Zeitz v. Village of Glenview, 1-91-2010

• Court: United States Appellate Court of Illinois
• Citation: 227 Ill.App.3d 891,592 N.E.2d 384
• Docket Number: No. 1-91-2010,1-91-2010
• Parties: , 169 Ill.Dec. 897 Norman M. ZEITZ, Helen Zeitz, Norman D. Zeitz, Richard M. Zeitz and Lakewoods Development Corporation, an Illinois corporation, Plaintiffs-Appellants, v. VILLAGE OF GLENVIEW, a municipal corporation, James W. Smirles, Robert Browne, Charles Esler, Jr., Nancy Firfer, Kent B. Fuller, Ralph D. Lynch and Lowell Scott Weil, Defendants-Appellees. First District, Fifth Division
• Decision Date: 27 March 1992

Page 384

592 N.E.2d 384 227 Ill.App.3d 891, 169 Ill.Dec. 897 Norman M. ZEITZ, Helen Zeitz, Norman D. Zeitz, Richard M.
Zeitz and Lakewoods Development Corporation, an
Illinois corporation, Plaintiffs-Appellants,
v.
VILLAGE OF GLENVIEW, a municipal corporation, James W.
Smirles, Robert Browne, Charles Esler, Jr., Nancy
Firfer, Kent B. Fuller, Ralph D. Lynch
and Lowell Scott Weil,
Defendants-Appellees. No. 1-91-2010. Appellate Court of Illinois, First District, Fifth Division. March 27, 1992.

Page 385

[169 Ill.Dec. 898] Law Offices of Dennis L. Karns, Chicago, for plaintiffs-appellants.

[227 Ill.App.3d 892] James S. Gordon, Edward Slovick, Chicago, for defendants-appellees.

Justice MURRAY delivered the opinion of the court:

Plaintiffs, Norman M. Zeitz, Helen Zeitz, Norman D. Zeitz, Richard M. Zeitz and Lakewoods Development Corporation, brought an action seeking declaratory and injunctive relief from certain zoning ordinances enacted by one of the defendants, Village of Glenview, and damages based upon inverse condemnation and improper taking of plaintiffs' property. The trial court granted the defendants' motion to strike the second amended complaint and to dismiss action with prejudice. The plaintiffs appeal the granting of that order.

The facts are not in dispute. All issues presented for review are based upon the sufficiency of the plaintiffs' second amended complaint.

The Grove is an 82-acre tract of land located in the Village of Glenview (Glenview). It is a national historic landmark. In 1979 Glenview enacted ordinances (Nos.

Page 386

[169 Ill.Dec. 899] 2280 and 2281) which established an environmentally sensitive area (ESA) within its boundaries. Ordinance No. 2280 also authorized Glenview's board of trustees to designate a "Primary Area" within an ESA for land requiring the highest degree of protection from adverse effects of incompatible development.

The ESA consisted of 278 acres of which approximately 119 acres were designated a Primary Area. Ordinance No. 2281 additionally mandated the creation of R-E (Residential Regulations) which, among other uses, permitted the development of single-family residences with a minimum lot size of not less than two acres and decreed that such R-E zoning district was to be applied to all privately owned property within a Primary Area.

The individual plaintiffs are the owners of approximately 10.1 acres of vacant land in the ESA. Plaintiffs' land was involuntarily annexed by Glenview on May 2, 1983. Lakewoods Development Corporation (Lakewoods) has an option to purchase the aforesaid 10.1 acres of real estate. Prior to April 3, 1990, the property was zoned as R-1 (residential district) requiring a minimum lot size of only one acre.

On April 3, 1989, plaintiffs filed an application for subdivision approval proposing a 10-lot subdivision. Glenview's plan commission found the plan deficient and concluded that the application was premature.

[227 Ill.App.3d 893] On July 18, 1989, after notice and hearing Glenview adopted Ordinance No. 3010 which imposed a six-month moratorium on subdivision applications and approvals in the ESA to determine what changes, if any, in regulation and zoning were necessary to protect the environmental significant area within which plaintiffs' lots were located.

On January 16, 1990, Glenview adopted Ordinance No. 3078 containing regulations governing development in the ESA. The moratorium expired on January 18, 1990.

On April 3, 1990, defendants enacted Ordinance No. 3111 which applied the R-E (two-acre minimum lot size) zoning classification to all properties within the ESA that were previously zoned R-1 (one-acre minimum lot size). Ordinance No. 3111 did not apply the R-E zoning classification to properties zoned R-2, R-4, or I-1 within the same ESA. Thus, a number of parcels in the area, including plaintiffs' 10-acre tract, were rezoned from R-1 to R-E pursuant to Ordinance No. 3111.

On October 5, 1989, Lakewoods filed a complaint for declaratory judgment and seeking a preliminary injunction. Said complaint was stricken on June 6, 1990. Thereafter, the Zeitz plaintiffs joined with Lakewoods in their amended complaint for declaratory judgment and for an injunction. On November 9, 1990, the trial court struck the amended complaint. On December 20, 1990, plaintiffs were granted leave to file their second amended complaint. The second amended complaint consisted of four counts: Count I sought declaratory and injunctive relief from application of defendant's moratorium Ordinance No. 3010; count II sought declaratory and injunctive relief from application of defendants and rezoning Ordinance 3078 and 3111; count III sought damages for inverse condemnation and improper taking of plaintiffs' property; and count IV sought a writ of mandamus for condemnation.

On May 21, 1991, the trial judge entered an order dismissing the second amended complaint with prejudice. Subsequently, plaintiffs filed this timely appeal.

Plaintiffs raise three issues on appeal, all relating to the sufficiency of the second amended complaint. Plaintiffs argue that the second amended complaint alleges sufficient facts to (1) state a cause of action for declaratory and injunctive relief from the retroactive application of Glenview's moratorium and rezoning ordinances to plaintiffs' property and to plaintiffs' application of subdivision approval; (2) state a cause of action for damages based upon an inverse condemnation and an improper taking of plaintiff's property;[227 Ill.App.3d 894] and (3) support a finding that defendants should be estopped to deny plaintiffs a hearing on their application for subdivision approval in accordance with defendants' own ordinances in effect at the time the application was filed. Defendants maintain that the trial

Page 387

[169 Ill.Dec. 900] court properly dismissed plaintiffs' second amended complaint with prejudice.

Illinois is a fact-pleading State. (People ex rel. Fahner v. Carriage Way West (1982), 88 Ill.2d 300, 308, 58 Ill.Dec. 754, 757, 430 N.E.2d 1005, 1008.) Although pleadings are to be liberally construed (Ill.Rev.Stat.1989, ch. 110, par...