{ "id": 12142405, "name": "THE CITY OF CHICAGO HEIGHTS, Plaintiff-Appellant, v. OLD ORCHARD BANK TRUST CO., Trustees, et al., Defendants-Appellees", "name_abbreviation": "City of Chicago Heights v. Old Orchard Bank Trust Co.", "decision_date": "1981-05-21", "docket_number": "No. 80-596", "first_page": "789", "last_page": "795", "citations": [ { "type": "official", "cite": "96 Ill. App. 3d 789" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "333 N.E.2d 540", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "30 Ill. App. 3d 798", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2622203 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/30/0798-01" ] }, { "cite": "404 N.E.2d 228", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "79 Ill. 2d 493", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3069941 ], "opinion_index": 0, "case_paths": [ "/ill-2d/79/0493-01" ] }, { "cite": "380 N.E.2d 890", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "63 Ill. App. 3d 874", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3338991 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/63/0874-01" ] }, { "cite": "386 N.E.2d 394", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "68 Ill. App. 3d 693", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3307059 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/68/0693-01" ] }, { "cite": "223 N.E.2d 167", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "79 Ill. App. 2d 101", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2565117 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/79/0101-01" ] } ], "analysis": { "cardinality": 633, "char_count": 14993, "ocr_confidence": 0.908, "pagerank": { "raw": 7.931164072175886e-08, "percentile": 0.46189642716621704 }, "sha256": "953f91abb6281c7313a6c0c0b45fdabe9fdc249591206b298aef3d11074d2b17", "simhash": "1:e772d1dbd0d0da2b", "word_count": 2487 }, "last_updated": "2023-07-14T16:31:40.709125+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "JOHNSON and JIGANTI, JJ., concur." ], "parties": [ "THE CITY OF CHICAGO HEIGHTS, Plaintiff-Appellant, v. OLD ORCHARD BANK TRUST CO., Trustees, et al., Defendants-Appellees." ], "opinions": [ { "text": "Mr. JUSTICE LINN\ndelivered the opinion of the court:\nPlaintiff, City of Chicago Heights, brought this action in the circuit court of Cook County seeking a declaratory judgment and an injunction against the various defendants. The basic controversy was over the interpretation of a zoning ordinance which provided that specific property could be used as a \u201cnursing home\u201d and whether defendants\u2019 use of the property complied with the ordinance. The trial court granted defendants\u2019 motion to dismiss the complaint, holding as a matter of law that defendants were not using the property in violation of the ordinance. Plaintiff appeals.\nWe affirm.\nBackground Data\nThe essential facts alleged in the complaint are as follows.\nOn June 24, 1974, plaintiff, a home-rule unit, entered into a contract with two companies, Farbeck Corporation and S & L Engineering (neither of these companies is a party to this action). At the time, Farbeck was the owner of land located within plaintiff\u2019s city limits, and S & L had an option to purchase that land. Also, at the time, the land was in an area zoned as a limited business district which did not allow for nursing homes. S & L wanted to purchase the land but would not do so unless it could construct a nursing home on it.\nUnder the agreement, plaintiff promised to enact an ordinance changing the land\u2019s zoning classification to a general residence district which allowed the construction of nursing homes as a special use. Plaintiff also promised to issue S & La special use permit allowing it to \u201cestablish\u201d a nursing home on the land.\nIn return, Farbeck and S & L promised to establish a nursing home on the land. The nursing home was to be built according to various plans incorporated in the contract.\nThe final term of the contract read as follows:\n\u201cThis Agreement and the Ordinance providing for the zoning change and the Special Use Permit shall apply solely to the parties hereto and there shall be no assignments of this Agreement.\u201d\nThe interpretation and effect of this clause forms one of the issues raised in this case.\nOn the same day the agreement was signed, plaintiff enacted the zoning ordinance required by the agreement. The ordinance provided for the zoning change and for the issuance of a special use permit to \u201cestablish\u201d a nursing home. One clause of the ordinance read as follows:\n\u201c[T]he owners of the [land], their successors and assigns, shall at all times provide and maintain a five to seven foot visual buffer consisting of a solid wall, fence or densely planted compact hedge to screen parking areas adjoining [the surrounding property].\u201d\nThe effect this clause had on the above mentioned clause in the contract is also at issue in this case.\nApparently on the same day or shortly thereafter, Farbeck transferred ownership of the property to defendant Old Orchard Bank & Trust Go.- Old Orchard was simply a land trustee with S & L the beneficiary of the trust. Also, plaintiff issued a special use permit to S & L so S & L could \u201cestablish\u201d a nursing home on the land.\nS & L constructed the nursing home. Thereafter, in May 1977, Old Orchard Bank, pursuant to S & L\u2019s direction, entered into a lease of the property with defendant LaSalle National Bank. It was a long-term lease with options to renew and an option to purchase. Under the lease, LaSalle National was required to use the property only for a nursing home. LaSalle National was simply a land trustee and defendants Morris Esformes, Yosef Davis, and their partnership called the Chicago Heights Terrace Limited Partnership, were the beneficiaries of the trust. These latter defendants (hereinafter called the partnership) set up operations in the nursing home. The partnership has been operating the nursing home since May 1977. The nursing home, at the time this action was brought in February 1979, had close to 250 patients. Many of these patients were old people. However, at least half of them were younger adults suffering from varying degrees of mental disorders. Most of these mental patients had been permanently discharged from various State and private mental institutions because they no longer required regular treatment. None of them was alleged to pose any specific danger to themselves or to persons in the community.\nPlaintiff\u2019s complaint sought several forms of relief. Essentially, plaintiff alleged that the special use permit had been assigned by S & L in violation of the original agreement and was thus no longer in effect, and plaintiff should be deemed to have the right to close the home. Also, in the alternative, plaintiff alleged that the home was being operated in violation of a city ordinance which defined a \u201cnursing home\u201d as follows:\n\u201cA home for the care of children or the aged or infirm, or a place of rest for those suffering bodily disorders, but not including facilities for the treatment of sickness or injuries or for surgical care.\u201d\nPlaintiff alleged that this ordinance prohibited the partnership from housing mentally ill patients and alleged that the partnership was using the home for the \u201ctreatment of sickness\u201d in violation of the ordinance. Plaintiff sought an injunction to prevent the partnership from continuing to violate the ordinance.\nThe trial court dismissed the complaint pursuant to defendants\u2019 motion to do so.\nOpinion\nI\nAlleged Assignments\nPlaintiff first contends that the special use permit was assigned in violation of the original agreement and as a result, the permit is no longer in effect. Plaintiff\u2019s argument is that S & L is the only organization which had any rights under the permit and S & L is the only organization that could operate a nursing home on the land, and if S & L attempted to allow anyone else to operate a nursing home, the original agreement would be breached because such action would constitute an assignment of the special use permit in violation of the agreement and the permit would become void as a result.\nWe disagree with plaintiff\u2019s contention that there was a breach of the original agreement. To begin with, the original agreement did not specifically prohibit the assignment of the special use permit. The pertinent clause in the contract says:\n\u201cThis Agreement and the Ordinance providing for the zoning change and the Special Use Permit shall apply solely to the parties hereto and there shall be no assignments of this Agreement.\u201d\nOf particular note is that the clause refers to the agreement, the ordinance, and the special use permit as three different things, but prohibits only assignments of the agreement. The agreement simply provided that plaintiff would enact the required ordinance and issue the special use permit. In return, S & L was required to \u201cestablish\u201d a nursing home on the property. An assignment is the transfer of some property, claim, or right from the assignor to the assignee. (Buck v. Illinois National Bank & Trust Co. (1967), 79 Ill. App. 2d 101, 223 N.E.2d 167.) The only rights S & L could have been prohibited from assigning under the agreement were the rights to have the ordinance enacted and the special use permit issued. S & L never assigned these rights. The ordinance was enacted and the special use permit was issued to S & L. After this, S & L could no longer assign any rights under the agreement because plaintiff had fully executed its part of the agreement. If plaintiff owed no further duty to S & L under the agreement, S & L could hardly assign to another party a right to have any such phantom duty performed. Since the clause in the contract prohibited only the assignment of the agreement, and, by the terms of that clause, the special use permit itself was something different from the agreement, there was no specific prohibition against assigning the special use permit.\nThe difficulty with the contract term is determining what was meant by the statement that the special use permit would apply solely to the parties to the contract. Did this mean that no one else but S & L could use the property as a nursing home? Undoubtedly, it did not.\nUnder the agreement, the special use permit was to be issued to S & L so it could \u201cestablish\u201d a nursing home. The plaintiff was undoubtedly relying on S & L, an admitted specialist in building nursing homes, to construct the. home, but the special use permit contained no specific requirement for S & L to manage and operate the home. Clearly, the contract term must only have meant that S & L would be the sole party responsible for constructing or \u201cestablishing\u201d a nursing home on the property, and to this extent the permit could only be used by S & L. In other words, the contract term was only intended to be a prohibition which prevented S & L from delegating its duty to a third party to construct or \u201cestablish\u201d a nursing home on the property.\nThis interpretation of the contract term is supported by the clause in the zoning ordinance which requires the owner of the property, his \u201csuccessors or assigns,\u201d to maintain a barrier around the nursing home. This clause contemplated that after the home was built there could be successors or assigns to the property and to the specific use of the property.\nFinally, our interpretation of the contract term is supported by the fact that the legality of the term would be doubtful if the plaintiff had truly intended to limit the use of the property solely to the first owner and thereby prohibit the right to use the property as prescribed from running with the land.\nSince S & L established the nursing home according to the terms of the agreement and the special use permit, there was never any breach of the original agreement. S & L is still the beneficial owner of the property and the holder of the special use permit, and nothing in the agreement prohibited S & L from leasing the property and allowing the partnership to manage and operate the nursing home.\nAccordingly, we hold that plaintiff\u2019s first contention is without merit.\nII\nOrdinance Interpretations\nPlaintiff next contends that the present operation of the nursing home is in violation of the ordinance defining \u201cnursing home,\u201d which reads:\n\u201cA home for the care of children or the aged or infirm, or a place of rest for those suffering bodily disorders, but not including facilities for the treatment of sickness or injuries or for surgical care.\u201d\nPlaintiff contends that this ordinance prohibits the nursing home from being used as a place for the housing and care of persons with mental incapacities. We disagree.\nLanguage in zoning ordinances should be interpreted in favor of the free use of property. (County of Lake v. First National Bank (1979), 68 Ill. App. 3d 693, 386 N.E.2d 394.) Ambiguities should be resolved against the enacting authorities. (Lubershane v. Village of Glencoe (1978), 63 Ill. App. 3d 874, 380 N.E.2d 890.) Necessarily, in determining the meaning of an ordinance, effect should be given to the intention of the drafters by concentrating on the terminology, its goals and purposes, the natural import of the words used in common and accepted usage, the setting in which they are employed, and the general structure of the ordinance. Palella v. Leyden Family Service & Mental Health Center (1980), 79 Ill. 2d 493, 404 N.E.2d 228.\nIn the present ordinance, a nursing home is defined in part as a place for \u201cthe care of children or the aged or infirm, or a place of rest for those suffering bodily disorders * * We believe the word \u201cinfirm\u201d in this ordinance allows for the present use of the nursing home. \u201cInfirm;\u201d in common usage, is defined as \u201cnot strong or sound physically\u201d or \u201cweak of mind, will, or character.\u201d (Webster\u2019s Third New International Dictionary 1159 (1971).) We believe this term is sufficiently broad to encompass those suffering from mental disorders.\nPlaintiff contends the word \u201cinfirm\u201d was only intended to cover those suffering physical weaknesses. However, the ordinance also states that a nursing home is a place of rest for those suffering from physical disorders. This latter clause would be mere surplusage if \u201cinfirm\u201d was intended to mean only those suffering from physical disabilities. Key terms in an ordinance should be assumed to have a meaning different from other terms in an ordinance. (See In re Estate of Cregar (1975), 30 Ill. App. 3d 798, 333 N.E.2d 540.) Thus, we believe that the first part of the ordinance allows for the home to care for those suffering from mental disorders.\nPlaintiff points to the second part of the ordinance which prohibits the home from being a place for the \u201ctreatment of sickness or injuries or surgical care,\u201d and alleges this portion of the ordinance prohibits the present use of the home.\n\u201cTreatment\u201d is a word subject to various interpretations. A nursing home would undoubtedly engage in some minimal degree of \u201ctreatment,\u201d but is not expected to engage in that degree of \u201ctreatment\u201d usually associated with a hospital or mental institution. (See section 1 of the Nursing homes, sheltered care homes, and homes for aged Act (Ill. Rev. Stat. 1977, ch. IIIJ2, par. 35.16) (repealed 1979); see section 1 \u2014 113 of the now Nursing Home Care Reform Act of 1979 (Ill. Rev. Stat. 1979, ch. lilla, par. 4151 \u2014 113).) In the present ordinance, it is apparent that the prohibition against treatment was meant to prohibit that degree of treatment usually associated with a hospital or mental institution. The ordinance prohibits \u201ctreatment of sickness or injuries or for surgical care.\u201d This phrase, read as a whole, implies that the governing authorities meant to prohibit that immediate and extensive treatment provided by a hospital or mental institution usually required for sick or injured persons needing such treatment. We note that the first part of the ordinance allows for the care of the infirm and those suffering bodily disorders. Thus, the ordinance necessarily was intended to allow for some degree of treatment because the infirm and those suffering bodily disorders would always require at least a minimal degree of treatment, as would the aged.\nThe patients with mental disorders now residing in the home are mostly persons who have been permanently discharged from mental institutions as not requiring regular treatment. They are admittedly able to function with a minimal degree of care within an institutionalized surrounding. Hence, we believe that these persons are not being \u201ctreated for sickness\u201d as that phrase is used in the ordinance.\nAccordingly, for the reasons noted, we affirm the decision of the trial court.\nAffirmed.\nJOHNSON and JIGANTI, JJ., concur.", "type": "majority", "author": "Mr. JUSTICE LINN" } ], "attorneys": [ "James F. Creswell, of Chicago Heights, and Andrew M. Raucci, of Chicago (Kusper & Raucci, Chartered, of counsel), for appellant.", "Peter B. Carey and Timothy J. McGonegle, both of Chicago (O'Brien, Carey, McNamara, Scheuneman & Campbell, Ltd., of counsel), for appellees." ], "corrections": "", "head_matter": "THE CITY OF CHICAGO HEIGHTS, Plaintiff-Appellant, v. OLD ORCHARD BANK TRUST CO., Trustees, et al., Defendants-Appellees.\nFirst District (4th Division)\nNo. 80-596\nOpinion filed May 21, 1981.\nJames F. Creswell, of Chicago Heights, and Andrew M. Raucci, of Chicago (Kusper & Raucci, Chartered, of counsel), for appellant.\nPeter B. Carey and Timothy J. McGonegle, both of Chicago (O'Brien, Carey, McNamara, Scheuneman & Campbell, Ltd., of counsel), for appellees." }, "file_name": "0789-01", "first_page_order": 811, "last_page_order": 817 }