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Pierce Downer's Heritage Alliance v. Village of Downers Grove

December 30, 1998


Appeal from the Circuit Court of Du Page County. Nos.97--MR--559 97--CH--681 Honorable Bonnie M. Wheaton, Judge, Presiding.

The opinion of the court was delivered by: Presiding Justice Geiger


The plaintiffs, Pierce Downer's Heritage Alliance, John Banaszak, Wayne Lela, and Albert Rouffa (collectively, Alliance), appeal from the November 7, 1997, order of the circuit court of Du Page County dismissing their complaint seeking an order of mandamus. In its complaint, Alliance sought to compel defendants the Village of Downers Grove (Village) and the Illinois Health Facilities Planning Board (Board) to engage in an environmental consultation with the Illinois Department of Natural Resources (IDNR) pursuant to section 17 of the Illinois Natural Areas Preservation Act (the Act) (525 ILCS 30/17 (West 1996)). Alliance argued that such a consultation was required before the Village and the Board could approve the construction and operation of a private health facility located on a site adjacent to Lyman Woods, which is an area protected under the Illinois Natural Areas Inventory (Inventory) (See 525 ILCS 30/17 (West 1996)). We affirm.

The facts relevant to the Disposition of this appeal are as follows. The Advocate Health and Hospital Corporation (Advocate) owns and operates Good Samaritan Hospital located in Downers Grove. The hospital complex is located on 70 acres of land, approximately half of which has been developed. The southern, developed portion of the site contains the hospital, parking decks, office buildings, a retirement housing complex, roads, and other improvements. The northern portion of the site is undeveloped and consists of wetlands and an oak savanna.

The northern portion of the property is adjacent to Lyman Woods. Lyman Woods is an area of land protected under the Inventory pursuant to the regulations promulgated by the IDNR. See 17 Ill. Adm. Code §4010.110 (1996). Lyman Woods contains a hickory oak savanna and a wetlands area. Apparently, the type of natural area contained in Lyman Woods is rare and represents less than one-tenth of one percent of the total land and water surface area of Illinois.

In 1996, Advocate commenced plans for the construction of a "Wellness Center" on the undeveloped, northern portion of its hospital property. The project included a 100,145-square-foot, four-story building containing a health club, community education center, physicians' offices, outpatient physical therapy center, and other facilities. The project was also to include a stormwater detention pond and a parking lot for 385 cars. The proposed Wellness Center would occupy 8.22 acres. Advocate applied to the Village for a modification of its planned development to permit the construction of the Wellness Center. Advocate also applied to the Board for a certificate of need pursuant to sections 5 and 6 of the Illinois Health Facilities Planning Act (20 ILCS 3960/5, 6 (West 1996)).

On May 6, 1996, Advocate requested a consultation with the IDNR pursuant to section 11 of the Illinois Endangered Species Protection Act (the Protection Act) (520 ILCS 10/11 (West 1996)). The IDNR subsequently expanded this consultation with Advocate to include a consultation pursuant to section 17 of the Act; under the Act, the consultation procedure requires state and local governmental agencies to meet with the IDNR in order to evaluate the environmental consequences of any action that is "authorized, funded, or carried out" by the agency or local government (525 ILCS 30/17 (West 1996)). If the proposed action is found to have an adverse environmental impact, then the agency must "determine possible methods of eliminating or mitigating the adverse impact" and must attempt to eliminate or mitigate the impact in a manner consistent with the planned action." 525 ILCS 30/17 (West 1996).

On September 25, 1996, Advocate submitted a written report to the IDNR detailing the proposed project. See 17 Ill. Adm. Code §1075.40(a) (1996). Also on September 25, 1996, Advocate met with IDNR representatives on the site. On October 25, 1996, the IDNR sent Advocate a letter detailing its recommendations to mitigate the environmental threats posed by the project. Among these recommendations, the IDNR proposed a cooperative plan between Advocate and the Downers Grove Park District for the management of the wetlands adjacent to the Wellness Center. The IDNR also recommended the construction of a parking deck, as opposed to a parking lot, for the Wellness Center.

On November 4, 1996, Advocate sent the IDNR a response to the recommendations. Advocate agreed to explore the IDNR's recommendation to enter into an agreement with the Downers Grove Park District for the management of the wetlands on the property. However, Advocate declined to alter its plans for the parking lot, noting that the construction costs for a parking deck would be prohibitive.

On November 13, 1996, the IDNR sent a reply to Advocate's response. Although the IDNR indicated its regret over Advocate's decision regarding the parking lot, it nonetheless stated its belief that the consultation had "been successful in minimizing adverse impacts to the Lyman Woods Preserve, while recognizing the project [would] inevitably alter the structure and functions of its woodland community." The IDNR also indicated that the consultation was "closed." The Village was sent copies of all of the correspondence between Advocate and the IDNR relating to the consultation and therefore had notice that the consultation was taking place.

Back in September 1978, the Village had originally approved the zoning of Advocate's property as a planned development for the operation of the hospital, which was designated as "Planned Development #19." In April 1997, Advocate submitted a request to the Village for approval of an amended and final planned development site plan for Planned Development #19 to permit the construction of the Wellness Center. On April 8, 1997, the Village's plan commission held a public hearing on the request. At the Conclusion of the hearing, the plan commission voted to recommend the approval of the amended planned development to the village counsel. In its findings, the plan commission noted that the IDNR had already conducted and concluded its consultation relating to the project. On May 22, 1997, the village counsel passed an ordinance approving the amended planned development. The Village itself did not consult with the IDNR before granting its approval.

The Board also subsequently issued a certificate of need to Advocate, thereby permitting it to operate the Wellness Center as a medical facility. The Board did not engage in a consultation with the IDNR before issuing the certificate of need.

On August 4, 1997, Alliance filed a complaint for mandamus against the Village, the Board, Advocate, Citadel Properties Oak Brook L.L.C., and the IDNR. Alliance is an organization that works to protect natural areas in Downers Grove. In its complaint, Alliance alleged that, under section 17 of the Act, both the Village and the Board were required to consult with the IDNR concerning the environmental impact of the project and had failed to do so. Alliance sought a writ of mandamus compelling the Village and the Board to participate in the consultation and also sought a temporary restraining order and preliminary injunction against Advocate and Citadel Properties Oak Brook L.L.C. from commencing construction until the consultation had taken place.

Each of the defendants subsequently moved to dismiss the complaint pursuant to section 2--619 of the Code of Civil Procedure (the Code) (735 ILCS 5/2--619 (West 1996)). All of the defendants argued that the action was moot because the consultation required by section 17 of the Act had already taken place. In addition, both the Village and the Board argued that they were not obligated to participate in the consultation process because the Wellness Center was not a project that had been "authorized, funded, or carried out" by an agency of state or local government as provided by section 17 of the Act (525 ILCS 30/17 (West 1996)).

On November 7, 1997, following argument, the trial court granted the defendants' motions and dismissed the complaint. In its ruling, the trial court did not reach the defendants' mootness argument. Instead, the trial court found that the matter turned on the interpretation of the language contained in section 17. The trial court explained: "The [Act] in section 17 refers to projects that are *** 'authorized, funded, or carried out by,' *** the agency of the State or local government."

*** "I think the operative word here is 'authorized.' I believe that mandamus would only lie if the interpretation of the word 'authorized' included the zoning process."


"I realize this is a case of first impression. I don't believe there has ever been any explication of what the word 'authorization' means in this context, but I think the clear legislative history and the legislative intent dictate that this Court find that the authorization contemplated by ...

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