County of Cook v. Monat

• Decision Date: 24 March 2006
• Docket Number: No. 1-05-2001.,1-05-2001.
• Citation: 847 N.E.2d 689
• Parties: The COUNTY OF COOK, a Body Politic Corporate, Plaintiff-Appellee, v. Allan MONAT and Becky Monat, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 689

847 N.E.2d 689

The COUNTY OF COOK, a Body Politic Corporate, Plaintiff-Appellee, v. Allan MONAT and Becky Monat, Defendants-Appellants.

No. 1-05-2001.

Appellate Court of Illinois, First District, Sixth Division.

March 24, 2006.

Richard A. Devine, State's Attorney, Cook County, Patrick T. Driscoll, Jr., Deputy State's Attorney, Chief, Civil Actions Bureau, Donna M. Lach, Jayman A. Avery III, Assistant State's Attorneys, Chicago, for Plaintiff-Appellee.

Jewel N. Klein, Law Firm of Barry H. Greenburg, Chicago, for Defendants-Appellants.

Justice FITZGERALD SMITH delivered the opinion of the court:

The plaintiff County of Cook, a body politic corporate (the County), filed a complaint against defendants Allan Monat and Becky Monat for violating zoning ordinances by keeping two horses on their property in unincorporated Cook County and sought an injunction to prohibit defendants from keeping the horses on that property. In response, defendants raised an affirmative defense of a special use, which was granted to the previous owner of the property and which allowed him to continue boarding his horses. The circuit court granted summary judgment in the County's favor, enjoined defendants from boarding horses on their property and imposed a fine on defendants for the violations. On appeal, defendants contend that the special use runs with the land. We disagree and affirm the judgment in favor of the County.

The instant action marks defendants' second litigation in their ongoing attempt to keep horses on property in the Timberlane Estates subdivision in unincorporated Cook County. The County and Allan Monat were previously before this court in Monat's ultimately unsuccessful attempt to build a stable and board horses at another property in that subdivision, 4110 Timberlane. See Monat v. County of Cook, 322 Ill.App.3d 499, 255 Ill.Dec. 679, 750 N.E.2d 260 (2001) (hereinafter, Monat I). In that action, this court found that the ordinance did not permit expansion of the special use to all the lots in Timberlane Estates. Monat I, 322 Ill.App.3d at 509, 255 Ill.Dec. 679, 750 N.E.2d 260.

The property at issue in this action, the subject property, is located at 4190 Timberlane Drive. Defendants have lived at the subject property since April 2001. The size of defendants' lot is approximately one-half acre and the lot, like all the others in Timberlane Estates, is zoned "R-4," or, single-family residential. Defendants purchased the property at 4190 Timberlane Drive from Ronald Krueger, who had kept horses there and was granted a special use permit in 1978 to continue doing so. In 1978, Krueger and one other homeowner, Frank Williams, were sued for violating the zoning ordinance by having stables on lots smaller than three acres. The Department of Building and Zoning of Cook County (DBZ) then applied for a special use, which, according to one of the zoning board members, was for "the private boarding of horses that are presently existing" in the area. Following a hearing, the special use was granted.

Although defendants lived in the subdivision since the end of 1997, first, for more than three years at the 4110 property, then at the subject property, they admitted that they never observed horses on the subject property when it was owned by Krueger. Defendants also admitted that they never observed horses being boarded there. Since purchasing the subject property, however, defendants have kept horses there.

In November 2003, the DBZ sent defendants a letter informing them that an inspection of their property revealed violations of certain provisions of the County's building and the zoning ordinances. Specifically, defendants were notified that there was one violation of the former, for having a stable that was built without the required permit (see Cook County Building Ordinance § 5.3-1(a)(1) (1997)), and two violations of the latter, for keeping horses on a lot that was smaller than three acres and not zoned for keeping horses (see Cook County Zoning Ordinance §§ 4.4.8.A.1.e, 4.4.6 (2001)). Shortly thereafter, defendants were informed that the citation for the building ordinance was rescinded because a prior owner had constructed the stable structure more than 20 years ago. The stable structure is not at issue in this controversy.

Rather, the controversy involves only the keeping of horses on the subject property. In the same January 2004 letter rescinding the building ordinance violation, the County's commissioner of building and zoning advised defendants that litigation for the zoning violations would not be pursued at the time, based on defendants' compliance with the ordinance by removing the horses from the property. However, defendants were informed that if they wanted to board "any" horses on their property in the future, they would have to apply for a special use with the DBZ. The letter also informed defendants that "an Accessory Use for private stables (boarding horses) requires a zoning lot a minimum of three (3) acres in size" and that they were "not permitted to board any horses as an Accessory Use on your property without first obtaining such a Special Use." The letter encouraged defendants to apply for the special use and described the procedure for doing so, which includes a public hearing. Defendants were specifically notified that if they returned a horse to the property without having obtained a special use, the DBZ would "issue a violation for non-compliance with the Zoning Ordinance" and seek an injunction to prohibit the boarding of horses on the property and fines for the ordinance violation.

In July 2004, after an inspection revealed that defendants had horses on the subject property, the County filed its verified complaint for keeping horses on a lot of approximately one-half acre in size in violation of the zoning ordinance. Defendants admitted keeping two horses on the property, but raised the 1978 special use as an affirmative defense. The County denied the affirmative defense and subsequently moved for summary judgment. In its supporting memorandum, the County referred to a similar circuit court case, which was one of three consolidated cases concerning properties in the Timberlane Estates subdivision (County of Cook v. Zorn, No. 99 M1 402044 (Cir. Ct. Cook Co.), County of Cook v. Peterson, No. 99 M1 402045 (Cir. Ct. Cook Co.), County of Cook v. Amelio, No. 00 M1 400077 (Cir. Ct. Cook Co.)) (hereinafter Amelio), although it recognized that the decision in that case was not binding. There, the purchaser of the Williams lot, Arthur Amelio, also raised the 1978 special use as an affirmative defense but the court held that the special use granted expired with the sale of the Williams property.

On May 17, 2005, the court issued a written memorandum order and opinion in which it found that there had been no zoning change and that the Timberlane Estates subdivision was zoned R-4, for single-family residential use. The court further found that the property at issue was a one-half acre lot, defendants were boarding two horses on the lot, and defendants had not been granted a special use permit to do so. The court considered the affirmative defense at length, but found as a matter of law that the special use granted in 1978 (to Krueger) expired with the change in ownership of the property.¹ Finding that the special use did not run with the land, i.e., that it expired when Krueger sold the property to defendants, the court thus concluded the 1978 special use did not sustain defendants' affirmative defense and that the County was entitled to summary judgment. On that basis, the court granted the injunction, enjoining defendants from boarding horses on their property and directing them to remove the horses before a certain date, and enjoining defendants from using the structures on their property for boarding horses. This appeal followed.

The sole issue presented on appeal is whether the 1978 special use runs with the land or terminates with the sale of the property. Defendants raise several points in support of their contention that the special use runs with the land, basing their position primarily on the official zoning maps that contain the special use designation. The County maintains that the 1978 special use permit at issue was personal to the previous owner of the property, Krueger, and, like special uses generally, it does not run with the land. We agree that the special use at issue here does not run with the land.

Summary judgment should be granted where the pleadings, depositions, affidavits, admissions, and exhibits on file, when viewed in the light most favorable to the nonmoving party, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2004); Home Insurance Co. v. Cincinnati Insurance Co., 213 Ill.2d 307, 315, 290 Ill.Dec. 218, 821 N.E.2d 269 (2004); Lapp v. Village of Winnetka, 359 Ill.App.3d 152, 160, 295 Ill.Dec. 777, 833 N.E.2d 983 (2005). The grant of summary judgment is reviewed de novo. Home Insurance Co., 213 Ill.2d at 315, 290 Ill.Dec. 218, 821 N.E.2d 269; Lapp, 359 Ill.App.3d at 160, 295 Ill.Dec. 777, 833 N.E.2d 983. A grant of summary judgment may be affirmed on any basis appearing in the record, even if the lower court did not rely upon that ground. Home Insurance Co., 213 Ill.2d at 315, 290 Ill.Dec. 218, 821 N.E.2d 269.

Initially, we note that, because defendants are challenging the application of the zoning ordinance or, alternately, seeking application to them of the special use, they bear the burden of proof in this matter. See Cosmopolitan National Bank v. County of Cook, 103 Ill.2d 302, 310-11, 82 Ill.Dec. 649, 469 N.E.2d 183 (1984); South Side Move of God Church v. Zoning Board of Appeals of the City of Chicago, 47 Ill. App.3d 723, 727, 7 Ill.Dec. 833, 365 N.E.2d 118 (1977). Thus, it is for defendants to show by clear and convincing evidence that...