concurring in part and dissenting in part:
I agree with my colleagues that the trial court did not err in dismissing count I of plaintiffs’ amended complaint for failure to file a complaint in the circuit court within 35 days of the director’s November 20, 1987, decision granting the village’s petition for a variance. I cannot, however, concur with the majority’s disposition of plaintiffs’ count II.
The majority instructs the circuit court to determine the “correct” zoning classification and to decide whether plaintiffs “will be caused great expenditure if the village is permitted to proceed with the construction of the lagoon.” (192 Ill. App. 3d at 742.) First, the parties do not dispute that the “correct,” or legal, zoning classification of the area in question is 1-1 (industrial). The record on appeal contains a copy of an ordinance passed and approved by the Village of Beecher Board of Trustees on May 12, 1969, which unambiguously establishes that the area of the proposed lagoon was zoned 1-1. Plaintiffs do not allege that the area was reclassified at any later date, but only that the municipality’s map has reflected R-3 “for more than 10 years prior to January 13,1988.”
Clearly, as between a zoning ordinance and the municipality’s official zoning map, it is the ordinance that controls. (Oak Forest Mobile Home Park, Inc. v. City of Oak Forest (1975), 27 Ill. App. 3d 303, 310, 326 N.E.2d 473, 479, citing Western Pride Builders, Inc. v. Koraska (1968), 91 Ill. App. 2d 458, 463, 235 N.E.2d 313, 316.) Plaintiffs make an estoppel argument based on their vague allegation that unnamed “Village officials” informed one or more of the plaintiffs that the area in question was zoned R-3 as shown on the map.
The law of this State is clear that
“[e]stoppel against the public is little favored [citations] and is found only in rare and unusual circumstances [citations]. Where governmental activities are concerned, the doctrine cannot be invoked except in extraordinary circumstances [citations] especially where *** public revenues are involved [citation]. Indeed, public policy generally opposes the application of an estoppel against a governmental body where public revenues are involved even where detrimental reliance is present [citation]. The paramount consideration is the right of the people, and estoppel will not be applied to defeat a policy adopted to protect the public.” (Emphasis added.) (County of Cook v. Patka (1980), 85 Ill. App. 3d 5,12-13, 405 N.E.2d 1376, 1381.)
A vested property interest a consequent estoppel against a municipality may be established only upon evidence: (1) of an affirmative act on the part of the municipality; (2) that the affirmative act induced the plaintiffs to act; and (3) that the plaintiffs substantially changed their position as a result of their justifiable reliance. Plaintiffs’ failure to allege more than the mere unauthorized act of a ministerial officer or a ministerial misinterpretation may be cause for dismissal of an action grounded upon estoppel. American National Bank & Trust Co. v. Village of Arlington Heights (1983), 115 Ill. App. 3d 342, 347, 450 N.E.2d 898, 903, citing Deer Park Civic Association v. City of Chicago (1952), 347 Ill. App. 346, 106 N.E.2d 823; Solomon v. City of Evanston (1975), 29 Ill. App. 3d 782, 331 N.E.2d 380; Lake Shore Riding Academy, Inc. v. Daley (1976), 38 Ill. App. 3d 1000, 350 N.E.2d 17.
The majority apparently assumes the element of an “affirmative act.” In fact, the affirmative act element cannot be assumed. The majority cites People ex rel. Beverly Bank v. Hill (1966), 75 Ill. App. 3d 69, 221 N.E.2d 40, as support for its implicit conclusion that plaintiffs’ count II of their first amended complaint should not have been dismissed for failure to plead a cause of action upon which relief could be granted. However, it is quite clear from a reading of Hill that plaintiffs’ allegations of an affirmative act in this case fall far short of the “special facts and circumstances” established in Hill.
In Hill, plaintiff met with the trustees and president of the Village of Crestwood seeking to have the subject property annexed to the village and zoned for commercial and multiple residential construction. The village president expressed his opinion that plaintiff’s proposal would be acceptable and beneficial to the village. A public hearing was held, after which the plan commission recommended to the board of trustees that the requested zoning be granted after the property was effectively annexed. The board of trustees passed the recommendation favorably, and the president told plaintiff that the village had lived up to its part of the bargain. It was not until after all of these actions that plaintiff purchased the property for $134,000. A map was drawn accordingly, showing the subject property zoned for commercial and multiple dwellings. However, no formal ordinance rezoning the property was adopted. Subsequently, it was learned that the property had been annexed to a first class residential area of the village; and plaintiff brought suit to resolve the zoning issue. On appeal, the Hill court ruled that plaintiff had sufficiently established that the municipal officers had affirmatively acted with the approval of everyone interested and that this, together with proof of the elements of inducement and detrimental reliance, sufficed to invoke the estoppel doctrine.
More recently, in American National Bank & Trust Co. v. Village of Arlington Heights (1983), 115 Ill. App. 3d 342, 450 N.E.2d 898, plaintiffs presented allegations of an affirmative act much more analogous to those before us today. Specifically, plaintiffs there alleged that the village planner informed plaintiffs that the subject property was zoned B-2 (commercial); that the plat and subdivision committee told plaintiffs that no plan commission hearing would be necessary to proceed with their retail building project; and that the official zoning district map reflected that the property was zoned B-2. In fact, the property had reverted back to R-l because a conditional ordinance to rezone it to B-2 had expired before plaintiffs proceeded with their development. On these facts, the appellate court ruled that plaintiffs’ complaint based on estoppel could not survive defendants’ motion to dismiss. The court noted that “the representations made by the village planner and the plat and subdivision committee were the unauthorized acts or misinterpretations of ministerial officers rather than acts of the municipality itself.” 115 Ill. App. 3d at 348, 450 N.E.2d at 903.
In this case, as aforesaid, plaintiffs allege merely that “one or more of the plaintiffs” inquired of an unnamed village official about the zoning of the subject property and was/were informed that it was zoned R-3 and was/were shown the official zoning map, which indicated R-3. The majority sub silencio finds these allegations sufficient to delay or defeat the construction of the village’s aeration lagoon for its sewage treatment plant. I disagree. In my opinion plaintiffs’ allegations of an affirmative act by the municipality fail to establish that the representations were other than unauthorized acts or misinterpretations of ministerial officers. By my view, the map in itself, although misleading, is not and should not be sufficient ground to justify applying estoppel against the municipality and the public it serves.
For these reasons, I would affirm the judgment of the circuit court dismissing with prejudice both counts of plaintiffs’ first amended complaint.