JUSTICE NASH
delivered the opinion of the court:
Plaintiff, Lake Forest Chateau, Inc. (LFC), brought this declaratory judgment action against defendant, City of Lake Forest (Lake Forest), seeking a determination that certain increased building permit and other new fees and costs assessed by the city were not applicable to plaintiff’s townhouse development and for judgment against defendant for such new fees and costs paid under protest by LFC in order to proceed with its building project. The circuit court denied LFC’s motion for summary judgment, granted Lake Forest’s motion for judgment on the pleadings, and LFC appeals. We reverse and remand.
This litigation is a continuation of the dispute which was considered to be resolved by this court in DeMarie v. City of Lake Forest (1981), 93 Ill. App. 3d 357. In that case, the owners of the subject property had entered into a contract with LFC’s predecessor in interest, Lake Shore Building Corporation, to sell eight acres of land which was then zoned for single-family residential use. The contract was contingent upon the owners securing rezoning from Lake Forest to permit a townhouse development. The owners’ petition for rezoning was denied by the city, and in September 1978 the owners filed an action in the circuit court asserting that the classification of their property under Lake Forest’s zoning ordinance was arbitrary, unreasonable and capricious as applied to that property and that the townhouse use proposed was reasonable. In August 1979, the circuit court entered judgment for Lake Forest in that action and the owners appealed to this court. The matter was here considered under the standards relating to such cases (see DeMarie v. City of Lake Forest, 93 Ill. App. 3d at 360), and on March 19, 1981, our opinion was filed wherein the judgment of the circuit court was reversed and the cause remanded to it for entry of a judgment for plaintiffs to allow the proposed use. We directed the circuit court to frame its judgment with reference to the record before it to avoid further litigation and consistent with our opinion (93 Ill. App. 3d at 365).
Lake Forest thereafter sought leave to appeal to our supreme court, which was denied, and our mandate issued to the circuit court on November 30, 1981. On December 14, 1981, the circuit court entered a judgment order, in accordance with our opinion and mandate, directing Lake Forest to allow the proposed use of the property and to issue the required permits.
The present controversy arises from certain ordinances which were adopted by Lake Forest after our opinion and mandate was filed in this case on November 30, 1981, but before the December 14, 1981, judgment order of the circuit court directed to Lake Forest was entered. Those ordinances substantially increased the existing building permit fees required by Lake Forest and imposed new fees applicable to this type of development for water connection and tap-on and for park contributions. When LFC thereafter applied to Lake Forest for building permits pursuant to the December 14 order, the city declined to issue them unless the new increased fees were paid. In order to proceed with its project, LFC did pay the increased and new fees, under written protest, and has alleged in its complaint in the present litigation that the new and increased fees enacted by Lake Forest in 1981 increased the cost of building permits and other fees by $73,395, which it sought to recover in this action.
LFC also sought declaration that the new and increased fees enacted in 1981 would not apply to this development. Lake Forest answered the complaint admitting factual allegations but denying the unconstitutionality or illegality of its acts and conduct. As an affirmative defense, Lake Forest alleged that the fees and charges of which LFC complains were adopted pursuant to statutory authority and applied to the owners of all property in the city at the time application for the building permits was made by LFC.
LFC subsequently filed a motion for summary judgment, alleging that it was entitled to restitution for the additional fees as a matter of law because Lake Forest had been unjustly enriched. The trial court denied the motion for summary judgment, stating that it was its finding that “Lake Forest did not act in an unfair, unconstitutional or unjust manner in applying its increased fees to plaintiff’s project.” Lake Forest then moved for judgment on the pleadings, and the trial court granted the motion. LFC now appeals from the denial of its motion for summary judgment and the granting of Lake Forest’s motion for judgment on the pleadings.
An appellate court may review an order denying a motion for summary judgment only if the case is on appeal from a final judgment, there having been no evidentiary hearing or trial, and the party seeking review did not prevent such a hearing or trial. (Cedric Spring & Associates, Inc. v. N.E.I. Corp. (1980), 81 Ill. App. 3d 1031, 1034.) The order granting Lake Forest’s motion for judgment on the pleadings in this case was a final order; no evidentiary hearing or trial was held, and LFC did nothing to prevent an evidentiary hearing or trial. On appeal, this court may therefore review the order denying LFC’s motion for summary judgment, as well as the order granting Lake Forest’s motion for judgment on the pleadings.
LFC contends that Lake Forest was unjustly enriched by requiring LFC to pay the increased and new fees as a condition of issuing building permits and must make restitution for fees charged in excess of the fee structure in effect when rezoning of the property for townhouse development was unconstitutionally denied by the city. LFC also contends that the Lake Forest ordinances increasing building permit fees and imposing new fees cannot be applied to this townhouse development as to do so would adversely affect the rights established by this court’s opinion in DeMarie v. City of Lake Forest.
The second argument advanced by LFC is dispositive, and we need not consider its other contention.
In our view, the principles of law noted in Fiore v. City of Highland Park (1968), 93 Ill. App. 2d 24, control the resolution of this appeal. In Fiore, as in the present case, a property owner had sought judicial relief from the restrictions on the use of his land imposed by a municipal zoning ordinance. After trial and judgment for the property owner in the circuit court, this court considered the first appeal by the city of Highland Park (see Fiore v. City of Highland Park (1966), 76 Ill. App. 2d 62) and found that the zoning classification applied to the subject property by the city was unconstitutional and void and remanded for a circuit court determination of whether the proposed use was reasonable. The city sought, and was denied, leave to appeal to our supreme court in a further effort to uphold the validity of its zoning ordinance. Thereafter, however, the city passed an ordinance purporting to rezone the property back to the same single-family classification to which it had been subject prior to the litigation which had found that classification to be unconstitutional. The trial court determined that the purported rezoning of the property was invalid, and the city again appealed to this court.
In the second Fiore appeal this court found that the trial court had acquired jurisdiction of the parties and the subject matter “under the state of facts existing when the action was brought” (93 Ill. App.
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JUSTICE NASH
delivered the opinion of the court:
Plaintiff, Lake Forest Chateau, Inc. (LFC), brought this declaratory judgment action against defendant, City of Lake Forest (Lake Forest), seeking a determination that certain increased building permit and other new fees and costs assessed by the city were not applicable to plaintiff’s townhouse development and for judgment against defendant for such new fees and costs paid under protest by LFC in order to proceed with its building project. The circuit court denied LFC’s motion for summary judgment, granted Lake Forest’s motion for judgment on the pleadings, and LFC appeals. We reverse and remand.
This litigation is a continuation of the dispute which was considered to be resolved by this court in DeMarie v. City of Lake Forest (1981), 93 Ill. App. 3d 357. In that case, the owners of the subject property had entered into a contract with LFC’s predecessor in interest, Lake Shore Building Corporation, to sell eight acres of land which was then zoned for single-family residential use. The contract was contingent upon the owners securing rezoning from Lake Forest to permit a townhouse development. The owners’ petition for rezoning was denied by the city, and in September 1978 the owners filed an action in the circuit court asserting that the classification of their property under Lake Forest’s zoning ordinance was arbitrary, unreasonable and capricious as applied to that property and that the townhouse use proposed was reasonable. In August 1979, the circuit court entered judgment for Lake Forest in that action and the owners appealed to this court. The matter was here considered under the standards relating to such cases (see DeMarie v. City of Lake Forest, 93 Ill. App. 3d at 360), and on March 19, 1981, our opinion was filed wherein the judgment of the circuit court was reversed and the cause remanded to it for entry of a judgment for plaintiffs to allow the proposed use. We directed the circuit court to frame its judgment with reference to the record before it to avoid further litigation and consistent with our opinion (93 Ill. App. 3d at 365).
Lake Forest thereafter sought leave to appeal to our supreme court, which was denied, and our mandate issued to the circuit court on November 30, 1981. On December 14, 1981, the circuit court entered a judgment order, in accordance with our opinion and mandate, directing Lake Forest to allow the proposed use of the property and to issue the required permits.
The present controversy arises from certain ordinances which were adopted by Lake Forest after our opinion and mandate was filed in this case on November 30, 1981, but before the December 14, 1981, judgment order of the circuit court directed to Lake Forest was entered. Those ordinances substantially increased the existing building permit fees required by Lake Forest and imposed new fees applicable to this type of development for water connection and tap-on and for park contributions. When LFC thereafter applied to Lake Forest for building permits pursuant to the December 14 order, the city declined to issue them unless the new increased fees were paid. In order to proceed with its project, LFC did pay the increased and new fees, under written protest, and has alleged in its complaint in the present litigation that the new and increased fees enacted by Lake Forest in 1981 increased the cost of building permits and other fees by $73,395, which it sought to recover in this action.
LFC also sought declaration that the new and increased fees enacted in 1981 would not apply to this development. Lake Forest answered the complaint admitting factual allegations but denying the unconstitutionality or illegality of its acts and conduct. As an affirmative defense, Lake Forest alleged that the fees and charges of which LFC complains were adopted pursuant to statutory authority and applied to the owners of all property in the city at the time application for the building permits was made by LFC.
LFC subsequently filed a motion for summary judgment, alleging that it was entitled to restitution for the additional fees as a matter of law because Lake Forest had been unjustly enriched. The trial court denied the motion for summary judgment, stating that it was its finding that “Lake Forest did not act in an unfair, unconstitutional or unjust manner in applying its increased fees to plaintiff’s project.” Lake Forest then moved for judgment on the pleadings, and the trial court granted the motion. LFC now appeals from the denial of its motion for summary judgment and the granting of Lake Forest’s motion for judgment on the pleadings.
An appellate court may review an order denying a motion for summary judgment only if the case is on appeal from a final judgment, there having been no evidentiary hearing or trial, and the party seeking review did not prevent such a hearing or trial. (Cedric Spring & Associates, Inc. v. N.E.I. Corp. (1980), 81 Ill. App. 3d 1031, 1034.) The order granting Lake Forest’s motion for judgment on the pleadings in this case was a final order; no evidentiary hearing or trial was held, and LFC did nothing to prevent an evidentiary hearing or trial. On appeal, this court may therefore review the order denying LFC’s motion for summary judgment, as well as the order granting Lake Forest’s motion for judgment on the pleadings.
LFC contends that Lake Forest was unjustly enriched by requiring LFC to pay the increased and new fees as a condition of issuing building permits and must make restitution for fees charged in excess of the fee structure in effect when rezoning of the property for townhouse development was unconstitutionally denied by the city. LFC also contends that the Lake Forest ordinances increasing building permit fees and imposing new fees cannot be applied to this townhouse development as to do so would adversely affect the rights established by this court’s opinion in DeMarie v. City of Lake Forest.
The second argument advanced by LFC is dispositive, and we need not consider its other contention.
In our view, the principles of law noted in Fiore v. City of Highland Park (1968), 93 Ill. App. 2d 24, control the resolution of this appeal. In Fiore, as in the present case, a property owner had sought judicial relief from the restrictions on the use of his land imposed by a municipal zoning ordinance. After trial and judgment for the property owner in the circuit court, this court considered the first appeal by the city of Highland Park (see Fiore v. City of Highland Park (1966), 76 Ill. App. 2d 62) and found that the zoning classification applied to the subject property by the city was unconstitutional and void and remanded for a circuit court determination of whether the proposed use was reasonable. The city sought, and was denied, leave to appeal to our supreme court in a further effort to uphold the validity of its zoning ordinance. Thereafter, however, the city passed an ordinance purporting to rezone the property back to the same single-family classification to which it had been subject prior to the litigation which had found that classification to be unconstitutional. The trial court determined that the purported rezoning of the property was invalid, and the city again appealed to this court.
In the second Fiore appeal this court found that the trial court had acquired jurisdiction of the parties and the subject matter “under the state of facts existing when the action was brought” (93 Ill. App. 2d at 32) and that “a City which is an appellant in zoning litigation, cannot parlay the doctrine of separation of powers into an authorization to exercise its delegated legislative powers after the case is decided adversely to it and remanded to the trial court with directions, and thereby frustrate and void the opinion and mandate of the reviewing court to which it submitted its case for decision. *** [T]he legislature may not, by legislation passed after causes of action have been adjudicated by a reviewing court, control or effect [sic] the result of the litigation. People v. Owen, 286 Ill 638, 641, 642, 122 NE 132 (1919); People v. New York Cent. R. Co., 283 Ill 334, 335, 119 NE 299 (1918); Chicago & E.I.R. Co. v. People ex rel. McCord, 219 Ill 408, 410, 411, 76 NE 571 (1906).” 93 Ill. App. 2d at 33-34.
Similarly, in First National Bank v. Village of Skokie (1975), 35 Ill. App. 3d 545, the village sought to deprive a party of judicially secured relief from the village zoning ordinance by amending the ordinance while the matter was pending on appeal. The reviewing court held that the amendment had no effect on plaintiff’s rights. (35 Ill. App. 3d at 549.) In Rubin v. City of Rockford (1938), 296 Ill. App. 650 (abstract of opinion), a property owner applied to the city for a license to operate a junkyard, a use permitted of the property under the zoning ordinance. When the license was refused, plaintiff commenced an action in mandamus to compel issuance. While that action was pending in the circuit court, the city council amended the zoning ordinance so as to prohibit junkyard use of property in plaintiff’s zoning classification. On appeal, this court held that the rights of the parties were to be determined as of the time the case was at issue and, as the amendment to the ordinance did not occur until several months after that time, it could not deprive plaintiff of a right which had existed at the earlier time. See also Kamysz v. Village of Wheeling (1978), 65 Ill. App. 3d 629, 639-40; First National Bank v. Village of Skokie (1967), 85 Ill. App. 2d 326, 336-37; Ridge Outdoor Advertising Co. v. Village of Indian Head Park (1984), 129 Ill. App. 3d 525.
Lake Forest argues that LFC made no application for any building permits, or actually commenced construction of its project, until after the final decision on appeal had been made as to the zoning of the property and the new fees had been adopted. It asserts that it is the fee structure in effect at the time of issuance of the permits which controls, citing, e.g., City of Pontiac v. Mason (1977), 50 Ill. App. 3d 102, and Heinrich v. City of Moline (1978), 59 Ill. App. 3d 278, and that it was those new fees and charges to which LFC was subject.
It is apparent in the record of this case, however, that LFC could not apply for building permits, or commence construction, until rezoning of the property for townhouse construction had been attained as the Lake Forest building ordinance provided that building permit applications could not be filed until after rezoning is approved. The owners of the property first sought rezoning in 1978 from Lake Forest, which was refused, and it was not until after the entry of the judgment order of the circuit court "on December. 14, 1981, after appeal, that LFC could actually apply for building permits, and it thereafter did so. The permit and fee structure of the city appears to have been unchanged over this period and through November 30, 1981, when the mandate of this court directed Lake Forest to allow the proposed use of the property. It was during those few days after issuance of our mandate and the entry of the judgment under it by the circuit court, that the city saw fit to adopt a new fee schedule applicable to a townhouse development. According to LFC, the additional cost to it under the revised fee schedule was $73,395.
In our view, the action by Lake Forest is here subject to the same criticism made by the court in Fiore, and the other cases earlier noted. It is apparent that Lake Forest has sought to control or affect the result of the litigation between these parties after it was adjudicated by the courts. The right of LFC to use of its property for townhouse construction was fixed on March 19, 1981, when the modified opinion of this court was filed. After leave to appeal was denied by the supreme court, that judgment was transmitted to the circuit court by our mandate issued on November 30, 1981, thus revesting the trial court with jurisdiction. (See PSL Realty Co. v. Granite Investment Co. (1981), 86 Ill. 2d 291, 304.) As the judgment of the circuit court was reversed and the cause remanded, the lower court could take only such action as conformed to our judgment. (86 Ill. 2d at 305.) It did so in this matter, but, as we have noted, the prompt action by Lake Forest intervened to make it more costly than before for LFC to exercise the rights acquired by the judgment and generated this appeal.
We conclude that LFC was entitled to all necessary building permits and was subject to paying such fees and costs as were generally chargeable under Lake Forest’s ordinances on November 30, 1981, when our mandate was issued to the circuit court. This is not to say that building permit and other authorized fees to which LFC’s entire townhouse development project may be subject from time to time are to be frozen at the November 30, 1981, level of fees. It is unlikely that requests would have been made for building permits for all proposed units at any one time; a construction project ordinarily will extend in stages over a period of time.
On remand the trial court will conduct a hearing to determine what portion, if any, of the alleged additional fees of $73,395 paid by LFC under the new schedule would not have been assessed against it under the former fee schedule had LFC been permitted to apply for building permits on November 30, 1981. The initial application actually made for building permits by LFC, under protest, pursuant to the new fee schedule may well offer the best guideline to the trial court and LFC will be entitled to recover any additional fees then paid by it to Lake Forest as a consequence of the new fee schedule.
Accordingly, the order denying LFC’s motion for summary judgment will be affirmed, as there are unresolved questions of fact remaining in the case, and the judgment entered on the pleadings for Lake Forest will be reversed. The 'cause will be remanded for further proceedings not inconsistent with this opinion.
Affirmed in part, reversed in part, and remanded.