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11/22/89 Lake Forest Chateau, Inc., v. the City of Lake Forest

November 22, 1989





549 N.E.2d 336, 133 Ill. 2d 129, 139 Ill. Dec. 824 1989.IL.1809

Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Lake County, the Hon. Charles F. Scott, Judge, presiding.


JUSTICE STAMOS delivered the opinion of the court.


Plaintiff, Lake Forest Chateau, Inc., brought this action against defendant, City of Lake Forest, in the circuit court of Lake County, seeking a declaratory judgment that certain increased fees connected with building permits and other costs, which plaintiff paid under protest, did not apply to plaintiff's townhouse development, and seeking to recover the difference between the original and increased fees. The circuit court denied plaintiff's motion for summary judgment and granted defendant's motion for judgment on the pleadings. The appellate court reversed (178 Ill. App. 3d 917, 919), and remanded the cause to the circuit court for a determination of what portion of the allegedly improper additional fees defendant would be obligated to refund to plaintiff (178 Ill. App. 3d at 923). We granted and consolidated both parties' petitions for leave to appeal (107 Ill. 2d R. 315).

In early 1978, plaintiff sought to construct a townhouse development on property it owned in the City of Lake Forest. At that time, the property was zoned for single-family homes. Plaintiff petitioned defendant for the rezoning of its property and applied for a special use permit under defendant's zoning ordinance. When defendant was slow in acting on the petition, plaintiff, in September 1978, filed an action contesting the validity of the zoning ordinance as applied to the property and seeking to establish the reasonableness of the proposed development. Eventually, in March 1979, defendant denied the petition.

In August 1979, the circuit court entered judgment for defendant, and plaintiff appealed. The appellate court reversed and ruled that the zoning ordinance as applied to plaintiff's property was unconstitutional and the proposed townhouse development was a reasonable use of the property. (DeMarie v. City of Lake Forest (1981), 93 Ill. App. 3d 357, 363-65.) We denied defendant's petition for leave to appeal to this court (85 Ill. 2d 564), and the appellate court issued a mandate to the circuit court on November 30, 1981. On December 14, 1981, the circuit court entered a judgment order in accordance with the appellate court's decision which required defendant to allow the townhouse development and to issue the proper building permits. 178 Ill. App. 3d at 919.

Defendant, however, between November 30 and December 14, 1981, adopted ordinances which substantially increased the building permit fees, water connection and tap-on fees, and public park contributions for the City of Lake Forest. Plaintiff objected to the increase in fees, but paid the new fees under protest when defendant refused to issue the building permits unless plaintiff paid the new fees. The difference in cost to plaintiff was $73,395.

Plaintiff then filed suit in the circuit court again, seeking a declaration that the new and increased fees would not apply to the townhouse development. It also sought to recover the difference between the old and new fee schedule, which defendant forced it to pay in order to begin construction. In ruling in defendant's favor, the trial court held that defendant "did not act in an unfair, unconstitutional or unjust manner in applying its increased fees to plaintiff's project." 178 Ill. App. 3d at 917.

The appellate court, in reversing the judgment of the circuit court, relied on Fiore v. City of Highland Park (1968), 93 Ill. App. 2d 24. Fiore, like the case at bar, involved a zoning dispute that the plaintiff had to appeal twice. First, the appellate court in Fiore ruled that the defendant city's zoning classification of the plaintiff's property was unconstitutional. (Fiore v. City of Highland Park (1966), 76 Ill. App. 2d 62, 71-76.) After this court denied the city's leave to appeal (35 Ill. 2d 631), it passed an ordinance designed to rezone the plaintiff's property back to the same single-family status that the appellate court declared unconstitutional in the first appeal. (Fiore, 93 Ill. App. 2d at 29.) In the second appeal, the Fiore court held that the city improperly used the doctrine of separation of powers as an excuse to frustrate the opinion and mandate of the reviewing court after it had submitted its case to that court for decision. The Fiore court further stated that the legislature cannot pass legislation after the adjudication of a cause of action by a reviewing court in order to control or affect the result of the litigation. Fiore, 93 Ill. App. 2d at 33-34.

The appellate court saw a direct correlation between the result in Fiore and the case at bar. The court held that defendant had sought to control the result of the zoning litigation between the parties after it had been adjudicated by the courts. In particular, the court maintained that the judgment of the DeMarie court established plaintiff's right to use the property in question for a townhouse development. After further attempts by the defendant to appeal the judgment failed, the appellate court issued its mandate to the circuit court. However, before the circuit court could act in compliance with the mandate, defendant took action that made it much more costly for plaintiff to exercise the rights established by the DeMarie judgment. The appellate court determined that plaintiff was entitled to all the building permits and services needed to begin the townhouse construction at the rates that existed on November 30, 1981, the date the court issued its mandate. (178 Ill. App. 3d at 923.) However, realizing that municipalities often must raise the fees they charge for city services, the appellate court remanded the cause to the circuit court to determine what portion of the additional fees defendant should refund, because it was unlikely that plaintiff would have made a request for all the building permits at one time. 178 Ill. App. 3d at 923-24.

The appellate court opinion in this case also included a Dissent. (178 Ill. App. 3d at 924 (Woodward, J., Dissenting).) The Dissent pointed out that the DeMarie court's holding and the mandate which it issued to the circuit court pertained only to the issue of zoning, and therefore raising the building permit fees could not have adversely affected the plaintiff's rights as established by that court. (178 Ill. App. 3d at 925.) The Dissent was also critical of the majority's failure to recognize the legitimacy of the fee increases (178 Ill. App. 3d at 926-27) and of its remand of the cause despite there being no standard for determining which of the allegedly improper new permit fees defendant would have to refund to plaintiff. 178 Ill. App. 3d at 927.

The issue on appeal to this court is whether defendant, by forcing plaintiff to pay substantially higher fees for building permits and other construction-related costs, deprived plaintiff of rights it obtained in the judgment of the appellate court which declared that ...

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