2011 IL App (2d) 110108
Ill. App. Ct.2011Background
- Plaintiffs purchased 222 E. Fourth Street in Hinsdale on Feb 27, 2006; defendant owned 202 E. Fourth Street immediately west.
- Architects and officials provided front setback and corner sideyard calculations; the building department’s figures were 85 ft front setback and 54.78 ft corner sideyard.
- Defendant told plaintiffs the department’s calculations were incorrect and urged variances to move the house east.
- June 11, 2006 meeting produced a mutual understanding: plaintiffs would move the house east; defendant would support a variance and forgo challenging the setback calculation.
- Cook, Hinsdale village manager, issued a new setback calculation (144 ft) contrary to the department’s prior figure, impacting plaintiffs’ plans.
- Zoning Board of Appeals ultimately granted eastern sideyard setback of 32 ft and front setback of 126 ft; plaintiffs built a smaller, differently located house and incurred extra costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Act precludes the claim against defendant. | Johannesen contends the Act immunizes defendant’s conduct, so dismissal was proper. | Eddins argues his actions are immunized under the Act and dismissal is proper. | Issues of material fact remain; dismissal under the Act was improper. |
| Whether defendant waived First Amendment rights by agreement to support variance. | Waiver occurred via oral agreement and nominal- Applicant status. | No complete waiver of rights; issues of fact about existence/terms of agreement. | Genuine issues of material fact exist; not proper to dismiss. |
| Whether oral contract and related facts bar dismissal and require trial on the merits. | Existence and terms of oral contract preclude dismissal. | Purely legal issue; contract should foreclose claims. | Fact questions preclude resolution at this stage; not dismissible. |
| Whether plaintiffs stated cognizable claims under their six counts. | Counts allege breach, implied contract, promissory estoppel, estoppel, unjust enrichment, fraudulent inducement. | Arguments under Act and 2-615/2-619 require dismissal if immunized. | Because merits depend on unresolved facts, dismissal not proper. |
Key Cases Cited
- Sandholm v. Kuecker, 405 Ill.App.3d 835 (2010) (anti-SLAPP-like motions treated akin to 2-619 dismissal; burden on plaintiff to show lack of immunity)
- Storm & Associates, Ltd. v. Cuculich, 298 Ill.App.3d 1040 (1998) (hybrid motions to dismiss under 2-615/2-619; cautions about combined motions)
- Laughlin v. France, 241 Ill.App.3d 185 (1993) (oral contract issues; questions of fact must be proved by testimony)
- Gaylor v. Village of Ringwood, 363 Ill.App.3d 543 (2006) (parties can contract away rights under certain circumstances)
- Stengrim v. Minnesota, 784 N.W.2d 834 (2010) (settlement agreements may waive public participation rights; requires fact-finding on effect)