Appeal from the Circuit Court of Cook County. Nos. 05 CH 20916 & 05 CH 11273 Honorable Sophia H. Hall, Judge Presiding.
The opinion of the court was delivered by: Justice Robert E. Gordon
At issue in this lawsuit is plaintiffs' access to a parking space. Plaintiffs and their guests will no longer be able to drive from the street to the handicapped parking space at the front of their property if a retail shopping center is built as planned on an adjacent property. The plans for the shopping center include construction of a wall between plaintiffs' parking space and the nearest curb cut to the street.
Plaintiff Chicago Title Land and Trust Company (Chicago Title) is the trustee of a land trust that holds legal title to the property located at 126 South Northwest Highway, Barrington, Illinois (the Curielli property), and plaintiff Curielli Brothers is an Illinois general partnership that is the sole beneficiary of the trust. The parking space at issue is on the Curielli property.
Defendant 120 Northwest Highway Partners L.L.C. (Northwest Partners) is an Illinois limited liability company that owns adjacent property at 120-122 Northwest Highway (the Northwest property). Defendant GK Development, Inc. (GK), is the developer of the Northwest property. Defendant Barrington Bank and Trust Company recorded the mortgage for the Northwest property and has never filed pleadings in this litigation. Defendant Village of Barrington, a municipal corporation, passed a special use ordinance that permitted the development of a retail shopping center on the Northwest property, thus eliminating street access to the parking space on the Curielli property.
Plaintiffs filed two suits: a complaint against Northwest, GK, Barrington Bank and the Village of Barrington (Curielli I); and a petition for writ of certiorari against the board of trustees of the Village of Barrington only (Curielli II). The circuit court dismissed Curielli II on March 8, 2006, and counts II and III of Curielli I on September 29, 2005, for plaintiffs' failure to seek review of the special use ordinance pursuant to the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2006)). Thus, the only question for our review on appeal concerns the application of the Administrative Review Law to the special use ordinance passed by the Village of Barrington. For the following reasons, we reverse.
On June 6, 2005, the board of trustees of the Village of Barrington passed an ordinance that granted a special use for the construction of a retail shopping center on property adjacent to plaintiffs' property. On June 15, 2005 the village provided a copy of the ordinance to plaintiffs pursuant to a Freedom of Information Act (5 ILCS 140/1 et seq. (West 2006)) request.
On July 6, 2005, plaintiffs filed the complaint in Curielli I, which had four counts. Count I is a declaratory action for a prescriptive easement that is still pending. Counts II and III were dismissed and are the subject of this appeal. Count II sought enforcement of the village's zoning ordinance, and count III requested a declaratory judgment to declare the special use ordinance invalid and to enjoin the issuance of building permits. Count IV, which was dismissed without prejudice, was "a declaratory judgment action to establish that Curielli Bros. fully complied with Building Permit B03-0320." Counts I and IV are not at issue in this appeal.
Plaintiff Chicago Title holds legal title to the Curielli property, where John Peter Curielli operates a law practice. The Northwest property, located at 120-122 South Northwest Highway, consists of two former business locations: a gas station, at lot 120; and a medical practice at lot 122. The Northwest property is adjacent on the northern boundary to the Curelli property. Northwest Partners purchased the gas station property on January 9, 2004, and the medical office property from Dr. John Thomas on September 29, 2004, thereby acquiring title to the entire property for the proposed shopping center.
The prior owner of the Curielli property was Elizabeth Snell, who operated a real estate brokerage business at that location from the early 1960s until she sold the property to the Curielli Brothers in 1996. When Northwest Highway was widened in the 1960s, the asphalt in front of Snell's business was removed and a curb cut was installed by the Illinois Department of Transportation, thereby eliminating direct access to parking spaces that had previously existed in front of Snell's business. After the widening, only two parking spaces remained in front, and access was gained by driving over the Northwest property owned by Dr. Thomas at that time. Plaintiffs admitted in their complaint that several weeks after they purchased the property from Snell, Dr. Thomas informed them orally that he objected to their driving over his property.
On October 9, 2003, plaintiff Curielli Brothers received a building permit to construct a parking space and sidewalk in front of their building. Access to this parking space required driving over the Northwest property. The cost of construction was $20,075.
The prescriptive easement claimed by plaintiffs over the Northwest property consists of a rectangular area 23 feet north of the boundary line between the Curelli and Northwest properties and 38 feet west of the curb cut north of the boundary line between the Curelli and Northwest properties.
The proposed development plan for the Northwest property will destroy the prescriptive easement claimed by plaintiffs by: the construction of a wall on the boundary line between the two properties; moving the curb cut north of its present location, and placing vegetation in the middle of the claimed easement.
The ordinance at issue granted both special uses and variances.*fn1 The ordinance granted three variances from existing zoning regulations: (1) an exception from the "front yard build-to setback of fifteen feet *** otherwise required by the Zoning Ordinance" to permit "the proposed building to be constructed having a front yard build-to setback of fifty-four feet"; (2) "an exception to place wall signs above the maximum height"; and (3) "a parking exception to reduce the required number of parking spaces on the site." However, none of the three variances are the target of plaintiffs' complaint. Plaintiffs complained only about the construction of a wall, the movement of the curb cut and the placement of vegetation. The village's actions at issue in this suit are special uses, as noted.
On August 15, 2005, Northwest Partners, GK and Village of Barrington moved to dismiss counts II and III of Curielli I on the ground that plaintiffs failed to object to the special use ordinance pursuant to the Administrative Review Law. On September 29, 2005, the trial court entered an order that dismissed counts II ...