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02/25/98 COUNTY MONTGOMERY v. DEER CREEK

THE COUNTY OF MONTGOMERY, PLAINTIFF-APPELLANT,
v.
DEER CREEK, INC., DEFENDANT-APPELLEE.



The opinion of the court was delivered by: Presiding Justice Welch delivered the opinion of the court:

On January 2, 1997, the circuit court of Montgomery County granted a cross-motion for summary Judgement by defendant, Deer Creek, Inc., in favor of defendant and against the plaintiff, the County of Montgomery, Illinois. The circuit court ruled that defendant's campground development, Deer Creek, is not a subdivision within the meaning of the Montgomery County Subdivision Ordinance or the Plat Act (765 ILCS 205/0.01 et seq. (West 1994)), and therefore, the court ruled that Deer Creek is not subject to the regulations of the subdivision ordinance. Plaintiff appeals this ruling.

The relevant facts of this case are undisputed. Defendant is the owner of approximately 70 acres of land in Montgomery County upon which it has begun developing a private campground, Deer Creek. Deer Creek consists of approximately 770 recreational lots. No unit owners will be allowed to establish residency on any of the lots. Further, no improvements or roadways constructed on Deer Creek will be dedicated to any governmental entity. Defendant will be responsible for the maintenance and upkeep of all improvements and roads on Deer Creek.

Originally, Deer Creek was entitled "Deer Creek Recreational Campground." On September 10, 1993, defendant applied to the Montgomery County Board for variations to the subdivision ordinance as pertaining to Deer Creek Recreational Campground. The request related to street size, lot size, building line width, sewage disposal, and the construction of the roads. Along with this application, defendant filed a plat. On October 12, 1993, the Montgomery County Board denied the request for variations.

After this denial, defendant filed a declaration converting the form of ownership of Deer Creek to a condominium form of ownership. However, there is no indication that anything other than the form of ownership changed with regard to the Deer Creek property. As the circuit court indicated, the plat filed with this declaration appears identical to the plat filed with the request for variations and exceptions. Since the form of ownership of Deer Creek was converted to a condominium form of ownership, defendant argued that Deer Creek was no longer regulated by the subdivision ordinance.

On May 31, 1995, plaintiff filed an amended complaint seeking a declaration of rights and an injunction. Plaintiff requested that the circuit court declare that plaintiff has the authority, pursuant to the subdivision ordinance and the Plat Act, to regulate the development of Deer Creek and that the court restrain defendant from improving or selling any lots on Deer Creek without complying with the provisions of the subdivision ordinance or the Plat Act.

By August 18, 1996, each party had filed a motion for summary judgment, and a hearing was conducted 10 days later. A decision by the circuit court was filed on January 2, 1997. The decision granted defendant's cross-motion for summary Judgement and held that Deer Creek is not subject to the subdivision ordinance or the Plat Act. In its order, the circuit court asked itself: "If a campground is developed under condominium laws, is it subject to a county's subdivision ordinance and the Illinois Plat Act?" The court answered, "As this court understands the applicable law, the answer is `no'." The court went on to hold, "[Deer Creek] is not a subdivision within the meaning of the Montgomery County Subdivision Ordinance or the Illinois Plat Act."

The pivotal issue before us is whether Deer Creek is subject to the regulations of the Montgomery County Subdivision Ordinance. Before addressing this issue, we note two concessions made by the parties. First, plaintiff concedes that Deer Creek is a condominium pursuant to the Condominium Property Act. 765 ILCS 605/1 (West 1992). Second, defendant concedes that Montgomery County has the authority to enact ordinances to regulate the development of condominiums. See 55 ILCS 5/5-1041 (West 1992); City of Urbana v. County of Champaign, 76 Ill. 2d 63, 70-71 (1979). Defendant, in making this concession, specifically argues that the subdivision ordinance enacted by Montgomery County applies to a distinctly different type of development and that plaintiff has failed to exercise its authority to enact regulations specifically pertaining to a condominium development. We disagree with defendant's argument, and for the reasons which follow, we believe that the Montgomery County Subdivision Ordinance does apply to Deer Creek and that the circuit court erred in granting defendant's cross-motion for summary judgment.

We review a decision by the circuit court granting a motion for summary Judgement under the de novo standard of review. Kurtz v. Wright Garage Corp., 262 Ill. App. 3d 1103, 1106 (1994). Under that standard, we are not restricted to the reasons for granting summary Judgement set forth by the trial court. Best v. Services for Cooperative & Condominium Communities, 256 Ill. App. 3d 462, 464 (1993).

First, we believe that Montgomery County has the power to regulate Deer Creek, a condominium development, pursuant to its subdivision ordinance. A county derives its power to regulate land developments from the Counties Code. 55 ILCS 5/5-1041 (West 1992). Section 5-1041 provides that a county has the power to regulate by ordinance the course of streets or highways, storm-water runoff channels, sewage collection, etc., in any "map, plat, or subdivision of any block, lot or sub-lot or any part thereof or any piece or parcel of land, not being within any city, village or incorporated town." 55 ILCS 5/5-1041 (West 1992). Because the county has the power to regulate land developments, the next question is whether the county can regulate a condominium pursuant to its subdivision ordinance.

The term subdivision is not defined in the Counties Code. However, the Illinois Supreme Court has determined that, pursuant to the Illinois Municipal Code, a subdivision ordinance may apply to a land development which does not involve the division of land into two or more tracts. City of Urbana v. County of Champaign, 76 Ill. 2d 63, 70-71 (1979); Ill. Rev. Stat. 1975, ch. 24, par. 11-12-5. In City of Urbana, the supreme court determined that a planned unit development (PUD), which does not involve a division of land, may be regulated pursuant to the subdivision ordinance of a municipality. City of Urbana, 76 Ill. 2d at 70-71. The supreme court noted that the Illinois Municipal Code clearly recognized that a municipality has a legitimate interest in regulating the development of land near its borders to protect the health and safety of its people and, therefore, the touchstone of a city's power to impose subdivision controls is not the division of a tract into two or more parcels but is its developmental impact upon existing facilities protecting the health and safety of the municipal residents. City of Urbana, 76 Ill. 2d at 70-71. The supreme court concluded that the PUD was a subdivision within the statutory meaning, and the court then examined whether the city's subdivision ordinance applied to the PUD. City of Urbana, 76 Ill. 2d at 70-71.

The Counties Code is similar to the Illinois Municipal Code in that it grants the counties, as opposed to municipalities, the power to regulate land developments within its boundaries. We do not believe that the scope of the term subdivision should be construed less broadly in the Counties Code than in the Illinois Municipal Code, where the same reasoning is applicable. Using the logic behind the decision in City of Urbana, we conclude that a county also has a legitimate interest in regulating the development of land within its borders to protect the health and safety of its people, and merely because the land is not split into two does not change the developmental impact on the county. Therefore, we conclude that a county may regulate a condominium development pursuant to its subdivision ordinance.

Therefore, our next task is to determine whether Deer Creek is a subdivision as defined by the Montgomery County Subdivision Ordinance. Section II of the Montgomery County Subdivision Ordinance defines a subdivision as follows:

"9. Subdivision. For the purpose of these regulations a subdivision is either (1) the division of land into two (2) or more lots, sites or parcels of five (5) acres or less in area; (2) establishment of dedication of a road, highway, street or alley through a tract of land regardless of its area; or (3) division of land heretofore divided or platted into lots, sites, or parcels, provided, however, that the sale or exchange of parcels of land to or between adjoining property owners where such sale or exchange does not create additional lots shall not be considered as a subdivision, and provided further, that a contract of sale requiring conformity with this ordinance may be entered into." Montgomery County Subdivision Ordinance, §II(9) (eff. May 8, 1979).

Throughout the circuit court proceedings, plaintiff argued that Deer Creek is a subdivision pursuant to this ordinance because it is essentially a division of land. However, this argument has been abandoned on appeal. Plaintiff now argues that Deer Creek is a subdivision pursuant ...


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