Bd. of Ed. v. Village of Northbrook

Annotate this Case
FIFTH DIVISION
FILED: 3/20/98

No. 1-97-1949

BOARD OF EDUCATION OF SUNSET RIDGE )
SCHOOL DISTRICT NO. 29, )
)
Plaintiff-Appellant, )
) Appeal from the
E. LEONARD RUBIN and ) Circuit Court of
AUDREY RUBIN, ) Cook County.
)
Intervenor Plaintiffs-Appellants, )
) No. 96 CH 0014161
v. )
)
VILLAGE OF NORTHBROOK, RKZ VENTURE )
GROUP, L.L.C, ROMANEK PROPERTIES, and ) Honorable
COLE-TAYLOR BANK, as Trustee under ) Lester D. Foreman
Trust No. 94707, ) Judge Presiding.
Defendants-Appellees. )

PRESIDING JUSTICE HOFFMAN delivered the opinion of the
court:
The plaintiff, Board of Education of Sunset Ridge School
District Number 29, and the intervenors, E. Leonard and Audrey
Rubin, appeal from the trial court's dismissal of their complaint
with prejudice on the basis of res judicata.
On December 15, 1988, the defendant, Village of Northbrook
(the Village), entered into an annexation agreement with the
Society of the Divine Word (the Society). The annexation
agreement established the terms for the annexation, zoning and
development of a 770-acre parcel of property, commonly known as
the "Techny Property," of which the Society was the beneficial
owner. At the time the Village and the Society entered into the
annexation agreement, Article IV, Subsection F, paragraph 1 of
the Northbrook Subdivision Ordinance provided that the Village's
Board of Trustees could not approve any final plat for a
subdivision until the developer, subdivider or owner of the
property presented evidence that it had a written agreement with
the local school district for dedication of land, a cash
contribution or a waiver of the required contributions.
Section 12(e) of the annexation agreement, however, provided
that the Society or the developer of the Techny Property was
required to make these contributions to a school district only if
that district had an adopted written policy for land or fee
donations in effect prior to June 21, 1988. The plaintiff is a
public school district which owns property in the Villages of
Northfield and Northbrook and operates two schools in the Village
of Northfield. It adopted a formula for cash or land donations
for developers on September 8, 1988, and informed the Village of
that formula prior to the adoption of the annexation agreement.
On August 8, 1989, the Village's Board of Trustees adopted
ordinance number 89-50, annexing the Techny property, and
ordinance number 89-53, amending the Village's zoning map by
establishing zoning classifications for the Techny Property. The
parcel at issue in this action was zoned for R-8 multi-family
residential use. Also on that date, the Board of Trustees
adopted resolution number 89-R-124, which approved certain
variations to the Northbrook Subdivision Ordinance. Section 3,
subparagraph g of that resolution provided that "notwithstanding
Article IV, Paragraph 1, Subsection F of the Subdivision
Ordinance" neither the Society nor any developer was required to
present evidence of an agreement or waiver regarding
contributions to any school district that did not have an adopted
written policy regarding those contributions in effect on or
before June 21, 1988.
In 1990, the plaintiff filed a complaint against the
Villages and Park Districts of Northbrook, Northfield and
Glenview, Northfield Township, Elementary School District Numbers
28, 30 and 34 and High School District Numbers 203 and 225. The
Society intervened as a defendant in that action. Each of the
five counts in the plaintiff's 1990 complaint was based on a
written contract entitled the "Techny Area Land Use and Boundary
Agreement" (Techny Agreement), which the plaintiff and the
original defendants had entered into July 1, 1975. The parties
in the instant case do not dispute that the Techny Agreement
governed the same property referred to herein as the Techny
Property.
In count I of its 1990 complaint, the plaintiff alleged that
the Village, which had annexed a portion of the Techny Property,
had breached its contractual obligations by passing ordinances
allowing land usage, density and zoning inconsistent with the
Techny Agreement. The plaintiff alleged that, as a result of the
improper development, there would be a substantial traffic
increase within its boundaries which would harm the educational
environment and endanger the student population. The plaintiff
sought injunctions requiring the Village to rescind the
ordinances in question, to use its best efforts to require land
usage, density and zoning consistent with the Techny Agreement,
and to discontinue cooperation with development inconsistent with
the Techny Agreement.
In count II of the 1990 complaint, the plaintiff alleged
that the Village had breached the Techny Agreement by failing to
submit plans for development of the Techny Property to a
designated commission prior to adopting ordinances which
specified permitted uses for the property. The plaintiff sought
an injunction requiring the Village to submit future ordinances
or development plans to the commission for review and to use its
best efforts to ensure that those ordinances or plans conformed
with the Techny Agreement. In counts III and IV, the plaintiff
requested an injunction requiring the Village to rescind its
annexation of those portions of the Techny Property which
extended beyond boundaries established by the Techny Agreement.
In count V, the plaintiff sought monetary damages for the
expenses it would incur to preserve the educational environment
of its schools and the health and safety of its students in light
of the substantial increase in traffic. The plaintiff alleged
that such expenses might include physical improvements to its
facilities to lessen noise interference and pollution, the
purchase, operation and maintenance of school buses, and the
enlargement of existing facilities or erection of new facilities
to accommodate the increased student population.
On October 9, 1990, the trial court granted motions to
dismiss the plaintiff's complaint with prejudice in favor of all
the defendants, finding that the plaintiff lacked standing, the
Techny Agreement was unenforceable, the action was barred by the
statute of limitations and laches, and the plaintiff was
equitably estopped from enforcing the Techny Agreement. The
plaintiff did not appeal the trial court's ruling.
On October 14, 1996, the Village's Board of Trustees adopted
ordinance number 96-46 and resolution number 96-R-155 granting
the defendant RKZ Venture Group, L.L.C. (RKZ) a special use
permit, site plan and plat of subdivision for a residential 151-
unit planned development known as "Royal Ridge." The Royal Ridge
parcel, which fell within the Techny Property, occupied 47.95
acres zoned for R-8 multi-family residential use.
On December 30, 1996, the plaintiff filed a complaint
against the Village, RKZ, the lessee of the property, Romanek
Properties, Ltd., the managing partner of the development
project, and Cole-Taylor Bank, as trustee, the owner of the land
(the Trustee). In its complaint, the plaintiff alleged that the
Village had enforced its ordinance regarding developer
contributions to school districts with regard to other school
districts but not with regard to the plaintiff and the Royal
Ridge development. The plaintiff also alleged that a consultant
had projected the Royal Ridge development would increase its
schools' enrollment by 76 students, plus or minus 25%, for a 16%
increase in student population. In order to accommodate this
increase, the plaintiff would need to construct additional
classrooms and enlarge areas used for athletic programs,
libraries, teaching and technology centers and cafeterias, at an
estimated construction cost of $2,293,200. The plaintiff further
alleged that the manner in which taxes were levied and collected
under the Property Tax Extension Act, which became effective in
March 1995, resulted in an 18-month time lag in the collection of
taxes on a parcel of property after it became occupied. It
alleged that the cost associated with the lag in tax collection
for 76 students was $689,396 for one year.
In count I of its 1996 complaint, the plaintiff asserted
that it was denied equal protection of the laws because other
school districts in the Village had uniformly received land or
cash contributions from developers in accordance with the
Subdivision Ordinance. The plaintiff requested a declaratory
judgment that the defendants RKZ and Romanek Properties were
required to make contributions and an injunction prohibiting the
Village from issuing any building permits or permitting further
development until the contributions were made.
In its second count, the plaintiff alleged that R-8 multiple
family residential zoning for the Royal Ridge parcel was
arbitrary, unreasonable and detrimental to the public health
safety and welfare. The plaintiff alleged the residential zoning
was inappropriate because of the contiguous land uses, including
a parcel of R-8 multi-family residentially zoned property being
used as a garage and storage facility but under contract to be
used as a maintenance facility. The plaintiff alleged that a
residential development in that location would create traffic
hazards and pose a threat to children traveling to and from
school. The plaintiff further alleged that the Royal Ridge
development failed to meet the standards for a special use permit
under section 11-602 of the Village's Zoning Code, which required
that the proposed use be served adequately by essential public
facilities, such as schools, and that it not cause undue traffic
congestion. The plaintiff sought a judgment declaring the rights
of the parties and finding that the special use permit was void
because it violated the Zoning Code.
In its third count, erroneously numbered count IV, the
plaintiff asserted that section 12 of the annexation agreement,
which limited land or cash contributions to school districts,
violated the Village's Subdivision Ordinance and section 11-15.1-
2 of the Illinois Municipal Code (65 ILCS 5/11-15.1-2 (West
1996)). It requested a declaratory judgment that section 12 of
the annexation agreement was invalid so far as it purported to
eliminate the school district contribution requirement.
In its fourth count, erroneously numbered count V, the
plaintiff alleged that it was entitled to the required
contributions because it was a third-party beneficiary of the
provisions of the Subdivision Ordinance. The plaintiff prayed
for a judgment in its favor and against the defendants RKZ,
Romanek Properties and the Trustee.
On March 10, 1997, the defendants filed a joint motion to
dismiss the plaintiff's complaint pursuant to section 2-619.1 of
the Code of Civil Procedure (735 ILCS 5/2-619.1 (West 1996)) and
a memorandum in support of that motion. The defendants asserted
that: all counts were barred by res judicata, the one-year
statute of limitations applicable to annexation challenges and
the doctrine of laches; the plaintiff lacked standing to
challenge the zoning and the special use permit and to assert an
equal protection claim; the plaintiff was not a third-party
beneficiary of the Subdivision Ordinance; the Village had not
violated the Subdivision Ordinance; and all counts against
Romanek Properties must be dismissed because the complaint did
not allege that Romanek Properties had an ownership interest in
the Royal Ridge parcel.
On April 28, 1997, the trial court conducted a hearing on
the defendants' joint motion to dismiss. At that hearing, the
trial court granted the intervenors, E. Leonard and Audrey Rubin,
leave to intervene and adopt the plaintiff's pleadings. The
intervenors were residents of the plaintiff school district and
had two children attending the plaintiff's schools. At the
conclusion of the hearing, the trial court sustained the
defendants' joint motion to dismiss on the basis of res judicata,
finding that the claims raised in the complaint could have been
raised in the 1990 action.
On appeal, the plaintiff and the intervenors contend that
the trial court erred in dismissing the complaint on the basis of
res judicata because there was not identity of the causes of
action or parties. The defendants contend that dismissal on the
basis of res judicata was proper and that this court could
alternatively affirm the dismissal based on the other grounds
asserted in their motion to dismiss. This court reviews the
trial court's ruling on a motion to dismiss de novo and can
affirm on any basis present in the record. Pryweller v. Cohen,
282 Ill. App. 3d 899, 907, 668 N.E.2d 1144, 1149 (1996).
We first consider whether the trial court was correct in
dismissing all counts of the complaint on the basis of res
judicata. Under the doctrine of res judicata, a final
adjudication on the merits by a court of competent jurisdiction
absolutely bars a subsequent action involving the same parties or
their privies and the same claim, demand or cause of action.
Torcasso v. Standard Outdoor Sales, Inc., 157 Ill. 2d 484, 490,
626 N.E.2d 225, 228 (1993). The doctrine bars litigation of all
issues which were actually decided and all issues which could
have been raised and determined because they were properly
involved by the subject matter of the earlier action. City of
Rolling Meadows v. National Advertising Co., 228 Ill. App. 3d
737, 743, 593 N.E.2d 551, 556 (1991). The defendant bears the
burden of pleading and establishing the elements of res judicata.
American National Bank & Trust Co. v. Village of Libertyville,
269 Ill. App. 3d 400, 404, 645 N.E.2d 1013, 1016 (1995).
The first element of res judicata is present here because
the trial court's dismissal with prejudice of the 1990 action
constituted an adjudication of that action on its merits. See
134 Ill. 2d R. 273; Best Coin-Op, Inc. v. Paul F. Ilg Supply Co.,
Inc., 189 Ill. App. 3d 638, 647, 545 N.E.2d 481, 486 (1989).
We must next determine whether the 1990 cause of action is
the same as the instant one. Illinois courts have used two tests
to determine whether causes of action are the same for res
judicata purposes. Rodgers v. St. Mary's Hospital, 149 Ill. 2d 302, 312, 597 N.E.2d 616, 621 (1992). Under the "same evidence"
test, res judicata applies if the same facts are essential to
maintain both actions or if the evidence needed to sustain the
second suit would have sustained the first suit. Rodgers, 149 Ill. 2d at 312. Under the "transactional" test, the court must
determine whether the two actions arise from the same
transaction, incident or factual situation. Rodgers, 149 Ill. 2d
at 312. Causes of action which assert different theories of
recovery may be considered the same for res judicata purposes if
the same operative facts give rise to the assertions. Torcasso,
157 Ill. 2d at 491.
The plaintiff and the intervenors seek to characterize the
instant action as an attack on the Royal Ridge planned unit
development. They argue that res judicata does not apply because
the action could not have been brought until 1996, when the
special use permit for the Royal Ridge development was approved.
However, a thorough examination of the plaintiff's complaint
reveals that the instant action is an attack on the annexation,
zoning and residential development of the Royal Ridge parcel in
general rather than an attack on the specific development
approved by the special use permit.
The invalidity of zoning classification claim, which is part
of count II, attacks the R-8 multi-family residential zoning of
the property, which was determined by the 1988 annexation
agreement and the 1989 ordinance. The complaint does not allege
that the underlying zoning has become more inappropriate or
unreasonable since the issuance of the special use permit
approving the Royal Ridge development. Therefore, the attack on
the zoning classification, which has not changed since the
property's annexation, could have been made in 1990.
In count II of its complaint, the plaintiff also sought an
order declaring the special use permit void because the Royal
Ridge development did not meet the requirements set forth by
section 11-602 of the Village's Zoning Code for the issuance of a
permit. The complaint alleged that the Royal Ridge development
would not be adequately served by essential public facilities,
such as schools, and that it would cause undue traffic
congestion.
While the special use permit was not issued until 1996, we
do not believe that prevents the application of res judicata to
bar this claim. The special use permit claim attacks the
development of the property on the basis that the development
will increase traffic and student population. This is the same
basis on which the complaint attacks the Royal Ridge parcel's R-8
multi-family residential zoning classification. The complaint
does not allege that the 151-unit planned development will be
more detrimental than development under the traditional R-8
multi-family residential zoning. In fact, the minimum lot size
requirements for single family homes on R-8 zoned property, as
set forth in Section 4-110 of the Northbrook Zoning Code, would
permit more than 151 single family homes to be built on the 47.95
acre Royal Ridge parcel without the issuance of a special use
permit. Although the special use permit claim asserts a
different theory of recovery, admittedly one that did not exist
in 1990, it is merely another attack on the residential zoning
and development of the property without requiring school district
contributions. The annexation agreement, ordinance and
resolution establishing the zoning and the exemption from school
district contributions all existed in 1990 and could have been
attacked at that time.
The equal protection claim in count I is based on the
annexation agreement provision limiting school district
contributions. The plaintiff argues that this claim arose in
1996 when the Village approved the special use permit without
requiring contributions to school districts. But the provision
exempting the defendants from certain school district
contributions is contained in the 1988 annexation agreement and
the 1989 resolution. Therefore, the claim could have been
brought in 1990. Count IV alleges that the annexation agreement
was invalid to the extent that it limited contributions to school
districts. Count V seeks monetary damages for the violation of
the Subdivision Ordinance's provision regarding school district
contributions. Each of those claims also could have been raised
in the 1990 litigation.
We conclude that all claims are barred under either the
transactional or the same evidence test. The claims in both
lawsuits revolve around the same transaction, incident, or
factual situation, the annexation and zoning of the Techny Parcel
as governed by the annexation agreement and ordinances. Also, as
the defendant notes, the plaintiff alleged the same harm, an
increase in traffic and in student population, and sought the
same relief, to prevent development or receive monetary
compensation for damages resulting from the development, in both
actions. The fact that the plaintiff has asserted different
theories in attacking the annexation and zoning does not prevent
the application of res judicata. Zabel v. Cohn, 283 Ill. App. 3d
1043, 1049, 670 N.E.2d 877, 881 (1996); Horton v. Caterpillar,
Inc., 260 Ill. App. 3d 150, 153, 632 N.E.2d 1061, 1063 (1994).
We reach the same conclusion under the same evidence test as
well. In order to maintain both suits, the plaintiff would need
to present evidence of the terms of the annexation agreement,
ordinances and resolution annexing and zoning the property and
evidence that development of the property would result in
increased traffic and student population. The first action would
also require evidence of the terms of and parties to the Techny
Agreement, while the second action would require evidence of the
Village's Subdivision Ordinance. We do not believe this bars the
application of res judicata. In Relander v. Phoenix Mutual Life
Insurance Co., 262 Ill. App. 3d 525, 530, 636 N.E.2d 944, 948
(1994), the court found that res judicata barred the plaintiff
from asserting a claim based on quantum meruit where a previous
claim based upon breach of contract had been dismissed. In that
case, as here, the earlier cause of action would have required
proof of the terms of and parties to the contract, while the
latter would not. But see City of Rolling Meadows, 228 Ill. App.
3d at 744; Regan v. Ivanelli, 246 Ill. App. 3d 798, 807-08, 617 N.E.2d 808, 816-17 (1993). Additionally, the instant action
would require evidence that the ordinance requiring school
district contributions had not been equally enforced with regard
to all school districts. Because the plaintiff could have raised
this claim in the first action, we do not believe this difference
in the evidence required to maintain the two actions bars the
application of res judicata.
We reject the contention, made by the plaintiff and the
intervenors, that a change in the relevant factual situation
since the 1990 action precludes application of the doctrine of
res judicata. The plaintiff and the intervenors refer to new tax
cap legislation enacted in 1995 and the fact that a parcel of
land bordering one side of the Royal Ridge parcel was under
contract to be used as a maintenance facility.
A second action should be barred by res judicata only when
the facts and conditions remain the same as they were at the time
the court entered the first judgment. Best Coin-Op, Inc., 189
Ill. App. 3d at 650. The tax legislation was enacted after the
1990 action was dismissed, but, while it could arguably affect
the amount of the plaintiff's damages, it would not affect the
plaintiff's right to relief under any of its claims. While a
change in contiguous land uses could arguably bar the application
of res judicata to an attack on zoning, the plaintiff's complaint
does not assert that the proposed maintenance facility is
different from the type of use to which the property in question
was being put in 1990. Rather, the complaint states that the
property on which the facility was to be located was zoned for R-
8 multi-family residential use and was currently being used as a
garage and storage facility.
The intervenors contend that res judicata does not bar the
instant action because neither they nor the defendants RKZ and
Romanek Properties were parties to the 1990 action. The
intervenors do not argue that the inclusion of the Trustee in the
instant action bars the application of res judicata, apparently
conceding that party's privity with the Society, the beneficial
owner of the property. Therefore, we need only consider whether
RKZ and Romanek Properties are in privity with the Society and
whether the intervenors are in privity with the plaintiff.
For purposes of res judicata, privity exists "between
parties who adequately represent the same legal interests."
Diversified Financial Systems, Inc. v. Boyd, 286 Ill. App. 3d
911, 916, 678 N.E.2d 308, 311 (1997). In People ex rel. Hartigan
v. Illinois Commerce Commission, 243 Ill. App. 3d 544, 546, 611 N.E.2d 1321, 1323 (1993), 12 governmental bodies and public
interest groups appealed and obtained a reversal of the
defendant's decision granting Commonwealth Edison Company
(Edison) a rate increase. The trial court dismissed a subsequent
class action suit brought by a taxpayer citizen seeking to
require Edison to apply for refunds of taxes paid on the rate
increase. Illinois Commerce Commission, 243 Ill. App. 3d at 548-
49. This court affirmed the dismissal on the basis of res
judicata, finding that the taxpayer citizen's interests had been
adequately represented by governmental and consumer groups who
brought the first action on behalf of the people. Illinois
Commerce Commission, 243 Ill. App. 3d at 550-51.
Similarly, the intervenors' interests in the instant case,
the quality of education at the plaintiff's schools, traffic
congestion in the community and the safety of their children
while traveling to and from school, were adequately represented
by the plaintiff in the earlier litigation.
Additionally, for purposes of res judicata, privity exists
between parties who share a mutual or successive relationship in
property rights which were the subject of an earlier action.
Fried v. Polk Brothers, Inc., 190 Ill. App. 3d 871, 879, 546 N.E.2d 1160, 1165 (1989). Therefore, we find that privity exists
between the Society, the beneficial owner of the property, and
the defendants RKZ, the lessee of the property, and Romanek
Property, the managing partner for the Royal Ridge development.
We affirm the dismissal of all claims on the basis of res
judicata.
Affirmed.
HOURIHANE and THEIS, JJ., concur.

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