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December 29, 1995


Appeal from the Circuit Court of Cook County. The Honorable John N. Hourihane, Judge Presiding.

The Honorable Justice T. O'brien delivered the opinion of the court: T. O'brien, J., with Cousins, P.j., and McNULTY, J., concurring.

The opinion of the court was delivered by: O'brien

The Honorable Justice T. O'BRIEN delivered the opinion of the court:

Plaintiff, Amoco Oil Company (Amoco), filed a two count complaint against defendant, Village of Schaumburg (Schaumburg), in connection with the conditional granting and subsequent revocation of a special use permit. The gravamen of the complaint centered upon Schaumburg's requirement that Amoco dedicate approximately twenty percent (20%) of its property as a means of securing approval of a zoning application. After Amoco filed suit in the Federal District Court for the Northern District of Illinois, Schaumburg revoked the ordinance in an apparent effort to divest the federal court of jurisdiction. (Amoco Oil Company v. Village of Schaumburg (M.D. Ill. 1992), No. 91 C 4973, 1992 U.S. Dist. LEXIS 13719.) Amoco then filed the present State action in the Circuit Court of Cook County.

In Count I of its complaint, Amoco sought declaratory and injunctive relief as well as damages arising out of an alleged taking of its property without just compensation. In Count II, Amoco requested a declaration that the subsequent repeal of the permit was arbitrary and unreasonable. Following a bench trial, the circuit court ruled against Amoco on count I, finding no taking in the absence of a physical invasion of the property. However, the circuit court ruled in favor of Amoco on count II, finding Schaumburg's attempt to revoke the permit did not qualify as a reasonable exercise of Schaumburg's legislative authority. The circuit court then ordered Schaumburg to issue all necessary permits upon appropriate application. Both sides appealed.

For the reasons which follow, we hold that the imposition of the dedication requirement did in fact constitute a taking under the Federal Constitution pursuant to the rationale of Nollan v. California Coastal Commission (1987), 483 U.S. 825, 107 S. Ct. 3141, 97 L. Ed. 2d 677, and Dolan v. City of Tigard (1994), 512 U.S , 114 S. Ct. 2309, 129 L. Ed. 2d 304. We further hold that Schaumburg acted arbitrarily and capriciously in repealing the original ordinance granting the permit. Accordingly, we reverse the circuit court as to count I, affirm as to count II, and remand the matter for further proceedings consistent with this opinion.


Amoco is the owner of certain property which was at all relevant times improved with an automobile service station and four separate "gasoline pulp islands". The property itself is located in a dense commercial area at the northeast corner of Golf Road and Roselle Road in Schaumburg, Illinois. Golf Road is a major arterial highway under the jurisdiction of the Illinois Department of Transportation (IDOT). Roselle Road, on the other hand, is under the jurisdiction of Cook County and the Cook County Department of Highways.

Due to Schaumburg's growth, Golf and Roselle roads have suffered from severe traffic congestion, experiencing over design capacity particularly during the morning and evening "rush hours." As a result, Schaumburg has, since at least 1984, undertaken to redesign the intersection of Golf and Roselle Roads. To that end, Schaumburg, the Village of Hoffman Estates, Cook County and IDOT entered into an agreement in 1988 whereby IDOT would conduct a "Phase I" study, i.e., a preliminary engineering analysis of possible roadway improvements. The study contemplated widening both roads by adding extra lanes of through traffic as well as dual left turn and right turn lanes at the intersection adjacent to Amoco's property.

Meanwhile, in 1989, representatives from Amoco met with Schaumburg staff members to discuss possible improvements to the existing service station. At that time, the property was zoned B-2 General Retail Business District. The station itself was classified as a "Type A" Automobile Service Station, one which only sells gasoline and services automobiles. Under its proposed zoning application, Amoco sought the following improvements:

"A. Razing the existing building and replacing it with a prototypical food shop structure;

B. reconfiguring the pump islands to improve both onsite [sic] circulation as well as ingress and egress, and installing new, modern fuel dispensers at the station[;]

C. eliminating two of the four driveways on the Subject Property, those being the far west driveway on Golf Road and the far south driveway on Roselle Road;

D. extensively landscaping the site; and

E. providing an overhead canopy to better illuminate the facility and shield customers from the elements." (Amoco's Complaint, par. 10.)

Such improvements, however, required a "Type C" classification, and therefore Amoco needed to obtain a special use permit and site plan approval.

At some point during the pre-application meetings, Schaumburg staff members indicated that Amoco would be required to dedicate approximately 20 feet of its property along both Golf and Roselle Roads as a condition to approval of its application. Schaumburg also insisted upon the dedication of a 40' x 40' triangular section at the southwest corner of the subject property. Although Amoco objected to the dedication requirement at that time, it nevertheless submitted a formal zoning application for a special use permit and site plan approval in late 1990.

Subsequently, the Village Zoning Board of Appeals set a public hearing on Amoco's application for February 20, 1991. In the meantime, the village director of planning and the village director of engineering issued a "Project Review Group Report". The report recommended approving Amoco's application because, "given the traffic carrying capacity of Golf Road and Roselle Road, the proposed improvements to the intersection and the fact that the property is surrounded by existing low to moderate intensity commercial uses, Staff believes the conversion to a Type "C" automobile service station will not be detrimental to surrounding land uses." Despite the fact that the report also noted that the proposed redevelopment "is an appropriate use for this site given its current use and the surrounding commercial development", the report suggested elsewhere that the Zoning Board of Appeals "denote the additional land required for right-of-way purposes as a 'dedication' and not a 'taking.'"

At the hearing before the Zoning Board, Amoco again objected to the imposition of the dedication requirement. In particular, Amoco explained that the need for any additional right-of-way would not be caused by its proposed redevelopment of its property, but rather by the current deficiencies in the design and traffic capacity of the existing roadways. Amoco also pointed out that the planned dedication amounted to over twenty percent (20%) of the property's total square footage. As a result, the Zoning Board recommended approving Amoco's zoning application without the dedication requirement.

On June 25, 1991, the Village Board of Trustees held a meeting to consider the Zoning Board's decision. At the meeting, the Board of Trustees, although finding that Amoco satisfied the standards for the special use, rejected the recommendation that Amoco's application for redevelopment be approved without the dedication requirement. Instead, on July 9, 1991, the Board of Trustees enacted Ordinance 91-78, "AN ORDINANCE GRANTING SPECIAL USE FOR A TYPE 'C' AUTOMOBILE SERVICE STATION, FRONT YARD SETBACK VARIATION AND SITE PLAN APPROVAL". This ordinance was subject to the following condition:

"Prior to the issuance of a building permit, the petitioner [Amoco] shall submit for review and approval from the Village of Schaumburg a Final Plat of Subdivision for the property. Upon said Plat, the petitioner shall also provide the dedication of twenty-eight (28) feet of additional right-of-way along Golf Road and ten (10) feet of additional right-of-way along Roselle Road, as well as a forty (40) foot triangular section of right-of-way immediately contiguous to the intersection."

In response, Amoco filed suit in the United States District Court for the Northern District of Illinois. The district court, however, denied a motion for preliminary injunction on the grounds that Amoco had a sufficient remedy at law for money damages. Nevertheless, the court noted, in passing, that "if the public officials know that their actions are not supported by the law and persist anyway, driven by some impression that they can attach these conditions because zoning ordinances constitute some kind of public favor to be dispensed, that is certainly against public policy."

Shortly thereafter, the Board of Trustees proposed adopting Ordinance No. 91-153, "AN ORDINANCE REPEALING ORDINANCE NO. 91-78, GRANTING SPECIAL USE FOR A TYPE 'C' AUTOMOBILE SERVICE STATION, VARIATION AND SITE PLAN APPROVAL." On October 30, 1991, the Zoning Board, as required by law, conducted a public hearing on the proposed "repealer ordinance." The Board of Trustees eventually passed the repealer ordinance.

On September 9, 1992, the district court dismissed the federal action on the grounds that Amoco had an appropriate remedy in State court. One month later, Amoco filed the present action before the Circuit Court of Cook County, seeking among other things declaratory and injunctive relief. Amoco asserted that conditioning a special use permit upon dedication amounted to a taking of property without just compensation in violation of both the Federal and the State Constitutions. Amoco also claimed Schaumburg's adoption of the repealer ordinance was an arbitrary and unreasonable use of municipal power, and thus violated Amoco's constitutional right to due process. The case ultimately proceeded to trial. *fn1

At trial, Amoco called as a witness Clifford Rudd, a project engineer responsible for the construction of service stations. Rudd testified that he prepared the site plan drawings which were later submitted to Schaumburg as part of the zoning application process. Rudd explained that, because of conditions already existing on Golf and Roselle roads, Amoco was aware that both roads would have to be widened in the future, and that therefore Amoco proposed setting its improvements further back in its lot. In this way, business at the new station would not be interrupted once IDOT condemned the property. The set back would also prevent IDOT from incurring any additional expense in reimbursing Amoco for having to move the improvements. Finally, Rudd confirmed that Schaumburg officials required Amoco to dedicate a portion of its property even before Amoco submitted its formal application.

David B. Miller, an expert traffic engineer at Metro Transportation Group, also testified on Amoco's behalf. Amoco retained Miller and his firm in 1990 to conduct certain comprehensive traffic impact studies in connection with Amoco's proposed redevelopment of the property. Miller estimated that, under a worse case scenario, the intended improvements would increase vehicle movements on the property by twenty five percent (25%). *fn2 This projection was based upon the fact that typically seventy percent (70%) of traffic flow at a gasoline station is "impulse" traffic, i.e. traffic already present on the streets. As a result, Amoco's proposed improvements would actually have a negligible impact on the traffic flow on Golf and Roselle roads. Specifically, Miller predicted an increase in traffic volume at the intersection resulting from the proposed improvements of between two-tenths of one percent (.2%) and four-tenths of one percent (.4%). The need for widening the roads, according to Miller, pre-existed Amoco's proposed improvements.

On cross examination, Miller acknowledged that Schaumburg conducted a traffic count in 1993 which indicated a larger increase in street traffic volume than Miller's own studies, and that IDOT was considering a greater dedication of ...

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