Find Court Cases > Go Back to List > Fisher v. Burstein

Fisher v. Burstein

Case Date: 09/17/2002
Court: 2nd District Appellate
Docket No: 2-01-0661 Rel

No. 2--01--0661

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JEAN FISHER, JOSEPH FISHER,  
JANET FISHER, and SUSAN YELLEN;
JAMES OTIS and MARGARET OTIS,
Individually and as Trustee of
the Margaret B. Otis Trust;
ADLAI STEVENSON and
NANCY STEVENSON,

          Plaintiffs-Appellants,

v.

JOSEPH BURSTEIN; CHESTNUT
MOUNTAIN LODGE JOINT VENTURE
AND ITS UNKNOWN OWNERS;
CHESTNUT MOUNTAIN RESORT, INC.; 
CHESTNUT MOUNTAIN SLIDE COMPANY;
CHESTNUT MOUNTAIN SKI CORPORATION;
GALENA LODGE CORPORATION; and
JO DAVIESS COUNTY,

          Defendants-Appellees.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
) 		Appeal from the Circuit Court
of Jo Daviess County.








No. 98--L--14








Honorable
William A. Kelly,
Judge, Presiding.


JUSTICE McLAREN delivered the opinion of the court:

Plaintiffs appeal from the trial court's order grantingsummary judgment in favor of defendants and denying summaryjudgment to plaintiffs. We affirm.

Defendants Chestnut Mountain Lodge Joint Venture and ItsUnknown Owners, Chestnut Mountain Resort, Inc., Chestnut MountainSlide Company, and Chestnut Mountain Ski Corporation, of whichdefendant Joseph Burstein is an owner, operate a ski resort inunincorporated defendant Jo Daviess County. With the exception ofJo Davies County, the defendants shall be referred to collectivelyas Chestnut Mountain defendants. Plaintiffs, Jean Fisher, JosephFisher, Janet Fisher, and Susan Yellen; James Otis and MargaretOtis, individually and as trustee of the Margaret B. Otis Trust;and Adlai Stevenson and Nancy Stevenson, own land adjacent to ornear the Chestnut Mountain lands. In 1997, the Chestnut Mountaindefendants opened a new snowboarding facility called "The Far Side"and a new building called "Village Ski Center" on the eastern slopeof the mountain. In July 1998, plaintiffs filed a complaintseeking declaratory and injunctive relief against the ChestnutMountain defendants (not including Burstein) to prohibit theoperation of The Far Side "without proper authorization." In June1999, plaintiffs amended their complaint, adding Burstein and JoDaviess County as defendants. Count I alleged that the ChestnutMountain defendants developed and operated The Far Side inviolation of the county zoning ordinance and sought declaratoryrelief, an injunction permanently enjoining further use ordevelopment of The Far Side, and an order of mandamus directing theCounty "to perform the statutory duties to effectuate" any order ofthe court. Counts II, III, and IV raised issues of breach ofcovenant, contempt, nuisance, and trespass. The parties filedcross-motions for summary judgment on count I. The trial courtgranted the defendants' motions and denied plaintiffs' motion. This appeal followed.

Plaintiffs contend that the trial court erred in grantingdefendants' motions for summary judgment. A motion for summaryjudgment should be granted only when no genuine issue of materialfact exists and the moving party is entitled to judgment as amatter of law. Romano v. Morrisroe, 326 Ill. App. 3d 26, 27-28,(2001). The disposition of a summary judgment motion is notdiscretionary, and the standard of review on appeal is de novo. Romano, 326 Ill. App. 3d at 28. To determine whether a genuineissue of material fact exists, a reviewing court must consider thepleadings, depositions, admissions, exhibits, and affidavits onfile and construe them liberally in favor of the opponent of themotion and strictly against the movant. Romano, 326 Ill. App. 3dat 28.

The relevant facts are not in dispute. Chestnut Mountain wasdeveloped as a ski resort in 1959, prior to the enactment of theordinance in question. The resort includes a hotel with lodgingand food and beverage facilities, pool facilities, a miniature golfputting green, tennis courts, and illuminated parking. The west-northwest slope of the mountain was developed with downhill skitrails, chair lifts, flood lights, loudspeakers, an Alpine slide,and snow-making and snow-grooming machines. The eastern slope ofthe mountain was not developed prior to 1997, with the exceptionsof a sewage treatment facility, a retention pond, and an unpavedbicycle trail. The Jo Daviess County zoning ordinance was approvedon December 14, 1993, and became effective on March 1, 1995. Thedevelopment of The Far Side in 1997 included land clearance,creation of a ski trail and a "terrain park" for snowboarding,construction of a chairlift, and installation of light towers,snow-making and snow-grooming machines, electric and waterinfrastructure, and signs. The Chestnut Mountain defendants didnot apply for or obtain any zoning permits from the county beforethey developed The Far Side. The county's position on the matterwas that its ordinances did not require any additional zoningpermits.

Section 12.1 of the ordinance provides in relevant part:

"PERMITTED USES

A.  No building or other structure shall be erected,altered or enlarged and no use of land shall beestablished or enlarged for any use except a usethat is named in the list of permitted uses for thezoning district in which the building, structure orland is, or will be located. There shall be two(2) exceptions to this requirement:

1.  Uses lawfully established on the effectivedate of this Ordinance may be continuedsubject to the conditions and restrictionscontained in Article XIV (page 61)[;]

2.  Special uses may be allowed, but only inaccordance with the provisions of articleXIII, Section 13.7 (page 52)[.]" Jo DaviessCounty Zoning Ordinance,