dissenting:
The issue in this case is whether the circuit court abused its discretion in weighing two substantial and conflicting interests. On the one side are the interests of two home builders, Thomas Scanlon and James Hughes, who, in good faith, relied to their detriment upon (1) the village board’s favorable disposition of a request for a zoning variation, and (2) the issuance, by the village’s director of building and zoning, of building permits, which, on their face, appeared to be valid. On the other side are the interests of the village and, indirectly, of the neighbors, who allegedly were not afforded an adequate opportunity to object to the requested zoning variation. The circuit court held that, on this record, the equities favored the two home builders, and commanded the village to permit the two home builders to complete their work. The majority of this court, however, reverses the circuit court, apparently finding that the village’s failure to comply with a notice statute (which neither party cited) required the circuit court to allow the village to escape application of the doctrine of equitable estoppel. I disagree.
The leading case on the application of estoppel in pais against a municipality is Cities Service Oil Co. v. City of Des Plaines (1961), 21 Ill. 2d 157. There, this court explained the application of the rule as follows:
“The general rule is that a city cannot be estopped by an act of its agent beyond the authority conferred upon him. ***
The general rule is qualified, however, to enable a party to invoke the doctrine where his action was induced by the conduct of municipal officers, and where in the absence of such relief he would suffer a substantial loss and the municipality would be permitted to stultify itself by retracting what its agents had done.” (21 Ill. 2d 160-61.)
Thus, in Cities Service, this court affirmed the holding of the circuit court that “the construction work was undertaken by the plaintiff after affirmative action and apparent approval by public authorities, and that the city and its officials are estopped from preventing erection of the service station.” (21 Ill. 2d 157, 159.) It cannot seriously be disputed that Scanlon and Hughes would not have purchased the property and spent substantial sums toward developing it if the village had not led them to believe that their plans had been approved by the village. Yet the majority attempts to distinguish Cities Service on the grounds that here the granting of the variation apparently did not comply with section 11—13—6 of the Illinois Municipal Code, requiring published notice of board of appeals hearings.
Neither party has relied upon the statute however, and in seeking to apply it here, without the benefit of adequate legal argument and factual proof, the court has wandered from the central issue in this case. First, the statute is not jurisdictional and therefore, in itself, not dispositive of this case. Second, since the village failed to raise this issue, the plaintiffs have not had an opportunity to demonstrate that the local residents had constructive notice of the requested variance. There is, in fact, some evidence in the record indicating that the requested variance may have been included in a published agenda of the village board.
Finally, as I read the statute, the duty to publish was that of the board of appeals, and the failure to publish therefore is not chargeable to Scanlon and Hughes. Although the language of the statute is not explicit on this point, my construction is in accord with the general rule in most jurisdictions. (Cf. generally 3 R. Anderson, American Law of Zoning sec. 20.17 et seq. (2d ed. 1977); Annot., 38 A.L.R.3d 167, sec. 5 (1971).) To punish the plaintiffs for not looking behind the apparently valid actions of the village is, therefore, in my opinion, manifestly unjust. It can lead only to higher legal costs and higher housing costs for everyone. The decision of the circuit court wisely avoided such a course, and I would affirm its judgment and permit the writ to issue. See People ex rel. Deddo v. Thompson (1918), 209 Ill. App. 570 (mandamus), cited with approval in Cities Service.
GOLDENHERSH, C.J., and MORAN, J., join in this dissent.