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Oak Park T. & Sav. Bk. v. Town of Palatine





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


This action for declaratory judgment was brought by the Oak Park Trust & Savings Bank, as trustee under Trust No. 7635, dated November 1, 1976, and Di Mucci Home Builders, Inc. (plaintiffs) against the town of Palatine (defendant). Plaintiffs sought a declaration of the rights of the parties with respect to the conditions required of plaintiffs by defendant in order for defendant to execute a joint application for a sewer permit. The trial court granted defendant's motion to dismiss on the grounds of mootness. Plaintiffs appeal.

Plaintiff Di Mucci Home Builders, Inc., is the beneficial owner of property held in a land trust by plaintiff Oak Park Trust & Savings Bank. This property lies in unincorporated Cook County in Palatine Township. In 1977, plaintiffs sought to build a planned unit residential and commercial complex on this site. They were therefore required to obtain sewer permits from the Metropolitan Sanitary District (District).

Pursuant to statutory authority (Ill. Rev. Stat. 1977, ch. 42, par. 326bb(7)), the District has adopted a sewer permit ordinance which provides for permits to be issued to governmental bodies and individuals jointly. The ordinance also provides for the issuance of permits to sole individuals or corporations if the property to be served lies in an unincorporated area and the township government declines to act as a joint permittee.

Plaintiffs requested defendant to execute a permit application as joint permittees with plaintiffs. On October 7, 1977, counsel for defendant sent a letter to plaintiffs which outlined the conditions defendant would require of plaintiffs for defendant to execute this joint permit application.

Plaintiffs believed these conditions to be unreasonable and beyond the scope of defendant's own regulations. Plaintiffs then filed an application with the District seeking to become a sole permittee. On February 15, 1978, this application was rejected by the chief engineer of the District. The District stated defendant had not technically "declined" to become a joint permittee as required for sole permittee status. Plaintiffs appealed from this denial to the board of commissioners of the District.

On April 5, 1978, plaintiffs filed this action for declaratory judgment seeking to declare the right to require defendant to impose only "reasonable" conditions as a prerequisite to becoming a joint permittee. In its answer, defendant admitted it sought to impose terms on plaintiffs, but denied those conditions were either unreasonable or beyond the scope of its authority.

On April 6, 1978, the board of commissioners of the District authorized the issuance of a sewer permit to plaintiffs subject to special conditions. This permit was issued on May 3, 1978. Conditions 9 and 10 of this permit provide:

"9. This Permit is issued to [plaintiffs] (referred to as Permittees) individually, at this time only, as an accommodation pending the resolution of the lawsuit entitled Oak Park Trust and Savings Bank et al. vs. Town of Palatine being No. 78 L 6961 in the Circuit Court of Cook County, Illinois, and pursuant to order of April 6, 1978 of the Board of Commissioners of The Metropolitan Sanitary District of Greater Chicago. Permittees shall use all reasonable efforts to pursue the litigation to conclusion.

Permittees, upon the conclusion of the aforesaid litigation and as an additional consideration for the issuance of this Permit, covenant and agree to comply fully with the final order of the Court in said litigation determining which conditions as set forth in a certain letter from Richard Cowen to Salvatore DiMucci, dated October 7, 1977, are reasonable to be imposed as a condition of the Township of Palatine executing the permit application as a copermittee hereunder.

10. The issuance of this Permit shall not be construed as the issuance of a permit to Permittees as a sole permittee pursuant to Section 2(H)5 of the Sewer Permit Ordinance."

In a supplement to their complaint, plaintiffs alleged the issuance of this permit. The supplement stated the permit was conditional and the District could revoke the permit and terminate service unless the above condition 9 was complied with. Plaintiffs also alleged the permit was issued only because plaintiffs would suffer severe financial losses unless sewer construction could commence. Further, plaintiffs alleged they would suffer severe financial losses should the permit be revoked.

On June 19, 1980, defendant moved to dismiss the complaint on the ground the issuance of the permit and subsequent sewer construction rendered the cause moot. On August 6, 1980, the trial court granted the motion to dismiss. The trial court noted that since the District had issued a sewer construction permit and substantial construction had been accomplished the District had waived its permit requirements.

In this court, plaintiffs contend their complaint stated a cause of action for declaratory judgment and was not mooted by the issuance of ...

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