APPEAL from the Circuit Court of Du Page County; the Hon.
PHILIP F. LOCKE, Judge, presiding.
MR. JUSTICE A. SCOTT DELIVERED THE OPINION OF THE COURT:
This is an appeal from the circuit court of Du Page County, and the pertinent facts which gave rise to it are as follows.
On November 7, 1967, Ordinance No. 67-18 was enacted by the Village of Bartlett which had the effect of zoning as a "manufacturing district" approximately 800 acres of real estate which belonged to the Elmhurst-Chicago Stone Company (hereinafter referred to as Elmhurst). This action by the Village of Bartlett also included the granting of a variance on a 5-acre portion of the real estate involved so as to permit the operation of an asphalt plant. Prior to the passage of Ordinance No. 67-18 a number of public hearings were had where the following findings of fact were made by the Zoning Board of Appeals:
"(1) the highest and best use of the real estate involved was for the mining of sand and gravel and that the Village needed an operation such as a cement mixing plant and an asphalt plant.
(2) the asphalt plant would be built on a portion of the real estate most remote from the residential areas in or near the Village of Bartlett.
(3) the operation of the cement concrete mixing plant and the asphalt plant would be generally in character with the surrounding area, would be in keeping with the kind of development, would be in the best interest of the community and would not be contrary to the public interest.
(4) evidence presented in public hearings showed that the variations in use of the property would be appropriate in view of the "unique circumstances" of Elmhurst's property and that there would be no diminution in value of surrounding properties or other detrimental results."
In reliance on Ordinance No. 67-18, Elmhurst used its property for extracting gravel and for the production of concrete products. Pursuant to negotiations begun in the year 1972, Elmhurst executed a contract to lease the real estate which is the subject of this suit to Allied Asphalt Company (hereinafter referred to as Allied) for the purpose of constructing and operating thereon an asphalt plant. A permit for the construction of such a plant was obtained from the Illinois Environmental Protection Agency.
On November 6, 1972, Elmhurst and Allied applied to the Village of Bartlett for a permit for authorization to construct an asphalt plant. On November 24, 1972, the Village of Bartlett denied the issuance of such a permit, so subsequently, to-wit, on December 15, 1972, Elmhurst and Allied filed a mandamus action against the Village of Bartlett and its various officials wherein it was prayed that such a permit be ordered by the court to issue. The Village answered the mandamus petition and filed a counterclaim for a declaratory judgment. A hearing was had on the counterclaim of the village on January 8, 1973, at which time the petitioners-appellants in this appeal (hereinafter referred to as the Intervenors) presented to the court both their petition and an argument in support thereof which prayed that they be granted leave to intervene. The petition for leave to intervene alleged that the petitioners were owners of neighboring real estate which would sustain damage, its value would be diminished and the enjoyment of the same impaired if the asphalt plant were permitted to be constructed and operated. Both the counterclaim of the village and the petition to intervene were denied by the trial court. On January 16, 1973, after hearing on the merits, the trial court entered a judgment decreeing that Elmhurst and Allied were entitled to a writ of mandamus. A writ of mandamus was shortly thereafter issued and a building permit was granted on January 25, 1973. The Village of Bartlett filed a notice of appeal from the January 16, 1973, judgment but later withdrew the same. No notice of appeal was filed by the Intervenors from this judgment, but they have appealed from the order of January 8, 1973, which denied them the right to intervene.
Before we direct our attention to the issue presented for review in this appeal we deem it necessary to note that the Intervenors are the owners of 1,000 acres of real estate and they allege that their property is threatened with special damages should the asphalt plant be constructed. We, however, further note that the plant would be constructed entirely on Elmhurst property and would be buffered from owners of other property in the manner following:
(a) to the north a distance in excess of one mile;
(b) to the east a distance in excess of one mile;
(c) to the south a distance in excess of 1250 feet to the center of Stearns Road; and
(d) to the west a distance in excess of 819 feet; that is a distance of at least 400 feet from the plant site to the eastern boundary of the Elgin, Joliet and Eastern Railway Company right-of-way, which is 100 feet in breadth, and bordered on its west boundary by a 319 ...