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Kamysz v. Village of Wheeling

OPINION FILED SEPTEMBER 29, 1978.

JOHN KAMYSZ, JR., PLAINTIFF-APPELLEE,

v.

THE VILLAGE OF WHEELING, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR L. DUNNE, Judge, presiding.

MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

Defendant appeals the grant of summary judgment in favor of plaintiff and presents the following issues for review: (1) whether the trial court erred in granting summary judgment for plaintiff with respect to count IV; (2) whether the court erred in granting summary judgment in favor of plaintiff with respect to count II; (3) whether the court erred in striking defendant's affirmative defense of laches; (4) whether the court erred in refusing to recognize defendant's rezoning of the property of plaintiff following the court's initial ruling of summary judgment; and (5) whether the appeal of summary judgment under count IV is improperly before the court and should be dismissed. We affirm. The pertinent facts follow.

The subject property is located at 52 West Dundee Road in the Village of Wheeling. Originally, this property had been zoned in the B-5 zoning district in the Village which permits the development of business and professional offices, but does not allow the use of the property as intended by plaintiff, an automatic car wash. In 1969 the property was rezoned to B-3, which would allow the operation of a coin-operated car wash.

On August 21, 1972, defendant passed Village Ordinance No. 1204, which provided that developmental work must be commenced on any land within two years after any rezoning or the zoning on the property would revert back to its prior classification.

Plaintiff purchased the property in 1973 and requested defendant to rezone the property to a B-4 classification, which would allow the development of non-coin-operated, automatic conveyor-type car washes. Plaintiff's request was denied by defendant and on August 2, 1974, he was notified by mail that since no work had been done on the property, the B-3 zoning presently on the property would revert to B-5, its prior zoning, based on Village Ordinance No. 1204. He requested an extension of the B-3 zoning but was notified that his request was denied, and that the property reverted to the B-5 classification.

On December 31, 1974, notice was published in a local newspaper that the annual adoption of the Official Zoning Map of the Village would take place on January 28, 1975. A hearing was held and plaintiff's property was shown on the Official Zoning Map as being in the B-5 classification.

On October 14, 1975, this action was brought by plaintiff seeking a declaratory judgment to have the B-5 classification declared invalid. In count I of the complaint he alleges that the zoning classification on the property is unreasonable. In count II, he asserts that as applied to car washes, there is no valid distinction between the B-3 and B-4 zoning classifications of the Village of Wheeling. In count III, he seeks to have the court declare that defendant wrongfully denied him an extension of the B-3 zoning classification on his property. In count IV, he attacks the validity of the Ordinance which rezoned his property because no statutory notice of hearing was given and no hearing was held.

Defendant answered the complaint and filed an affirmative defense stating that plaintiff was guilty of laches because he waited approximately 14 months to file suit challenging the zoning of his property. Defendant alleged that during that time it had changed its position in that it had hired a land planner to study the best use of plaintiff's property and, generally, property throughout the Village. Furthermore, the planner had relied on the validity of the B-5 classification and made his recommendations accordingly.

Plaintiff moved to strike the affirmative defense of laches and for summary judgment as to counts IV and II of the complaint. Defendant filed responses to said motions, and filed the affidavit of its planner, Thompson Dyke, with respect to count II.

On April 30, 1976, plaintiff's motion for summary judgment as to count IV was granted and the trial court held that the property was zoned under the B-3 zoning classification. Defendant then filed a notice of appeal from the order on May 25, 1976. A revised order granting summary judgment on count IV, which incorporated the order of April 30, was entered on July 8, 1976. On July 8, 1976, after a hearing, the trial court denied plaintiff's motion for summary judgment under count II.

On September 16, 1976, defendant filed its first amendment to its answer, which stated that on July 19, 1976, by Ordinance No. 1441, plaintiff's property was zoned B-5 pursuant to notice and hearing as set forth in section 11-13-14 of the Illinois Municipal Code (Ill. Rev. Stat. 1973, ch. 24, par. 11-13-14).

This case went to trial on December 8, 1976, and at that time the court entertained a motion to strike the affirmative defense of laches previously submitted by defendant. The motion was granted and the defense was stricken. At the same time the court allowed plaintiff to renew his motion for summary judgment under count II and to introduce into evidence Village Ordinance No. 1451, which was passed on September 20, 1976. This ordinance removed all car washes from the permitted uses under Village ordinances and placed them in a special use classification in either the B-3 or B-4 zoning district. It also ended any distinction between coin-operated and non-coin-operated automatic car washes. The court struck the affidavit of the land planner and granted the motion for summary judgment under count II. The court further held that Ordinance No. 1441, which rezoned the subject property to the B-5 classification on July 19, 1976, could not be applied to plaintiff's property because of the court's previous ruling that the property was zoned B-3. On January 5, 1977, an order was entered formally granting the motion for summary judgment on count II and allowing the relief prayed for by plaintiff. By the same order on plaintiff's motion, counts I and III of the complaint were dismissed and are not involved in this appeal. A subsequent notice of appeal was filed with respect to that order.

OPINION

Defendant argues four issues in this appeal and plaintiff asserts one. We will consider plaintiff's contention first since it raises a preliminary issue. Plaintiff maintains that the order on April 30, 1976, entering summary judgment on count IV was not a final judgment which disposed of the entire proceeding and therefore Supreme Court Rule 304 (Ill. Rev. Stat. 1975, ch. 110A, par. 304) requires dismissal of the appeal. The rule provides:

"(a) Judgments As To Fewer Than All Parties or Claims — Necessity for Special Finding. If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. Such a finding may be made at the time of the entry of the judgment or thereafter on the court's own motion or on motion of any party. The time for filing the notice of appeal shall run from the entry of the required finding. In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties."

• 1 The order of April 30, 1976, did not contain a finding of "no just reason for delaying enforcement or appeal." The amended order of July 8, 1976, however, did contain such language and incorporated the April 30 order so as to correct any defects in its finality. This order is in the record and before this court. The substantive issues were not ...


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