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05/22/97 COMMONWEALTH EDISON COMPANY v. CITY

May 22, 1997

COMMONWEALTH EDISON COMPANY, PLAINTIFF-APPELLEE,
v.
THE CITY OF WARRENVILLE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Du Page County. No. 96-MR-0167. Honorable Bonnie M. Wheaton, Judge, Presiding.

Released for Publication June 24, 1997.

The Honorable Justice Thomas delivered the opinion of the court. Doyle and Colwell, JJ., concur.

The opinion of the court was delivered by: Thomas

JUSTICE THOMAS delivered the opinion of the court:

The plaintiff, Commonwealth Edison Company (ComEd), brought this action seeking to enjoin the defendant, the City of Warrenville (Warrenville), from using its zoning power to halt a project involving the construction of a new transmission line. The circuit court of Du Page County held that Warrenville's authority to halt or regulate the project through its zoning ordinance was preempted. The court therefore permanently enjoined Warrenville from interfering with the project. Warrenville appeals.

The record reveals that ComEd is a public utility regulated by the Illinois Commerce Commission (Commission) under the Public Utilities Act (220 ILCS 5/1--101 et seq. (West 1994)). ComEd provides electric service to customers throughout northern Illinois through the use of an integrated network of several thousand miles of high-capacity transmission lines operating at voltages of 138 kilovolts (kV) and above. These lines move "bulk power" from the various sources of supply to the portions of ComEd's service territory where customer demand exists. The power is eventually distributed to customers through a distribution system.

On October 18, 1995, pursuant to the Public Utilities Act, the Commission granted ComEd a certificate of public convenience authorizing ComEd to construct a new 138-kV transmission line and substation to meet the growing electric-service needs of the Wheaton-Warrenville area. The Commission entered its order granting the certificate after extensive hearings in which Warrenville participated and opposed the project. The Commission found that the project was the only means of continuing to provide reliable electric service to central Du Page County (County) and that alternatives proposed by Warrenville were not feasible or reasonable. In part, the plan called for the installation of a 138-kV line to be installed along four miles of the Prairie Path replacing the existing 34-kV line. The Prairie Path is a hiking and nature trail used by pedestrians, cyclists, and equestrians. The County owns the path, but ComEd has a perpetual easement along it to construct, repair, and operate its towers, poles, lines, wires, and cables.

In its order, the Commission rejected arguments raised by Warrenville relating to local land use and specifically stated that its order was not conditioned on local zoning or permit approval. Warrenville appealed the Commission's order to this court. Warrenville also sought to stay the Commission's order pending appeal. Both the Commission and this court refused to stay the Commission's order.

After this court denied the request for a stay, ComEd notified Warrenville on January 18, 1996, that it would begin construction of the project. Warrenville then informed ComEd that it would not permit the project to be constructed unless ComEd obtained a special use permit from Warrenville before beginning construction. When ComEd began preliminary work on the project on January 25, 1996, Warrenville police arrived on the scene and halted all work. ComEd subsequently filed this action seeking to enjoin Warrenville from interfering with the project.

After hearing testimony and the parties' legal arguments, the trial court found that the legislature had vested the Commission with the authority to regulate utilities and that Warrenville's exercise of its zoning authority to regulate or require permits for the type of construction approved and authorized by the Commission was preempted. Accordingly, the trial court issued a permanent injunction prohibiting Warrenville from interfering with the project. Thereafter, Warrenville appealed the trial court's order. This court granted Warrenville's motion to stay the trial court's order pending the outcome of this appeal.

On September 27, 1996, this court decided the first appeal in this case and in a Rule 23 order affirmed the Commission's order granting ComEd a certificate to construct the project. County of Du Page v. Illinois Commerce Commission, No. 2--96--0027 (1996) (unpublished order under Supreme Court Rule 23). In reaching our decision in the first appeal, we held, among other things, that the Commission properly determined that it would not condition granting the certificate to ComEd on its ability to obtain any unspecified local permits. In so holding, we found that "any ordinance enacted by a home-rule unit which effectively regulates a construction project approved by the Commission after a section 8--406(b) proceeding is preempted." County of Du Page, slip op. at 45. We further found that a non-home-rule unit of local government would be without the power to enact such an ordinance. This court also noted that it would leave to be addressed in another case the question of how its analysis would affect the application of Warrenville's particular zoning ordinance.

In this appeal, Warrenville raises that issue, contending that its zoning powers were not preempted by the Public Utilities Act.

The intent of the General Assembly in enacting the Public Utilities Act is located in section 1--102 (220 ILCS 5/1--102 (West 1994)), which provides in pertinent part:

"The General Assembly finds that the health, welfare and prosperity of all Illinois citizens require the provision of adequate, efficient, reliable, environmentally safe and least-cost public utility services at prices which accurately reflect the long-term cost of such services and which are equitable to all citizens. It is therefore declared to be the policy of the State that public ...


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