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Inland Land Appreciation Fund, L.P. v. County of Kane

December 05, 2003

INLAND LAND APPRECIATION FUND, L.P., AND FIRSTAR BANK OF ILLINOIS, FORMERLY KNOWN AS COLONIAL TRUST COMPANY, AS SUCCESSOR TRUSTEE TO BURBANK STATE BANK, AS TRUSTEE UNDER A TRUST AGREEMENT DATED FEBRUARY 16, 1990, AND KNOWN AS TRUST NO. 973, PLAINTIFFS-APPELLANTS,
v.
THE COUNTY OF KANE, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Kane County. No. 97-MR-159 Honorable Patrick J. Dixon, Judge, Presiding.

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

PUBLISHED

Plaintiffs, Inland Land Appreciation Fund, L.P., and Firstar Bank of Illinois, appeal the judgment of the circuit court of Kane County in favor of defendant Kane County entered after a bench trial on count IV of plaintiffs' complaint and defendant's counterclaim. We affirm.

The following facts are undisputed. Plaintiffs, who own several properties in Kane County, submitted their proposed Prairie Lakes Subdivision plan to defendant for review in 1995. In April 1996, Paul Schuch, director of defendant's water resources and platting division, sent the following letter to Anthony Casaccio, plaintiffs' representative:

"Dear Mr. Casaccio:

We have retained an outside consultant to perform the preliminary storewater engineering review for the [proposed] subdivision.
The consultant that the County is contracting with is Mr. Don Dressel, P.E.,
Christopher B. Burke Engineering, Ltd., 9575 West Higgins Road, Suite 600, Rosemont, Illinois 60018.
This arrangement is permissible under the Kane County Subdivision Regulations, section 19--37 Outside Consultants [Kane County Subdivision Regulations §19--37 (eff. December 11, 1962)]. This section permits the plat officer to engage professional assistance other than the staff, in order to provide a more timely review of the preliminary plans for your site and then pass on the billing to the developer.
If you have any questions or need any additional information, please do not hesitate to contact this office. Please acknowledge receipt of this correspondence and acceptance of these arrangements by signing and returning a copy of this letter."

Section 19--37 of the Kane County Subdivision Regulations (Subdivision Regulations), referred to in the letter, states as follows:

"During the plan review process and during installation and acceptance of the required improvements, the plat officer may engage professional assistance other than staff, in order to properly review or observe the improvement proposed by the applicant. The applicant shall be notified in writing that such professional assistance will be engaged. Prior to such review or observation, the applicant may meet with the plat officer in order to discuss the activity. In addition, the applicant and the county shall enter into an agreement whereby the applicant shall reimburse the county for costs associated with such professional review assistance." Kane County Subdivision Regulations §19--37 (eff. December 11, 1962).

Casaccio signed and returned the letter on May 11, 1996, indicating plaintiffs' acceptance of the proposed arrangement and requesting a copy of defendant's contract with Burke Engineering. Defendant sent plaintiffs a copy of the contract. Burke Engineering generated a total of $6,964.25 in fees in connection with its review of the Prairie Lakes plan. Before filing suit in this matter, plaintiffs reimbursed defendant in the amount of $2,815.50. The payments were made over the course of eight months. Neither in accepting the reimbursement arrangement nor in making their regular payments did plaintiffs voice any objection to the arrangement.

Ultimately, defendant rejected the Prairie Lakes plan, which prompted plaintiffs to file a five-count complaint against defendant. In count IV, plaintiffs requested a declaratory judgment that section 19--37 of the Subdivision Regulations is ultra vires because it is not authorized by the Counties Code (55 ILCS 5/5-1001 et seq. (West 2000)). Plaintiffs also sought restitution of the $2,815.50 they paid pursuant to the reimbursement agreement. Defendant filed a counterclaim for the balance owed under the reimbursement agreement. As an affirmative defense, plaintiffs claimed the agreement was void because they entered it under duress. Following a bench trial, the trial court ruled against plaintiffs on count IV, finding authorization for section 19--37 of the Subdivision Regulations in sections 5--1005(3), 5--1018, and 5--1041 of the Counties Code (55 ILCS ...


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