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05/10/89 Al Tierney Et Al., v. the Village of Schaumburg

May 10, 1989

AL TIERNEY ET AL., PLAINTIFFS-APPELLANTS

v.

THE VILLAGE OF SCHAUMBURG, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

538 N.E.2d 904, 182 Ill. App. 3d 1055, 131 Ill. Dec. 529 1989.IL.704

Appeal from the Circuit Court of Cook County; the Hon. Albert J. Green, Judge, presiding.

APPELLATE Judges:

JUSTICE RIZZI delivered the opinion of the court. FREEMAN, P.J., and WHITE, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RIZZI

Plaintiffs, Al Tierney, Cathy Tierney, Bernard J. Sarley, Jan Sarley and Carrol E. Siebold, brought this action for injunctive and declaratory relief to prevent the defendant, Village of Schaumburg (the Village), from constructing a 50-foot-wide collector or secondary street, without sidewalks on either side, adjacent to their homes. Plaintiffs alleged that the construction of the collector or secondary street would violate the Village's own ordinance. The trial court denied plaintiffs' request for a temporary restraining order to preserve the status quo. Plaintiffs appeal. We reverse and remand with directions.

On April 18, 1988, plaintiffs filed a verified complaint, seeking a temporary, preliminary and permanent injunction, as well as declaratory relief. The next day, plaintiffs filed a petition for a temporary restraining order and a preliminary injunction to maintain the status quo with regard to the construction of the 50-foot-wide collector or secondary street. The petition reincorporated and realleged the facts contained in the verified complaint which was attached to the petition. The Village filed an answer to the petition, but it did not file an answer to the verified complaint. The trial court, and the parties, treated the petition solely as a motion for a temporary restraining order.

Although there was a hearing on the petition, no evidence was presented. The trial court heard only the arguments of respective counsel. Since there was no evidentiary hearing, and the Village did not file an answer denying the allegations in the verified complaint, we consider as true all well-pled facts alleged in the complaint. (Opportunity Center of Southeastern Illinois, Inc. v. Bernardi (1986), 145 Ill. App. 3d 899, 905, 496 N.E.2d 340, 344; Stasica v. Hannon (1979), 70 Ill. App. 3d 785, 788, 388 N.E.2d 1110, 1111-12.) Also, we note that the Village's answer to the petition does not deny significant facts that are alleged in the verified complaint. These facts are as follows: (1) the roadway that the Village intends to construct is classified as a collector or secondary street as stated in the Village's own ordinance; (2) the roadway is to be 50 feet wide rather than the 80-foot width that is required by the Village's existing ordinance for collector or secondary streets; (3) the roadway will not have sidewalks on either side although the Village's existing ordinance requires that all streets have sidewalks on both sides; (4) the 50-foot-wide collector or secondary street would be "extremely dangerous" because it "would . . . [subject] the plaintiffs, on a daily basis . . . to the hazards of an errant automobile"; and (5) the "plaintiffs will . . . [have] an unsafe road abut their backyards." We believe that for purposes of pleading, these facts are ultimate facts and not mere Conclusional facts because the basic facts warranting the statements are sufficiently set forth within the context of the statements. Thus, the facts which we have stated are well-pled facts which we consider true. The significance of these facts will become evident as the other facts are related.

On July 26, 1977, the Village passed ordinance No. 1435 (0-1435). Ordinance 1435 approved a planned unit development known as Kingsport Village East. Ordinance 1435 provides that the "developer will dedicate a 50-foot wide easement on the north property line for future roadway extension." Ordinance 1435 does not provide for the inclusion of sidewalks on either side of the future roadway extension.

On October 24, 1978, the Village passed ordinance No. 1639 (0-1639), entitled "Subdivision Control Regulations of the Village of Schaumburg." Ordinance 1639 provides for minimum right-of-way widths and the minimum design standards for particular street classifications. Ordinance 1639 states that streets classified as collector or secondary streets shall have a minimum right-of-way width of 80 feet. Ordinance 1639 also states, "Sidewalks are required along both sides of all streets."

On April 12, 1988, the Village began construction of the Biesterfield Road Extension Project (Project). The purpose of the Project is to build a collector or secondary street as a roadway extension on the 50-foot-wide easement on the north property line that is referred to in 0-1435. Under the Project, there will not be a sidewalk on either side of the collector or secondary street.

On appeal, plaintiffs argue that construction of the Project would be dangerous and unsafe to their families because the Project provides for the construction of a collector or secondary street with a 50-foot right-of-way width, rather than the minimum 80-foot right-of-way width that is required by 0-1639, and because the Project does not provide or leave room for sidewalks on both sides of the street as required by 0-1639. The Village contends that the 50-foot-wide street does not violate the provision in 0-1639, which requires that the minimum width for collector or secondary streets be 80 feet. The Village relies upon the following provision in 0-1639: "The subdivision control regulations are applicable to planned unit developments as authorized in the zoning regulations of the Village of Schaumburg, except as specifically varied in the individual P.U.D. implementing ordinance." The Village argues that since 0-1435 states that the "developer will dedicate a 50-foot wide easement on the north property line for future roadway extension," 0-1435 has specifically varied the 80-foot width requirement for collector or secondary streets in 0-1435.

We disagree with the Village's argument. Plainly, the language in 0-1435 does not provide for the construction of a collector or secondary street within the 50-foot-wide easement for future roadway extension. Thus, we believe that the language in 0-1435 does not purport to abolish or reduce the 0-1639 minimum width requirement for collector or secondary streets. We therefore conclude that the minimum 80-foot requirement for collector or secondary streets in 0-1639 is not "specifically varied" by 0-1435.

The Village also contends that because 0-1435 does not provide for sidewalks in that part of the ordinance which states that the "developer will dedicate a 50-foot wide easement on the north property line for future roadway extension," 0-1435 has specifically varied the requirement in 0-1639 that sidewalks are required along both sides of all streets. We disagree. Merely because sidewalks are not mentioned in the pertinent provision in 0-1435 does not mean that 0-1435 has specifically varied the requirement in 0-1639 that all streets have sidewalks on both sides. Actually, the opposite Conclusion is true. Thus, we believe it is clear that ...


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