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08/18/88 the Village of Oak Brook v. the County of Du Page Et

August 18, 1988

THE VILLAGE OF OAK BROOK ET AL., PLAINTIFFS-APPELLANTS

v.

THE COUNTY OF DU PAGE ET AL., DEFENDANTS-APPELLEES

IN FINDING THE COUNTY DID NOT HAVE TO COMPLY WITH SECTION 5 -- 408, THE TRIAL COURT STATED THIS COURT'S OPINION IN CITY OF HIGHLAND PARK

v.

COUNTY OF COOK (1975), 37 ILL. APP. 3D 15, 344 N.E.2D 665, STANDING ALONE, WOULD REQUIRE THE COURT TO DENY THE PLAINTIFF RELIEF UNDER SECTION 5 -- 408. WE AGREE.



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

527 N.E.2d 1066, 173 Ill. App. 3d 490, 123 Ill. Dec. 428 1988.IL.1279

Appeal from the Circuit Court of Du Page County; the Hon. S. Bruce Scidmore, Judge, presiding.

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. NASH and INGLIS, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

Plaintiffs, the Village of Oak Brook (Village), the Midwest Club Trust and Kerry M. Krafthefer, appeal from an order denying plaintiffs' request for an injunction prohibiting the defendants, County of Du Page (County) and Karl Fry, from widening sections of two county highways located within the corporate limits of the municipality of Oak Brook. On appeal, plaintiffs contend the trial court erred in finding: (1) section 5-408 of the Illinois Highway Code (Ill. Rev. Stat. 1987, ch. 121, par. 5-408) inapplicable; (2) the County was not required to comply with local ordinance requirements concerning construction in a flood plain; and (3) the County appropriated sufficient funds for the road construction contract. We affirm.

On July 28, 1987, the Du Page county board approved a resolution for the construction of additional lanes on 31st Street and Meyers Road. These two county highways intersect in Oak Brook and are partially located within a flood plain area. The proposed construction within Oak Brook corporate limits is the subject matter of this litigation.

Plaintiffs' first amended complaint sought preliminary injunctive relief based on the contentions now urged on appeal. After a hearing and the submission of briefs in lieu of closing arguments, the court made the following findings. Preliminarily, the court treated the matter as a final resolution of the dispute between the parties; there was no objection by either party. The court then made the following pertinent findings of fact: (1) 31st Street and Meyers Road have been county highways since the 1940's; (2) Oak Brook has provided some maintenance (e.g., grass cutting and snow removal) in agreement with the County; (3) the County did not apply for Village approval of the project; (4) the conditions of an intergovernmental agreement between the parties concerning the widening of 31st Street and Meyers Road have been met or exceeded; (5) funds expended for the project include both motor fuel tax funds and county funds; (6) some of the roadway to be widened abuts upon land considered flood plain property under the Oak Brook ordinance regulating the use of lands located in flood plains; and (7) plans exist to develop two corners of 31st Street outside the Village with two hotels and commercial space.

The court made the following findings of law, which correspond to the three contentions raised by Oak Brook: (1) Oak Brook does not have the right to veto the proposed improvement or to insist that the County may not proceed without municipal approval; (2) the flood plain considerations of the Village are preempted by the responsibilities of the State and County and, therefore, the Village does not have the right to require the County to request a variance before it can improve a county highway going through a Village; and (3) regarding the appropriation of funds, even assuming the Village is a taxpayer and has standing, the exhibit relied on by plaintiffs was not an appropriation, but an explanation for improvements that were in fact contemplated.

Plaintiffs first contend the trial court erred in determining section 5 -- 408 of the Illinois Highway Code was inapplicable to the County. Section 5 -- 408 provides in relevant part:

"The county board, with the approval of the corporate authorities in the case of a municipality with a population of over 500, . . . may construct or maintain with county funds a highway or street, or part thereof, lying within the corporate limits of any municipality within the county, to connect or complete a county highway located to the corporate limits of such municipality." (Ill. Rev. Stat. 1987, ch. 121, par. 5-408.)

In Highland Park, the city sought to enjoin the county from constructing a four-lane divided highway to replace an existing two-lane county highway within the city. The city's first contention was that section 5 -- 408 required the county to obtain the city's approval before altering, constructing or maintaining a county highway within its corporate limits. After setting forth several provisions of the Illinois Highway Code, the court stated:

"The Illinois Highway Code . . . reflects a carefully stratified system of control over the designation, planning, construction and maintenance of the highways, roads and streets throughout the State. It specifies the respective responsibilities of the State, acting through its Department of Transportation, and each of the three levels of local government -- counties, road districts and municipalities. It also spells out the relationships between these four levels of government, including the coordination of their actions so as to assure a systematic approach to the task of providing a workable system of highways and roads throughout the entire State.

As these provisions reflect, it is the role of the counties, not the municipalities, to make decisions and enter into agreements with the State regarding the designation, planning, construction and repair of County Highways, and responsibility for the 'County Highway System' is given to the various County Boards. The 'County Highway System' is defined to include all highways designated as County Highways. The other two levels of local government, ...


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