dissenting:
Because I believe that the trial court appropriately entered summary judgment in favor of plaintiffs, I dissent.
Initially, I believe that the majority misapprehends the cases it cites for its suggestion that a contract purchaser has insufficient interest in the subject property to obtain rezoning without the participation of the property owner. Each of those cases stands for the proposition that a party challenging the constitutionality of a zoning ordinance must own the property. (Clark Oil & Refining Corp. v. City of Evanston (1961), 23 Ill. 2d 48, 177 N.E.2d 191 (holding that a party with only an option to purchase certain realty contingent upon its rezoning lacked standing to challenge the validity of the existing zoning ordinance, while expressly declining to determine whether it had sufficient interest in the subject property to seek a zoning variation); Chicago Title & Trust Co. v. Village of Mount Prospect (1978), 63 Ill. App. 3d 223, 379 N.E.2d 901 (holding that since the plaintiff did not show that it held undisputed title to, or a possessory interest in, a tract of property, it lacked standing to attack the validity of the zoning ordinance governing its use); Solomon v. City of Evanston (1975), 29 Ill. App. 3d 782, 331 N.E.2d 380 (holding that a contract purchaser had standing to seek a writ of mandamus compelling the city to issue a certificate of compliance necessary to build a nursing home).) A party attacking the validity of a zoning ordinance must show that the restraint it imposes has no substantial relation to the public health, safety and welfare. A nonowner obviously cannot make such a showing. (Clark, 23 Ill. 2d at 50, 177 N.E.2d at 192.) However, a party requesting a variance or zoning change, as in the present case, makes no claim that the existing ordinance is unconstitutional; it merely seeks to persuade the municipality to permit a certain type of property use in the future, thus acknowledging the validity of the village’s enactment.
Defendant’s argument that he acted reasonably under the circumstances hinges on his perception that applying for rezoning would have been futile. However, the mere anticipation that fulfillment of a condition precedent will be unlikely is insufficient to excuse a party from making reasonable efforts to satisfy the condition. See Cummings v. Beaton & Associates, Inc. (1992), 249 Ill. App. 3d 287, 309-10, 618 N.E.2d 292, 304-05, appeal denied (1993), 149 Ill. 2d 648, 612 N.E.2d 512; Dixon v. City of Monticello (1991), 223 Ill. App. 3d 549, 561-62, 585 N.E.2d 609, 618-19.
In Dixon, the real estate sales contract was contingent on the purchaser’s " 'obtaining conclusive permission to construct and use parking facilities.’ ” (223 Ill. App. 3d at 551.) The purchaser applied for a permit to construct a parking lot, but none issued. Objectors to the proposed parking lot filed suit to prevent its construction. Shortly thereafter, the purchaser communicated to the sellers that since the contingency in the contract did not occur, the contract was terminated. We held that the sellers were entitled to specific performance of the contract, noting that the purchaser failed to make reasonable efforts to obtain conclusive permission to build the lot. We found that the purchaser was obligated to seek a conditional use permit or a change in zoning regardless of the obstacle presented by the objectors’ suit. Dixon, 223 Ill. App. 3d at 559-62, 585 N.E.2d at 617-19; see also Wissahickon Realty Corp. v. Boyle (1956), 385 Pa. 198, 199-203, 122 A.2d 720, 721-22 (holding that the defendant wrongfully terminated a lease which was conditioned upon the local liquor board’s approving her license application when she withdrew her application after an investigator for the board informed her that it would be denied).
Similarly, I would reject defendant’s contention that he acted reasonably in failing to apply for rezoning because he had concluded that such action would be futile. Although I recognize the efforts put forth by defendant, holding that he acted reasonably renders " 'the execution of the contract an idle and meaningless ceremony.’ ” (Dasenbrock v. Interstate Restaurant Corp. (1972), 7 Ill. App. 3d 295, 302, 287 N.E.2d 151, 156, quoting Carlton v. Smith (1936), 285 Ill. App. 380, 384, 2 N.E.2d 116.) Defendant’s decision to refrain from actually applying to the village board prevented fulfillment of the condition precedent and amounted to a waiver of that condition. Vigor’s intention to withhold his recommendation for the project and the plan commission’s "hope” that a common driveway would be created, did not, in themselves, preclude the village board from approving the rezoning. In fact, according to the uncontroverted affidavit of William V. Enright, an Arlington Heights urban planner, the board had previously approved a development project involving property located within the same block as the property at issue in this case even though the applicant and adjacent property owner did not agree to a common driveway.
Defendant argues, and the majority agrees, that he was obligated only to "assume the costs of the attempted rezoning,” not to apply for rezoning, particularly when such application would have been unavailing. In my view, defendant’s inaction in response to his speculation regarding the outcome of the application process does not support a finding of reasonable efforts. His failure to formally apply to the village board precluded all possibility that he could have convinced the board to approve his plans. Compare Dodson v. Nink (1979), 72 Ill. App. 3d 59, 390 N.E.2d 546.
The majority notes that although the adjacent property owner refused to agree to a common driveway with defendant, the village board of trustees continued to refer to the cross-easement up until the time it approved his application. However, of significance is not the board’s continued desire for the cross-easement, but rather, its willingness to approve the application, which it freely granted, despite the adjacent owner’s obduracy on this issue. It is worthy of note that the adjacent property owner did not let the imprecations of village officers stop him from taking the second step in the village’s procedural requirements, namely, the filing of an application for the rezoning he sought. Accordingly, since the board demonstrated its flexibility regarding common driveways, it cannot be said, as a matter of law, that it would have denied defendant’s application and that he was reasonable in failing to submit an application to that authority.
Furthermore, defendant did not, as the majority asserts, "substantially” comply with the first three procedural steps in obtaining a change in the zoning ordinance. Defendant concedes that he made no application for rezoning, and the omission of an application, required in the second step, demonstrates his failure to adhere to the procedure outlined by the village.
I also note that defendant failed to seek an extension to obtain financing until well after the allotted time period for notification had expired. Indeed, by failing to apply for rezoning, defendant ipso facto eliminated any chance that he could get financing. The trial judge, therefore, properly concluded that the contract was "not voidable for failure to get financing without notice.” See Djomlija v. Urban (1982), 107 Ill. App. 3d 960, 438 N.E.2d 558.
In sum, to analogize the issue here with an example taken from the game of baseball, even if a batter hits a ball over the fence, it avails him nothing if he fails to touch first base, no matter how many of the others he may have properly "visited.”