Stoller v. Village of Northbrook
| Decision Date | 13 October 1987 |
| Docket Number | No. 87-0515,87-0515 |
| Citation | 162 Ill.App.3d 1001,516 N.E.2d 355 |
| Parties | , 114 Ill.Dec. 200 Russell STOLLER, Plaintiff-Appellee, v. VILLAGE OF NORTHBROOK, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Burke, Bosselman & Weaver, Chicago (Clifford L. Weaver, Steven M. Elrod and Victor P. Filippini, Jr. of counsel), for defendant-appellant.
Sidney Z. Karasik, Ronald H. Balson, Chicago, for plaintiff-appellee.
On January 8, 1987, the trial court granted plaintiff Russell Stoller's ("Stoller") emergency motion for a temporary restraining order ("TRO") against defendant Village of Northbrook ("Village"). The Village then presented an emergency motion to reconsider the TRO that was entered on January 8, 1987. On January 13, 1987, the trial court denied the Village's motion to reconsider. Pursuant to sections 11-108 and 11-110 of the Illinois Code of Civil Procedure, the Village moved to dissolve the TRO. On February 10, 1987, the trial court denied the Village's motion to dissolve the TRO. On February 18, 1987, pursuant to Supreme Court Rule 307 ("Rule 307"), the Village filed a notice of appeal from the interlocutory order that was entered on February 10, 1987.
On December 22, 1986, Stoller filed a complaint for an injunction against the Village. Stoller alleges that he is the owner of real property located at 1620 Pfingsten Road 1 in Northbrook, Illinois ("subject property") upon which a single family dwelling is being constructed. On May 12, 1986, the Village issued Stoller a building permit, water connection permit and sewer permit. Stoller alleges that after the Village issued him these permits, the Village "engaged in an illegal course of conduct designed to harass and injure plaintiff and cause him delay and expenses in the construction of his home." On or about May 30, 1986, the Village notified Stoller via a letter that Stoller's building permit was improperly issued and was therefore null and void. The letter stated that the Village ordered all work ceased until Stoller met four requirements. Stoller alleges that he fulfilled these requirements.
On June 18, 1986, Stoller received another letter from the Village that stated that issuance of a formal building permit was contingent upon Stoller getting approval from the Metropolitan Sanitary District of Greater Chicago ("MSD"). Stoller subsequently obtained an MSD permit. Stoller received yet another letter from the Village on October 16, 1986. The October 16 letter informed Stoller that the Village had placed a stop order on the subject property and that there were six items that the Village had to receive from Stoller before the Village would issue Stoller a valid building permit.
About October 22, 1986, Stoller corrected all of the deficiencies in his building permit application; the Village then validated the issuance of a building permit and associated sewer and water permits. On or about November 18, 1986, Stoller submitted a revised engineering plan for proposed sewer and water line extensions. Stoller states that his sewer and water subcontractor was scheduled to begin work on the subject property on December 19, 1986. The Village refused to allow Stoller's subcontractor to begin. Stoller alleges that the Village required that Stoller give the Village a ten foot easement along the rear of the subject property. Stoller alleges that the easement for drainage is not required. Stoller further alleges that the Village has wrongfully placed a work stop order on the subject property.
In his affidavit, Wayne Hanson ("Hanson"), Director of Development of the Village, states that Stoller's November 18, 1986 proposed sanitary sewer extension was not in accordance with sewer plans that the Village had approved. Hanson continues to state that such approval is contingent upon receipt of all grants of easement set forth in the revised engineering plan. This includes the grant of easement along the rear of the subject property. Hanson states that at the present time Stoller has not granted the Village an easement. Hanson takes the position that easements are ordinarily granted as part of the building permit approval process. Hanson cites the following in support of his position: Northbrook Municipal Code §§ 7.89, 7.110 and Northbrook Building Code § 1.7(e). The Village, therefore, prohibited Stoller from beginning work on the subject property until the easement was granted.
Stoller did not choose to grant the Village the requested easement. Instead, Stoller chose to file a complaint for injunction against the Village. Stoller requested that the trial court enter an injunction that would prohibit the Village from preventing construction on the subject property.
On December 22, 1986, Stoller and the Village appeared before Judge Siegan. After hearing arguments on Stoller's TRO motion, Judge Siegan found that no emergency existed and continued the case to December 26, 1986. On December 26, 1986, Stoller brought a motion for change of venue and Judge Siegan granted Stoller's motion. The new trial judge assigned to the case was Judge Albert Green. On December 29, 1986, Stoller moved for a TRO before Judge Marovich who was sitting for the absent Judge Green. Judge Marovich indicated that Stoller should place the TRO motion "on Judge Green's calendar for first thing Monday," January 5, 1987. It was not until January 8, 1987, that Judge Green heard arguments on the motion.
The Village and Stoller were both present before Judge Green at the January 8 hearing. Stoller argued that he should be allowed to hook up the water and sewer connections before the upcoming Spring. Stoller argued that except for the water and sewer connections, his home was ready for occupancy. Stoller continued that he had four children and that they were living "hither and yon," "in motels" and were "very uncomfortable" because they had no home in which to live.
On the other hand, the Village argued that Stoller simply had to comply with the permits. The Village argued that the permits and plans did not only require easements for the sanitary and water main, but also an easement for a storm sewer. The Village continued that Stoller's plans had showed the sewer storm easement and that the Village had relied on those plans in issuing Stoller's permits. The Village concluded that if Stoller merely provided the necessary easements, the Village would allow Stoller to proceed. The Village emphasized that Stoller must comply with the codes just like all of the Village's other residents. Stoller then stated that he was prepared to show that all the property to the south of his property had no storm sewers or no easements for them.
Judge Green decided to let Stoller hook up the water and sewer connections and permit the Stoller family to occupy their new residence. Judge Green, however, told the Village that its contention that it is entitled to an easement may still be pursued. Furthermore, Judge Green stated that if the Village proves that Stoller had filed a plan showing a grant of easement to the Village, Stoller would be required to give the Village the easement. Thus, Judge Green granted Stoller's TRO motion on January 8, 1987.
On January 12, 1987, the Village filed an emergency motion to reconsider the TRO that was entered on January 8, 1987. On January 13, 1987, Judge Green denied the Village's motion to reconsider. The Village, then, on January 29, 1987, moved to dissolve the January 8 TRO. On February 6, 1987, the Village presented its motion to dismiss the complaint for injunction under section 2-619 of the Illinois Code of Civil Procedure.
On February 10, 1987, the trial court denied the Village's motion to dissolve the TRO and denied the Village's motion to dismiss the complaint for injunction. On February 18, 1987, pursuant to Rule 307, the Village filed a notice of appeal from the February 10 interlocutory order.
Two issues are before this court. The first issue is whether this court has jurisdiction under Rule 307 to hear this case. The second issue is whether the trial court abused its discretion when it denied the Village's motion to dissolve the TRO. We hold that this court does have jurisdiction and that the court below did not abuse its discretion when it denied the Village's motion to dissolve the TRO.
We have jurisdiction to hear this case. 2 A motion to dissolve a TRO that is denied at the trial level is appealable under Rule 307. (Bohn Aluminum & Brass Co. v. Barker (1973), 55 Ill.2d 177, 303 N.E.2d 1.) In pertinent part, Rule 307 states:
(a) Orders Appealable; Time. An appeal may be taken to the Appellate Court from an interlocutory order of court
(1) granting, modifying, refusing, dissolving or refusing to dissolve or modify an injunction;
* * *
* * *
The appeal must be perfected within 30 days from the entry of the interlocutory order by filing a notice of appeal designated "Notice of Interlocutory Appeal" conforming substantially to the notice of appeal in other cases. The record must be filed in the Appellate Court within the same 30 days unless the time for filing the record is extended by the Appellate Court or any judge thereof. Ill.Rev.Stat.1985, ch. 110A, par. 307.
Jurisdiction only exists where a party files his notice of interlocutory appeal within the 30-day limitation. (Ill.Rev.Stat.1985, ch. 110A, par. 307.) Furthermore, "a motion directed against an interlocutory order will not toll the running of the 30-day deadline for the filing of the notice of appeal." Trophytime, Inc. v. Graham (1979), 73 Ill.App.3d 335, 29 Ill.Dec. 391, 391 N.E.2d 1074. For examples of cases dealing with these Rule 307 issues see Ben Kozloff, Inc. v. Leahy (1986), 149 Ill.App.3d 504, 103 Ill.Dec. 217, 501 N.E.2d 238; Lake Shore Oil Co. v. Sovereign Oil Co. (1981), 98 Ill.App.3d 553, 54 Ill.Dec. 106, 424 N.E.2d 856; In re Adoption of Anderson (1980), 88 Ill.App.3d 42, 43 Ill.Dec....
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