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01/28/87 Union National Bank & v. the Village of New Lenox

January 28, 1987

UNION NATIONAL BANK & TRUST COMPANY OF JOLIET, AS TRUSTEE, PLAINTIFFS-APPELLEES AND CROSS-APPELLANTS

v.

THE VILLAGE OF NEW LENOX, DEFENDANT (JOHN A. NOWAKOWSKI, ET AL., INTERVENING DEFENDANTS-APPELLANTS AND CROSS-APPELLEES). -- UNION NATIONAL BANK & TRUST COMPANY OF

JOLIET, AS TRUSTEE, PLAINTIFFS-APPELLEES AND CROSS-APPELLANTS

v.

THE VILLAGE OF NEW LENOX, DEFENDANT-APPELLANT AND CROSS-APPELLEE (JOHN A. NOWAKOWSKI ET AL., INTERVENING-DEFENDANTS)



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

Nos. 3-86-0072, 3-86-0074 cons.

505 N.E.2d 1, 152 Ill. App. 3d 919, 105 Ill. Dec. 875 1987.IL.69

Appeal from the Circuit Court of Will County; the Hon. Herman S. Haase, Judge, presiding.

Rehearing Denied April 3, 1987.

APPELLATE Judges:

JUSTICE HEIPLE delivered the opinion of the court. BARRY, P.J., and WOMBACHER, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HEIPLE

The plaintiff, Union National Bank & Trust Company, a land trustee, is the owner of a 52-acre tract of land in the village of New Lenox. The entire beneficial interest of the land trust is owned by the plaintiff, Ferro Brothers, an Illinois general partnership. The triangularly shaped tract is bounded by an abandoned railroad right-of-way on the north, a roadway to the west which has been designated for truck traffic, and Interstate 80 to the south. The village has in effect a zoning ordinance under which the plaintiffs' land is zoned for limited industrial use. Desiring to use the easternmost 10 acres of the tract for an asphalt plant -- a use the plaintiffs did not believe was permitted under the zoning ordinance -- Ferro Brothers applied to the village for a special use permit. The village denied the application.

The plaintiffs brought suit for declaratory and injunctive relief against the village asking the court to declare the zoning ordinance invalid and void insofar as it relates to their property. Plaintiffs also sought to enjoin the village from interfering with the development and use of the property as an asphalt plant. Several people living in a residential area approximately 2,000 feet from the site of the proposed use intervened in this matter. By amended complaint, the plaintiffs added a fourth count, which sought a declaratory judgment that the zoning ordinance is unconstitutionally vague and unconstitutionally delegates legislative authority to a village employee. The plaintiff moved for summary judgment as to count IV, and the village responded by a cross-motion for summary judgment. The plaintiffs' motion was denied, and the defendant's motion was granted.

After a bench trial, the Judge ruled in favor of the plaintiffs. The defendant appealed, and the plaintiffs cross-appealed the denial of their motion for summary judgment as to count IV of their complaint. We believe that the plaintiffs were entitled to an award of a summary judgment on the constitutional issue raised in count IV and we so order.

Count IV of the plaintiffs' complaint attacked the constitutionality of the village's zoning ordinance as it applies to the plaintiffs' property. The basis of the attack is that the language of the ordinance is unconstitutionally vague. The pertinent portion of the zoning ordinance of the village provides:

"10 -- 6 -- 2: I-1 LIMITED INDUSTRIAL DISTRICT:

10 -- 6 -- 2 -- 2: USES PERMITTED: No land shall be used or occupied and no building, structure or premises shall be erected, altered, enlarged, occupied or used, except as otherwise provided in this Title, for ...


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