Nord v. Vill. of Saybrook, Corp.

Citation2014 IL App (4th) 140017 -U
Decision Date04 November 2014
Docket NumberNO. 4-14-0017,4-14-0017
PartiesRENEE NORD, Plaintiff-Appellant, v. THE VILLAGE OF SAYBROOK, a Municipal Corporation; PATRICK LEWIS, Village President of Saybrook; and GENE TALLEY, Individually, Defendants-Appellees.
CourtUnited States Appellate Court of Illinois

2014 IL App (4th) 140017-U

RENEE NORD, Plaintiff-Appellant,
v.
THE VILLAGE OF SAYBROOK, a Municipal Corporation;
PATRICK LEWIS, Village President of Saybrook; and GENE TALLEY, Individually, Defendants-Appellees.

NO. 4-14-0017

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

November 4, 2014


NOTICE

This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from Circuit Court of McLean County No. 10CH175

Honorable Rebecca Simmons Foley, Judge Presiding.

JUSTICE HOLDER WHITE delivered the judgment of the court.
Justices Harris and Steigmann concurred in the judgment.

ORDER

¶ 1 Held: The appellate court affirmed, concluding the trial court (1) properly dismissed plaintiff's complaint where the alleged violation of the Open Meetings Act was not related to the relief sought by plaintiff, (2) correctly determined a neighbor cannot challenge the validity of a special-use permit in a private-enforcement action seeking to enjoin an ordinance violation, and (3) properly concluded plaintiff was not entitled to attorney fees.

¶ 2 In July 2010, plaintiff, Renee Nord, filed an amended complaint in which she sought a declaratory judgment against the Village of Saybrook (Village), the president of the Village Board (Board), Patrick Lewis, and Gene Talley. In September 2010, the trial court granted the Village and Lewis's motion to dismiss the amended complaint with prejudice.

¶ 3 In April 2011, Nord filed her third amended complaint, in which she sought a declaratory judgment against Talley. In May 2013, on the parties' cross-motions for summary judgment, the trial court granted summary judgment in favor of Talley.

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¶ 4 Nord appealed, contending the trial court erred (1) by dismissing her complaint with prejudice as it related to the Village and Lewis, (2) in concluding she could not challenge the validity of a special-use permit as part of her private cause of action against Talley, (3) by granting Talley's motion for summary judgment, and (4) by denying her motion for summary judgment. We affirm.

¶ 5 I. BACKGROUND
¶ 6 A. The Underlying Facts

¶ 7 The Village is located in McLean County and is not a home rule unit. Nord resides at 413 East Grand Street. Talley owns the lot at 414 East Grand Street (Talley property), which is located directly across the street from Nord's residence, but does not reside there. The parties agree the Talley property is located within the Village's R-1 residential district and Nord's residence is located within 1,200 feet of the Talley property.

¶ 8 In July 2009, Talley acted as the Village's zoning officer. While he was acting as the zoning officer, Talley issued a building permit to himself for the construction of a 42-foot by 72-foot storage structure (shed) on the Talley property and waived the applicable fee. In December 2009, after he had laid the concrete floor of the shed, Talley received a letter from the Village's attorney directing him to cease construction of the building until he established a principal use on the Talley property or applied for a conditional-use permit. The Village's attorney further advised Talley the Village was in the process of amending its zoning ordinance.

¶ 9 On January 25, 2010, the Village adopted ordinance No. 1785, which amended the Village's zoning ordinance to reestablish a zoning board of appeals to consider special-use applications. On February 8, 2010, the Board called a regularly scheduled meeting, at which it would discuss the nominees for the newly created zoning board of appeals. During this meeting,

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Lewis presented the nominees for the seven positions on the zoning board of appeals, all of whom were approved by the Board.

¶ 10 On February 24, 2010, Talley submitted an application for a special-use permit. Talley's application requested that he be allowed to establish and construct the shed as the "principal structure" on the Talley property. Talley attached a description of the shed to his application—it would stand 42 feet wide, 72 feet long, and 22 feet high.

¶ 11 Thereafter, on April 1, 2010, the village clerk caused notice of an April 28, 2010, hearing before the Village's zoning board of appeals concerning Talley's application for a special-use permit to be published in the Ridgeview Review, a local newspaper. On April 28, 2010, the Village's zoning board of appeals held a public hearing on Talley's application. Nord did not appear at the hearing, but her father was present and represented by counsel. Following the hearing, the zoning board of appeals recommended the Village grant Talley's application for a special-use permit.

¶ 12 On May 17, 2010, the Board adopted ordinance No. 1788. Ordinance No. 1788 approved Talley's application for a special-use permit to allow an accessory use on the Talley property as set forth in his application. The ordinance directed the "administrative officer" to issue Talley a special-use permit and zoning certificate allowing the use.

¶ 13 B. Procedural History
¶ 14 1. Nord's Original Complaint

¶ 15 On April 27, 2010, plaintiff filed a complaint against the Village, the Board, its trustees, Lewis, and Talley, seeking relief for the Village's violation of the Open Meetings Act (5 ILCS 120/1 to 7.5 (West 2010)) (count I) and "equitable relief" (count II). Count I sought, based on alleged violations of the Open Meetings Act, a declaration that (1) all the actions taken by the

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defendants, as set forth in the body of the complaint, were void; (2) no zoning board of appeals existed within the Village; (3) all actions taken in violation of the Open Meetings Act were void; and (4) Larry Sosaman, a Board member, could not participate in any future consideration of Talley's application for a special-use permit due to a conflict of interest. Count II sought a "preliminary injunction" barring the enforcement, use, or benefit of "the purported [s]pecial [u]se [p]ermit granted March 8, 2010."

¶ 16 In May 2010, the Village, the Board, and its trustees filed a motion to dismiss Nord's complaint pursuant to section 2-615 of the Code of Civil Procedure (Procedure Code) (735 ILCS 5/2-615 (West 2010)). In June 2010, Nord filed a motion for leave to file her first amended complaint. In July 2010, by agreement of the parties, the trial court granted Nord's motion.

¶ 17 2. Nord's Amended Complaint

¶ 18 In July 2010, Nord filed a four-count amended complaint against the Village, Lewis, and Talley. In her complaint, Nord alleged, in August 1999, the Board adopted ordinance No. 1717, which eliminated the Village's zoning board of appeals. In September 2009, the Village purported to conduct a zoning-board-of-appeals meeting, following which Lewis informed Talley he could construct the shed. (This meeting appears to be a hearing on Nord's third-party appeal from the building permit Talley had previously granted himself in July 2009, while he was acting as the Village's zoning officer. The Board denied Nord's appeal.) Prior to this meeting, Nord submitted a letter to the Village that questioned "the legality of the [zoning-board-of-appeals] meeting as being held in violation of the [Open Meetings Act]." In October 2010, Nord submitted letters to the McLean County State's Attorney and the Attorney General's office regarding the September 2009 meeting's failure to comply with the Open Meetings Act.

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¶ 19 Nord further alleged, on December 10, 2009, Talley received a letter from the Village's attorney directing him to cease and desist the construction at the Talley property, as it did not comply with the Village's current zoning ordinance. On December 16, 2009, the Attorney General's office directed the Village to respond to Nord's allegations concerning its failure to comply with the Open Meetings Act.

¶ 20 Nord alleged, on December 21, 2009, the Board convened a "special call meeting." At this meeting, the Board discussed the letter it received from the Attorney General's office and the possible adoption of an amendment to the zoning ordinance reestablishing a zoning board of appeals. The Board also considered a motion to designate itself as the public body before which the hearing on the zoning-board-of-appeals amendment would be held. Nord asserted, following this discussion, the Board "illegally" designated itself as the body before which the hearing would be held.

¶ 21 Nord alleged, on January 4, 2010, the village clerk issued notice of a public hearing regarding the proposed amendment that would take place on January 25, 2010. The notice stated the Board would consider a "proposed Amendment to the Zoning Ordinance of the [Village] which would reestablish a Zoning Board of Appeals and update the Zoning Ordinance to be consistent with Illinois law." The notice invited interested persons to attend the meeting and make comments.

¶ 22 Nord alleged, on January 25, 2010, the Board adopted the proposed amendment to the zoning ordinance by adopting ordinance No. 1785. Prior to this date, however, no zoning board of appeals existed. Therefore, Nord asserted, the zoning board of appeals "could not have reviewed or considered the proposed amendments in Ordinance 1785 on January 25, 2010." See 65 ILCS 5/11-13-3.1 (West 2010); Saybrook Zoning Ordinance § 16.8 (as amended by Saybrook

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