O'Neill v. Brown
| Decision Date | 22 January 1993 |
| Docket Number | No. 1-91-1137,1-91-1137 |
| Citation | 242 Ill.App.3d 334,182 Ill.Dec. 301,609 N.E.2d 835 |
| Parties | , 182 Ill.Dec. 301 Jerome O'NEILL and Lucille O'Neill, Plaintiffs-Appellants, v. Larry D. BROWN and Kathleen J. Brown, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Peterman & Bohn, William C. Peterman, Chicago, for defendants-appellees.
Plaintiffs, Jerome and Lucille O'Neill, brought suit seeking injunctive relief under the Illinois Comprehensive Solar Energy Act of 1977 (Solar Energy Act) () alleging that a second story addition to defendants' home would partially shade their greenhouse and would thus unlawfully encroach upon their "solar skyspace easement" which plaintiffs contend was created pursuant to the Solar Energy Act. The trial court dismissed plaintiffs' complaint under section 2-615 of the Illinois Code of Civil Procedure (Ill.Rev.Stat.1989, ch. 110, par. 2-615) finding that the Solar Energy Act did not create such an easement for sunlight. Plaintiffs appeal from this ruling.
Plaintiffs' property is a residential structure with a rear addition containing a greenhouse and a breakfast room. Defendants' property, which is located directly south of plaintiffs' property, is a two story house with a single story addition at the rear of the residence. On October 13, 1989, defendants, Larry and Kathleen Brown, appeared before the Plan Commission and Zoning Board of Appeals of the Village of Lincolnwood (Plan Commission) and applied for a variance to add a second story to the addition at the rear of their house. Plaintiffs objected, contending that the addition of the second story on this portion of defendants' house would cast a large shadow on their greenhouse and breakfast room during the winter months.
Notwithstanding plaintiffs' objections, the Plan Commission made a positive recommendation to the Lincolnwood Board of Trustees, who on November 2, 1989, granted defendants' request for a variance. In so doing, the Board noted that the variance exceeded the rear yard setback requirements by only 5.14 feet and did not expand the ground level configuration of the home.
On January 16, 1990, plaintiffs filed an action for injunctive relief and for a declaratory judgment under section 2-701 of the Illinois Code of Civil Procedure against defendants and the Village of Lincolnwood. (Ill.Rev.Stat.1989, ch. 110, par. 2-701.) In count I, plaintiffs alleged that the Village Board had abused its discretion in granting the variance and that its decision was arbitrary and confiscatory. In count II, plaintiffs sought an injunction under the Illinois Comprehensive Solar Energy Act () contending that their greenhouse was a "solar collector" within the meaning of the Solar Energy Act and that as such they had a "solar skyspace easement" which was being improperly encroached upon by defendants' addition.
Defendants and the Village of Lincolnwood each filed a motion to dismiss plaintiffs' complaint pursuant to section 2-615 of the Illinois Code of Civil Procedure (Ill.Rev.Stat.1989, ch. 110, par. 2-615) challenging the sufficiency of counts I and II. More specifically, with respect to count II, defendants argued that plaintiffs failed to state a cause of action under the Solar Energy Act because their residence did not constitute a "solar collector" within the meaning of the Solar Energy Act. On May 24, 1990, the trial court dismissed plaintiffs' complaint on all counts and with respect to all parties with leave to amend. On that same day, an agreed order was entered which dismissed the Village of Lincolnwood with prejudice with respect to count II of plaintiffs' complaint.
On June 20, 1990, plaintiffs filed an amended complaint naming only the Browns as defendants. In their amended complaint, plaintiffs only sought relief under the Solar Energy Act, alleging that their greenhouse qualified as a "solar collector" because it was attached to their property for the specific purpose, and with the specific design, of gathering, concentrating or absorbing direct and indirect solar energy which would subsequently be used to heat the property.
On July 6, 1990, defendants filed a motion to dismiss plaintiffs' amended complaint under section 2-615, again arguing that the greenhouse was not a "solar collector" and that a "solar skyspace easement" was never created. On September 26, 1990, the trial court granted this motion to dismiss, stating that plaintiffs' greenhouse was not a "solar collector" as contemplated by the Solar Energy Act. The trial court reiterated its statement from the dismissal of plaintiffs' first complaint, "that a sunroom/greenhouse or a room such as described in this complaint is not the solar collector contemplated by this statute to which the easement could be created."
On October 15, 1990, plaintiffs filed a motion for leave to file a second amended complaint alleging new circumstances in that since September 26, 1990, they installed solar energy panels of the type contemplated "by the Act." Pursuant to that motion, the trial court granted plaintiffs leave to file a second amended complaint alleging installation of the solar energy panels and the protection afforded them by the Solar Energy Act. On November 19, 1990, defendants filed a motion to dismiss under section 2-619(a)(9) of the Illinois Code of Civil Procedure (Ill.Rev.Stat.1989, ch. 110, par. 2-619(a)(9)), arguing, among other things, that even with the new solar panels the Solar Energy Act does not create an automatic "solar skyspace easement." The motion to dismiss was set for hearing on March 22, 1991.
On February 27, 1991, plaintiffs filed a response to defendants' motion. On March 12, 1991, defendants filed a reply to plaintiffs' response. In their reply, defendants stated that the arguments raised in their motion to dismiss challenged plaintiffs' complaint for failing to state a cause of action and were therefore more properly brought under section 2-615. At that time, defendants attached excerpts from the legislative debates leading to the adoption of the Solar Energy Act to support their contention that the Act does not purport to recognize the creation of an automatic easement.
On March 19, 1991, plaintiffs filed a motion for leave to file a sur-reply brief and a motion for continuance of the March 22, 1991, hearing, contending that they did not receive defendants' response until March 18, 1991, and that that response contained new arguments under section 2-615. At the March 22, 1991, hearing, plaintiffs' counsel requested a continuance and objected to proceeding without the opportunity to file a sur-reply brief. In response, defendants' counsel stated that plaintiffs were three weeks late in filing their response to the motion to dismiss, thus delaying defendants' reply.
The trial court denied plaintiffs' motion for a continuance, noting that the case had been on the docket for a long time, that two motions to dismiss were already heard in the case, and that counsel was familiar with the case. The trial court then granted defendants' motion to dismiss under section 2-615, stating among other things that the Solar Energy Act did not create a "solar skyspace easement." Plaintiffs appeal from the court's order granting defendants' motion to dismiss and denying their motion to file a sur-reply brief and for a continuance.
OPINIONPlaintiffs first contend on appeal that the trial court erred in granting defendants' motion to dismiss their second amended complaint because the Illinois Comprehensive Solar Energy Act creates an enforceable "solar skyspace easement." In support of their contention that the Solar Energy Act creates such an easement, plaintiffs cite to section 1.2(f) of the Illinois Comprehensive Solar Energy Act (Ill.Rev.Stat.1989, ch. 96 1/2, par. 7303(f)), entitled "Definitions." This section provides:
"(f) 'Solar skyspace easement' means
(1) a right, whether or not stated in the form of a restriction, easement, covenant, or condition, in any deed, will, or other instrument executed by or on behalf of any owner of land or solar skyspace or in any order of taking, appropriate to protect the solar skyspace of a solar collector at a particularly described location to forbid or limit any or all of the following where detrimental to access to solar energy.
(a) structures on or above ground;
(b) vegetation on or above the ground; or
(c) other activity;
(2) and which shall specifically describe a solar skyspace in three dimensional terms in which the activity, structures, or vegetation are forbidden or limited or in which such an easement shall set performance criteria for adequate collection of solar energy at a particular location." Ill.Rev.Stat.1989, ch. 96 1/2, par. 7303(f).
Specifically, plaintiffs contend that the above definition creates an enforceable "solar skyspace easement" upon installation of a "solar collector." According to plaintiffs, the scope of this "solar skyspace easement" is established according to the performance criteria of section 1.2(e) which defines "Solar Skyspace" as the "maximum three dimensional space extending from a solar energy collector to all positions of the sun necessary for efficient use of the collector." (Ill.Rev.Stat.1989, ch. 96 1/2, par. 7303(e)(1).) We disagree.
Construction of a statute is a matter of law. (Berrios v. Rybacki (1989), 190 Ill.App.3d 338, 137 Ill.Dec. 706, 546 N.E.2d 651.) The primary objective of statutory interpretation is to determine the legislative intent in enacting the statute. (Kirwan v. Welch (1989), 133 Ill.2d 163, 139 Ill.Dec. 836, 549 N.E.2d 348.) Legislative intent is best evidenced by the words used in the statute. (Kraft, Inc. v. Edgar (1990), 138 Ill.2d 178,...
To continue reading
Request your trial
-
Marriage of Bonneau, In re
...to their operation, and courts will read nothing into such statutes by intendment or implication. O'Neill v. Brown, 242 Ill.App.3d 334, 339, 182 Ill.Dec. 301, 609 N.E.2d 835 (1993). Furthermore, the common law is part of the law of Illinois unless it has been expressly abrogated by statute.......
-
Paxson v. Board of Educ. of School Dist. No. 87, Cook County, Ill.
...a statute in light of plaintiffs' own allegations. Construction of a statute is a question of law. O'Neill v. Brown (1993), 242 Ill.App.3d 334, 339, 182 Ill.Dec. 301, 609 N.E.2d 835. More important, however, plaintiffs mischaracterize the statutory limitations period in this case as a gener......
-
County Collector, Application of
...Burke v. 12 Rothschild's Liquor Mart, Inc. (1992), 148 Ill.2d 429, 170 Ill.Dec. 633, 593 N.E.2d 522; O'Neill v. Brown (1993), 242 Ill.App.3d 334, 182 Ill.Dec. 301, 609 N.E.2d 835. The statute does not define an erroneous postmark. Huffman argues that the postmark must be accepted unless the......
-
Merchants Bank v. Roberts
...equally compelling interest in obtaining justice to determine whether an abuse of discretion occurred. O'Neill v. Brown, 242 Ill.App.3d 334, 343, 182 Ill.Dec. 301, 609 N.E.2d 835 (1993). The granting or denying of a motion for continuance will not be disturbed on appeal unless there has bee......