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Fisher v. Burstein

September 17, 2002

JEAN FISHER, JOSEPH FISHER, JANET FISHER, AND SUSAN YELLEN; JAMES OTIS AND MARGARET OTIS, INDIVIDUALLY AND AS TRUSTEE OF THE MARGARET B. OTIS TRUST; ADLAI STEVENSON AND NANCY STEVENSON, PLAINTIFFS-APPELLANTS,
v.
JOSEPH BURSTEIN; CHESTNUT MOUNTAIN LODGE JOINT VENTURE AND ITS UNKNOWN OWNERS; CHESTNUT MOUNTAIN RESORT, INC.; CHESTNUT MOUNTAIN SLIDE COMPANY; CHESTNUT MOUNTAIN SKI CORPORATION; GALENA LODGE CORPORATION; AND JO DAVIESS COUNTY, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Jo Daviess County. No. 98-L-14 Honorable William A. Kelly, Judge, Presiding.

The opinion of the court was delivered by: Justice McLAREN

Released for publication September 19, 2002.

JEAN FISHER, JOSEPH FISHER, JANET FISHER, AND SUSAN YELLEN; JAMES OTIS AND MARGARET OTIS, INDIVIDUALLY AND AS TRUSTEE OF THE MARGARET B. OTIS TRUST; ADLAI STEVENSON AND NANCY STEVENSON, PLAINTIFFS-APPELLANTS,
v.
JOSEPH BURSTEIN; CHESTNUT MOUNTAIN LODGE JOINT VENTURE AND ITS UNKNOWN OWNERS; CHESTNUT MOUNTAIN RESORT, INC.; CHESTNUT MOUNTAIN SLIDE COMPANY; CHESTNUT MOUNTAIN SKI CORPORATION; GALENA LODGE CORPORATION; AND JO DAVIESS COUNTY, DEFENDANTS-APPELLEES.

Appeal from the Circuit Court of Jo Daviess County. No. 98-L-14 Honorable William A. Kelly, Judge, Presiding.

The opinion of the court was delivered by: Justice McLAREN

PUBLISH

Plaintiffs appeal from the trial court's order granting summary judgment in favor of defendants and denying summary judgment to plaintiffs. We affirm.

Defendants Chestnut Mountain Lodge Joint Venture and Its Unknown Owners, Chestnut Mountain Resort, Inc., Chestnut Mountain Slide Company, and Chestnut Mountain Ski Corporation, of which defendant Joseph Burstein is an owner, operate a ski resort in unincorporated defendant Jo Daviess County. With the exception of Jo Davies County, the defendants shall be referred to collectively as Chestnut Mountain defendants. Plaintiffs, Jean Fisher, Joseph Fisher, Janet Fisher, and Susan Yellen; James Otis and Margaret Otis, individually and as trustee of the Margaret B. Otis Trust; and Adlai Stevenson and Nancy Stevenson, own land adjacent to or near the Chestnut Mountain lands. In 1997, the Chestnut Mountain defendants opened a new snowboarding facility called "The Far Side" and a new building called "Village Ski Center" on the eastern slope of the mountain. In July 1998, plaintiffs filed a complaint seeking declaratory and injunctive relief against the Chestnut Mountain defendants (not including Burstein) to prohibit the operation of The Far Side "without proper authorization." In June 1999, plaintiffs amended their complaint, adding Burstein and Jo Daviess County as defendants. Count I alleged that the Chestnut Mountain defendants developed and operated The Far Side in violation of the county zoning ordinance and sought declaratory relief, an injunction permanently enjoining further use or development of The Far Side, and an order of mandamus directing the County "to perform the statutory duties to effectuate" any order of the court. Counts II, III, and IV raised issues of breach of covenant, contempt, nuisance, and trespass. The parties filed cross-motions for summary judgment on count I. The trial court granted the defendants' motions and denied plaintiffs' motion. This appeal followed.

Plaintiffs contend that the trial court erred in granting defendants' motions for summary judgment. A motion for summary judgment should be granted only when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Romano v. Morrisroe, 326 Ill. App. 3d 26, 27-28, (2001). The disposition of a summary judgment motion is not discretionary, and the standard of review on appeal is de novo. Romano, 326 Ill. App. 3d at 28. To determine whether a genuine issue of material fact exists, a reviewing court must consider the pleadings, depositions, admissions, exhibits, and affidavits on file and construe them liberally in favor of the opponent of the motion and strictly against the movant. Romano, 326 Ill. App. 3d at 28.

The relevant facts are not in dispute. Chestnut Mountain was developed as a ski resort in 1959, prior to the enactment of the ordinance in question. The resort includes a hotel with lodging and food and beverage facilities, pool facilities, a miniature golf putting green, tennis courts, and illuminated parking. The west-northwest slope of the mountain was developed with downhill ski trails, chair lifts, flood lights, loudspeakers, an Alpine slide, and snow-making and snow-grooming machines. The eastern slope of the mountain was not developed prior to 1997, with the exceptions of a sewage treatment facility, a retention pond, and an unpaved bicycle trail. The Jo Daviess County zoning ordinance was approved on December 14, 1993, and became effective on March 1, 1995. The development of The Far Side in 1997 included land clearance, creation of a ski trail and a "terrain park" for snowboarding, construction of a chairlift, and installation of light towers, snow-making and snow-grooming machines, electric and water infrastructure, and signs. The Chestnut Mountain defendants did not apply for or obtain any zoning permits from the county before they developed The Far Side. The county's position on the matter was that its ordinances did not require any additional zoning permits.

Section 12.1 of the ordinance provides in relevant part:

"PERMITTED USES

A. No building or other structure shall be erected, altered or enlarged and no use of land shall be established or enlarged for any use except a use that is named in the list of permitted uses for the zoning district in which the building, structure or land is, or will be located. There shall be two (2) exceptions to this requirement:

(1) Uses lawfully established on the effective date of this Ordinance may be continued subject to the conditions and restrictions ...


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