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12/15/89 Donald S. Shifris Et Al., v. Ben Rosenthal Et Al.

December 15, 1989

DONALD S. SHIFRIS ET AL., PLAINTIFFS-APPELLANTS AND CROSS-APPELLEES

v.

BEN ROSENTHAL ET AL., DEFENDANTS-APPELLEES AND CROSS-APPELLANTS (WILLIAM F. HARRIS, COMMISSIONER OF



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

the Cook County Department of Building and

Zoning, et al., Defendants-Appellees)

548 N.E.2d 690, 192 Ill. App. 3d 256, 139 Ill. Dec. 305 1989.IL.1957

Appeal from the Circuit Court of Cook County; the Hon. Richard L. Curry, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE MURRAY delivered the opinion of the court. LORENZ and PINCHAM,* JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY

This is an appeal and cross-appeal from two orders entered by the trial court in a declaratory judgment action involving the issuance of a building permit to defendants Ben and Lorelei Rosenthal (Rosenthals) for the construction of a building on their property located in a flood plain in the unincorporated area of Cook County at 80 Woodley Road, Winnetka, Illinois. Plaintiffs, Donald Shifris, Don's A. Shifris and American National Bank and Trust Company of Chicago (Shifris), owners of property near or abutting the Rosenthals' property, appeal from the trial court's orders dismissing their complaint on the ground of mootness. Defendants Rosenthals have filed a cross-appeal solely for the purpose of preserving their rights to litigate issues raised in a proposed counterclaim against other party-defendants, which the trial court denied them leave to file, in the event that this court reverses the trial court's orders dismissing Shifris' complaint. The remaining defendants are William F. Harris, Commissioner of the Cook County Department of Building and Zoning (County Department), the County of Cook, and Charles Page, the predecessor owner of the Rosenthals' property at issue here.

The pertinent facts are as follows. On September 23, 1986, Page applied to the County Department for a permit to construct a single-family residence at 80 Woodley Road in Winnetka. The permit to build was required because a portion of Page's property lies in a flood plain. On November 7, 1986, the County Department issued Page a permit pursuant to a letter received from the Illinois Department of Transportation, Division of Water Resources , which stated that the property was above the flood plain elevation. (The County Department is mandated by ordinance to apply the base flood elevation as determined by IDOT/DOWR. See Cook County Zoning Ordinance, art. 8, § 8.96(1) (1986).)

On November 21, 1986, Shifris filed a complaint for declaratory, injunctive and other relief. He amended the complaint twice and ultimately sought a judicial determination of the base flood elevation for the subject property and a rescission of the permit issued to Page. While further proceedings on Shifris' complaint were pending, Page sold the involved property to the Rosenthals. In addition, on March 30, 1987, the County Department revoked the previously issued building permit pursuant to a second letter received from IDOT/DOWR, which set forth new estimates of flood elevation higher than the elevation of portions of the Rosenthals' property; the new estimates were based on information provided by Shifris and his employees.

Subsequently, on February 29, 1988, the trial court entered an order dismissing Shifris' complaint as to the Rosenthals on the ground of mootness as a result of the revocation of the building permit on the subject property. On April 4, 1988, the Rosenthals sought leave to file a counterclaim against the county defendants. At that time, the trial court entered the motion, granted the other parties leave to file an answer to the motion, and left the hearing on the motion open for a later date. On April 5, 1988, pursuant to a motion by the county defendants, the court dismissed Shifris' complaint as to them on the ground of mootness. On October 5, 1988, the court denied the Rosenthals' motion for leave to file a counterclaim against the county defendants, and this appeal and cross-appeal followed.

Shifris argues that the trial court abused its discretion in entering judgment on the pleadings and dismissing his complaint on the ground of mootness because his verified pleadings raise an issue of fact, i.e., the appropriate base flood elevation for the subject property. Alternatively, Shifris contends that if his action is moot, it falls within the "public interest exception" to the mootness doctrine. The county defendants maintain that the trial court properly dismissed Shifris' action as moot and that it does not fall within the public interest exception to the mootness doctrine. The Rosenthals assert, in addition to their position that the trial court properly dismissed Shifris' complaint on the ground of mootness, that: (1) this court lacks jurisdiction over Shifris' appeal because he did not timely file a notice of appeal or the appeal is premature; (2) the trial court's order of dismissal should be affirmed because Shifris failed to exhaust his administrative remedies; (3) Shifris lacks standing to maintain an action to enjoin issuance of a permit for their property; and (4) if this court determines that the trial court should determine the flood elevation, we should also reverse the trial court's order denying their motion for leave to file a counterclaim.

For the reasons set forth below, we affirm the judgments of the trial court.

We first briefly address the Rosenthals' challenge to our jurisdiction over this appeal. They contend that the orders of dismissal on mootness grounds entered on February 29 and April 5, 1988, and all other "counter complaints had been dismissed" as of the latter date and therefore Shifris' lawsuit "was dead" at that time. Accordingly, they further contend that the time within which to file a notice of appeal began to run from April 5, rather than from October 5, the date on which the trial court denied their motion for leave to file a ...


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