Monat v. County of Cook
| Decision Date | 14 May 2001 |
| Docket Number | No. 1-00-0782.,1-00-0782. |
| Citation | 255 Ill.Dec. 679,750 N.E.2d 260,322 Ill. App.3d 499 |
| Parties | Allan MONAT, Plaintiff-Appellant, v. The COUNTY OF COOK, a Municipal Corporation, and Donald Wlodarski, as Commissioner of the County of Cook Department of Building and Zoning, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Schain, Burney, Ross & Citron, Ltd., Chicago (James R. Griffin, of counsel), for Appellant.
Richard A. Devine, State's Attorney of Cook County, Chicago (Patrick T. Driscoll, Jr., Donna M. Lach, Jayman Avery, III, and Brian Fahey, of counsel), for Appellee.
Allan Monat sued Cook County and the commissioner of its Department of Building and Zoning (DBZ), Donald Wlodarski, seeking a writ of mandamus and an injunction directing defendants to issue him a building permit. The trial court granted defendants' motion for summary judgment. Monat now appeals.
Monat owned horses and kept them at a stable a considerable distance from his home. In December 1996 he found a house for sale in the Timberlane Estates subdivision of Northfield Township, in unincorporated Cook County, where nearby homeowners kept horses on their properties. Monat tried to find out whether he could build a stable on the property available for purchase.
Timberlane Estates is a 20-acre area divided into 30 lots. One of the lots is about one acre, another is larger than three acres, and the remaining lots are about a half acre each. The Cook County Zoning Ordinance zoned all of Timberlane Estates R-4, permitting horse stables on any lots at least three acres in size. The lot available for purchase was about a half acre. The ordinance permitted horse stables as a special use on small lots zoned R-4. Cook County Zoning Ordinance § 4.44(4)(d) (1976).
The Cook County board of commissioners had already granted a special use for the Timberlane Estates subdivision. The zoning board of appeals (ZBA) applied for the special use in 1978, describing the use sought as a "Unique Use (Special Use) * * * for the private boarding of horses (presently existing)." The ZBA held public hearings as required by the section of the zoning ordinance concerning special uses. Cook County Zoning Ordinance § 13.10-4 (1976). After the hearing, the ZBA issued the following findings and recommendations:
The findings, like the application, included a description of Timberlane Estates as the property involved.
The board of commissioner's committee on public service reviewed the ZBA's findings and concurred with the recommendation. The board of commissioners adopted the committee's report by ordinance dated September 5, 1978, thereby granting the application for special use. We will refer to the ordinance granting the application as the special use ordinance.
Several persons advised Monat that the special use ordinance permitted the boarding of horses on the lot for sale. But Monat realized that to build a stable on the small lot he would need a variation from the setback requirements in the zoning ordinance. Although he did not own the lot, he applied for a variation to permit the construction of a stable near the back of the lot he sought to purchase.
The zoning ordinance provisions concerning variations established the power of the ZBA to grant variations following hearings. Cook County Zoning Ordinance § 13.7 (1976). The ZBA held the requisite hearings in February 1997. Several owners of nearby homes presented evidence and argument in opposition to the request for a variation. Arguments focused on the proper interpretation of the special use ordinance, while evidence concerned only the effect of boarding more horses in the subdivision. The ZBA granted the variation, subject to specified conditions concerning the cleaning and maintenance of the stable. No one appealed from the ZBA's determination.
Monat applied for the proper building permit and signed an offer to buy the lot. The DBZ issued the permit on November 6, 1997. On November 10, 1997, the lot's owners accepted Monat's offer. The contract remained "contingent upon buyer obtaining all written approval/permits" for construction of the stable. Monat sold his former home and moved into Timberlane Estates in December 1997.
On December 15, 1997, Monat applied to modify his building permit to change the stable's proposed roof. The DBZ issued a stop work order. Following procedures established by ordinance, Monat appealed the stop work order to the ZBA. Cook County Zoning Ordinance § 13.8 (1976). Before the ZBA could hear the appeal, the board of commissioners passed a resolution staying the appeal pending its review of the permit application.
Monat then brought this lawsuit. In count I, Monat sought mandamus directing Wlodarski and the county to issue the building permit, based on Monat's legal right to the permit under the special use ordinance. Monat again sought mandamus in count II, but he based the request on equitable estoppel. In count III, also based on estoppel, he sought an injunction and a judgment declaring that he had the right to board horses on his property. In all three counts he requested damages and attorney fees.
The trial court granted defendants' motion for summary judgment on the first count. In a separate order dated December 15, 1999, the court granted defendants summary judgment on the remaining counts. The court grounded its judgment on findings that Monat would need to violate the Forest Preserve Code to take his horses into the nearby forest, and that the "general consensus of the neighborhood is clearly against the idea of Mr. Monat's keeping horses."
Monat filed a timely motion to reconsider and vacate the order. He argued that the record did not support the findings of fact, and the forest preserve and its code bore no legal relevance to his right to a building permit. While he relied in part on exhibits already in the record, he appended to the motion some new exhibits. He pointed out that the record included affidavits from only three neighbors, and none said anything about the opinions of their neighbors or any general consensus. He appended affidavits of several neighbors who supported his request for a permit as further proof that the court erred in asserting that the general consensus opposed his request.
Defendants moved to strike the motion to reconsider because Monat had access to the new evidence before he briefed the summary judgment motion. The court struck Monat's motion in its entirety by order dated January 31, 2000. Monat filed his notice of appeal on February 29, 2000.
Defendants moved to dismiss the appeal as untimely. We took the motion with the case. Defendants argue that Monat's motion to vacate the trial court's order did not toll the time for appeal because it did not qualify as a proper posttrial motion.
Supreme Court Rule 303 (155 Ill.2d R. 303(a)(1)) provides that an appellant must file his notice of appeal within 30 days after the entry of the order disposing of the last pending posttrial motion. To count as a posttrial motion, the document filed with the trial court and served on the parties must request appropriate relief, such as reconsideration or vacation of the judgment, and it must allege some grounds for the relief. Beck v. Stepp, 144 Ill.2d 232, 240, 162 Ill.Dec. 10, 579 N.E.2d 824 (1991). Defendants admit that Monat sought appropriate relief, filed the motion properly, and served it on the parties. Monat also pointed to the trial court's erroneous findings of fact, unsupported by the record, as grounds for the requested relief.
"[T]his court should not impose hypertechnical drafting requirements on postjudgment motions[;] * * * only a motion that is `totally devoid of any indication of points allegedly warranting relief' * * * should be found insufficient." (Emphasis omitted.) Town of Sugar Loaf v. Environmental Protection Agency, 305 Ill.App.3d 483, 488, 238 Ill.Dec. 671, 712 N.E.2d 393 (1999), quoting Sho-Deen, Inc. v. Michel, 263 Ill.App.3d 288, 293, 200 Ill.Dec. 729, 635 N.E.2d 1068 (1994). The trial court's factual errors provided adequate grounds for the motion to reconsider and vacate the judgment. The order striking the posttrial motion finally disposed of the last pending posttrial motion, so the notice of appeal, filed less than 30 days later, gave this court jurisdiction to consider the appeal. We will not consider any documents improperly appended to the posttrial motion.
Monat argues first that the court should have granted the writ of mandamus sought in count I because the special use ordinance established that defendants had a clear legal duty to issue the building permit and rescind the stop work order.
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