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.
Attached to Thompson’s response to Hinsdale’s motion for summary judgment were the affidavits of Thomas M. Collins, an expert in matters of real estate valuation and zoning, James H. Bulthuis, a real estate appraiser and consultant, Patrick Coveny, a former executive with Thompson, and Donald G. Eddy, a professional engineer. In his affidavit, Collins opined that Hinsdale’s rezoning of the subject lots and its denial of plaintiffs’ request for a map amendment were arbitrary, capricious, and substantially unrelated to the health, safety, morals, and general welfare of the community. Collins premised his opinion on, among other things, that the suitability of the subject lots for development with a single-family residence on each lot was firmly established with no changes in land-use patterns in the immediate area dictating a change in zoning. Collins further stated that there was no need or residual gain to the community by reducing the buildability of single-family residences on the subject lots from three homes to two. Collins further opined that single-family residential development was the highest and best use of the three lots based upon the character of the neighborhood and present land use patterns, and the lack of adverse impact on the adjacent areas.
Additionally, Collins stated that if the zoning were to allow the construction of three residences as opposed to two, the combined value of the subject lots would be $977,397. If only two residences could be developed on lots 5 and 7, the resultant value would be only $812,240. Collins concluded that Hinsdale’s actions in rezoning the subject lots from A to R-2 and the denial of Harris’ application for a map amendment resulted in a diminution in value of $165,157. Attached as an exhibit to Collins’ affidavit was a copy of his formal report and contained therein was a list of vacant land sales in the Hinsdale community.
Thompson also attached the affidavit of James H. Bulthuis, a real estate appraiser and consultant. Bulthuis averred that he was engaged by Harris to appraise the subject lots and that, prior to formulating an opinion, he reviewed the plat of Norman Hill, land surveys, floodplain maps, and the revised Hinsdale zoning code. He determined that single-family residences could be built only on two of the three lots and that, prior to formulating an opinion as to the market value of the two buildable lots, he considered sales of four comparable lots in Hinsdale. Attached to his affidavit was a copy of a land appraisal report evaluating four properties. Bulthuis opined that, based upon his experience as a real estate appraiser, the market value of lots 5, 6 and 7 “if only two lots are buildable is $350,000.” Somewhat contrary to the statement in his affidavit, Bulthuis stated in the report that the two “buildable” sites each had a value of $175,000.
Thompson’s primary contention on appeal with respect to counts I and V is that the trial court erred in granting summary judgment in favor of Hinsdale because it overcame the presumption of validity attaching to Hinsdale’s zoning action through the introduction of clear and convincing factual evidence in light of the factors enumerated in La Salle National Bank v. County of Cook (1957),
In appeals from summary judgment, we conduct a de novo review. (Outboard Marine Corp. v. Liberty Mutual Insurance Co. (1992),
At the outset we question how the parties have framed the issue with respect to counts I and V. Explicit in both parties’ contentions is the notion that, in order for it to prevail at the summary judgment stage, Thompson was required to prove its case by the requisite quantum of proof, i.e., clear and convincing evidence. Contrary to the parties’ contentions, Thompson was not required to prove its case (see Keating v. Dominick’s Finer Foods, Inc. (1992),
It is well established that zoning ordinances carry a presumption of validity, and the party challenging the presumption carries the burden of establishing by clear and convincing evidence that, with respect to the particular property in question, the ordinance is arbitrary, capricious, and unreasonable and bears no reasonable relation to the public health, safety or general welfare. (Hamann v. Sumichrast (1991),
Counts I and V of plaintiffs’ second amended complaint alleged, in part, that the subject lots were suitable for development with a single-family residence each and would be compatible with the zoning, use and development of abutting and nearby properties; that plaintiffs’ proposed use would not cause any injury to or depreciation in the value of any other property in the area; and that Hinsdale’s denial of the map amendment was inconsistent with the purposes, goals, and objectives of the new zoning code, which, in part, was to encourage single-family detached residential development. Count V, which referred to Hinsdale’s enactment of the ordinance, raised essentially the same allegations as count I and further alleged that the change from A to R-2 zoning was inconsistent with the zoning, use and character of the surrounding and abutting properties.
Although no one factor is considered controlling, courts have treated the existing use and character of nearby property as being of paramount importance. (La Salle,
In support of its motion for summary judgment, defendants proffered the various documents mentioned above in support of their contention that the facts as presented lead to the single reasonable inference that the newly enacted R-2 zoning was compatible with the existing use and scheme of the area. Additionally, in their brief on appeal, Hinsdale appended two maps depicting the prior and newly enacted zoning schemes. Hinsdale expressly refers to these maps and requests that this court see for itself that Thompson’s proposed zoning cannot be considered as compatible with the existing scheme.
In response to defendants’ motion, Thompson, as detailed above, attached affidavits of its experts in support of its contention that the urged for R-4 zoning was compatible and consistent with the existing use and character of the surrounding property. It is apparent from these contentions that Hinsdale looks to the west (toward Merrillwood) and to the south (toward the remainder of Norman Hill) of the subject lots in support of its argument. In contrast, Thompson looks to the east and the north of the subject lots in support of its contention. In sum, the parties seek to place before this court an issue of material fact based upon differing inferences arising from the undisputed facts, which by their nature require determinations of credibility and appraisal and weighing of evidence. Where reasonable persons could draw divergent inferences from the undisputed facts, summary judgment should be denied. (Outboard Marine,
It is expressly noted, however, that we offer no opinion as to whether the facts averred by Thompson could sustain its substantial burden of overcoming, by clear and convincing evidence, the presumptive validity of the newly enacted zoning ordinance. Our determination is limited to holding only that an issue necessary for resolution by the trier of fact was presented at the summary judgment stage. Additionally, because of our determination, it is unnecessary to reach Thompson’s further contention that Hinsdale’s failure to introduce expert testimony on the La Salle!Sinclair factors should have compelled the court to deny defendant’s motion.
COUNT II
The next issue is whether the trial court erred in entering summary judgment in favor of Hinsdale on count II of Thompson’s complaint. Count II sought to enjoin Hinsdale from enforcing the provisions of the revised zoning code as it related to the subject lots and further sought the issuance of mandatory injunctive relief compelling Hinsdale to “rescind, repeal, or otherwise invalidate any previous actions taken that preclude plaintiffs’ ” use of the lots for development of single-family residences.
An injunction is an extraordinary remedy which is only granted after the plaintiff establishes the existence of a lawful right, irreparable harm, and an inadequate remedy at law. (Sadat v. American Motors Corp. (1984),
The only issue disputed by the parties is whether Thompson had a clear and protectable interest in the continued existence of the prior “A” zoning classification. Thompson contends that, based upon the totality of the circumstances, it had a clear and protectable interest in the continuation of this prior, less restrictive zoning. Specifically, Thompson argues that Hinsdale’s failure to inform Don Eddy, a consulting engineer, that a zoning change was forthcoming, Thompson’s substantial financial commitment, the issuance of an irrevocable letter of credit to finance public improvements, and its reliance on the probability of the issuance of building permits demonstrated the existence of its vested interest. In support of its contentions, Thompson relies solely on Industrial National Mortgage Co. v. City of Chicago (1981),
In National Mortgage, the plaintiffs sought to enjoin the defendant city from enforcing the provisions of a revised zoning ordinance enacted after plaintiffs had acquired the subject property, paid for public improvements, and expended substantial sums of money for additional land acquisition, surveys, appraisals, and professional services. On appeal, the court affirmed the trial court’s grant of permanent injunctive relief in favor of the plaintiffs, in part, on the grounds that they substantially changed their position in reliance on the prior ordinance and that the substantial expenditures were made prior to notice of a proposed change in zoning and before the amendatory ordinance was introduced in the city council.
In Pioneer Trust & Savings Bank v. County of Cook (1978),
Although the procedural and factual posture of Pioneer differs, we find it instructive as applied to the present case, and when considered together with National Mortgage, the rule emerges that a plaintiff acquires a right in the continuation of a prior zoning classification where it substantially changes its position in good-faith reliance on the prior classification and the probability of the issuance of building permits, and does so without notice of the proposed zoning change. National Mortgage,
In the present case, the undisputed facts established that on August 31, 1988, a public notice was published that a hearing on the proposed comprehensive zoning code by the plan commission of Hinsdale was to be held on September 19, 1988. The August 31, 1988, publication expressly stated that notice was being given that a public hearing would be held for the purpose of considering the repeal of the Hinsdale zoning ordinance and map, as amended, and the replacement of same with a new zoning code and map. The notice further provided that the proposed change may affect the zoning classification and use of any or all property in Hinsdale and will affect the zoning provisions applicable to all properties. This notice was required under section 11 — 13 — 2 of the Illinois Municipal Code for the adoption of zoning ordinances. (See 65 ILCS 5/11—13—2 (West 1992).) Thompson did not dispute the legal sufficiency of the notice, nor does anything in the record suggest that the hearing did not proceed as scheduled. The uncontroverted facts established that the expenditures made by Thompson were after the August 31 publication date established by the publisher’s certificate. Even assuming for the sake of argument that any expenses incurred by Thompson were substantial, the fact is that they were made with constructive notice of the proposed comprehensive zoning code. Moreover, although not dispositive, the majority of expenditures incurred by Thompson followed not only further notice of an additional meeting, but also the enactment of the amended zoning code on April 25, 1989. Therefore, by having notice of the proposed zoning change prior to incurring any obligations, Thompson failed to establish a vested interest in the continuation of the prior zoning classification. Moreover, we are unpersuaded by the suggestion that the earlier approval of the plat of subdivision, in itself, was sufficient to vest Thompson with a right in the prior zoning classification. (See Weber v. Village of Skokie (1968),
COUNT III
The next issue is whether the trial court erred in granting summary judgment in favor of Hinsdale on count III, which was premised on a theory of equitable estoppel and sought a declaration that rezoning the subject lots from A to R-2 was void. Count III alleged, in part, that Thompson had no knowledge that the subject lots were going to be rezoned; that its purchase of the lots was made in reliance upon Hinsdale’s prior approval of the plat of subdivision; and that it expended approximately $78,000 and installed improvements demanded by Hinsdale in justifiable reliance upon the previously approved plat.
In an affidavit attached to Thompson’s response to Hinsdale’s motion for summary judgment, Patrick Coveny, an executive-level employee of Thompson’s from 1985 through 1991, averred that at the time Thompson entered into the contract for sale with Harvard (February 9, 1989), Thompson agreed to apply for an irrevocable letter of credit, issued by Harris, in the amount of $78,162 payable to Hinsdale, to guarantee the installation of public improvements, which were required by Hinsdale prior to the issuance of building permits for the construction of single-family residences on any of the subject lots.
Coveny further averred that on March 10, 1989, the irrevocable letter of credit, at the request of Hinsdale, was amended to include Thompson as an applicant along with Richard Norman, the original owner of Norman Hill. As a result of the amendment, Harris took $78,162 from Thompson’s account and placed it in escrow. Consequently, Thompson did not have access to any of the money until Hinsdale approved specific portions of the construction and installation of the required improvements to the Norman Hill subdivision.
Additionally, Coveny stated that prior to July 12, 1989, the date he and Thompson were informed by Hinsdale that lot 6 was unbuildable and that lot 7 could only be developed with a variation, neither he nor Mr. Tim Thompson, president of Thompson, had knowledge that lots 5, 6 and 7 were going to be rezoned and that they were never advised of the same by Hinsdale.
Donald G. Eddy, a professional engineer retained by Richard Norman on or about June 7, 1989, averred in an affidavit attached to Thompson’s response to Hinsdale’s motion for summary judgment that during 1988 he met with the Hinsdale Plan Commission (HPC) the Hinsdale Zoning and Public Safety Committee (ZPS) and attended a public hearing in connection with the preparation and approval of the plat of subdivision of Norman Hill. On January 17, 1989, the Bins-dale Board of Trustees (Board) approved the final plat. Eddy further averred that at no time prior to April 25, 1989, was he advised by HPC, ZPS or the board that the zoning classification would be amended to require a minimum lot size of 14,000 square feet. Eddy was subsequently retained by Thompson in April 1989 to render professional services in connection with the construction and installation of the required public improvements to Norman Hill.
As indicated above, attached to Hinsdale’s motion for summary judgment were two publishers’ certificates certifying that notices of public hearings on the proposed comprehensive zoning code would take place on September 19, 1988, and April 25, 1989. The publication dates of the notices were August 31, 1988, and April 5, 1989, respectively.
Thompson argues that Hinsdale’s act of approving the plat of Norman Hill and requiring it to submit an irrevocable letter of credit to assure the construction and installation of public improvements encouraged and misled Thompson, which reasonably relied to its detriment on the probability that building permits for all three lots would be issued. Hinsdale responds that Thompson had actual and constructive knowledge of the proposed zoning prior to incurring any obligations; that Thompson failed to allege or prove any affirmative act upon which to base its claim; and that reliance on the letter of credit does not support Thompson’s estoppel claim.
Equitable estoppel is a doctrine developed in equity to prevent a party from asserting rights where the assertion of those rights would work a fraud or injustice. (Board of Trustees of the Addison Fire Protection District No. 1 Pension Fund v. Stamp (1993),
Generally, the party seeking to claim the benefit of the principle must have relied upon the actions or representations of the other and must have had no knowledge or convenient means of knowing the true facts. (Levin v. Civil Service Comm’n (1972),
Because the trial court disposed of count III on defendant’s summary judgment, the question before this court is whether the pleadings, affidavits, and additional supplemental materials properly before the court raised a genuine issue of material fact thus precluding the entry of summary judgment. We hold that the trial court properly granted summary judgment in favor of defendants on count III because no triable issue of fact existed as to whether plaintiffs could have reasonably or justifiably relied on the prior zoning classification where plaintiffs were on notice of the proposed comprehensive rezóning prior to the execution of the contract for the purchase of the subject lots. Thompson has failed to meet its burden of coming forward with evidence sufficient to create a triable issue of fact, which if resolved in Thompson’s favor, would arguably entitle it to a judgment under the applicable law. See Keating v. Dominick’s Finer Foods, Inc. (1992),
It is our opinion that where a party seeks to invoke the doctrine of equitable estoppel, the party cannot be said to have justifiably relied on the conduct of a public entity where that party has made expenditures with knowledge of zoning problems that may later affect its use of the subject property. (Cf. Beverly Bank v. County of Cook (1987),
In support of their motion, defendants attached a publisher’s certificate of notice dated September 1, 1988, seven months prior to the execution of the vacant land sales contract. Plaintiffs do not dispute that the publication of such a notice was tantamount to placing them on constructive notice, and plaintiffs provided no evidentiary support to controvert the fact that the notices of hearing on the proposed comprehensive zoning appeared in a local publication in accordance with statutory requirements for the publication thereof. Facts contained in an affidavit in support of a motion for summary judgment which are not contradicted by counteraffidavit are taken as true for purposes of the motion. Purtill v. Hess (1986),
Moreover, although Thompson alleged in its complaint that it had no knowledge of proposed zoning code changes prior to its enactment on April 25, 1989, such allegations were insufficient to contradict the exhibits presented by defendants establishing that Thompson was placed on constructive notice of potential zoning changes. As a general proposition, a mere allegation in a complaint will not suffice to overcome the specific contrary averments of an affidavit, and the mere discrepancy between the two will not raise an issue of material fact. (See Dakovitz v. Arrow Road Construction Co. (1975),
COUNTS IV AND VI
Thompson’s next two contentions on appeal challenge whether the trial court properly dismissed counts IV and VI of its second amended complaint pursuant to section 2 — 615 of the Civil Practice Law (735 ILCS 5/2 — 615 (West 1992)). It is well established that the court must accept as true all well-pleaded facts in the complaint and all reasonable inferences which can be drawn therefrom. (Kolegas v. Heftel Broadcasting Corp. (1992),
Thompson contends that the trial court erred in determining that count IV failed to allege a legally cognizable claim for relief. Count IV sought a declaration that Hinsdale’s rezoning lots 6 and 7 was violative of section 11 — 13 — 1 of the Illinois Municipal Code (Ill. Rev. Stat. 1989, ch. 24, par. 11 — 13 — 1 (now codified, as amended, at 65 ILCS 5/ 11 — 13 — 1 (West 1992))) and was therefore void and invalid. Count IV alleged, in relevant part, that Hinsdale’s action in rezoning the subject lots was in violation of the statute because it deprived plaintiffs of using lots 6 and 7 for the lawful purpose of developing single-family residences. On January 17, 1989, Hinsdale approved the Norman Hill plat of subdivision, and, at the time of approval, the subdivision conformed to the then-existing zoning classification. Thompson alleged that it purchased the subject lots with the intent to build single-family residences and the lots would not have been purchased if single-family residences could not be built on each of the three lots. Following Thompson’s purchase of the subject lots, Hinsdale requested that an irrevocable letter of credit issued to Richard Norman, the original subdivision owner, be amended to include Thompson as an applicant. As a result of the amendment, Harris transferred $78,162 from Thompson’s account and placed it in escrow, thus depriving Thompson of access to those funds until Hinsdale’s approval of the construction and installation of various public improvements. Thompson agreed to such an arrangement in reliance on the probability that building permits for the construction of single-family homes would be issued for each of the subject lots. Following the enactment of the new ordinance on April 25, 1989, Thompson expended $99,674.50 to construct and install public improvements.
Thompson argues that its intention to construct single-family residences coupled with its substantial financial commitment entitled it to use the subject lots for the purpose of constructing single-family residences irrespective of the new zoning code enacted by Hinsdale. Hinsdale responds that section 11 — 13 — 1, as a matter of statutory construction, applied only to an existing property that is then lawfully devoted to some use. Hinsdale argues that, at the time the new zoning ordinance was enacted, the subject lots were vacant and not dedicated to any use protectable under section 11 — 13 — 1.
Section 11 — 13 — 1, as it existed relevant to the action herein, provided, in part:
“The powers conferred by this Division 13 shall not be exercised so as to deprive the owner of any existing property of its use or maintenance for the purpose to which it is then lawfully devoted ***.” Ill. Rev. Stat. 1989, ch. 24, par. 11—13—1 (now codified, as amended, at 65ILCS 5/11—13—1 (West 1992)).
Neither party has cited any authority directly interpreting this provision. Additionally, both parties, in part, dispute the application of City of Belleville v. Leonard (1969),
The primary rule of statutory interpretation is that a court should ascertain and give effect to the intention of the legislature. (Abrahamson v. Illinois Department of Professional Regulation (1992),
Section 11 — 13 — 1, in its entirety, is what is commonly referred to as an enabling statute. Its overall purpose is to delegate to municipal authorities legislative functions to enact regulations for the purpose of promoting public health, safety and welfare. (City of Champaign v. Roseman (1958),
DISMISSAL OF COUNT VI
Thompson next contends that the trial court erred in dismissing count VI of its complaint for failure to state a legally cognizable cause of action for inverse condemnation. Thompson argues that count VI sufficiently alleged a significant interference by Hinsdale with Thompson’s investment-backed expectations. Count VI realleged the same factual circumstances underlying count IV, and, for the sake of brevity, it is unnecessary to recite them here. Thompson argues that the rezoning of the subject lots, the subsequent denial of building permits, and Hinsdale’s denial of the map amendment denied Thompson economically viable use of lots 6 and 7 and that a landowner need only allege that a zoning classification prohibits the highest, best, and most profitable use of the landowner’s property. Hinsdale responds that Thompson’s failure to allege deprivation of all economically viable use of the entire subject property defeats its claim for inverse condemnation.
Although count VI of Thompson’s complaint alleged violations of both Federal and State constitutional law, Thompson limited its arguments and supporting authority, both here and below, to considerations of Federal constitutional law. Accordingly, any question as to whether count VI stated a cause of action for inverse condemnation under sections 2 and 5 of article I of the Illinois State Constitution is waived on appeal.
Inverse condemnation, as distinguished from eminent domain, describes the manner in which a landowner recovers just compensation for a taking of its property when condemnation proceedings have not been instituted. (United States v. Clarke (1980),
The task of defining what constitutes a taking for Federal constitutional purposes has long been acknowledged “as a problem of considerable difficulty.” (Penn Central Transportation Co. v. City of New York (1978),
In St. Lucas Association (
Subsequent to St. Lucas Association and Suhadolnik, the United States Supreme Court in Lucas v. South Carolina Coastal Council (1992), 505 U.S__,
In its analysis of the second category, the South Carolina Coastal court reiterated its oft-expressed belief that “when the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave [its] property idle, [it] has suffered a taking.” (Emphasis in original.) (See South Carolina Coastal, 505 U.S. at_,
In support of our interpretation, we note that the majority, in a footnote, was careful to point out that the rule it espoused was not necessarily an all or nothing proposition. (See South Carolina Coastal, 505 U.S. at_n.8,
“This analysis errs in its assumption that the landowner whose deprivation is one step short of complete is not entitled to compensation. Such an owner might not be able to claim the benefit of our categorical formulation, but, as we have acknowledged time and again, ‘[t]he economic impact of the regulation on the claimant and ... the extent to which the regulation has interfered with distinct investment-backed expectations’ are keenly relevant to takings analysis generally. Penn Central Transportation Co. v. New York City,438 US 104 , 124,57 L Ed 2d 631 ,98 S Ct 2646 (1978). It is true that in at least some cases the landowner with 95% loss will get nothing, while the landowner with total loss will recover in full.” (Emphasis in original.) South Carolina Coastal, 505 U.S. at_n.8,120 L. Ed. 2d at 815 n.8,112 S. Ct. at 2895 n.8.
Based upon our reading, we conclude that the majority in South Carolina Coastal left the question open as to whether a party could state a legally viable regulatory taking claim based upon a deprivation of beneficial economic use that is something less than 100%. The only limitation is that the party seeking relief will be unable to avail itself of the “benefit of the categorical formulation” of the rule. Accordingly, we find Hinsdale’s argument unpersuasive and the trial court’s reliance thereon misplaced.
Nevertheless, an adequate legal ground exists to sustain the trial court’s dismissal of count VI, and it is within the power of this court to sustain the order of the trial court on the basis of any legal grounds which have factual support in the record, even where such grounds were not raised before the trial court (Sheldon v. Colonial Carbon Co. (1983),
In Penn Central, the court stated:
“ ‘Taking’ jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated. In deciding whether a particular governmental action has effected a taking, this Court focuses rather both on the character of the action and on the nature and extent of the interference with rights in the parcel as a whole.” (Emphasis added.) Penn Central,438 U.S. at 130-31 ,57 L. Ed. 2d at 652 ,98 S. Ct. at 2662 .
Additionally, in response to a petitioners’ argument that an aspect of a mining subsidence ordinance, which deprived petitioners of the ability to mine certain areas for coal, was tantamount to an appropriation by the State, the court in Keystone Bituminous Coal Association v. DeBenedictis (1987),
“This argument fails for the reason explained in Penn Central and Andrus. The 27 million tons of coal do not constitute a separate segment of property for takings law purposes. Many zoning ordinances place limits on the property owner’s right to make profitable use of some segments of his property. A requirement that a building occupy no more than a specified percentage of the lot on which it is located could be characterized as a taking of the vacant area ***. Similarly, under petitioners’ theory one could always argue that a set-back ordinance requiring that no structure be built within a certain distance from the property line constitutes a taking because the footage represents a distinct segment of property for takings law purposes.”480 U.S. at 498 ,94 L. Ed. 2d at 496 ,107 S. Ct. at 1248-49 .
Under the circumstances of the present case and the allegations as pleaded in its complaint, we choose to view Thompson’s property not as three distinct segments, as Thompson would have us do; rather, viewing the subject lots together as an entire parcel, which is supported by the well-pleaded fact in Thompson’s complaint that it purchased the entire parcel as a single unit at one time, we conclude as a matter of law that the allegations of Thompson’s complaint failed to allege any substantial deprivation of an economically viable use, thus defeating its claim. Because the Hinsdale zoning regulation merely denied Thompson its optimally desired use of the property, and the regulation otherwise allows that landowner an economically viable use of its property, a regulatory taking has not occurred. Moreover, as a matter of public policy, “ ‘[government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.’ ” (South Carolina Coastal, 505 U.S. at_,
DISMISSAL OF COUNTS IX AND X
Thompson’s final contention on appeal is directed to the circuit court’s entry of judgment on the pleadings in favor of defendants RE/ MAX Elite and Gail Norman on counts IX and X. Counts IX and X of Thompson’s second amended complaint reallege and incorporate by reference the factual allegations previously recited. Additionally, count IX alleged, inter alia, that Norman was the authorized agent of Thompson in connection with its purchase of the subject lots; that Norman assured Thompson that the lots would be capable of being developed with single-family residences; and that Norman breached her duty to exercise reasonable care and competence in “commuting [sic]” information intended to guide Thompson in its dealings with third parties. Additionally, Norman’s assurances were given in response to specific inquiries “so as to guide the plaintiffs in determining whether to purchase” the subject lots. Count X alleged that during the time of the alleged misrepresentations Norman was acting in the course and scope of her employment with RE/MAX Elite.
Thompson contends that its complaint set forth the essential allegations necessary to plead a cause of action for negligent misrepresentation and that the circuit court erred in granting judgment on the pleadings in favor of Elite and Norman because a question of fact existed as to whether Norman’s words — “would be capable of being improved with single-family residences” — referred to the zoning code prior to the April 25, 1989, revision or after. Elite and Norman respond that the pleadings established that Norman’s representation, when made, was a true and accurate statement as to the existing zoning; that even if her statement were construed as referring to the future zoning, statements about future or contingent events are not actionable under a negligent misrepresentation theory; and, alternatively, regardless of whether Norman was referring to the present or future code, her statements were representations of law and not of fact.
The purpose of a motion for judgment on the pleadings is to test the sufficiency of the pleadings by determining whether the plaintiff is entitled to the relief sought by its complaint, or, alternatively, whether the defendant by its answer has set up a defense which would entitle it to a hearing on the merits. (Granville National Bank v. Alleman (1992),
Taking as true the well-pleaded facts of Thompson’s complaint, we hold that Norman was entitled to judgment on the pleadings. The factual allegations of Thompson’s complaint established that any alleged misrepresentation made by Norman would have occurred prior to either the date Thompson contracted with Harvard for the purchase of the subject lots (February 17, 1989) or the closing date (March 6, 1989). Thompson’s complaint further averred that prior to April 25, 1989, the Hinsdale zoning code permitted the construction of single-family residences on minimum lot sizes of 10,000 square feet. Accordingly, by Thompson’s own admission, any representation made by Norman with respect to the zoning code would not have been a false statement. Moreover, Thompson was not entitled to rely upon a representation regarding the existing zoning because both parties were presumed to be equally capable of knowing and interpreting the law. See Hamming v. Murphy (1980),
Additionally, if we were to assume further that Norman’s representation that each of the subject lots would be capable of being improved with single-family residences referred to the proposed zoning regulation, such a statement would nevertheless not be actionable. A false representation must generally relate to an existing or past event, not to a promise or prognostication concerning a future happening. (Sinclair v. Sullivan Chevrolet Co. (1964),
For the foregoing reasons, the order of the circuit court of Du Page County granting summary judgment in favor of Hinsdale on counts I and V is reversed, and the cause is remanded to the circuit court; the order granting summary judgment in favor of Hinsdale on counts II and III is affirmed; the order dismissing counts IV and VI is affirmed; and the order granting RE/MAX Elite and Gail Norman’s motion for judgment on the pleadings on counts IX and X is affirmed.
Affirmed in part; reversed in part and remanded.
GEIGER and QUETSCH, JJ., concur.