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08/18/88 Orrin Dressler, Inc., Et v. the Village of Burr Ridge

August 18, 1988

ORRIN DRESSLER, INC., ET AL., PLAINTIFFS-APPELLEES

v.

THE VILLAGE OF BURR RIDGE ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

527 N.E.2d 1063, 173 Ill. App. 3d 454, 123 Ill. Dec. 425 1988.IL.1280

Appeal from the Circuit Court of Du Page County; the Hon. S. Bruce Scidmore, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINDBERG

Defendants, the Village of Burr Ridge (the Village) and Gus Zissimopolous (the Village's building commissioner), appeal from a declaratory judgment, entered on cross-motions for summary judgment, in favor of plaintiffs, Orrin Dressler, Inc. (Dressler), and F. Edward Gustafson (Gustafson). The dispute between the parties concerned whether a division of real estate owned by Dressler was subject to "An Act to revise the law in relation to plats" (the Plat Act) (Ill. Rev. Stat. 1985, ch. 109, par. 1 et seq.) and to the Village's Subdivision Regulations Ordinance (the Ordinance). The trial court found that the division was exempt from both the Plat Act and the Ordinance.

On June 30, 1988, this court issued an opinion reversing the judgment of the circuit court of Du Page County. Plaintiffs filed a timely petition for rehearing, which we now deny. However, we also withdraw our opinion of June 30, 1988, and issue the instant opinion on denial of rehearing explaining our reversal of the circuit court's judgment.

The property at issue is legally described as:

"Lot 29 and the South 165 feet of Lot 28 in Branigar Brothers Second Addition to Hinsdale Farms Being a Subdivision of part of the Southeast Quarter of Section 13 and the Northeast Quarter of Section 24, Township 38 North, Range 11 East of the Third Principal Meridian, according to the Plat Village of Burr Ridge in Du Page County, Illinois and containing 7.5059 acres."

On August 18, 1985, a registered land surveyor certified that plats of four lots made from this property were correct representations of the property, which he had surveyed. On the plats, the new lots were called Mill Creek Nos. 1, 2, 3, and 4. The plats were recorded in the office of the Du Page County recorder of deeds on April 16, 1986.

Mill Creek No. 1 was sold to Richard Smith in late 1985 or early 1986. The Village issued a building permit to Mr. Smith, taking the position that this one division was exempt from the requirements of the Plat Act and the Ordinance but that subsequent divisions would not be exempt. Dressler entered into a contract to sell Mill Creek No. 2 to Gustafson. Prior to closing, Gustafson applied for a building permit. The Village denied the application on the basis that the requirements of the Ordinance would first have to be met. Plaintiffs brought this action seeking a declaratory judgment that the division was exempt from the requirements of the Plat Act and the Ordinance.

At trial, plaintiffs argued that several exemptions to the Plat Act and the Ordinance applied to Dressler's division of the property. The trial court found that only one of these exemptions was applicable. (Ill. Rev. Stat. 1985, ch. 109, par. 1(b)(8); Burr Ridge, Ill., Subdivision Regulations Ordinance § II(44)(h).) Under that exemption, the trial court held that Dressler's creation of the four Mill Creek lots was exempt from the requirements of the Plat Act and the Ordinance and ordered that "if [the Mill Creek lots are] otherwise in compliance with the applicable Village building permit requirements [they] are each entitled to the issuance of a building permit thereupon." Defendants appealed from this judgment.

Plaintiffs in their brief state that they do not seek review of the trial court's ruling that the other exemptions are inapplicable. Therefore, the only issue on appeal is whether the exemption relied upon by the trial court ...


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