LaSalle National Bank v. City of Lake Forest

No. 2--97-0535

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

LASALLE NATIONAL BANK, N.A., ) Appeal from the Circuit Court
Successor to LaSalle National ) of Lake County.
Trust, not personally, but as )
Trustee under Trust Agreement )
Nos. 10-16725-09 and )
10-25443-09; JOSEPH L. SERAFINE )
and JANICE SERAFINE, )
)
Plaintiffs-Appellants and )
Cross-Appellees, )
)
v. ) No. 94--CH--12
)
THE CITY OF LAKE FOREST; RHETT )
W. BUTLER, Mayor of the City of )
Lake Forest; JOHN E. PRESCHLAK, )
CORNELIUS R. WAUD, LAWRENCE P. )
MARSHALL, ABIGAIL G. FASSNACHT, )
BART D. WOLOSON, GAIL T. HODGES, )
RICHARD C. ERNEST and RICHARD )
G. CAREY, Aldermen of the City )
of Lake Forest; HOWARD J. KERR, )
Chairman of the Plan Commission )
of the City of Lake Forest; RON )
GOLTRA, CORINNE GIESEKE WOOD, )
ROBERT W. OGDEN, JR., LAWRENCE )
R. TEMPLE, DONALD C. BATTAGLIA, )
and DAVID G. WILLIAMS, Members )
of the Plan commission of the )
City of Lake Forest; CHARLES E. )
CROOK, Director of Community )
Development of the City of Lake )
Forest; and ANDREW SUVALSKY, )
Assistant City Planner of the )
City of Lake Forest, )
) Honorable
Defendants-Appellees and ) Peter M. Trobe,
Cross-Appellants. ) Judge, Presiding.

JUSTICE RATHJE delivered the opinion of the court:

Plaintiffs, LaSalle National Bank, N.A., successor to LaSalle
National Trust, not personally, but as trustee under trust
agreement Nos. 10--16725--09 and 10--25443--09; Joseph L. Serafine
and Janice Serafine, appeal from the amended judgment order entered
by the trial court.
In their appeal, plaintiffs argue that defendants, the City of
Lake Forest and various of its employees and elected officials
(collectively, defendant), have routinely exceeded their lawful
powers by requiring that covenants not to resubdivide be placed on
final plats of resubdivision that contain any lots large enough to
be resubdivided under the existing zoning ordinances and that the
trial court erred in refusing to enjoin defendant from continuing
to impose covenants not to resubdivide on future subdivisions or
resubdivisions of property within its borders. On cross-appeal,
defendant argues that the trial court erred in finding that the
covenant issue was not moot. Defendant maintains that this issue
is moot and, as a result, this appeal should be dismissed. The
issue on appeal relating to an injunction affecting all other
subdivisions in Lake Forest other than plaintiffs' subdivision is
moot.
The property at issue consisted of approximately 24.5 acres in
Lake Forest. It was subdivided into three lots. Two of the lots
were improved with single-family residences, while the third (lot
1) was unimproved. Plaintiffs drew up a resubdivision of the
property in which the two lots with single-family residences would
remain essentially the same size and configuration, and lot 1 would
be resubdivided into eight new lots of at least one and one-half
acres in size. Plaintiffs submitted a preliminary plat of
resubdivision to defendant, which approved the preliminary plat
subject to certain conditions. The conditions included the payment
of certain fees, the granting of a conservancy easement to
defendant, extending a water main, and not damaging a historic
garden located to the north of the subject property.
Subsequently, plaintiffs submitted engineering drawings and
the final plat of resubdivision. After defendant s planning and
development staff reviewed these documents, it was recommended that
the final approval of the resubdivision of the property be subject
to a further condition, namely, that plaintiffs be required to
place a covenant on lot 1 that would prohibit the further
subdivision of it in the future. Plaintiffs declined to place such
a covenant on lot 1, and defendant s plan commission voted to
recommend nonapproval of the final plat of resubdivision.
In its November 18, 1993, meeting, defendant s city council
refused to vote on the final plat of resubdivision on grounds that
are not at issue in this appeal. Further, the city council did not
take a final vote on the ordinance, which would have rezoned the
subject property from R-5 to R-4 and would have granted a special
use permit for a historic residential and open space preservation
district.
On January 5, 1994, plaintiffs filed a complaint for
declaratory, injunctive, and other relief. Count I alleged that
defendant s requirement of a conservation easement and a public
path for pedestrians and bicyclists was not authorized by Illinois
statutes or defendant s charter and was beyond defendant s powers
as a non-home-rule municipality. Further, count I sought a
permanent injunction enjoining defendant from requiring such a
condition for the approval of the subject resubdivision. Count II
alleged that a $16,000 open space fee as a condition for the
approval was void and sought a permanent injunction enjoining
defendant from requiring such a condition for the approval of the
subdivision. Count III alleged that the conditions of the
conservancy easement and the open space fee were unconstitutional
takings of private property and should be enjoined. Count IV
alleged that defendant s requirement that plaintiffs place a
covenant on lot 1 as a condition for the approval of the final plat
of subdivision was arbitrary and not a proper exercise of
defendant s police power. Count IV sought a permanent injunction
enjoining defendant from requiring such a condition for the
resubdivision s approval. Count V alleged that the covenant
constituted an unconstitutional taking of property without just
compensation and should be enjoined. Count VI alleged that the
city council s refusal to approve the final plat of resubdivision
for the reason that it did not have jurisdiction to do so was
arbitrary and not a proper exercise of defendant s police power.
Count VI sought a declaration that the city council s refusal to
vote was void and also sought a permanent injunction or, in the
alternative, a mandamus directing the city council to vote upon and
approve the final plat of resubdivision without the offending
conditions. Count VI also sought a permanent injunction or, in the
alternative, a writ of mandamus directing the city council to vote
upon and approve the ordinance to rezone a portion of the subject
property from R-5 to R-4 and granting a special use permit for a
historic residential and open space preservation district.
Defendant filed a section 2--619 motion to dismiss (735 ILCS
5/2--619 (West 1994)), which argued that the city council lacked
jurisdiction to vote on the case and, thus, the trial court also
lacked jurisdiction. The trial court denied this motion on
August 24, 1994.
On September 15, 1994, the city council approved plaintiffs
final plat of resubdivision, subject to the following conditions:
that plaintiffs dedicate a conservancy easement over a portion of
the property; that defendant pay no taxes on the property covered
by said easement; and that the easement not be included for
purposes of calculating the building scale for the lot upon which
it would be located. The city council decided at this meeting not
to pursue the condition that there be a restriction on further
subdivision on Lot 1. Further, the city council did not approve
the ordinance to rezone a portion of the property and to grant a
special use permit.
Subsequently, plaintiffs filed a motion for summary judgment.
In response, defendant filed a motion to dismiss portions of the
complaint and strike portions. Therein defendant stated counts IV
and V of the complaint challenged the validity of requiring
plaintiff to place a covenant upon lot 1 prohibiting further
division. Defendant further stated that the city council had
decided not to make the covenant a condition to the approval of
resubdivision. Defendant argued, as a result, that the condition
was not required and the issue pertaining to it was moot.
In its order entered on October 23, 1995, the trial court
found the issue of the covenant on further resubdivision of lot 1
was moot. It then granted plaintiffs motions for summary judgment
on the "issue of the requirement for [a] conservancy easement, a
right-of-way for public pedestrian/bicycle path and payment of an
open land preservation fee."
In a "final judgment order" entered on November 16, 1995, the
trial court, inter alia, reiterated its conclusions regarding the
covenant, conservancy easement, the right-of-way, and open land
preservation fee. In finding the covenant issue moot, the trial
court wrote, "This court will assume that the [defendant s]
representation that the issue is moot means that the [defendant]
will not attempt to again impose this condition for plaintiff s
[sic] subdivision." (Emphasis added.) The trial court also
directed the city council to approve the final plat of
resubdivision without any of the requirements declared invalid, to
approve the ordinances for rezoning, and to grant a special use
permit.
Plaintiffs appealed to this court, arguing that the trial
court erred in finding the covenant issue moot. This court
dismissed the appeal in a summary order, No. 2--95--1617, which was
filed on December 20, 1996. This court found that the use of the
term "assume" in the above-cited portion of the final order made it
uncertain "whether or not the [trial] court expressly prohibited
the reimposition of the covenant requirement." Accordingly, this
court found that the November 16, 1995, final judgment order did
not constitute a final and appealable order upon which review could
be rendered.
On remand without hearing any further evidence in this matter,
the trial court reversed itself, finding that the issue of the
covenant against further resubdivision of lot 1 was not moot. As
a result, the trial court enjoined the defendant from ever imposing
such a covenant on lot 1. This injunction is not an issue on
appeal. However, the trial court declined to enjoin defendant from
imposing such a covenant on future subdivisions or resubdivisions
of property within Lake Forest "and any other property owned or
hereafter acquired by any of the plaintiffs or their heirs,
beneficiaries, administrators, executors and successors." The
parties timely appeal and cross-appeal followed.
Initially, we address plaintiffs motion to strike a
misleading representation in defendant s brief and a motion to
dismiss defendant s cross-appeal on the issue of mootness. As to
the misleading statement, plaintiffs point to a sentence in
defendant s brief which reads, "City officials are bound to follow
the law and in this case they will." Plaintiffs maintain that the
"inescapable inference from this representation is that defendants
have completely and permanently abandoned their long-time practice
of requiring that covenants not to resubdivide be placed on final
plats of subdivision, which contain any lots large enough to be
resubdivided under the existing zoning."
We do not agree with plaintiffs interpretation of the
disputed sentence. In our view this sentence merely implies that
defendant "will not go back on its word" regarding this specific
property. Thus, we find nothing misleading in the statement and
deny plaintiffs motion to strike it.
Further, plaintiffs have moved to dismiss defendant s cross-
appeal. In support of this motion plaintiffs include documentary
evidence that defendant is continuing to impose covenants not to
resubdivide on other property owners final plats of subdivision as
a condition to defendant s approval of same. As defendant notes,
there is no evidence regarding the nature of these alleged
situations involving the imposition of a covenant. It is entirely
possible that these situations involve voluntarily agreed-to
covenants. Accordingly, we attach no particular significance to
these allegedly similar situations and deny plaintiffs motion to
dismiss defendant s cross-appeal.
Plaintiffs first contention on appeal is that the pertinent
statute authorizes all non-home-rule municipalities such as
defendant to establish by ordinance reasonable standards of design
for subdivisions and does not permit municipalities to impose
covenants not to resubdivide. 65 ILCS 5/11--12--5 (West 1992).
Defendant does not dispute this; there is no question that it
cannot impose such covenants. The out-of-state case cited by
plaintiffs, Moscowitz v. Planning & Zoning Comm n, 16 Conn. App.
303, 547 A.2d 569 (1988), merely reiterates the undisputed point
that a municipal planning commission does not have the authority to
set a condition restricting future subdivisions at the time it
approves the plat of subdivision and that any such condition is
void ab initio. This case adds little to the resolution of this
appeal. In essence, this "argument" is nothing more than a
presentation of the relevant law on an undisputed issue.
Plaintiffs final contention is that the trial court erred in
refusing to enjoin defendant from continuing to impose the subject
covenants on other Lake Forest properties. Plaintiffs argue that
an injunction is the proper remedy to challenge the validity of a
regulation or rule of a public body. Boyd v. Board of Trustees,
Mitchell Public Water District, 15 Ill. App. 3d 152, 153 (1973).
What plaintiffs ignore is the fact that there was no ordinance,
regulation, or rule to enjoin. At one point in their briefs,
plaintiffs complain mightily about the ephemeral nature of
defendant s imposition of the subject covenants, i.e., "now you see
them, now you don t." Unfortunately for plaintiffs, that appears
to be the nature of the beast they are attempting to slay. The
record indicates that when defendant is challenged on the subject
type of covenant, defendant quietly withdraws it, leaving no
offending action to enjoin. Contrary to plaintiffs assertions,
the trial court properly found that it could not enjoin defendant s
practice of imposing the subject covenants not to resubdivide.
In its brief, defendant initially argues that plaintiffs lack
standing to pursue this appeal. Defendant maintains that, in order
to have standing to raise an issue on appeal, a party must have
some real interest in the outcome, there must be some real interest
in the outcome, and there must be a real controversy. Defendant
asserts that plaintiffs have already received everything they could
possibly have gotten. In response, plaintiffs argue that the lack-
of-standing argument should have been raised in the trial court and
that defendant s failure to do so results in the waiver of this
argument. See In re Marriage of Schlam, 271 Ill. App. 3d 788, 796
(1995). In reply, defendant counters that this defense could have
been raised only after the trial court entered on remand its
amended final judgment on April 16, 1997. We do not agree. Prior
to the entry of the trial court s first "final order" on
November 16, 1995, defendant informed the trial court that its city
council had decided not to make the subject covenant a condition to
the approval of plaintiffs plat of resubdivision. Accordingly,
defendant raised a mootness argument to counts IV and V of the
complaint. At that time, defendant could also have argued that
plaintiffs no longer had standing to pursue counts IV and V, as
there was no longer any actual controversy in regard to the deleted
covenant. Having failed to do so, defendant waived the lack of
standing argument.
In its cross-appeal, defendant argues that the issue of a
covenant against further resubdivision is moot. Defendant contends
that the evidence demonstrates that it did not require the covenant
as a condition for the approval of the plaintiffs final plat of
resubdivision. Defendant points to the uncontradicted affidavit of
Charles Crook, the City s director of community development, which
stated that, while the plan commission recommended this covenant,
the city council rejected the recommendation and did not impose the
covenant.
In response, plaintiffs argue that this issue was not moot
because it involved a situation in which the defendant voluntarily
discontinued the disputed practice. Plaintiffs contend that the
case law does not support a finding of mootness in such a case.
Plaintiffs argue in the alternative that, even if this court finds
the issue moot, it should, nevertheless, address the issue relating
to the covenant not to resubdivide under the public interest
exception to the mootness doctrine.
It is axiomatic that appellate jurisdiction is based upon the
existence of a real controversy and, where only moot questions are
involved, this court will dismiss the appeal. Midwest Central
Education Association, IEA-NEA v. Illinois Educational Labor
Relations Board, 277 Ill. App. 3d 440, 448 (1995). An issue is
moot when its resolution could not have any practical effect on the
existing controversy. Midwest, 277 Ill. App. 3d at 448. Put
another way, an issue is moot if an actual controversy no longer
exists between the parties and the interests and rights of the
parties are no longer in controversy. Indlecoffer v. Village of
Wadsworth, 282 Ill. App. 3d 933, 938-39.
We can find nothing in the record to support the trial court s
view that the covenant issue is not moot. At the time that the
trial court ruled on the plaintiffs motion for summary judgment,
the final plat of resubdivision had been approved without a
covenant not to resubdivide. Without the imposition of such a
covenant as a condition of the approval of the final plat, there
was no longer a controversy before the trial court. Any meaningful
declaratory and injunctive relief was no longer an option for the
trial court, which, on remand, mistakenly found that the covenant
issue was not moot.
Of the cases cited by the parties, we find Magnuson v. City of
Hickory Hills, 933 F.2d 562 (7th Cir. 1991), provides us with the
most guidance. In Magnuson, plaintiffs were homeowners who lived
in Hickory Hills (defendant). Pursuant to various mandates,
defendant had instituted a sewer rehabilitation program, which
included "house-to-house inspections to 'flush out' potential
sources of illegal discharge into the sanitary server system."
Magnuson, 933 F.2d at 563. Plaintiffs' home was inspected and
found to be discharging waste water in the proper manner. However,
plaintiffs received numerous threatening notices from defendant for
their failure to have the appropriate plumbing installed.
Eventually, plaintiffs went to state court to obtain a temporary
restraining order against defendant regarding the threatened water
shutoff. When plaintiffs plumber notified defendant that
plaintiffs were in compliance with the sewer rehabilitation
program, defendant took plaintiffs off the list of "offenders" and
never again threatened them with the loss of water services.
Magnuson, 933 F.2d at 564.
Plaintiffs' next stop was federal court, where they filed a
claim against defendant under 42 U.S.C. 1983, wherein they alleged
due process and fourth amendment violations. Plaintiffs sought
declaratory and injunctive relief as well as compensatory and
punitive damages. Further, they sought to certify a class of
similarly situated plaintiffs. The district court found that
"because [plaintiffs] no longer were under the threat of having
their water service terminated, their case was, so to speak, down
the tubes." Magnuson, 933 F.2d at 565.
Before the seventh circuit, plaintiffs maintained that, even
though defendant might never send them a threatening notice again,
it would continue to send out threatening notices to gain entry to
the homes of other residents. The Magnuson court observed that the
critical inquiries in such a circumstance are whether the
discontinuance is complete, whether effects continue after
discontinuance, and whether there is any other reason that
justifies relief. Magnuson, 933 F.2d at 565.
The Magnuson court found that plaintiffs challenge to
defendant s sewer rehabilitation program was moot, as there was no
evidence that plaintiffs had a reasonable expectation that
defendant would repeat its purportedly illegal claims or that
plaintiffs were facing a residual effect from the discontinued
threat of shutoff. Magnuson, 933 F.2d at 565.
Regarding the injunctive relief sought by plaintiffs, the
Magnuson court noted that to maintain a claim for injunctive relief
in federal court plaintiffs must do more than merely speculate that
they will again experience injury due to the disputed practice.
Magnuson, 933 F.2d at 565. The seventh circuit noted that at the
time plaintiffs filed suit their grievances existed only in the
abstract. The Magnuson court concluded, Because their claim is
moot, they may not represent a class of Hickory Hills citizens who
face the threat of having their water terminated due to
noncompliance with the City s sewer rehabilitation program.
Magnuson, 933 F.2d at 565.
Similar to the Magnuson plaintiffs' challenge to the sewer
rehabilitation program, which was found to be moot, plaintiffs
challenge to defendant s practice of imposition of covenants not to
resubdivide "exists only in the abstract." As in Magnuson,
plaintiffs have put forward little or no evidence to show that they
have a reasonable expectation that defendant will reimpose the
covenant sometime in the future. Nor have the instant plaintiffs
presented evidence that they have suffered any residual effect from
the now-removed covenant. Instead, the record demonstrates that
plaintiffs do not face the future threat of a covenant not to
resubdivide being imposed on the subject property.
Moreover, Magnuson provides guidance in a situation where
plaintiffs, whose own challenge is moot, attempt to represent
others who are allegedly facing an actual threat. Like the
Magnuson plaintiffs, the instant plaintiffs no longer have claims
of their own and are attempting to represent property owners who
allegedly are subject to the same type of covenant. Of note is the
fact that the Magnuson plaintiffs at least sought to certify a
class of similarly situated plaintiffs. In the instant appeal,
plaintiffs made no attempt to certify a class of property owners
whose land is subject to the disputed covenant. Having found that
plaintiffs challenge to the disputed practice of imposing
covenants is moot, we conclude that plaintiffs are in no position
to represent a class of property owners subject to the covenants.
We add that we are mindful of the parties citation to Johnson
v. Du Page Airport Authority, 268 Ill. App. 3d 409 (1994).
However, we find that this case is factually distinguishable from
the instant appeal and, thus, is of no relevance in determining the
issues before this court.
We are unpersuaded by plaintiffs initial counterargument,
namely, that in cases such as the present one, where the defendant
has voluntarily ceased the disputed practice, a finding of mootness
is not supported. Admittedly, in certain circumstances the
defendant could voluntarily end the challenged practice and "then
return to [its] old tricks once the coast is clear." Magnuson, 933 F.2d at 565. However, when the defendants are public officials,
greater stock is placed in their acts of self-correction, as long
as they appear genuine. Magnuson, 933 F.2d at 565.
In the appeal at bar, there are no allegations by plaintiffs
that defendant, a public entity, has historically gone back on its
promises to terminate a specific practice. In the above-cited
motion to strike and to dismiss defendant s cross-appeal,
plaintiffs made a number of allegations regarding defendant s
continuing practice of imposing covenants similar to the one at
issue here. However, there is no indication that any of those
allegations involved the reimposition of covenants which defendants
had, in prior legal proceedings, voluntarily ceased to impose. In
the case at bar, we find no reason to conclude that defendant will
renege on its "promise."
Again, we cite to Magnuson, where the seventh circuit clearly
found no evidence that defendant s voluntary cessation of
threatening notices was at all suspect. As stated above, we find
nothing in the instant case to indicate that defendant is likely to
reimpose the subject covenant.
Finally, plaintiffs argue that even if the issue is moot it
should be addressed under the public interest exception to the
mootness doctrine. The elements of the exception are (1) the
public nature of the question; (2) the desirability of
authoritatively determining the issue for the purpose of guiding
public officers; and (3) the likelihood that the question will
recur. Bonaguro v. The County Officers Electoral Board, 158 Ill. 2d 391, 395 (1994). The clear showing of each criterion is
necessary to bring a case within the public interest exception.
Bonaguro, 158 Ill. 2d at 395.
It is unnecessary to go into a detailed explanation of why we
do not find that the public interest exception applies in this
instance. This case clearly does not rise to the level of
significance that is necessary to employ the exception.
Essentially, it is a small and isolated dispute between certain
property owners and a municipality.
For the reasons stated above, we find that the issue on appeal
is moot and, accordingly, dismiss the appeal.
Appeal dismissed.
GEIGER, P.J., and McLAREN, J., concur.