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Northern Trust Co. v. County of Lake

November 4, 2004


Appeal from the Circuit Court of Lake County. No. 99-MR-593. Honorable Raymond J. McKoski,Judge, Presiding.

The opinion of the court was delivered by: Justice Byrne


This case is a zoning dispute in which defendant, Lake County, denied plaintiffs a conditional use permit to construct a wastewater treatment facility (the facility) as part of a proposed 144-unit townhome development (the development) on plaintiffs' vacant 40-acre parcel (the property) in unincorporated Lake County. The property was held in trust, and plaintiff Tim Towne owns a 100% beneficial interest in the trust. Lake County successfully moved to dismiss plaintiffs' second-amended eight-count complaint, and plaintiffs appeal. On appeal, plaintiffs argue only that counts I, IV, and V should be reinstated. Count I seeks a declaratory judgment that the facility is a permitted use under the zoning regulations, and therefore, Lake County lacks the authority to require a conditional use permit for the construction of the facility. Count IV seeks a declaratory judgment that plaintiffs have a vested right in constructing the development, and therefore, Lake County lacks the authority to change the zoning classification of the property to prohibit construction of the facility and the development in general. Finally, count V seeks a declaratory judgment that the Illinois Environmental Protection Act (the Act) (415 ILCS 5/1 et seq. (West 2000)) preempts Lake County's zoning regulations that govern private sewage treatment plants such as the facility. We affirm.


The following facts are taken from plaintiff's second-amended complaint and various documents submitted by the parties. Lake County has adopted a comprehensive plan known as the "Framework Plan," and in 1994, Lake County changed the designation of the property from "countryside" to "suburban." In 1996, Lake County granted plaintiffs' request to rezone the property from countryside to suburban to conform to the Framework Plan. The suburban classification permits a variety of uses, such as industry, offices, residences, and retail.

In May 1998, plaintiffs contracted to sell the property to Concord Development Corporation (Concord) in anticipation of constructing the development. Plaintiffs and Concord submitted a proposed preliminary plat to Lake County. Because neither public sanitary sewer services nor septic systems were available or practical, plaintiffs and Concord proposed the construction of a private sewage treatment plant on the property. The record contains a 1994 letter from the Illinois Environmental Protection Agency (IEPA) in which the IEPA granted conditional, preliminary approval of the proposed treatment plant. The IEPA approval letter stated that "[the development company] must obtain a written concurrence of the proposed project from the Lake County Department of Public Works and the Northern Illinois Planning Commission to amend the [Illinois Water Quality Management Plan] through inclusion of the proposed sewage treatment plan." The IEPA also conditioned its approval on its issuance of an operating permit for the ultimate disposal of sewage from the facility.

At Lake County's insistence, plaintiffs and Concord applied for a conditional use permit to authorize construction of the facility. On April 16, 1999, the Lake County Board denied the application. After plaintiffs initiated the lawsuit on July 19, 1999, the Lake County Regional Planning Commission changed the property's Framework Plan classification from suburban to estate, thereby permitting only single-family residences on lots that are no smaller than two acres. The Lake County Board also returned the property's zoning classification from suburban to countryside, which allows only single-family residences on lots that are no smaller than five acres.

On May 3, 2000, Lake County moved to dismiss plaintiffs' second-amended complaint pursuant to sections 2--615 and 2--619 of the Code of Civil Procedure (Code) (735 ILCS 5/2--615, 2--619 (West 2000)). We set forth only those portions of the motion that were directed to counts I, IV, and V. Lake County asserted that count I must be dismissed under section 2--619 of the Code because plaintiffs did not exhaust their administrative remedies in resolving the issue of whether the facility was an "accessory use" permitted as a matter of right under the applicable zoning ordinance. Lake County also argued that count IV must be dismissed under sections 2--615 and 2--619 because plaintiffs could not have had a vested right in the development before the issuance of a conditional use permit. Finally, Lake County contended that count V must be dismissed under section 2--615 because the Act does not preempt conflicting local zoning ordinances.

On September 21, 2000, the trial court dismissed count I with prejudice, concluding that plaintiffs failed to exhaust their administrative remedies by requesting the Lake County Zoning Board of Appeals to determine whether the facility was an "accessory use" that did not require a conditional use permit under the ordinance. The court dismissed count IV without prejudice, concluding that plaintiffs had no vested right in constructing the development because plaintiffs failed to establish the probability that a conditional use permit would be issued. The court noted that plaintiffs could revive count IV if they exhausted their administrative remedies. Finally, the court dismissed count V with prejudice, citing Village of Carpentersville v. Pollution Control Board, 135 Ill. 2d 463 (1990), for the proposition that the Act does not preempt local zoning ordinances like the one at issue.

The court permitted the Village of Mundelein to intervene in March 2001. After the court denied plaintiffs' motion to reconsider the dismissal of count IV, it granted plaintiffs' request to dismiss count IV with prejudice. On October 23, 2003, plaintiffs voluntarily dismissed count II, the only remaining count, and this timely appeal followed.


On November 12, 2003, plaintiffs filed a notice of appeal in which they sought the reversal of the dismissal of count I and counts III through VIII. However, in their appellate brief, plaintiffs direct their argument only toward counts I, IV, and V. We limit our analysis to those counts because points not argued in an appellant's brief are waived. See 188 Ill. 2d R. 341(e)(7).

This appeal requires us to review the dismissal of counts I, IV, and V, which all seek declaratory relief. A declaratory judgment action requires (1) a plaintiff with a tangible, legal interest; (2) a defendant with an opposing interest; and (3) an actual controversy between the parties concerning such interests. 735 ILCS 5/2--701 (West 2002); Beahringer v. Page, 204 Ill. 2d 363, 372 (2003). For an actual controversy to exist, the case must present a concrete dispute admitting of an immediate and definitive determination of the parties' rights, the resolution of which will aid in the termination of the controversy or some part thereof. Howlett v. Scott, 69 Ill. 2d 135, 141-42 (1977), citing Underground Contractors Ass'n v. City of Chicago, 66 Ill. 2d 371, 375 (1977). The declaratory judgment process exists so that the court may address a controversy after a dispute has arisen but before steps are taken that would give rise to a claim for damages or other relief. Beahringer, 204 Ill. 2d at 372-73.

When ruling on a motion to dismiss filed under either section 2--615 or 2--619 of the Code, we must accept all well-pleaded facts as true and make all reasonable inferences therefrom. Village of South Elgin v. Waste Management of Illinois, Inc., 348 Ill. App. 3d 929, 930 (2004). The record must be construed in the light most favorable to the non-movant, but conclusions of law and conclusory factual allegations not supported by allegations of specific facts are not deemed admitted. Village of South Elgin, 348 Ill. App. 3d at 930-31. Moreover, it is well established that courts are to construe pleadings liberally with a view toward doing substantial justice between the parties. Village of South Elgin, 348 Ill. App. 3d at 931.

The parties dispute which standard of review applies to the dismissal. Plaintiffs cite the well-settled principle that we apply de novo review to a trial court's order dismissing a complaint under either section 2--615 or section 2--619 of the Code. See Feltmeier v. Feltmeier, 207 Ill. 2d 263, 266 (2003). However, Lake County cites Stone v. Omnicom Cable Television of Illinois Inc., 131 Ill. App. 3d 210 (1985), for the proposition that such dismissals are subject to the abuse-of-discretion standard of review.

In Stone, the defendants moved to strike and dismiss the plaintiff's complaint, but the opinion does not indicate under what statutory authority the motion was filed. This court held that a trial court's decision to "grant or deny" a request for a declaratory judgment should not be disturbed absent an abuse of discretion. Stone, 131 Ill. App. 3d at 215. Because "[t]he dismissal of a complaint for declaratory judgment is a proper method of declining to grant the requested relief" ...

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