525 N.E.2d 984, 171 Ill. App. 3d 789, 121 Ill. Dec. 677 1988.IL.883
Appeal from the Circuit Court of Cook County; the Hon. Albert Green, Judge, presiding.
JUSTICE SCARIANO delivered the opinion of the court. HARTMAN, P.J., and BILANDIC, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO
This action was brought by the plaintiff homeowners' association to enjoin defendant, the cable television franchisee in the Village of Wilmette, from installing cable and accessory equipment in village-owned parkways which adjoin properties owned by the members of the association. Upon motion of the defendant, brought pursuant to section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-619), the trial court dismissed the action. Plaintiff now seeks review of the trial court's holding that the Illinois Municipal Code (Ill. Rev. Stat. 1985, ch. 24, par. 11-42-11.1(b)) barred plaintiff from obtaining injunctive relief against defendant, American Cablesystems, Inc. (hereinafter ACI).
Plaintiff, Indian Hill Neighbors' Association, Inc., is a not-for-profit corporation whose members are homeowners in a section of the Village of Wilmette known as "Indian Hill," which is recognized as a distinct residential community with a unique character, including its virtual absence of above-ground utility facilities. The residential properties located in Indian Hill are subject to certain uniform restrictions established by covenants running with the land which prohibit the installation of above-ground electrical wiring and equipment. The sidewalks are located at the street curb, and, as a result, the parkways, or rights-of-way, where certain underground utilities are located, are not physically separated or visibly distinct from the front lawns of the homes. Indian Hill residents have planted trees and shrubs, installed driveways, water sprinkling systems and other fixtures on the rights-of-way adjoining their properties, and they have maintained these rights-of-way as a contiguous and undifferentiated portion of their front lawns apparently since the community was developed.
ACI, a Massachusetts limited partnership engaged in the business of owning and operating cable television systems, was granted the Wilmette cable television franchise pursuant to the terms of the village's Cable Television ordinance, which states in pertinent part:
"Any franchise granted hereunder shall give to the Grantee, subject to the provisions of this Ordinance, the right and privilege at its own expense, to construct, erect, operate, modify and maintain in, upon, along, above, over and under the streets, such towers, antennas, cables, electronic equipment, and other network appurtenances necessary for the operation of a BTN (Broadband Telecommunications Network) in the Village."
Another section of the same ordinance defines a street, among other things, as a right-of-way which has been dedicated to the public and maintained under public authority or by others and located within the village limits. All of the cable to be laid by ACI in the Indian Hill area and all necessary equipment would be located on the rights-of-way owned by the village.
To install cable television facilities in Indian Hill, ACI will excavate for and install 200 flush-to-the-ground vaults (2.5 feet long and 1.5 feet wide) and 18 above-ground "pedestals" containing electric wiring, together with underground cable to link them. These fixtures would be spread over a six-mile area.
Plaintiff maintains that the trenching and excavation required by the project would damage and destroy root systems of trees and shrubs, underground sprinkler systems, utility lines, drainage tiles and other fixtures. Plaintiff further maintains that the presence of the above-ground pedestals would detract from the unique character of the community and would permanently disrupt or destroy the planned landscapes of the Indian Hill properties.
ACI is required by the ordinance to restore the rights-of-way necessitated by the construction of the cable television system as follows:
"Grantee shall, at its own expense and in a manner approved by the Village, restore to Village standards and specifications any damage or disturbance caused to the public way as a result of its operations or construction on its behalf. Grantee shall guarantee and maintain such restoration for a period of one year against defective materials or workmanship."
ACI has also agreed to work in conjunction with an independent landscape expert hired by the village to avoid damage to trees and landscaping. Further, ACI has notified residents, asking them for the location of all underground fixtures and other installations, and has plans ...