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March 29, 1996



The Honorable Justice Cousins delivered the opinion of court: McNULTY, P.j., and Gordon, J., concur.

The opinion of the court was delivered by: Cousins

The Honorable Justice COUSINS delivered the opinion of the court:

Plaintiff, the City of Evanston, filed a complaint against the defendants, the City of Chicago and Joseph Boyle, *fn1 commissioner of the Department of Transportation, seeking a mandatory injunction directing the defendants to remove a 2,000-foot guardrail median that the defendants installed in the center of Howard Street. The center of Howard Street marks the boundary between Evanston and Chicago; Evanston lies to the north and Chicago to the south of the boundary. After a bench trial, the circuit court granted the injunction, requiring the defendants to remove the guardrail and not erect such a guardrail in the future. The defendants have removed the barrier and appeal the court's decision. On appeal, Chicago and Boyle contend: (1) Chicago constructed the barrier as a reasonable exercise of its police power; and (2) the court erred by excluding evidence concerning Chicago's reasons for building the Howard Street barrier.


Evanston and Chicago are home-rule units. They are divided by Howard Street with Evanston lying to the north and Chicago lying to the south. In February 1991, developers approached Evanston city officials regarding construction of a shopping center on a 23-acre site then owned by Bell & Howell. This site was bordered by Kedzie on the west, Hartrey on the east, and Howard on the south. It was originally improved with a building of 780,000 square feet and used as a manufacturing and distribution facility. The residential development on the south side of Howard Street in Chicago was constructed after the development of the property and consists almost entirely of single-family homes. The area to the east of the site in Evanston is also zoned for residential use.

Between February and November 1991, the developers and Evanston city officials conducted negotiations about the development of the site. In November 1991, the Evanston city council gave conceptual approval to a proposed shopping center on the Bell & Howell site. The assistant city manager of Evanston notified the commissioner of planning and development of Chicago of the proposed development. Numerous community meetings were held in Evanston and Chicago, including three meetings with the North Boundary Homeowners Association, representing the residents in Chicago lying south of the site. Alderman Bernard Stone of the 50th ward also attended the meetings.

Evanston then entered into a redevelopment agreement between Evanston, Dayton Hudson Corporation, American Stores Properties Inc., and Best Buy, Inc., for the redevelopment of the site for a shopping center. Evanston designated the redevelopment project for tax increment financing. Evanston issued a total of $9 million in bonds, $7,500,000 of which were devoted to eligible projects costs for the shopping center. The principal and interest on the bonds were to be repaid from the revenues derived from the shopping center. Financial projections indicated that the revenues from the shopping center were sufficient to pay principal and interest and yield substantial revenues to Evanston through increased sales and real estate taxes.

As a result of meetings with the Evanston city council and neighborhood groups from Chicago and Evanston, the proposed plan for the shopping center underwent substantial modifications. Among the modifications made were additional landscaping provided in front of the shopping center and the erection of a 3 1/2-foot masonry wall along Howard Street. This wall was designed to shield car headlights in the parking lot from any possible impact upon residents to the south. Also, traffic channelization was provided at Albany and Howard Streets to prevent traffic from entering Chicago. Several other proposed modifications were offered and a $100,000 mitigation fund was to be set aside to address unforeseen neighborhood concerns. These particular modifications were accepted by the North Boundary Homeowners Association.

In February 1992, Alderman Stone proposed erection of a concrete barrier of approximately six inches in height to be extended from Kedzie Avenue to Francisco Avenue at or near the center line of Howard Street. The then acting commissioner of the Department of Transportation advised the Chicago city council committee that the department could not support the proposed barrier. The reasons for the department's opposition were that such a barrier would cause a much greater accident potential along that section of Howard Street and would increase traffic in the residential streets south of Howard Street. Also, emergency response would be impractical, emergency vehicles could not pass other moving vehicles, and there were no opportunities for westbound left turns.

On March 13, 1992, the committee on transportation and public way of the Chicago city council submitted a report recommending that the city council pass an amended order directing the commissioner of the Department of Transportation to erect a center divider at a minimum of nine inches to a maximum of three feet in height south of the center line of west Howard from 100 feet east from north Francisco to north Kedzie without any openings. At the city council meeting of March 25, 1992, the council passed the following:

"ORDERED that the Commissioner of the Department of Transportation is hereby authorized and directed to give consideration to the erection of a center divider at a minimum of nine inches (9") to a maximum of three feet (3') in height south of the center line of West Howard Street east of North Francisco Avenue to North Kedzie Avenue without any openings at North Francisco, North Sacramento and/or North Albany Avenues."

After the passage of the order, further meetings were held between Evanston and the developers with residents of Evanston and Chicago and Alderman Stone in an effort to solve any problems arising out of the construction of the shopping center.

In contemplation of the possible erection of the barrier, Evanston and Bell & Howell entered into an agreement whereby Bell & Howell would rebate to the purchasers $4 million if the barrier remained in place at the time of the opening of the Target store. In turn, Evanston would be obligated to reimburse Bell & Howell $2 million in the event that the sales tax revenues fall 20% below the financial projections and/or there is a 10% reduction in the valuation of the shopping center.

On May 26, 1993, without notice to Evanston, construction commenced upon a 2 1/2-foot-high guardrail along the center line of Howard Street for a distance of approximately 2,000 feet without any openings from Kedzie Avenue on the west to California Avenue on the east. The barrier remained in place on the date of trial, but three temporary openings of 36 inches were provided.

Evanston filed a two-count complaint against Chicago and its commissioner of the Department of Transportation. Count I sought a declaratory judgment holding that Chicago and Boyle had no authority to erect a center divider on Howard Street as it abutted Evanston and that the erection of the divider was contrary to the public health, safety and welfare, and constituted an abuse of the power to regulate traffic upon the streets. It sought a mandatory injunction directing Chicago to immediately dismantle the divider. Count II sought a declaration that the erection of the divider was without lawful authority and an injunction enjoining Boyle from erecting or maintaining any type of divider along Howard Street and ordering an immediate removal of the existing barrier. Chicago filed a counterclaim seeking to restrain Evanston from proceeding with the construction of the shopping center on the Evanston side of Howard Street.

At trial, Evanston called Evanston's city manager, Eric Anderson, as its first witness. Anderson testified that the effect of reducing the access to the shopping center will reduce the sales in the shopping center and will reduce the sales tax revenue, making it less likely Evanston will be able to support services and operations. He also testified that the barrier reduced the ability to provide fire service to the area of the development and to the area north of the development because of the elimination of westbound entrances on three of the four entrances. The barrier extended past Gray Street, so that fire trucks coming down McCormick Street would not be able to reach those houses right on the street or the houses that are off Gray Street, back on Dobson and Brummel Streets. He testified that the barrier inhibited the ability of police officers to ...

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