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01/19/95 AMERICAN NATIONAL BANK & TRUST COMPANY

January 19, 1995

AMERICAN NATIONAL BANK & TRUST COMPANY OF CHICAGO, UNDER TRUST NO. 117068-01, AMRIC DEVELOPMENT CORPORATION, AND LARRY GROSSMAN, PLAINTIFFS-APPELLANTS,
v.
THE VILLAGE OF LIBERTYVILLE, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Lake County. No. 93-CH-738. Honorable Peter M. Trobe, Judge, Presiding.

Released for Publication February 24, 1995.

Presiding Justice McLAREN delivered the opinion of the court: Thomas and Hutchinson, JJ., concur.

The opinion of the court was delivered by: Mclaren

PRESIDING JUSTICE McLAREN delivered the opinion of the court:

On October 26, 1993, the plaintiffs, American National Bank & Trust Company, Amric Development Corporation, and Larry Grossman, filed the present suit (Grossman II) against the defendant, theVillage of Libertyville, seeking a declaration that the zoning ordinance of the village was unconstitutional, invalid, and void because it prevented the plaintiffs from developing single-family residences on a certain parcel of land located within the village, currently zoned "ORD" under the village's ordinance. An "ORD" designation under the Libertyville zoning ordinance does not permit residential development. The plaintiffs further prayed for an injunction against the village from interfering with the construction of single-family residences on the subject property and sought permits and approval of the plat of subdivision, in compliance with the village's subdivision ordinance. In response, the village filed a section 2-619 motion to dismiss the complaint. (735 ILCS 5/2-619 (West 1992).) The trial court granted the village's section 2-619 motion to dismiss based upon the doctrine of res judicata, and this appeal followed.

In the trial court's order dismissing the instant suit because of res judicata, the trial court referred to a prior judicial determination dismissing a suit brought by Larry Grossman against the Village of Libertyville in 1991 (Grossman I). Grossman I sought specific approval of a planned-unit development (PUD) as well as certain variations from the village's ordinances and a change in the underlying zoning classification for the same parcel of land at issue in Grossman II. The proposed PUD was based upon a 950-foot-long cul-de-sac, substantially greater in length than any cul-de-sac permitted under Libertyville ordinances, and called for 35 "empty nester" lots with 6,000 square feet devoted to each lot. In Grossman I, Grossman presented evidence regarding only the reasonableness of his proposed PUD and sought relief only with respect to the village's rejection of that plan.

On September 11, 1992, the trial court granted the village's section 2-1110 motion to dismiss (735 ILCS 5/2-1110 (West 1992)) at the close of Grossman's case in Grossman I, thus rejecting Grossman's proposed PUD. Grossman filed a motion to reconsider. In response, the village argued the decision to dismiss should be affirmed and also insisted that a conventional "R-5" single-family residential development was never proposed before the trial court in Grossman I, nor could it have been proposed, given that the law requires the exhaustion of local and administrative remedies and Grossman had not proposed a standard "R-5" single-family development to the village. The trial court refused to reconsider its decision in Grossman I. Grossman did not appeal that adjudication.

Grossman alleges he proceeded to market the subject property for "ORD" zoning purposes, but was unable to secure any offers for that use.

On August 27, 1993, the plaintiffs in Grossman II applied for a map amendment with the village, which would reclassify the same parcel of land at issue in Grossman I as an "R-5" district under Libertyville's zoning ordinance. The plaintiffs proposed to develop the subject property with 33 single-family residences located on lots of 10,000 square feet, abutting either an oval street or a shorter street connecting the midpoints of the longer sides of the oval. No cul-de-sacs were part of this single-family residence proposal, and the proposal was in complete accord with the village's standard "R-5" zoning classification of single-family subdivisions.

The plan commission of the village conducted a public hearing on September 27, 1993, at which time the plaintiffs made their presentation of the single-family residence proposal. No objectors appeared in opposition to the plan.

The plan commission recommended that the application for rezoning be denied and the village board subsequently concurred in the recommendation. The instant suit, Grossman II, was filed on November 16, 1993.

The village filed its section 2-619 motion to dismiss the complaint in Grossman II, based upon the doctrine of res judicata and the outcome of Grossman I. The trial court granted the section 2-619 motion, despite noting that Grossman's 1991 action was for a PUD and Grossman II involved a conventional R-5 proposed use for the parcel. The trial court also stated that when a zoning classification is challenged twice, the plaintiff has the burden of overcoming the bar of res judicata by showing materially changed circumstances since the first judgment. The court found that the plaintiffs in the present case had not met that burden.

In making our decision, we are guided by the standards set forth for section 2-619 motions to dismiss (735 ILCS 5/2-619 (West 1992)). Generally, section 2-619 affords a means of obtaining a summary disposition of issues of law or of easily proved issues of fact. ( Kedzie & 103rd Currency Exchange, Inc. v. Hodge (1993), 156 Ill. 2d 112, 115, 189 Ill. Dec. 31, 619 N.E.2d 732; Nikolic v. Seidenberg (1993), 242 Ill. App. 3d 96, 98, 182 Ill. Dec. 753, 610 N.E.2d 177.) Section 2-619(a)(4) of the Code of Civil Procedure provides for dismissal if "the cause of action is barred by a prior judgment." (735 ILCS 5/2-619(a)(4) (West 1992).) For purposes of a section 2-619 motion, all well-pleaded facts of the complaint are admitted and taken as true; only the legal sufficiency of the complaint is at issue. ( Bank of Northern Illinois v. Nugent (1991), 223 Ill. App. 3d 1, 7, 165 Ill. Dec. 514, 584 N.E.2d 948.) The granting of a section 2-619 motion to dismiss is given de novo review on appeal. Kedzie, 156 Ill. 2d at 116; Nikolic, 242 Ill. App. 3d at 99.

In the present case, the trial court granted the village's section2-619 motion pursuant to the doctrine of res judicata. Res judicata precludes the relitigation of claims or issues previously decided and is divided into two branches: estoppel by judgment, sometimes referred to as res judicata, and estoppel by verdict, also known as collateral estoppel. ( Powers v. Arachnid, Inc. (1993), 248 Ill. App. 3d 134, 137, 187 Ill. Dec. 407, 617 N.E.2d 864.) Estoppel by judgment has a broad preclusive effect in that a former adjudication on the merits will absolutely bar a subsequent cause of action between the same parties or their privies. ( Downing v. Chicago Transit Authority (1994), 162 Ill. 2d 70, 73-74, 204 Ill. Dec. 755, 642 N.E.2d 456; Powers, 248 Ill. App. 3d at 137.) Issues actually raised in the first proceeding as well as issues that might have been raised may not be relitigated in a subsequent proceeding. ( Elliott v. LRSL Enterprises, Inc. (1992), 226 Ill. App. 3d 724, 728, 168 Ill. Dec. 674, 589 N.E.2d 1074.) The narrower branch of res judicata, estoppel by verdict or ...


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