Northern Trust Bank v. Co. of Lake, No. 2-99-0368

2nd District, 28 January 2000

JUSTICE INGLIS delivered the opinion of the court:

Following a bench trial, plaintiffs, Northern Trust Bank/Lake Forest, N.A., as trustee, under trust agreement No. 8333, dated August 13, 1987, L.B. Andersen & Co., Inc., Daniel B. Light, Leah Rae Light, and William McLaughlin, appeal the judgment entered in favor of defendants, County of Lake (County) and the Village of Mundelein (Village). We affirm.

Plaintiffs' property consists of 266 acres located in unincorporated Fremont Township. The property lies west of Route 60/83, bounded on the south by Hawley Street and the north by Route 176. The property is contiguous to the Village's western boundary. Plaintiffs' property is currently zoned "countryside." It contains some farms and an area used for a hunting club. The property immediately to the east of the subject property is a forest preserve golf course. To the northeast is an office building, proposed shopping center, an existing shopping center, and a gas station. A cemetery and church lie to the north of the property. Northwest of the property is an area known as the Ivanhoe Club. Located contiguous to and immediately to the west of the property is the Towne property, which has been rezoned "suburban." South of the property is a residential development known as Steeple Chase, which contains a golf course that wraps around the development.

Plaintiffs filed an application to rezone their property to "suburban." Suburban zoning allows an owner to develop a mixture of uses, including industrial, residential, or commercial, permitting multifamily developments, multiplex developments, and single-family developments. The County denied plaintiffs' petition to rezone.

Following the denial of their petition by the County, plaintiffs challenged the validity of the zoning ordinance, requesting the trial court to set aside the ordinance. Plaintiffs submitted to the trial court a residential development plan for the subject property consisting of 662 single-family, multiplex and multifamily dwellings. The trial court allowed the Village to intervene as a party defendant. The trial court determined that the proposed use was unreasonable and refused to set aside the ordinance. Plaintiffs appeal from the judgment of the trial court, contending that the County's refusal to rezone the property from countryside to suburban was arbitrary, capricious, and unreasonable, that it constituted unlawful discrimination, and that the presumptive validity of the ordinance has been dissipated. Plaintiffs also contend that the trial court erred in allowing the Village to intervene. We will recite the specific facts as they relate to the issues.

Preliminarily, however, we must address the following motion taken with the case. Defendants' motion seeks to strike portions of plaintiffs' reply brief. Defendants argue that plaintiffs' reply brief contains maps that should not be considered because they are outside the record on appeal and that plaintiffs have waived their right to rely on the case of Continental Homes of Chicago, Inc. v. County of Lake, 37 Ill. App. 3d 727 (1976), because they raised it for the first time in the reply brief. Plaintiffs respond that the maps are not to be used to supplement the record on appeal. Rather, plaintiffs attached the maps to assist this court in understanding the legal description in the Continental Homes case. Plaintiffs further respond that they cited the Continental Homes case in their reply brief to support their argument that the proposed plan was not too dense and was compatible with the land uses of nearby properties. These points were raised by plaintiffs both before the trial court and in their brief on appeal and, therefore, plaintiffs argue that they are not waived. Plaintiffs further argue that defendants cited the Continental Homes case in their brief in support of their argument that a governmental body may reasonably restrict increases in population density. After due consideration, we agree with plaintiffs and therefore deny defendants' motion to strike portions of plaintiffs' reply brief.

We next address whether the trial court erred in allowing the Village to intervene. The subject property is located outside the Village's boundaries. Plaintiffs argue that, in order to have standing, the Village must present evidence of a direct injury. Plaintiffs contend that the Village failed to present evidence to show that it would be directly injured.

We first note that the allegations of an applicant's petition to intervene are to be taken as true in determining whether the interests of the applicant are sufficient. Redmond v. Devine, 152 Ill. App. 3d 68, 74 (1987). Thus, the Village need only allege sufficient allegations to show that it could be injured.

Under Illinois law, a municipality has standing to challenge a zoning ordinance that affects land outside its boundaries if it has a real interest in the subject matter of the controversy. City of West Chicago v. County of Du Page, 67 Ill. App. 3d 924, 926 (1979) (nearest municipality located within 1