Harry W. Kuhn, Inc. v. County of Du Page

561 N.E.2d 458, 203 Ill. App. 3d 677, 149 Ill. Dec. 180, 1990 Ill. App. LEXIS 1548
CourtAppellate Court of Illinois
DecidedOctober 5, 1990
Docket2-89-1038
StatusPublished
Cited by8 cases

This text of 561 N.E.2d 458 (Harry W. Kuhn, Inc. v. County of Du Page) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harry W. Kuhn, Inc. v. County of Du Page, 561 N.E.2d 458, 203 Ill. App. 3d 677, 149 Ill. Dec. 180, 1990 Ill. App. LEXIS 1548 (Ill. Ct. App. 1990).

Opinion

JUSTICE DUNN

delivered the opinion of the court:

Defendants, the County of Du Page, Jack T. Knuepfer, Kenneth Lahner and Steve Burger, appeal from an order entered September 7, 1989, in which plaintiff, Harry W. Kuhn, Inc., was granted a writ of mandamus requiring defendants to issue a permit to plaintiff for the use of a temporary cement batching plant at 28 W. 651 North Avenue in West Chicago for the duration of plaintiff’s construction contract at North Avenue and Prince Crossing Road in unincorporated Du Page County. The term “County” shall be used to refer to all defendants. The County raises two issues on appeal: (1) whether plaintiff was collaterally estopped from seeking a temporary use permit, where a claimed exemption under State and County zoning provisions had been purportedly litigated in a prior cause of action between the parties and had been adjudicated in a manner adverse to plaintiff for purposes of claiming an additional use exemption; and (2) whether it was error for the trial court to grant the writ of mandamus for a temporary use because plaintiff had used the land in question for a similar purpose on a prior occasion.

In addition to refuting the County’s arguments, plaintiff argues that we should dismiss this appeal for want of jurisdiction as to defendants Knuepfer, Lahner, and Burger because they were not named specifically in the body of the notice of appeal and that, in any case, we should dismiss this appeal as moot. We find that we have jurisdiction over all the parties, .but we dismiss the appeal on the ground of mootness, and we remand the cause to the circuit court with directions to vacate the order of September 7, 1989, granting mandamus relief and to dismiss plaintiff’s three-count complaint.

On July 11, 1989, plaintiff applied to the County for an exemption from the County’s zoning regulations for plaintiff’s proposed temporary use of property located in an 1-1 zoning district so that plaintiff could operate a ready-mix cement batching plant for a base concrete and signalization construction project pursuant to a contract awarded to plaintiff by the Department of Transportation. The property which plaintiff proposed to use for the cement batching is located at 28 W. 651 North Avenue, West Chicago, in Du Page County, Illinois. The property is located less than one-half mile from the site of the construction project at the intersections of North Avenue and Prince Crossing Road in West Chicago. The Du Page County building department notified plaintiff by letter dated August 14, 1989, that it would not issue a temporary permit to plaintiff for the operation of a concrete batching plant at the North Avenue property because the proposed use was not exempted even on a temporary basis.

On August 25, 1989, plaintiff filed a three-count complaint against the County and the above-named officers and served defendants with a mandamus summons. The complaint alleged, inter alia, that the County had a duty to issue a permit for the temporary use because plaintiff’s use was exempt pursuant to State statute (Ill. Rev. Stat. 1987, ch. 34, par. 3151) and pursuant to section 37 — 6.5 of the Du Page County Zoning Ordinance having similar language (Du Page County, Ill., Zoning Ordinance §37 — 6.5 (19_)). Count I of plaintiff’s complaint sought mandamus relief while counts II and III sought a declaratory judgment and injunctive relief. The latter two counts were ultimately withdrawn by plaintiff and are not at issue here.

The County filed motions to dismiss plaintiff’s complaint for mandamus pursuant to sections 2 — 619(a)(9) and 2 — 619(a)(4) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 619(a)(9), (a)(4)). The section 2 — 619(a)(9) motion alleged that plaintiff was barred by affirmative matter from claiming it was entitled to a statutory exemption from the County’s zoning regulations for a temporary contractor’s facility because the subject site had already been utilized for temporary cement batching for another road project at Highland Avenue and Butterfield Road, thus negating the “temporary” requirement of the statutory provision (the zoning statute) (Ill. Rev. Stat. 1987, ch. 34, par. 3151); the County maintained that this prior use had been clearly established in prior litigation between the same parties (Kuhn I) in the circuit court of Du Page County. The County further argued that this statutory zoning exemption was interpreted in County of Will v. Arcóle Midwest Corp. (1977), 45 Ill. App. 3d 656, so as not to include a series of successive maintenance or construction contracts.

The County’s section 2 — 619(a)(4) motion to dismiss alleged that plaintiff was collaterally estopped from claiming an exemption for the use of a temporary concrete batching plant because there was a prior judgment on an identical claim between the same parties. The County attached as exhibits to its motion certified copies of the court’s orders in the previously consolidated cases wherein the circuit court determined plaintiff’s right to the temporary use of the contractor’s facility at the North Avenue site and ordered plaintiff to cease operations at that site upon completion of the construction contract involving Highland Avenue and Butterfield Road.

On September 7, 1989, there was a hearing on the County’s motions and on plaintiff’s petition for mandamus. The County argued that its section 2 — 619(a)(4) motion pleaded, in effect, the doctrine of collateral estoppel because in prior litigation the issues here had been adjudicated between these same parties. In support of this position, counsel for the County tendered an affidavit supported by documents including the pertinent pleadings, hearing transcripts and orders entered in the prior adjudication between plaintiff and the County. The County presented documents which allegedly showed that, in the consolidated cases designated here as Kuhn I, the subject property, the parties, the use at issue and the relevant County zoning regulations were the same. The County further argued that, in Kuhn I, the trial court determined plaintiff’s entitlement to an exemption from County zoning regulations for the use of a temporary contractor’s facility on the subject property.

Kuhn I arose out of a dispute between the County and plaintiff over plaintiff’s request, in May 1987, for a permit to erect and operate a portable concrete batching plant on the North Avenue property for a road project at Highland Avenue and Butterfield Road in Du Page County. The County building department had initially issued a temporary building permit for the cement batching plant, but plaintiff had commenced operations of the facility without a use and occupancy permit. The County attempted to revoke the permit as improvidently granted. In its complaint, the County sought to revoke or terminate the prior permit on various grounds and to enjoin the plant’s operation.

Plaintiff raised an affirmative defense, alleging a theory of equitable estoppel because, in June 1987, in reliance on the County’s issuance of the permit, plaintiff had erected, at significant cost, a portable concrete batching plant on the site in order to complete its work at the Highland-Butterfield site. Plaintiff also claimed that the temporary use of the site was exempt under the section 1 statutory zoning exemption (Ill. Rev. Stat. 1987, ch. 34, par. 3151) and similar County zoning provisions. Section 1 states in pertinent part:

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Bluebook (online)
561 N.E.2d 458, 203 Ill. App. 3d 677, 149 Ill. Dec. 180, 1990 Ill. App. LEXIS 1548, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harry-w-kuhn-inc-v-county-of-du-page-illappct-1990.