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Wauconda Fire Protection v. Stonewall Orchards

October 02, 2003

THE WAUCONDA FIRE PROTECTION DISTRICT, PLAINTIFF-APPELLANT,
v.
STONEWALL ORCHARDS, LLP, AND THE COUNTY OF LAKE, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Lake County. No. 02--CH--1033 Honorable Margaret J. Mullen, Judge, Presiding.

The opinion of the court was delivered by: Justice O'malley

PUBLISHED

Plaintiff, the Wauconda Fire Protection District (District), sought an injunction against defendants, Stonewall Orchards, LLP (Stonewall), and Lake County (County), to enforce a District ordinance. The trial court granted defendants' motions to dismiss. The District appeals, arguing that its ordinance is valid and enforceable in unincorporated Lake County. We affirm in part, reverse in part, and remand the cause.

BACKGROUND

Stonewall is a privately owned golf course open to the public, located within the common boundaries of unincorporated Lake County and the District. Stonewall submitted plans to the County and to the District for the construction of a clubhouse on its golf course. The District informed Stonewall that pursuant to a District ordinance, the clubhouse would need sprinklers.

The County approved building plans that did not include a sprinkler system and issued Stonewall a building permit. After construction of the clubhouse, Stonewall received a temporary occupancy permit from the County. The clubhouse opened for business in June 2002.

The District sought an injunction to prevent Stonewall from occupying the clubhouse without a sprinkler system. The District also sought to enjoin the County from issuing Stonewall a certificate of occupancy. In response, the County and Stonewall filed motions to dismiss. They pointed out that pursuant to section 11 of the Fire Protection District Act (Act) (70 ILCS 705/11 (West 2002)), the District does not have the authority to adopt and enforce ordinances when a municipality has adopted fire prevention laws. Defendants argued that the County should be considered a municipality, citing section 1 of the Municipal Adoption of Codes and Records Act (50 ILCS 220/1 (West 2002)). The County alternatively argued that the complaint should be dismissed because the County could not be compelled to enforce a District ordinance.

The District subsequently filed an amended complaint seeking, in addition to injunctive relief, a declaratory judgment that (1) pursuant to section 11 of the Act, the District has the authority to enact ordinances within unincorporated Lake County, and (2) the District's sprinkler ordinance was enacted with proper statutory authority and is valid and enforceable within the unincorporated areas of Lake County. The trial court granted defendants' motions to dismiss pursuant to section 2--619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2--619(a)(9) (West 2002)). The District timely appealed.

MOTIONS

Ordered taken with this case were the County's motions to (1) strike portions of the statement of facts in the District's brief and (2) strike the District's reply brief. The disputed facts in the District's brief are not supported by the record, in violation of Supreme Court Rule 341(e)(6) (177 Ill. 2d R. 341(e)(6)). Accordingly, we grant the County's motion to strike these statements.

The County also points out various statements in the District's reply brief that are not supported by the record and an attached exhibit that is not included in the record. Attachments to briefs not included in the record on appeal are not properly before the appellate court, and they cannot be used to supplement the record. In re O.R., 328 Ill. App. 3d 955, 961 (2002). However, since substantial portions of the District's reply brief contain legitimate argument, we deny the County's motion to strike the reply brief, but we strike the challenged statements and the exhibit contained in the reply brief.

ANALYSIS

The District argues that the trial court erred in granting defendants' motions to dismiss. We review de novo the grant of a section 2--619(a)(9) motion to dismiss. Byron Dragway, Inc. v. County of Ogle, 326 Ill. App. 3d 70, 73 (2001).

Defendants maintain that the District is prohibited from enforcing ordinances in the County because the County has a fire prevention code. The District concedes that its ordinances are not valid in "municipalities" that have their own fire codes, but it argues that the County is not a municipality within the context of the Act. Section 11 of the Act sets forth the power of ...


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