael L. Childress, Edward Eshoo, Jr., argued, for Tim Thompson, Inc., Harris Bank Hinsdale.

Burke, Bosselman & Weaver, Chicago, Martin G. Durkin, Jr., Thomas R. Woodrow, Clifford L. Weaver, argued, for Village of Hinsdale.

Fishman & Merrick, P.C., Megan A. Kendall, Chicago, for Presidents & Fellows of Harvard College.

Tribler & Orpett, P.C., Chicago, Mitchell A. Orpett, Michael J. Meyer, argued, for Gail Norman and Re/Max Elite.

Justice DOYLE delivered the opinion of the court:

Plaintiffs, Tim Thompson, Inc., and Harris Bank Hinsdale, as trustee under trust agreement dated June 16, 1983, and known as trust No. L-669 (hereinafter referred to collectively as Thompson), filed a three-count complaint in the circuit court of Du Page County against defendant Village of Hinsdale (Hinsdale) seeking, inter alia, to enjoin the enforcement of a local zoning ordinance and a declaration of its invalidity. Thompson subsequently amended its complaint twice adding RE/MAX Elite, Gail Norman, and the Presidents and Fellows of Harvard College (Harvard) as additional defendants and raising additional theories of recovery. Thompson appeals from the orders of the circuit court granting summary judgment in favor of Hinsdale on four counts and dismissing two additional counts. Thompson further appeals from an order entered granting judgment on the pleadings in favor of Gail Norman and RE/MAX Elite. Harvard is not a party to this appeal. The various orders appealed from contain the requisite Supreme Court Rule 304(a) language (134 Ill.2d R. 304(a)).

Thompson raises the following issues on appeal: (1) whether the trial court properly entered summary judgment in favor of Hinsdale on counts I and V where Thompson contends that it overcame the presumption of validity which attaches to the enactment of a local zoning ordinance; (2) whether the trial court erred in granting summary judgment in favor of Hinsdale on count II thus denying Thompson's request for injunctive relief; (3) whether the trial court erred in denying Thompson's equitable estoppel claim for declaratory relief; (4) whether count IV stated a legally cognizable claim for relief under the municipal zoning enabling statute; (5) whether count VI stated a cause of action for inverse condemnation; and (6) whether the trial court erred in entering judgment on the pleadings in favor of Norman and RE/MAX Elite on counts IX and X in the face of Thompson's contention that a question of fact existed relative to Thompson's claim for negligent misrepresentation. Because of the number of issues raised and the variety of procedural devices employed, we will initially present only a brief overview of the facts. As each issue is analyzed, relevant supplemental facts will be introduced.

Norman Hill is a seven-lot residential subdivision located in Hinsdale, Illinois. It is bounded on the west by Washington Street, on the north by Birchwood Avenue, and on the south by Ogden Road. On the east side, Norman Hill is abutted by another residential development. Located in the northernmost one-third of Norman Hill, and orientated along a north-south axis, are lots 5, 6 and 7. Lot 5 has an area of 15,161 square feet; lot 6 has an area of 12,500 square feet; and lot 7 has an area of 12,951 square feet. West of Washington Street is the Merrillwood subdivision. Merrillwood is a single-family residential development with an average lot size of approximately 20,000 square feet. North of Birchwood Avenue and east and west of Washington Street is the Glendale subdivision with an average lot size of approximately 12,750 square feet. Abutting Norman Hill to the east is the LeRay subdivision with an average lot size of slightly over 10,000 square feet. Located to the south of lots 5, 6 and 7 are the remaining Norman Hill lots, none of which were owned by Thompson. Prior to April 25, 1989, Norman Hill was zoned "A," which required a minimum lot size of 10,000 square feet. LeRay, the subdivision to the east, was likewise zoned "A." Merrillwood, the subdivision to the west, was zoned "AA," which required a minimum lot size of 20,000 square feet.

THE ORDINANCE

On April 25, 1989, Hinsdale enacted a new zoning code changing its then-existing zoning code classifications. Norman Hill's classification was changed from A to R-2 which, unlike A, required a minimum lot size of 20,000 square feet. If, however, a lot located in the R-2 district was a legal nonconforming lot of record, the zoning code permitted a minimum lot area of 14,000 square feet. The zoning code further permitted, with a variation, an additional 10% reduction in lot size. Accordingly, under the new zoning classification scheme, as it applied to lots 5, 6 and 7, the minimum required lot size for a single-family residence was 12,600 square feet.

The Glendale subdivision to the north and the LeRay subdivision to the east were zoned R-4, which required a minimum lot size of 10,000 square feet. The Merrillwood subdivision to the west was zoned R-2. The net effect of the zoning code reclassification, therefore, was essentially to maintain the existing lot size requirements, with the exception of the Norman Hill subdivision.

On November 7, 1990, Thompson filed a three-count complaint against Hinsdale seeking declaratory and injunctive relief. Subsequently, Thompson filed a 10-count complaint adding additional causes of action and joining Harvard, RE/MAX Elite and Gail Norman as additional defendants. Following the dismissal of two counts against Hinsdale and leave to amend, plaintiffs filed a second amended complaint which was identical to their first, with the exception of additional factual allegations in their previously dismissed counts.

Plaintiffs' second amended complaint alleged the following facts. On January 17, 1989, the Village of Hinsdale approved the plat of subdivision for the Norman Hill subdivision. At the time of approval, the subdivision conformed to the requirements of the then-existing zoning ordinance. On February 17, 1989, plaintiffs entered into a standard vacant land sales contract whereby Harvard agreed to sell to plaintiffs lots 5, 6 and 7 in the Norman Hill subdivision for a price of $710,000. Under the terms of the contract, Thompson agreed to guarantee an irrevocable letter of credit, issued by Harris, in the amount of $78,162 and payable to Hinsdale to guarantee the installation of certain public improvements at Norman Hill. On March 6, 1989, Harris Bank, as trustee, acquired title to the property.

Following the enactment of the new zoning code by Hinsdale on April 25, 1989, Thompson expended approximately $72,000 to complete subdivision improvement work required by Hinsdale. On or about July 12, 1989, Hinsdale advised Thompson that lot 6 could not be developed and that lot 7 would require a variation prior to development. In October 1989, Thompson's request for a building permit for the construction of a single-family residence on lot 6 was denied because the lot did not meet the minimum lot size required under the new zoning classification. Additionally, notwithstanding Hinsdale's position regarding lots 6 and 7, Hinsdale continued to insist that Thompson complete the required subdivision improvements under the irrevocable letter of credit. On June 1, 1990, Harris applied for a map amendment to rezone lots 5, 6 and 7 from an R-2 to an R-4 zoning classification (10,000 square feet minimum). On July 24, 1990, Hinsdale denied Harris' application.

COUNTS I AND V

The first issue raised on appeal is whether the trial court erred in granting summary judgment in favor of Hinsdale on counts I and V of Thompson's second amended complaint. Count I sought a declaration that Hinsdale's denial of Harris' application for a map amendment to rezone was arbitrary, capricious, and substantially unrelated to public health, safety, comfort, morals, and welfare and was therefore invalid and void. Additionally, count I prayed for the issuance of a writ of mandamus compelling Hinsdale to effect the zoning map amendment. Thompson alleged that the subject lots were suitable for development; that its proposed use was compatible with the zoning and use of abutting and nearby properties; that its use of all three lots as single-family residences will not cause any injury to or depreciation in the value of any other property in the area; and that denial of the application was inconsistent with the underlying policy of the new zoning code, which was to encourage single-family detached residential development. Count V sought a declaration that Hinsdale's action in rezoning the subject lots was arbitrary and capricious and substantially unrelated to public health, safety, comfort, morals, and welfare and was therefore invalid and void.

In response to Thompson's first amended complaint, Hinsdale moved for summary judgment with respect to counts I, II, III and V. As to counts I and V, Hinsdale contended that its amendment of the local zoning ordinance was a proper exercise of its police power and that it was entitled to judgment as a matter of law because plaintiffs could not overcome the presumption of validity accompanying local zoning decisions.

Attached to Hinsdale's motion for summary judgment was the affidavit of the village clerk, Ellen Mooney, establishing the foundation for the attachment of various documents. The attached documents included a copy of the revised zoning code, a copy of the recorded plat of Norman Hill and two publisher's certificates, dated September 1, 1988, and April 6, 1989, evidencing notice of public hearings with regard to the proposed comprehensive zoning code.

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