Sundance Homes, Inc. v. County of DuPage

• Citation: 746 N.E.2d 254,195 Ill.2d 257,253 Ill.Dec. 806
• Decision Date: 16 February 2001
• Docket Number: No. 88763, No. 88764.
• Parties: SUNDANCE HOMES, INC., et al., Appellants, v. The COUNTY OF DUPAGE et al., Appellees.
• Court: Supreme Court of Illinois

746 N.E.2d 254

195 Ill.2d 257

253 Ill.Dec. 806

SUNDANCE HOMES, INC., et al., Appellants, v. The COUNTY OF DUPAGE et al., Appellees.

Nos. 88763, 88764.

Supreme Court of Illinois.

February 16, 2001.

Rehearing Denied April 2, 2001.

Joseph M. Laraia, of Laraia & Hubbard, P.C., Wheaton, and Vincent L. DiTommaso, of DiTommaso & Associates, Oak Brook, for appellant Sundance Homes, Inc.

Theodore A. Shapero, Bruce C. Nelson and Harold W. Francke, of Piper, Marbury, Rudnick & Wolfe, Chicago, for appellants Fifield Cos. et al.

Joseph E. Birkett, State's Attorney, Wheaton (Margaret M. Healy and Anna B. Harkins, Assistant State's Attorneys, of counsel), for appellees.

Chief Justice HARRISON delivered the opinion of the court:

On March 23, 1995, this court rendered its opinion in Northern Illinois Home Builders Ass'n v. County of DuPage, 165 Ill.2d 25, 208 Ill.Dec. 328, 649 N.E.2d 384 (1995) (hereinafter referred to as NIHBA), holding unconstitutional the first of two state enabling statutes, and DuPage County ordinances enacted pursuant thereto, which, respectively, authorized and imposed transportation impact fees on new development. In the context of that case, this court stated, "monies collected thereunder should be returned." NIHBA, 165 Ill.2d at 35-36, 50, 208 Ill.Dec. 328, 649 N.E.2d 384. The appellants in this case, fee payers who were not parties in NIHBA, who waited more than five years after they had paid the impact fees in question to file for a refund, and who indeed filed almost a full year after NIHBA was decided, now seek, by various procedural means legal and equitable, a refund of fees they paid under the invalidated statute and ordinances. Although there are several facets to the issue, their right to a refund is the central question before the court. We set forth hereafter facts necessary to an understanding of our disposition.

In 1987, the Illinois legislature enacted former section 5-608(a) of the Illinois Highway Code (the enabling act) (Ill. Rev. Stat. 1987, ch. 121, par. 5-608(a), repealed by Pub. Act 86-97, § 2, eff. July 26, 1989). The 1987 enabling act allowed counties with populations between 400,000 and 1 million inhabitants to establish transportation impact districts and collect transportation impact fees from persons constructing new developments in those districts.

Pursuant to the enabling act, DuPage County passed several ordinances creating transportation impact districts and providing for the collection of road impact fees from builders (DuPage County Ordinances ODT-016-88, ODT-021-89, ODT-21A-89, ODT-021B-89). The plaintiff, Sundance Homes, Inc. (Sundance), is a development company which constructs new residences in DuPage County. Between November 22, 1988, and July 25, 1990, the county collected road impact fees from the plaintiff and other homebuilders. On July 26, 1989, the legislature repealed the enabling act and passed the Road Improvement Impact Fee Law (605 ILCS 5/5-901 et seq. (West 1992)). As a result of that legislation, the county enacted a new ordinance effective July 25, 1990, authorizing the collection of road impact fees pursuant to the new law. The instant case concerns only those impact fees collected by the county prior to July 25, 1990.

Between January 17, 1989, and July 25, 1990, plaintiff paid a total of $63,580 in road impact fees to the county. The plaintiff submitted each payment under protest. In 1988, the plaintiff and several other homebuilders filed a lawsuit against the county in the circuit court of DuPage County. Home Builders Ass'n of Greater Chicago v. County of DuPage, No. 88-MR-683 (Circuit Court of DuPage County). In that case, the plaintiff requested a declaration that the enabling act and the DuPage County ordinances enacted pursuant thereto were unconstitutional. The plaintiff also sought the entry of an order requiring the county to refund all road impact fees paid by the plaintiff and the other named homebuilders. Although the plaintiff moved for judgment on the pleadings in that case on June 15, 1990, no judgment was ever entered on the merits and the case was voluntarily dismissed in November 1990.

The constitutionality of the enabling act of 1987, and the DuPage County implementing ordinances, was again attacked in a separate lawsuit brought by different homebuilders in NIHBA. As previously noted, on March 23, 1995, this court filed an opinion in NIHBA, holding unconstitutional the enabling act of 1987, and the DuPage County implementing ordinances, and stating that "the monies collected thereunder should be returned." NIHBA, 165 Ill.2d at 35-36, 50, 208 Ill.Dec. 328, 649 N.E.2d 384. The appellants in the instant case were not parties in NIHBA.

Following this court's holding in NIHBA, the plaintiff requested that the county return the $63,580 in road impact fees it had paid between January 17, 1989, and July 25, 1990. The county refused the plaintiffs request for a refund.

Plaintiff filed the instant class action suit on February 8, 1996, requesting that the county be ordered to return all of the road impact fees paid between November 22, 1998, and July 25, 1990. The plaintiff alleged that, during this period, the county had collected an aggregate amount of $6,194,056.22 in impact fees from the members of the class. As subsequently amended, the plaintiff's complaint consisted of three counts. Count I was entitled "mandamus" and sought an order requiring the county to immediately return the impact fees paid by each class member. Count II was entitled "declaratory judgment" and sought an order declaring that the county was indebted to each class member in an amount equal to the total road impact fees paid by that class member. Count III was entitled "restitution, assumpsit, unjust enrichment, and recovery of payment" and sought an order that the county be required to deposit all of the collected road impact fees into a common fund for the benefit of the members of the class.

On July 10, 1996, the county filed a motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-619 (West 1996)). In its motion, the county argued that plaintiff's complaint was time-barred by section 13-205 of the Code, which imposes a five-year limitation period on "all civil actions not otherwise provided for." 735 ILCS 5/13-205 (West 1996). The county argued that the plaintiff had failed to file its complaint within five years from the date its cause of action accrued, according to the county, the date it had actually paid the road impact fees. Alternatively, the county argued that the plaintiff's complaint should be barred under the doctrine of laches.

In response to the motion, the plaintiff argued that its cause of action did not accrue until this court filed its opinion in NIHBA on March 23, 1995. The plaintiff contended that, prior to the ruling in NIHBA, it had no right to a refund of the impact fees. The plaintiff therefore concluded that the instant class action was a timely attempt to "enforce" this court's ruling in NIHBA that the monies collected pursuant to the invalidated ordinances "be returned." On November 5, 1996, the trial court denied the county's motion to dismiss.

On March 4, 1997, the circuit court entered an order certifying as a class "[a]ll persons or entities who paid impact fees to the [County] and/or claim a refund pursuant to * * * Ordinance Nos. [ODT]-016-88; ODT-021-89; ODT-021A-89; and ODT-021B-89 during the period of the effective enforcement of said ordinance[s] which was from November 22, 1988, through July 25, 1990, which ordinance[s] w[ere] declared to be unconstitutional by the Illinois Supreme Court." The trial court also identified as a subclass those homebuyers who were entitled to a refund because their developer/builder had incorporated the charge for the road impact fees into the purchase price of their homes.

On September 22, 1997, the plaintiff filed a motion for summary judgment as to each count of its complaint. The plaintiff argued that there existed no genuine issue as to the county's obligation to return the road impact fees and as to the amount of the refund due. The plaintiff therefore concluded that it was entitled to judgment as a matter of law. On November 24, 1997, the trial court entered an order granting the motion for summary judgment. The county filed a notice of appeal from that order, but the appellate court dismissed the appeal. Sundance Homes, Inc. v. County of DuPage, No. 2-97-1232 (February 6, 1998) (unpublished order of dismissal).

On March 13, 1998, the circuit court entered an order creating a common fund for the benefit of the class and directing the DuPage County treasurer to transfer $6,194,056.22 into the fund. Also in March of 1998, the court-approved "Notice of Class Action and Hearing on Attorneys' Fees" was sent to all ascertainable members of the class by first class mail and was published in certain newspapers. Accompanying the notice was a copy of the plaintiff's petition for attorney fees. The notice advised the class members that they could either register their claims for a refund out of the common fund or "opt-out" of the class. By the end of the registration period, class members representing claims totaling $68,000 had chosen to "opt-out" of the class. Class and subclass members representing claims totaling $2,406,745 registered to participate in the distribution of the common fund. Of those claims, there were several dual registrations by homebuilders and home buyers claiming a refund to the same $37,800 in impact fees.

On September 3, 1998, the circuit court entered various orders providing that (1) the county had no standing to be heard on the plaintiff's petition for attorney fees; (2) attorney fees would be calculated based upon the entire common fund and not just the claimed portion of the fund; (3) attorney fees would be paid from the unclaimed portion of the fund; (4) an additional $37,800 would be paid out of...