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03/31/88 Homeowners Organized To v. First National Bank of

March 31, 1988

AL., PLAINTIFFS-APPELLANTS

v.

FIRST NATIONAL BANK OF BARRINGTON, TRUSTEE, ET AL., DEFENDANTS-APPELLEES (THE VILLAGE OF LAKE BARRINGTON, ET AL., DEFENDANT-APPELLANT AND, DEFENDANT-APPELLEE).



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

HOMEOWNERS ORGANIZED TO PROTECT THE ENVIRONMENT, INC. et

521 N.E.2d 1202, 167 Ill. App. 3d 714, 118 Ill. Dec. 509 1988.IL.478

Appeal from the Circuit Court of Lake County; the Hon. Terrence Brady, the Hon. Alphonse Witt, and the Hon. Stephen Walter, Judges, presiding.

APPELLATE Judges:

PRESIDING JUSTICE LINDBERG delivered the opinion of the court. HOPF and DUNN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINDBERG

Plaintiffs, Homeowners Organized to Protect the Environment, Inc. , Edward E. Bohlke and Margaret E. Bohlke (Bohlkes), Theodore J. Novakowski and Dorothy A. Novakowski (Novakowskis) (hereinafter sometimes referred to collectively as HOPE), appeal the judgment of the circuit court of Lake County which declared as constitutional and otherwise valid ordinance No. 86 -- 0 -- 6 adopted June 2, 1986, by the Village of Lake Barrington (Village). The ordinance granted a special use to defendants, First National Bank of Barrington, trustee under trust No. 11 -- 3051, and Dr. Richard C. Smith and Barbara Smith, as beneficiaries of trust No. 11 -- 3051 (hereinafter collectively the Smiths). The appeal, denominated No. 2 -- 87 -- 0262, was consolidated with appeals denominated Nos. 2 -- 87 -- 1010 and 2 -- 87 -- 1011, respectively, for oral argument and Disposition.

In the latter two appeals, the Village (No. 2 -- 87 -- 1010) and HOPE (No. 2 -- 87 -- 1011) challenge the trial court's exercise of jurisdiction after HOPE filed the notice of appeal in No. 2 -- 87 -- 0262. They appeal the trial court's judgment which tolled the running of the ordinance's requirement that the Smith's commence substantial construction on the site within one year. The trial court tolled the running of the period from the time HOPE filed its complaint August 11, 1986, challenging the Village's granting of the special use, through the Disposition of the appeal process.

On June 2, 1986, in response to a petition by the Smiths, the Village adopted its ordinance No. 86 -- 0 -- 6 permitting construction on their property of a professional office building as a special use for a planned development. The ordinance was subject to conditions, including a one-year time limit imposed by section 7:

"A. If substantial construction has not commenced within one (1) year from the effective date of this Ordinance, then the Special Use-Planned Development herein permitted shall lapse and be of no further force or effect, provided, however, in its discretion and for good cause the Corporate Authorities of this Village may extend for reasonable time not to exceed one year, the period for commencement of construction.

B. If the Special Use-Planned Development permitted in this Ordinance lapses under the provisions of paragraph A of this Section 7, such designation shall be removed from the official zoning map and a notice of revocation filed with the Lake County Recorder for recording. The zoning regulations applicable before a Special Use-Planned Development is approved shall then be in effect." (Village of Lake Barrington Zoning Ordinance § 7 (1986).)

The ordinance became effective on June 13, 1986.

On August 11, 1986, by agreed order, HOPE became the plaintiff, through realignment of the parties to earlier litigation between the parties, attacking the validity of ordinance No. 86 -- 0 -- 6. After a bench trial, the circuit court entered judgment upholding the validity of the ordinance as constitutional and not otherwise invalid on January 30, 1987. HOPE's motion to reconsider the judgment was denied on February 23, 1987, and on March 20, 1987, HOPE filed a notice of appeal (No. 2 -- 86 -- 0262). On May 27, 1987, two weeks before the expiration of the one-year time limit, the Smiths filed an emergency motion for limited stay pending appeal asking the trial court to stay the running of the one-year time limit. The court denied that motion, observing that there was no allegation or showing that the Village had refused to abide by the requirements of the ordinance or would utilize the one-year condition as a bar to the Smiths' special use permit.

The Smiths' attorney thereafter requested the Village to extend the one-year time limit. That request was considered by the Village at its regular board meeting on June 1, 1987, and at a special meeting held on June 13, 1987, devoted specifically to the request for extension. The Smiths, by their attorney, advised the board that they were prepared to proceed with site work and footings on the site even while HOPE's appeal was pending, and that such work would constitute "substantial construction" under Illinois law. The president of the board opined that the Smiths' willingness to proceed with substantial construction while the appeal was pending was inconsistent with any assertion that the pendency of that appeal was sufficient reason for them to have done nothing on the site during the original year. He stated that good cause for an extension had not been shown as required by the ordinance. Their request for an extension was denied.

On June 17, 1987, the Smiths filed with the circuit court an amended emergency motion for limited stay pending appeal. On July 14, 1987, after a hearing, the circuit court entered judgment tolling the running of the one-year time limit of the ordinance from August 11, 1986, until the Disposition of the appeal challenging the issuance of the special use permit. On September 23, 1987, the court denied a motion to reconsider that judgment.

The court ruled that its tolling judgment was collateral or incidental to its final judgment order sustaining the validity of the ordinance and, therefore, within its jurisdiction even while the appeal from its final judgment was before this court. The court refused to review the board's denial of the Smiths' request for extension of time. It would not consider the transcripts of the board meetings which the Village tendered. Further, the court stated that common sense and prudence precluded the Smiths from commencing construction during the pendency of HOPE's appeal, and that it would be inequitable to allow the pendency of litigation to forestall the development which had been authorized by the ordinance. The court concluded that the legal process should not be allowed to emasculate the rights of defendants. Invoking its equity powers and section 2-701 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-701), the court declared that the one-year time limit contained in the ordinance was tolled starting from the date on which HOPE filed its complaint challenging the validity of said ordinance and continuing through the Disposition of the appeal process.

NOS. 2 -- 87 -- 1010 AND 2 -- 87 -- 1011

In No. 2 -- 87 -- 1010 the Village appeals, and in No. 2 -- 87 -- 1011 HOPE appeals the exercise of jurisdiction by the circuit court after the notice of appeal had been filed in No. 2 -- 87 -- 0262 involving the substantive issues attacking the Village's issuance of a special use permit to the Smiths. The Village and HOPE also challenge the authority of the circuit court to toll the running of the ordinance's one-year time period for the Smiths to commence substantial construction on the site.

The Village and HOPE raise the following specific issues: (1) the Smiths were estopped from seeking a tolling of the time period; (2) the trial court lacked jurisdiction to consider the tolling issue because a notice of appeal had been filed in the underlying case; (3) the court did not have authority to review the Village's legislative determination beyond determining its constitutionality; (4) the Smiths had no right to relief from the unambiguous time limit; (5) the trial court should have sustained the refusal of the Village to extend the time in the sound exercise of its discretion; and (6) the court's judgment was beyond the scope of its equitable powers.

It would appear that we must decide only two issues to resolve Nos. 2 -- 87 -- 1010 and 2 -- 87 -- 1011: (1) did the trial court have jurisdiction to consider the tolling issue after a notice of appeal had been filed in the underlying cause and (2) did the trial court have authority to enter a judgment tolling the running of the time limitation of the ordinance during the pendency of the ...


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