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05/19/89 Thomas Doyle Et Al., v. the City of Crystal Lake

May 19, 1989





539 N.E.2d 796, 183 Ill. App. 3d 405, 132 Ill. Dec. 233 1989.IL.766

Appeal from the Circuit Court of McHenry County; the Hon. Thomas A. Schermerhorn, Judge, presiding.


PRESIDING JUSTICE UNVERZAGT delivered the opinion of the court. REINHARD and NASH, JJ., concur.


Plaintiffs are residents and taxpayers of the City of Crystal Lake, Illinois. Plaintiffs sought administrative review of the decision of the City of Crystal Lake Zoning Board of Appeals (Zoning Board) finding that plaintiffs had not timely appealed a purportedly final determination of the Zoning Administrator (Administrator). The Administrator had found that the Crystal Lake Park District's proposed construction of a maintenance garage would be a permitted use within the city's zoning scheme for RE-1 residential areas. The Administrator's determination was in the form of an interoffice memorandum to the city manager dated July 21, 1987. The memorandum further advised that other normal procedures must also be followed in order to receive a development permit under the flood-plain ordinance. Plaintiffs filed their appeal to the Zoning Board on May 2, 1988, which was within 45 days of the issuance of the building permit for the garage (issued April 28, 1988); plaintiffs asserted that they had no prior notice of the actions of the Administrator. The Zoning Board concluded that the plaintiffs' appeal was not timely because it was brought more than 45 days after the Administrator's decision of July 21, 1987, as required by section 11-13-12 of the Illinois Municipal Code (Code) (Ill. Rev. Stat. 1987, ch. 24, par. 11-13-12).

Plaintiffs sought administrative review in the circuit court. On June 21, 1988, the circuit court found that the Administrator's memorandum of July 21, 1987, was not a final determination of the Administrator and therefore plaintiffs' appeal on May 2, 1988, was timely filed. The circuit court further ordered that its stay preventing construction should continue until the Zoning Board rendered a final decision pursuant to the procedures established by the City of Crystal Lake Zoning Ordinance. In effect, the circuit court remanded the case for further proceedings. Defendants timely appealed. Finding that the judgment of the circuit court is not final, we dismiss the appeal.

Defendants raise essentially two contentions on appeal: (1) the trial court's determination that the plaintiffs' appeal to the Zoning Board was timely filed was against the manifest weight of the evidence; and (2) the trial court erred in permitting certain testimony outside the scope of review afforded by section 3-110 of the Administrative Review Law (Ill. Rev. Stat. 1987, ch. 110, par. 3-110).

Initially, we note that defendants have failed to include a jurisdictional statement in their brief in contravention of Supreme Court Rule 341(e)(4)(ii) (122 Ill. 2d R. 341(e)(4)(ii)). Additionally, the record appears to be incomplete, contrary to Rule 323(a) (107 Ill. 2d R. 323(a)). The trial court apparently scheduled a hearing on the merits of this case for June 21, 1988, and issued its decision and order on that date; however, defendants have provided no report of the proceedings for that date. The failure to follow those rules can result in the refusal of the court to consider the merits of the appeal or to dismiss the case. (McKanna v. Duo-Fast Corp. (1987), 161 Ill. App. 3d 518, 524; Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, 79.) In addition, plaintiffs have not filed an appellees' brief. We thus limit our consideration of this appeal to the parameters established in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128.

We choose not to address the merits of defendants' appellate contentions except to the extent that they affect our jurisdiction of the case. We perceive the thrust of defendants' argument as questioning the jurisdiction of the Zoning Board to hear the appeal in the first instance; this in turn affects the validity of the circuit court's subsequent decision on that issue and, ultimately, our jurisdiction. We recognize that jurisdiction can be attacked at any time or in any court, either directly or collaterally. (City of Chicago v. Fair Employment Practices Comm'n (1976), 65 Ill. 2d 108, 112.) The trial court found plaintiffs' appeal to be timely because the Administrator's memorandum was not a final determination. We agree with the trial court that the Board could hear plaintiffs' appeal within 45 days of the issuance of the building permit. The memorandum in question reads in pertinent part:

"TO: Joseph Misurelli, City Manager

FROM: Bill Ganek, Zoning Administrator

DATE: July 21, 1987

SUBJECT: Zoning Interpretation for ...

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