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Vil. of Barrington Hills v. Vil. of Hoffman Est.

OPINION FILED AUGUST 21, 1979.

THE VILLAGE OF BARRINGTON HILLS ET AL., PLAINTIFFS-APPELLANTS,

v.

THE VILLAGE OF HOFFMAN ESTATES ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND K. BERG, Judge, presiding.

MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Does one municipality have standing to challenge the zoning decision of another municipality? That is the sole issue in this appeal. Plaintiffs, the Village of Barrington Hills (Barrington Hills) and the Village of South Barrington (South Barrington), appeal an order of the circuit court of Cook County dismissing their complaint against defendants, the Village of Hoffman Estates (Hoffman Estates); Nederlander Realty Company of Illinois, Performance Properties, Inc., Ned-Prop, RKO General, Inc. (the Nederlander Group); Pioneer Bank and Trust Company; and Fred and Ethel Hansen. The facts alleged in the plaintiffs' complaint follow.

The Nederlander Group, related corporate entities and joint venturers, plans to construct an outdoor, open-air music theater on 212 acres of land located in Barrington Township in close proximity *fn1 to Barrington Hills, a non-home-rule municipality, and South Barrington, a home-rule municipality. Pioneer Bank and Trust Company holds legal title to the property in trust for Fred and Ethel Hansen, the beneficial owners of the property. The theater will seat approximately 20,000 people: 6,000 in an auditorium and 14,000 in the surrounding area. Parking spaces will be provided for 6,000 to 7,500 cars, and concessions and other commercial activities will be conducted ancillary to the theater's performances and electronically amplified music programs.

On August 22, 1978, Hoffman Estates passed three ordinances pertaining to the subject property: Ordinance No. 1039-1978 authorized an annexation agreement; Ordinance No. 1040-1978 annexed the subject property to Hoffman Estates; and Ordinance No. 1041-1978 rezoned part of the subject property to B-2 Business District and part to "F" Farming District to permit the construction and operation of the theater. Prior to the adoption of these ordinances, the subject property had been located in an unincorporated area of Cook County and classified in the R-1 Single Family Residence District under the Cook County zoning ordinance. Both Barrington Hills and South Barrington by ordinance adopted a comprehensive plan restricting the use of land in the vicinity of the subject property to single-family residences at low densities and to rural uses.

The plaintiffs' six-count complaint further alleges that the defendants' adoption of the zoning ordinances and the construction and operation of the theater illegally and unconstitutionally create a public nuisance not permitted by Hoffman Estates' B-2 Business District zoning. In general plaintiffs assert that the construction and operation of the theater will be inconsistent with the character and trend of development of the area, and will inflict specific and distinct injury upon them. The alleged prospective special damages which allegedly will impair the health, safety, and general welfare of the plaintiffs' residents include (1) safety hazards due to traffic congestion, (2) the need for additional traffic police at an annual cost to Barrington Hills of at least $42,000 and to South Barrington of $24,000, (3) the cost of clearing litter and debris deposited by crowds en route to and from the theater on the plaintiffs' roads, (4) the cost of additional police squad cars and the diversion of its existing police force to monitor theater crowds and traffic, (5) the degradation of ambient air quality due to vehicular traffic exhaust emissions, (6) substantial increases in sound levels during performances and traffic flows, and (7) decreased municipal revenues from ad valorem real property taxes as a result of diminished property values in the vicinity of the theater.

The defendants' motion to dismiss the plaintiffs' complaint asserts, inter alia, that neither of the plaintiffs is contiguous to or provides services to the subject property, and that none of the facts alleged show special damages establishing that the plaintiffs are aggrieved parties having standing to litigate Hoffman Estates' zoning of the subject property. The trial court granted the defendants' motion, and the plaintiffs appeal.

I.

The threshold question is when does a municipality become an aggrieved person with standing to challenge a zoning decision of another municipality. In a number of cases this court has held that in the absence of express or implied statutory authority, a municipal corporation lacked standing to challenge the zoning of land located outside its borders in unincorporated areas of Cook County. See Village of Bensenville v. County of Du Page (1961), 30 Ill. App.2d 324, 174 N.E.2d 403 (abstract); Village of Mount Prospect v. County of Cook (1969), 113 Ill. App.2d 336, 252 N.E.2d 106; Krembs v. County of Cook (1970), 121 Ill. App.2d 148, 257 N.E.2d 120; Village of Arlington Heights v. County of Cook (1971), 133 Ill. App.2d 673, 273 N.E.2d 706; Village of Arlington Heights v. Cook County (1971), 3 Ill. App.3d 213, 278 N.E.2d 841.

However, in Forestview Homeowners Association v. County of Cook (1974), 18 Ill. App.3d 230, 309 N.E.2d 763, appeal denied (1974), 56 Ill.2d 582, we upheld the Village of Northbrook's permissive intervention in a suit challenging the county's rezoning of property located approximately one and one-half miles from Northbrook's corporate limits. We held that article VII, section 6(a) of the Illinois Constitution of 1970 (Ill. Const. 1970, art. VII, § 6(a)) by which the Village of Northbrook became a home-rule unit provided the constitutional authority to exercise any power and perform any function pertaining to its government and affairs. We held that when a municipality engages in litigation to enforce the public policy manifested by its ordinances, it is engaged in a governmental function.

• 1 The specific issue of a municipal corporation's standing to institute an action to challenge a zoning decision of an adjoining municipality was considered by our supreme court in Hickory Hills v. Bridgeview (1977), 67 Ill.2d 399, 367 N.E.2d 1305. Following reference to the foregoing cases, the court stated:

"From an examination of the authorities (see Annot., 49 A.L.R.3d 1126 (1973), and cases there collected) it would appear that the general rule that `an aggrieved person' with a real interest in the subject matter of the controversy may challenge a zoning ordinance is applicable to municipal corporations." (Hickory Hills, 67 Ill.2d 399, 403.)

The supreme court then held that as Hickory Hills was required to supply sewer and water facilities to the area involved, it was an aggrieved person with a real interest in the controversy. Thus, despite the absence of statutory authority, a municipal corporation may challenge the zoning decision of another municipal corporation, if such a municipality is found to be "an aggrieved person" with a real interest in the subject matter. Hickory Hills; see also City of West Chicago v. County of Du Page (1979), 67 Ill. App.3d 924, 926, 385 N.E.2d 826.

• 2 As between property owners and municipalities or counties, it is well recognized that in order to establish standing to challenge a zoning decision determining the use to which another's property may be put, an individual property owner must prove that he has suffered a special damage by reason of such use which differs from that suffered by the general public. (Treadway v. City of Rockford (1963), 28 Ill.2d 370, 376, 192 N.E.2d 351; Garner v. County of Du Page (1956), 8 Ill.2d 155, 158-59, 133 N.E.2d 303; Whittingham v. Village of Woodridge (1969), 111 Ill. App.2d 147, 150, 249 N.E.2d 332.) Considering the meaning of the requirement that to have standing a plaintiff must be a person "interested in the controversy," the supreme court in Underground Contractors v. Chicago (1977), 66 Ill.2d 371, 362 N.E.2d 298, observed:

"The word, `interested' does not mean merely having a curiosity about or a concern for the outcome of the controversy. Rather, the party seeking relief must possess a personal claim, status, or right which is capable of being affected. [Citation.] The dispute must, therefore, touch the legal relations of parties who stand ...


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