Beneficial Development Corp. v. City of Highland Park

• Decision Date: 31 December 1992
• Docket Number: No. 2-91-1043,2-91-1043
• Citation: 606 N.E.2d 837,239 Ill.App.3d 414
• Parties: , 179 Ill.Dec. 1005 BENEFICIAL DEVELOPMENT CORPORATION, Plaintiff-Appellant, v. THE CITY OF HIGHLAND PARK et al., Defendants-Appellees (Tennyson Development Corporation et al., Plaintiffs).
• Court: United States Appellate Court of Illinois

Page 837

606 N.E.2d 837

239 Ill.App.3d 414, 179 Ill.Dec. 1005

BENEFICIAL DEVELOPMENT CORPORATION, Plaintiff-Appellant, v. THE CITY OF HIGHLAND PARK et al., Defendants-Appellees (Tennyson Development Corporation et al., Plaintiffs).

No. 2-91-1043.

Appellate Court of Illinois Second District.

Dec. 31, 1992.

Everette M. Hill, Jr., Arnstein & Lehr, Chicago, for Beneficial Development Corp.

Ken Lodge, Burke, Smith & Williams, Chicago, Erwin W. Jentsch, Mt. Prospect, Ronald L. Sandack, Burke, Smith & Williams, Chtd., Chicago, for City of Highland Park.

Justice DUNN delivered the opinion of the court:

Plaintiff, Beneficial Development Corporation (Beneficial), appeals the declaratory judgment of the trial court in favor of defendants, the City of Highland Park (City) and Shaf Home Builders, Inc. (Shaf). Plaintiff contends the trial court erred in declaring the imposition of certain recapture fees against plaintiff pursuant to a recapture agreement between the City and Shaf was permissible and in awarding only $5,445 for Shaf's alleged trespass to a portion of the property at issue. We affirm.

As a preliminary matter, we address Shaf's motion taken with the case to strike certain portions of Beneficial's brief on behalf of nonparties Tennyson Development Corporation (Tennyson) and Betty Holst (Holst). Shaf contends the brief filed by Beneficial seeks relief on behalf of Tennyson and Holst in violation of this court's order striking relief sought by nonparties from any motions before the court. We agree.

The notice of appeal filed in this case did not name Tennyson or Holst as a party to the appeal. Only Beneficial was named as the plaintiff-appellant in the body of the notice of appeal, and the notice was signed by "Everette M. Hill, Attorney for Plaintiff-appellant Beneficial Development Corporation."

Beneficial argues that because Mr. Hill was the attorney of record for all plaintiffs in the trial court, his signature on the notice of appeal was sufficient to meet the requirements of Rule 303. However, Supreme Court Rule 303 (134 Ill.2d R. 303) requires all appellants be named in the notice of appeal and the notice be signed by each appellant or his or her attorney. The notice of appeal clearly named Beneficial, and Beneficial alone, as plaintiff-appellant. Accordingly, we consider this appeal to be taken only by Beneficial. See People v. Krueger (1986), 146 Ill.App.3d 530, 533, 99 Ill.Dec. 258, 495 N.E.2d 993.

Betty Holst owned a five-acre parcel of property in Highland Park, Illinois. Although no plat of subdivision had been filed, in October 1988, Holst sold two of her five acres to Tennyson Development Corporation for $175,000. Simultaneously, Tennyson sold those two acres to Beneficial for $950,000, which included the cost of a 6,000-square-foot house to be constructed on the lots at an estimated cost of $750,000. None of the plaintiffs below applied for a building permit or subdivision approval for their property.

The five acres originally owned by Holst (Holst property) adjoin a 22-acre parcel of land known as the Tara subdivision which is owned by defendant Shaf. The Highland Park city council approved the Tara subdivision preliminary plat on September 6, 1986, and required Shaf to enter into a subdivider's agreement with the City to ensure the completion of all required subdivision improvements. Chapter 151 of the code of ordinances of Highland Park requires subdividers to install water mains, storm and sanitary sewers, streets, sidewalks, streetlights, and other public improvements, as a condition precedent to the acceptance of a final map of any subdivision. (Highland Park, Ill., Code of Ordinances, ch. 151, par. 151.125 et seq.) The City and Shaf entered into the subdivider's agreement on May 6, 1987.

Because these improvements benefitted the Holst property, the subdivider's agreement provided for the execution of a recapture agreement requiring the City to reimburse Shaf for a portion of the cost of constructing the improvements at the time the owners of the Holst property apply for subdivision plat approval or wish to tap into, utilize or extend the improvements. The City would collect that portion of the cost from the owners of the Holst property and reimburse Shaf with those monies. The recapture agreement was also entered into on May 6, 1987.

The recapture agreement contained the City engineer's estimate of the total cost of the required improvements. The cost was estimated at $628,000. The total area involved equaled 27 acres: 22 acres in the Tara subdivision and 5 acres in the Holst parcel. Therefore, the City determined that the Holst property owners would be required to reimburse the City for 5/27 of the public improvement costs--a recapture fee of $116,296. An original copy of the agreement was filed with the recorder of deeds of Lake County to notify persons interested in the subdivision and the Holst property of the fact that there would be a charge for the connection and use of the public improvements constructed under the agreement.

Plaintiff's third amended complaint, which requested a declaration of rights of the parties, alleged that the City assessed certain recapture fees without authority, that the City deprived plaintiffs of their property rights under color of law and that Shaf and the City unlawfully committed a trespass on an easement on plaintiffs' property by constructing a roadway.

Robert Hamilton, a civil engineer, testified for plaintiff at trial. He stated that the on-site improvements to the Tara subdivision did not benefit the Holst property, but most of the off-site improvements such as the street construction, sanitary sewer and water main construction are of use to the Holst property. However, he added that the majority of the storm sewer construction did not benefit the Holst property because it would not drain the Holst property. He did not define what he considered "on-site" improvements. Hamilton stated that the apportionment of 5/27 of the cost of the water main and sanitary sewer construction to the Holst property was fair and reasonable.

Neil King testified for the defendants at trial. He opined that the improvements benefitted the Holst property. He stated that after the improvements were completed, the value of the Holst property increased by approximately $300,000. He opined that the pavement, sidewalks, curbs, gutters, streetlights, and water and sewer construction all contributed to this enhancement in the value of the Holst property, and that the owners of the Holst property would not be required to install these improvements upon the subdivision of their property.

John Zimmerman, corporation counsel for the City, also testified on behalf of defendants at trial. He stated that in the case of a new development, whenever public improvements are involved, the City council requires a subdivider's agreement, and where recapture is involved, a recapture agreement is entered into adjunct to the subdivider's agreement.

Don Fielding, a consulting engineer, testified that in 1979 Betty Holst's husband, Brent, now deceased, hired him to prepare an estimate of costs for the subdivision of the Holst property. The improvements proposed for the Holst property in 1979 were similar to those required in the present case, as they were in accordance with the City's subdivision regulations. In 1979 the total cost of those improvements was $160,116.25. Mr. Fielding also prepared a preliminary engineering plan for Shaf's subdivision, Tara. He testified that those improvements, including on-site benefits, benefit the Holst property. However, in his deposition he stated that the on-site improvements did not benefit the Holst property.

James P. Foley, a real estate appraiser hired by plaintiffs below, was deposed by defendants. He stated that the site improvements, sewer, water, curbs, gutters, overhead lighting, and asphalt pavement, enhanced the value of the Holst property.

In its memorandum order, the trial court found that the imposition of the recapture fees pursuant to the recapture agreement was a valid exercise of City's home rule authority. In addition, the court found Shaf's improvement of the easement running through the Holst property was an actionable trespass and that Shaf was liable to plaintiffs in the amount of $5,445 as just compensation.

On appeal, plaintiff Beneficial contends: (1) the trial court erred in declaring the recapture agreement valid; (2) the trial court erred in refusing to reduce the recapture fees required under the agreement; (3) the trial court erred when it found defendants did not violate plaintiff's rights under 42 U.S.C. § 1983 (1992); (4) the trial court erred in awarding plaintiffs only $5,445 for the trespass to their property; (5) the trial court erred in refusing to hold the City jointly liable for the trespass; and (6) the trial court erred in refusing to grant a mistrial after it was discovered that one of defendant's witnesses was a member of the same law firm as the City's trial attorney.

Plaintiff argues that the City was not authorized to assess recapture fees for the improvements installed by Shaf. In particular, plaintiff argues that defendants cannot contract to obligate plaintiff, who was not a party to the recapture agreement. Plaintiff also contends the recapture agreement is invalid because it requires plaintiff to pay for a portion of the improvements that do not benefit its property. We disagree.

The recapture of costs for improvements installed by subdividers as required by municipalities is a legitimate exercise of municipal power. (See Ill.Rev.Stat.1991, ch. 24, par. 9-5-1.) Section 9-5-1 of the Illinois Municipal Code (Municipal Code) provides that a municipality and a subdivider may contract for the reimbursement to the subdivider for a portion of the cost of the installation of water mains, sanitary sewers, drains, or other facilities for sewers or drains, the construction of...