LaSalle Nat. Bank, N.A. v. City of Lake Forest, No. 2-97-0535

• Court: United States Appellate Court of Illinois
• Writing for the Court: RATHJE
• Citation: 696 N.E.2d 1222,231 Ill.Dec. 651,297 Ill.App.3d 36
• Docket Number: No. 2-97-0535
• Decision Date: 16 June 1998
• Parties: , 231 Ill.Dec. 651 LaSALLE NATIONAL BANK, N.A., Successor to LaSalle National Trust et al., Plaintiffs-Appellants and Cross-Appellees, v. The CITY OF LAKE FOREST et al., Defendants-Appellees and Cross-Appellants.

Page 1222

696 N.E.2d 1222 297 Ill.App.3d 36, 231 Ill.Dec. 651 LaSALLE NATIONAL BANK, N.A., Successor to LaSalle National
Trust et al., Plaintiffs-Appellants and Cross-Appellees,
v.
The CITY OF LAKE FOREST et al., Defendants-Appellees and
Cross-Appellants. No. 2-97-0535. Appellate Court of Illinois,
Second District. June 16, 1998.

Page 1223

[297 Ill.App.3d 37] [231 Ill.Dec. 652] Charles F. Marino, David M. Marino, David M. Marino, P.C., Chicago, for LaSalle National Bank, N.A., Janice Serafine and Joseph L. Serafine.

Murray R. Conzelman, Lake Forest, for City of Lake Forest.

Justice RATHJE delivered the opinion of the court:

Plaintiffs, LaSalle National Bank, N.A., successor to LaSalle National Trust, not personally, but as trustee under trust agreement Nos. 10--16725--09 and 10--25443--09; Joseph L. Serafine and Janice Serafine appeal from the amended judgment order entered by the trial court.

In their appeal, plaintiffs argue that defendants, the City of Lake Forest and various of its employees and elected officials (collectively, defendant), have routinely exceeded their lawful powers by requiring that covenants not to resubdivide be placed on final plats of resubdivision that contain any lots large enough to be resubdivided under the existing zoning ordinances and that the trial court erred in refusing to enjoin defendant from continuing to impose covenants not to resubdivide on future subdivisions or resubdivisions of property within its borders. On cross-appeal, defendant argues that the trial court erred in finding that the covenant issue was not moot. Defendant maintains [297 Ill.App.3d 38] that this issue is moot and, as a result, this appeal should be dismissed. The issue on appeal relating to an injunction affecting all other subdivisions in Lake Forest other than plaintiffs' subdivision is moot.

The property at issue consisted of approximately 24.5 acres in Lake Forest. It was subdivided into three lots. Two of the lots

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[231 Ill.Dec. 653] were improved with single-family residences, while the third (lot 1) was unimproved. Plaintiffs drew up a resubdivision of the property in which the two lots with single-family residences would remain essentially the same size and configuration, and lot 1 would be resubdivided into eight new lots of at least 1 1/2 acres in size. Plaintiffs submitted a preliminary plat of resubdivision to defendant, which approved the preliminary plat subject to certain conditions. The conditions included the payment of certain fees, the granting of a conservancy easement to defendant, extending a water main, and not damaging an historic garden located to the north of the subject property.

Subsequently, plaintiffs submitted engineering drawings and the final plat of resubdivision. After defendant's planning and development staff reviewed these documents, it was recommended that the final approval of the resubdivision of the property be subject to a further condition, namely, that plaintiffs be required to place a covenant on lot 1 that would prohibit the further subdivision of it in the future. Plaintiffs declined to place such a covenant on lot 1, and defendant's plan commission voted to recommend nonapproval of the final plat of resubdivision.

In its November 18, 1993, meeting, defendant's city council refused to vote on the final plat of resubdivision on grounds that are not at issue in this appeal. Further, the city council did not take a final vote on the ordinance, which would have rezoned the subject property from R-5 to R-4 and would have granted a special use permit for a historic residential and open space preservation district.

On January 5, 1994, plaintiffs filed a complaint for declaratory, injunctive, and other relief. Count I alleged that defendant's requirement of a conservation easement and a public path for pedestrians and bicyclists was not authorized by Illinois statutes or defendant's charter and was beyond defendant's powers as a non-home-rule municipality. Further, count I sought a permanent injunction enjoining defendant from requiring such a condition for the approval of the subject resubdivision. Count II alleged that a $16,000 open space fee as a condition for the approval was void and sought a permanent injunction enjoining defendant from requiring such a condition for the approval of the subdivision. Count III alleged that the conditions of the conservancy easement and the open space fee were unconstitutional takings of private property and should be enjoined. Count IV alleged[297 Ill.App.3d 39] that defendant's requirement that plaintiffs place a covenant on lot 1 as a condition for the approval of the final plat of subdivision was arbitrary and not a proper exercise of defendant's police power. Count IV sought a permanent injunction enjoining defendant from requiring such a condition for the resubdivision's approval. Count V alleged that the covenant constituted an unconstitutional taking of property without just compensation and should be enjoined. Count VI alleged that the city council's refusal to approve the final plat of resubdivision for the reason that it did not have jurisdiction to do so was arbitrary and not a proper exercise of defendant's police power. Count VI sought a declaration that the city council's refusal to vote was void and also sought a permanent injunction or, in the alternative, a mandamus directing the city council to vote upon and approve the final plat of resubdivision without the offending conditions. Count VI also sought a permanent injunction or, in the alternative, a writ of mandamus directing the city council to vote upon and approve the ordinance to rezone a portion of the subject property from R-5 to R-4 and granting a special use permit for a historic residential and open space preservation district.

Defendant filed a section 2-619 motion to dismiss (735 ILCS 5/2-619 (West 1994)), which argued that the city council lacked jurisdiction to vote on the case and, thus, the trial court also lacked jurisdiction. The trial court denied this motion on August 24, 1994.

On September 15, 1994, the city council approved plaintiffs' final plat of resubdivision, subject to the following conditions: that plaintiffs dedicate a conservancy easement over a portion of the property; that defendant pay no taxes on the property covered by said easement; and that the easement not be included for purposes of calculating the building scale for the lot upon which it would

Page 1225

[231 Ill.Dec. 654] be located. The city council decided at this meeting "not to pursue the condition that there be a restriction on further subdivision on Lot 1." Further, the city council did not approve the ordinance to rezone a portion of the property and to grant a special use permit.

Subsequently, plaintiffs filed a motion for summary judgment. In response, defendant filed a motion to dismiss portions of the complaint and strike portions. Therein defendant stated counts IV and V of the complaint challenged the validity of requiring plaintiff to place a covenant upon lot 1 prohibiting further division. Defendant further stated that the city council had decided not to make the covenant a condition to the approval of resubdivision. Defendant argued, as a result, that the condition was not required and the issue pertaining to it was moot.

In its order entered on October 23, 1995, the trial court found the [297 Ill.App.3d 40] issue of the covenant on further resubdivision of lot 1 was moot. It then granted plaintiffs' motions for summary judgment on the "issue of the requirement for [a] conservancy easement, a right-of-way for public pedestrian/bicycle path and payment of an open land preservation fee."

In a "final judgment order" entered on November 16, 1995, the trial court, inter alia, reiterated its conclusions regarding the covenant, conservancy easement, the right-of-way, and open land preservation fee. In finding the covenant issue moot, the trial court wrote, "This court will assume that the [defendant's] representation that the issue is moot means that the [defendant] will not attempt to again impose this condition for plaintiff's [sic ] subdivision." (Emphasis added.) The trial court also directed the city council to approve the final plat of resubdivision without any of the requirements declared invalid, to approve the ordinances for rezoning, and to grant a special use permit.

Plaintiffs appealed to this court, arguing that the trial court erred in finding the covenant issue moot. This court dismissed the appeal in a summary order, No. 2--95--1617, which was filed on December 20, 1996. This...