dissenting:
I believe that the amendatory ordinance of June 6, 1956, is a form of spot zoning and ought to be struck down. The court agrees that spot zoning is not to be encouraged, but suggests that the important issue is “whether such change is in harmony with a comprehensive plan for orderly utilization of property in the locality.” The evidence indicates that the June 6 ordinance does not meet this test; it singles out for special consideration a tract of land, 50 by 132 feet, located in an area which has been progressively zoned for more restricted use. I am unable to determine, either by the record or conjecture, ho\y this amendment can be justified as an exercise of legislative power for the benefit of the public.
In 1942 the city council, by a comprehensive ordinance, determined that the use of this tract, as now proposed by defendant, ought not be permitted. In 1957, the city council, after 15 years of further study, again passed a comprehensive zoning ordinance which does not permit the proposed structure. Compared to this studied exercise of the zoning power for the public welfare, the ordinance of June 6, 1956, stands out as a legislative aberration. It is common practice for zoning ordinances to limit the intensity with which land may be used, (Ill. Rev. Stat. 1957, chap. 24, par. 73 — 1; Honeck v. County of Cook, 12 Ill.2d 257 ; First National Bank v. County of Lake, 7 Ill. 2d 213,) to to the end that health, safety, and the general welfare may be promoted. We have sustained such an ordinance with reference to the height of a hotel building. (Chicago City Bank & Trust Co. v. City of Highland Park, 9 Ill.2d 364.) The United States Circuit Court of Appeals has enforced the provisions of such an ordinance by mandatory injunction even though the cost of restoring the building to compliance approximated $350,000. (Welton v. 40 East Oak Street Building Corporation, (7th Cir.), 70 Fed.2d 377; also see Welton v. Hamilton, 344 Ill. 82.) There is ample authority for striking the ordinance of June 6, 1956.
The power to amend a zoning ordinance is not unfettered, and can be exercised only when in the interest of public health, safety, comfort or welfare. The evidence must show that the amendment was passed for the public good and the power of amendment should not be exercised merely because certain individuals want it done. (Trust Co. of Chicago v. City of Chicago, 408 Ill. 91; Dunlap v. City of Woodstock, 405 Ill. 410; Offner Electronics, Inc. v. Gerhardt, 398 Ill. 265; Kennedy v. City of Evanston, 348 Ill. 426.) Neither the facts stated in the opinion of the court, nor in the record, bring the ordinance within the ambit of this test. The amendatory ordinance of June 6 is a deviation from the comprehensive zoning plans approved both before and after its adoption. The comprehensive ordinances and the ordinance here characterized as one providing for spot zoning, cannot both be based on the public welfare, and I conclude that it is the June 6 ordinance which is deficient in this respect.
Although I base my dissent on the invalidity of June 6 ordinance, I also agree with the trial court that this property is now in an R-7 use district under the 1957 ordinance, and that such ordinance is now controlling. While the First District Appellate Court has held that under certain circumstances, a party can, in good faith, so change his position in reliance on a valid ordinance as to make it inequitable to‘ enforce a subsequent change in zoning, the authorities differ on the degree of action that must be taken in order that the permit privilege ripen into a vested right. (See Deer Park Civic Ass’n v. City of Chicago, 347 Ill. App. 346.) In the case at bar, the “spot zoning” ordinance was adopted by the city council on June 6, 1956, the instruments to be executed in connection with the sale were placed in escrow on June 12, and the sale was made contingent upon the rezoning of the property. The deed was signed and placed in escrow June 18, and on June 20, the trustee entered into a $105,000 architectural contract for the 25-story apartment building. The proceedings in question were filed June 21, and the ordinance became effective June 28. The sale was consummated July 8 and thereafter the trustee expended approximately $5,000 in connection with the project. Before any substantial work was done the permit was revoked. Thus, all expenditures were made either before June 28, 1956, the effective date of the amendatory ordinance, or after the pendency of this action. Under such circumstances, this is a case of precipitous haste and needless action prior to the effective date of the “spot zoning” ordinance and, in part, with knowledge of the pending suit. Such action does not amount to a good faith change in position which would entitle the defendant to rely on the June 6 ordinance, even if valid, and make the action of the city in enforcing the 1957 comprehensive zoning ordinance inequitable when applied to appellant’s property.
I would affirm the decree of the trial court.
Mr. Justice Sci-iaeeer joins in this dissent.