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La Salle National Bank v. City Suites

September 28, 2001

LA SALLE NATIONAL BANK AS TRUSTEE U/T NO. 104471 AND H. REED HARRIS, PLAINTIFFS-APPELLANTS
v.
CITY SUITES, INC., WILMONT HOTEL LIMITED PARTNERSHIP, CORUS BANK F/K/A AETNA BANK N.A.., TRUSTEE U/T NO. 10-4222, REPUBLIC BANK OF CHICAGO, THE CITY OF CHICAGO, AND THE ZONING BOARD OF APPEALS OF THE CITY OF CHICAGO, DEFENDANTS- APPELLEES



Appeal from the Circuit Court of Cook County. No. 97 CH 7120 Honorable Ellis E. Reid Judge Presiding

The opinion of the court was delivered by: Justice Tully

UNPUBLISHED

Plaintiffs, H. Reed Harris (Mr. Harris) and LaSalle National Bank as Trustee, appeal from the circuit court's orders: (1) affirming the decision of the Zoning Board of Appeals granting defendants, City Suites. Inc., Wilmont Hotel Partnership, Corus Bank, Aetna Bank and Republic Bank of Chicago (the "Corus group") a special use to operate their property at 3260 N. Wilton Avenue in the City of Chicago as an accessory parking lot; (2) dismissing plaintiffs' four count amended complaint with prejudice, which sought to enjoin and abate operation of the property in violation of certain zoning ordinances. This court has jurisdiction pursuant to Illinois Supreme Court Rule 301 (155 Ill.2d R. 301). For the following reasons, we affirm.

Background

In 1997, plaintiffs brought an action seeking to enjoin the Corus group from operating a parking lot on their property at 3260 N. Wilton Ave in violation of the Chicago Zoning Ordinance (Ordinance)(Chicago Municipal Code § 17-1 et seq.(1997)). While plaintiffs' action was pending, the Corus group sought an amendment to the Ordinance, to change the zoning classification of their property from an R5, general residence district, to a B4-3, restricted service district. On September 30, 1997, a public hearing was held before the Chicago City Council Zoning Committee, at which plaintiff, Mr. Harris, the owner of property neighboring the Corus group's property, appeared and voiced objections. On October 1, 1997, the City Council Zoning Committee granted the amendment, changing the property to a B4-3 zoning classification.

On December 30, 1997, the Corus group applied to the Zoning Board of Appeals of the City of Chicago (the "Zoning Board") for a special use, to allow the subject property to be used as "an accessory off-site parking lot to provide non-required parking" to the Wilmont Hotel. Application for a special use was necessitated because the Wilmont Hotel and the subject property were not located on the same zoning lot and section 8.4-1(6) of the Ordinance (Chicago Municipal Code § 17-8.4-1(6)(1997)) requires that off-street parking facilities not located on the same zoning lot as the principal use receive approval from the Zoning Board for a special use. *fn1 On February 20, 1998, a hearing was held before the Zoning Board on the special use application. Mr. Harris appeared at the hearing and objected to the special use, arguing section 8.11-2 of the Ordinance (Chicago Municipal Code § 17-8.11-2 (1997)) required all off-street parking facilities in B4-3 districts be located within 500 feet of the main entrance of the principal use served and there was no evidence that the use proposed was located within 500 feet of the Wilmont Hotel's main entrance. Counsel for the Corus group responded by arguing section 8.11-2 was inapplicable because it applied only to required parking facilities, not non-required, permissive parking facilities, like the use at issue. The Zoning Board informed the parties it would interpret the relevant provisions of the Ordinance when making a decision.

On March 6, 1998, the Zoning Board approved the special use application. Although the Zoning Board did not specifically address the applicability of section 8.11-2 to the property, it found: (1) the special use was necessary for the public convenience, to provide parking to the guests and employees of the Wilmont Hotel, (2) the public health and safety would be adequately protected in the operation, location and design of the special use, and (3) the use of the property as a parking lot would be consistent with its prior use as a parking lot and would not cause substantial injury to the value of neighboring property.

On April 10, 1998, plaintiffs filed a four count complaint against the Corus group, the Zoning Board and the City of Chicago. Count I sought a declaratory judgment to invalidate the re-zoning of the subject property from an R5 district to a B4-3 district. Count II sought administrative review of the Zoning Board's decision to grant a special use. Count III sought to enjoin use of the property as an accessory parking lot, contingent upon the court's finding in plaintiff's favor as to Count I or Count II. Count IV sought to abate alleged violations of the Ordinance with respect to design, maintenance, landscaping and lighting of the property.

Defendants moved to dismiss Count I, pursuant to section 2-619 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-619) (West 1998)), on the basis that plaintiffs failed to notify other property owners of the action, in violation of sections 11-13-8 of the Illinois Municipal Code (65 ILCS 5/11-13-8 (West 1998). Defendants moved to dismiss counts I, III, and IV as well, pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 1998)), for failure to state a cause of action. In an order dated August 11, 1998, the circuit court dismissed counts I, III, and IV of plaintiffs' complaint with prejudice. On January 14, 1999, the circuit court issued a written opinion addressing count II of plaintiffs' complaint and affirming the Zoning Board's decision to grant a special use. Plaintiffs' thereafter filed a motion to reconsider the January 14,1999 order based on newly discovered evidence concerning the ownership of the subject property. In an order dated February 3, 1999, the circuit court denied the motion. On February 16, 1999, plaintiffs filed a notice of appeal which specified appeal was taken from the circuit court's orders of August 11, 1998 and January 14, 1999.

Discussion

Plaintiffs argue that the circuit court erred in affirming the Zoning Board's decision to grant a special use, and in dismissing counts I through IV of their amended complaint with prejudice. Plaintiffs further contend the circuit court erred in denying their motion to reconsider, based on newly discovered evidence, in the order dated February 3,1999. As preliminary matter, defendants have moved to strike all parts of plaintiffs' brief relating to the February 3, 1999 order on the basis that the notice of appeal fails to specify appeal is taken from that order.

Illinois Supreme Court Rule 303(b) sets forth the form and content of the notice of appeal. 155 Ill.2d R. 303(b). The notice of appeal serves the dual purpose of vesting the reviewing court with jurisdiction, and informing the prevailing party that the unsuccessful litigant seeks review by a higher court. Waste Management, Inc. v. International Surplus Lines Ins. Co., 144 Ill.2d 178, 188 (1991). Accordingly, the notice must specify the judgment or part thereof from which the appeal is taken, and a reviewing court has jurisdiction solely over those issues properly raised in the notice. Waste Management, Inc.,144 Ill.2d at 189. However, appeal from an unspecified judgment is reviewable if it is a step in the procedural progression leading to the judgment specified in the notice of appeal. Steinberg v. System Software Associates, Inc., 306 Ill.App.3d 157,166 (1999).

In this case, the notice of appeal specifies that appeal is taken from the circuit court's orders of August 11, 1998 and January 14, 1999. The notice does not specify appeal is taken from the circuit court's order of February 3, 1999, denying the motion to reconsider, and that order cannot be viewed as a step in the procedural progression leading to the ultimate judgment. A similar set of circumstances was presented in Dalen v. Ozite Corp., 230 Ill.App.3d 18 (1992), in which this court held it lacked jurisdiction to review an order denying a motion to reconsider because the order was not a step in the procedural progression leading to judgment and the notice of appeal failed to specify appeal from that order. We likewise conclude we lack jurisdiction to review the February 3, 1999 judgment, and therefore grant defendants' motion to strike those portions of plaintiffs' brief directed to the court' order denying their motion to reconsider.

Turning to the remaining issues, plaintiffs also contend that the Zoning Board's decision was arbitrary and capricious because the record was devoid of evidence from which the Zoning Board could conclude the subject property was within 500 feet walking distance to the main entrance of the Hotel, as required under section 8.11-2 of the Ordinance. Defendants respond, however, that such evidence was unnecessary because section ...


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