APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
533 N.E.2d 1186, 178 Ill. App. 3d 917, 128 Ill. Dec. 98 1989.IL.149
Appeal from the Circuit Court of Lake County; the Hon. Charles F. Scott, Judge, presiding.
JUSTICE NASH delivered the opinion of the court. REINHARD, J., concurs. JUSTICE WOODWARD, Dissenting.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH
Plaintiff, Lake Forest Chateau, Inc. , brought this declaratory judgment action against defendant, City of Lake Forest (Lake Forest), seeking a determination that certain increased building permit and other new fees and costs assessed by the city were not applicable to plaintiff's townhouse development and for judgment against defendant for such new fees and costs paid under protest by LFC in order to proceed with its building project. The circuit court denied LFC's motion for summary judgment, granted Lake Forest's motion for judgment on the pleadings, and LFC appeals. We reverse and remand.
This litigation is a continuation of the dispute which was considered to be resolved by this court in DeMarie v. City of Lake Forest (1981), 93 Ill. App. 3d 357. In that case, the owners of the subject property had entered into a contract with LFC's predecessor in interest, Lake Shore Building Corporation, to sell eight acres of land which was then zoned for single-family residential use. The contract was contingent upon the owners securing rezoning from Lake Forest to permit a townhouse development. The owners' petition for rezoning was denied by the city, and in September 1978 the owners filed an action in the circuit court asserting that the classification of their property under Lake Forest's zoning ordinance was arbitrary, unreasonable and capricious as applied to that property and that the townhouse use proposed was reasonable. In August 1979, the circuit court entered judgment for Lake Forest in that action and the owners appealed to this court. The matter was here considered under the standards relating to such cases (see DeMarie v. City of Lake Forest, 93 Ill. App. 3d at 360), and on March 19, 1981, our opinion was filed wherein the judgment of the circuit court was reversed and the cause remanded to it for entry of a judgment for plaintiffs to allow the proposed use. We directed the circuit court to frame its judgment with reference to the record before it to avoid further litigation and consistent with our opinion (93 Ill. App. 3d at 365).
Lake Forest thereafter sought leave to appeal to our supreme court, which was denied, and our mandate issued to the circuit court on November 30, 1981. On December 14, 1981, the circuit court entered a judgment order, in accordance with our opinion and mandate, directing Lake Forest to allow the proposed use of the property and to issue the required permits.
The present controversy arises from certain ordinances which were adopted by Lake Forest after our opinion and mandate was filed in this case on November 30, 1981, but before the December 14, 1981, judgment order of the circuit court directed to Lake Forest was entered. Those ordinances substantially increased the existing building permit fees required by Lake Forest and imposed new fees applicable to this type of development for water connection and tap-on and for park contributions. When LFC thereafter applied to Lake Forest for building permits pursuant to the December 14 order, the city declined to issue them unless the new increased fees were paid. In order to proceed with its project, LFC did pay the increased and new fees, under written protest, and has alleged in its complaint in the present litigation that the new and increased fees enacted by Lake Forest in 1981 increased the cost of building permits and other fees by $73,395, which it sought to recover in this action.
LFC also sought declaration that the new and increased fees enacted in 1981 would not apply to this development. Lake Forest answered the complaint admitting factual allegations but denying the unconstitutionality or illegality of its acts and conduct. As an affirmative defense, Lake Forest alleged that the fees and charges of which LFC complains were adopted pursuant to statutory authority and applied to the owners of all property in the city at the time application for the building permits was made by LFC.
LFC subsequently filed a motion for summary judgment, alleging that it was entitled to restitution for the additional fees as a matter of law because Lake Forest had been unjustly enriched. The trial court denied the motion for summary judgment, stating that it was its finding that "Lake Forest did not act in an unfair, unconstitutional or unjust manner in applying its increased fees to plaintiff's project." Lake Forest then moved for judgment on the pleadings, and the trial court granted the motion. LFC now appeals from the denial of its motion for summary judgment and the granting of Lake Forest's motion for judgment on the pleadings.
An appellate court may review an order denying a motion for summary judgment only if the case is on appeal from a final judgment, there having been no evidentiary hearing or trial, and the party seeking review did not prevent such a hearing or trial. (Cedric Spring & Associates, Inc. v. N.E.I. Corp. (1980), 81 Ill. App. 3d 1031, 1034.) The order granting Lake Forest's motion for judgment on the pleadings in this case was a final order; no evidentiary hearing or trial was held, and LFC did nothing to prevent an evidentiary hearing or trial. On appeal, this court may therefore review the order denying LFC's motion for summary judgment, as well as the order granting Lake Forest's motion for judgment on the pleadings.
LFC contends that Lake Forest was unjustly enriched by requiring LFC to pay the increased and new fees as a condition of issuing building permits and must make restitution for fees charged in excess of the fee structure in effect when rezoning of the property for townhouse development was unconstitutionally denied by the city. LFC also contends that the Lake Forest ordinances increasing building permit fees and imposing new fees cannot be applied to this townhouse development as to do so would adversely affect the rights established by this court's opinion in DeMarie v. City of Lake Forest.
The second argument advanced by LFC is dispositive, and we need not consider its other contention.
In our view, the principles of law noted in Fiore v. City of Highland Park (1968), 93 Ill. App. 2d 24, control the resolution of this appeal. In Fiore, as in the present case, a property owner had sought judicial relief from the restrictions on the use of his land imposed by a municipal zoning ordinance. After trial and judgment for the property owner in the circuit court, this court considered the first appeal by the city of Highland Park (see Fiore v. City of Highland Park (1966), 76 Ill. App. 2d 62) and found that the zoning classification applied to the subject property by the city was unconstitutional and void and remanded for a circuit court determination of whether the proposed use was reasonable. The city sought, and was denied, leave to appeal to our supreme court in a further effort to uphold the validity of its zoning ordinance. Thereafter, however, the city passed an ordinance purporting to rezone the property back to the same single-family ...