dissenting:
Three parcels of property in the unincorporated area of Cook County contiguous to the Village of Mount Prospect were zoned by the county as R-5 General Residential District. The plaintiff-village, acting pursuant to section 11-12-4, et seq., of the Illinois Municipal Code (Ill Rev Stats 1965, c 24, par 11-12-4), prepared and adopted a comprehensive land-use plan for the village. Acting pursuant to the statutory authority, this plan designated the subject property as suitable for annexation and recommended that upon annexation it be developed or zoned as R-4 Multiple-Family Residence District of the village zoning ordinance.
The owner of the propery petitioned for and received a reclassification from R-5 General Residence to B-4 General Service District under the county zoning ordinance. The owner proposes to construct a six-story office building, a three-building motel complex consisting of a one-, four-, and six-story building, and a five-story structure containing retail stores on the ground floor and multiple-family dwellings on the upper floors. The village objected to the reclassification. Notwithstanding this objection, the county did reclassify the property to permit of the proposed use.
This proceeding was instituted by the village to challenge the validity of the county rezoning reclassification. The sole issue here is the authority of the village to maintain this action in its corporate capacity relating to territory not within the corporate limits but contiguous thereto.
My colleagues hold that the village has no such authority and in so doing follow the opinion of the Appellate Court, Second District, in Village of Bensenville v. County of Du Page, 30 Ill App2d 324, 174 NE2d 403 (2nd Dist 1961).
I do not agree that the Village of Mount Prospect is lacking in authority to challenge the county zoning ordinance amendment as it relates to these three parcels of ground.
It is clear that there is no statutory provision that either expressly authorizes the village to challenge a county zoning ordinance or prohibits such challenge. It is equally clear that a municipality has only such power or authority as is expressly or by necessary implication given to it by the General Assembly, and it is further clear that the general rules of strictly construing statutes as they relate to grants of power to municipalities would reach the result of the majority here.
Municipalities, of course, have a general capacity to sue and be sued if some corporate purpose of the municipality is served by such litigation. In this case the amended complaint alleged and, for purposes of this proceeding, the motion to dismiss admitted that the village has exercised the authority conferred by statute to adopt a comprehensive land-use plan and that the rezoning ordinance adopted by the County of Cook permits a use of the subject property in a manner substantially contrary to the comprehensive plan. Mount Prospect further alleges the existence of a subdivision control ordinance and regulation, again pursuant to statute, purporting to govern and regulate subdivision development. Finally, the complaint alleges that the proposed development would create traffic hazards and congestion on highways — ■ highways, incidentally, located both within and without the corporate limits of the village — and that such use would adversely affect the ability of the village to provide police and fire protection to the residents of the village. It further alleges that there would be an overburden of sewer and storm drainage facilities located within the village, and that the proposed development would strain the capacities of the utility company which would serve the proposed development and serves a portion of the Village of Mount Prospect. All these areas of special damages that are alleged are areas of municipal concern and areas in which the municipality is authorized to function by statute. How can it be said that the only remedy in protecting its interests is to file a protest with the County Board and if after receipt of the protest the County Board votes by a three-fourths vote to approve the rezoning, then the village is without further remedy ?
In the Bensenville case the court held that the village had no standing to challenge the validity of the county zoning ordinance. A careful reading of that opinion, however, indicates that the court was in substantial measure concerned with a determination of whether the village or the county had the power to zone the property. The majority here seems to me to speak of the control of the zoning of the area by the village through the comprehensive plan device. The question is not the power of the municipality to zone the area. It is clear and the plaintiff concedes that the authority to enact zoning ordinances applicable to the property rests in the county. The issue is the standing of the village to challenge in a judicial forum the validity of the county zoning ordinance.
Aside from the Bensenville decision, in Chicago Title & Trust Co. v. County of Cook, 68 Ill App2d 487, 216 NE2d 216 (1st Dist 1966), the Villages of Mount Prospect and Arlington Heights were permitted to appear as intervenor defendants although not the principal parties litigant. In Village of Bannockburn v. County of Lake, 17 Ill2d 155, 160 NE2d 773 (1959), the village participated as a party-plaintiff although the specific issue of its authority to do so seems not to have been in issue. In Society of the Divine Word v. County of Cook, 107 Ill App2d 363, 247 NE2d 21 (1st Dist 1969), where issues other than zoning were involved, but zoning was involved, affected villages were permitted to intervene and appear as plaintiffs and as defendants. Finally, in Village of Riverwoods v. County of Lake, 94 Ill App2d 320, 237 NE2d 547 (1968), the village was a proper party as plaintiff to challenge the validity of a county zoning ordinance enacted without compliance with specified notice requirements.
Realistically, today’s complex urban problems do not behave according to the geography of municipal boundaries. Clearly, in this case, the county had jurisdiction of the subject property for purposes of zoning. Equally clear, however, is the fact that Mount Prospect had authority to concern itself with a comprehensive plan for the development of the area including the subject property. There is not necessarily a conflict between these two governmental functions. When they do conflict the jurisdiction to zone rests in the county. It seems to me, however, that implicit in the authority to make a comprehensive plan is capacity to challenge the validity of the county action under usual zoning standards.
The items of special damages or of unique impact on the village may or may not be established at a hearing on the merits. It may be that the county zoning reclassification is perfectly valid under any test of legality. Those are matters which, in my judgment, should be determined at a hearing on the merits of this controversy. It was error for the circuit court to dismiss the complaint for want of capacity of the village to sue. Accordingly, I dissent.