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12/28/89 Thomas S. Fredette Et Al., v. the Village of Beecher Et

December 28, 1989

THOMAS S. FREDETTE ET AL., PLAINTIFF-APPELLANTS

v.

THE VILLAGE OF BEECHER ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

548 N.E.2d 1356, 192 Ill. App. 3d 737, 139 Ill. Dec. 642 1989.IL.2042

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

APPELLATE Judges:

PRESIDING JUSTICE WOMBACHER delivered the opinion of the court. SCOTT, J., concurs. JUSTICE BARRY, Concurring in part and Dissenting in part.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOMBACHER

The plaintiffs appeal the dismissal of their complaint by the trial court.

The County of Will established a health department in 1943 which has been and continues to be vested with comprehensive authority to provide, protect, promulgate, regulate, and enforce all matters relating to public health within its jurisdiction.

The Village of Beecher is a municipal entity located within the County of Will. In 1962, the village began operating a sewage treatment plant which was subject to the various regulations and authority of the county health department. In 1963, the Will County Health Department adopted a sewage treatment and disposal ordinance which provides that all sewage treatment or disposal units which have liquid surfaces open to the free atmosphere must be located at least 200 feet from the property line of all adjacent properties. In 1972, a subdivision containing the houses owned by the plaintiffs herein was developed. This subdivision is located within a close proximity to the village's sewage treatment plant.

In 1987, the Village of Beecher desired to construct an aeration lagoon, the purpose of which would be to further aerate the water after all the sewage had been treated and removed within the plant. This lagoon would contain a pool of standing water for sewage treatment purposes, but the plans called for berms and horticultural barriers to surround this lagoon which would provide additional protection for those residing in this subdivision. In order to legally construct this lagoon, the village would have to obtain a variance from the health department because some properties within this subdivision would be located within the protected area covered by this ordinance.

Once an application for variance is filed, any interested person may file a written request for a hearing to determine the merits of a variance. The health authority, which is a designated health officer or county executive officer or representative, has the ability to determine that strict compliance with a health department decision may not be warranted, especially when the anticipatory effects of that decision may cause undue hardship on a petitioner and if the health authority finds that public health will be adequately protected and substantial Justice done by granting the variance. The health authority may then grant the variance upon such conditions and terms as it deems necessary.

The village filed its variance request with the Will County health authority. The director of the health department granted the variance on November 10, 1987. On November 22, 1987, and on December 29, 1987, a representative of the subdivision property owners asked the county health department to review the director's decision, which it upheld.

The plaintiffs filed a two-count complaint in circuit court against the village, county, and board of health. Count I sought administrative review of the director's and board's decisions, and count II alleged the Village of Beecher was going to construct an aeration lagoon without receiving the requisite special use permit.

All defendants moved to involuntarily dismiss count I, and the Village of Beecher moved to dismiss count II, and defendants' motions were granted by the trial court.

Plaintiffs then filed an amended complaint, reiterating count I. In addition, plaintiffs alleged that the board induced them not to seek administrative review within 35 days of the director's decision. Instead, the plaintiffs requested administrative review within 35 days of the board's decision. In count II, plaintiffs claimed the Village of Beecher should be estopped from denying the property was classified as an R-3 zone, even though ...


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