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Allied Asphalt Paving Company v. Village of Hillside

June 09, 2000

ALLIED ASPHALT PAVING COMPANY, PLAINTIFF-APPELLANT,
V.
VILLAGE OF HILLSIDE, DEFENDANT-APPELLEE



Appeal from the Circuit Court of Cook County. No. 86 CH 3827 Honorable Lester Foreman, Judge Presiding.

The opinion of the court was delivered by: Justice Hartman

Following a hearing on the Village of Hillside's (Village) motion for a rule to show cause against Allied Asphalt Paving Company (Allied), the circuit court held Allied in contempt of court for operating its Hillside asphalt manufacturing plant in violation of a consent decree (Consent Decree), which the Village and Allied previously had executed to resolve then-pending litigation between those two parties. Allied appeals the court's findings, arguing that (1) the court erred in finding that Allied violated the Consent Decree; (2) the Village brought its rule to show cause motion without proper municipal authorization; and (3) the court erred in refusing to admit evidence offered by Allied at the hearing.

Since 1960, Allied has owned property in Hillside upon which it engages in the manufacture of asphalt. Allied's Hillside site consists of approximately 15 acres of property west of Mannheim Road and south of the Eisenhower Expressway. Allied's property is bordered on the west by a vehicle air emissions testing facility. A number of residences are located adjacent to the south and southwest portions of Allied's property, on which it manufactures new asphalt and recycles used asphalt.*fn1

The genesis of the current proceeding stems from a 1986 suit for declaratory judgment brought by Allied against the Village. In 1986, Allied was operating its asphalt manufacturing plant in Hillside under a special use permit authorized by a Village ordinance. One of the conditions of the special use permit was that Allied's "plant facilities, exclusive of office buildings, office accommodations or roadways, be located not less than 400 feet southerly of the southerly line of Congress Street Expressway (now known as the Eisenhower Expressway)" and that "there shall be no extension, addition or new construction of plant facilities and structures, exclusive of office buildings, office accommodations or roadways, beyond the outer perimeter of the land area within which such facilities and structures are [now] located."

In May 1986, the Village Zoning Board of Appeals (Zoning Board) determined at a public hearing that Allied was in violation of its special use permit because it was storing large piles of discarded used asphalt within 400 feet of the southerly line of the Eisenhower Expressway. The Zoning Board concluded that the used asphalt piles were "plant facilities" and therefore were in violation of the special use permit. The Zoning Board recommended revocation of Allied's special use permit.

As a result of the Zoning Board's recommendation, Allied filed its 1986 complaint for declaratory judgment, disputing whether the stockpiles of used asphalt constituted "plant facilities." In resolution of the litigation, the Village and Allied executed the Consent Decree, which provided, inter alia, that the discarded piles of asphalt were excluded from the definition of "plant facilities" under the special use permit. Although the Consent Decree allowed storage of the used asphalt within the restricted area, the Consent Decree prohibited Allied from stockpiling the discarded asphalt in excess of 26 feet in height. The Consent Decree further provided that Allied could operate only one "asphalt plant" on its Hillside property and further stated:

"That the plant facilities, exclusive of office buildings, office accommodations or roadways, be located not less than four hundred (400) feet south of the southerly line of the Congress Street Expressway (now known as Eisenhower Expressway ***.

That there shall be no extension, addition or new construction of plant facilities and structures, exclusive of office buildings, office accommodations or roadways, beyond the outer perimeter of the land area within which such facilities and structures are located on the date of this order." The Consent Decree lastly provided that "this suit is hereby dismissed with prejudice and without costs as to either party, except that the Court shall retain jurisdiction over the parties hereto for the sole purpose of enforcing compliance with the terms of this Consent Decree."

In July 1998, the Village sought a rule to show cause against Allied, alleging that Allied was in violation of the Consent Decree by virtue of its operating a "crushing plant," used to process and recycle the discarded asphalt, within the prohibited 400 feet south of the Eisenhower Expressway. The Village also alleged that Allied stockpiled discarded asphalt in excess of the 26-feet limit, also in violation of the Consent Decree.

Responding, Allied agreed that its crushing plant was located within 400 feet of the southerly line of the Eisenhower Expressway, but claimed that "the equipment utilized for the crushing of asphalt within four (400) hundred feet south of the southerly line of the Eisenhower expressway is mobile equipment on wheels and thus does not constitute the construction of any structure or other plant facilities upon its property."

An evidentiary hearing was conducted to determine whether Allied was in violation of the Consent Decree. At the hearing, the circuit court heard evidence from both Village officials and Allied employees as to nature of the crushing plant, and viewed a videotape of the crushing plant in operation.*fn2

The evidence presented at the hearing established that the crushing plant is separate from the actual asphalt plant where the new asphalt is manufactured. The crushing plant's purpose is to recycle the discarded asphalt into reprocessed asphalt, which is used for roadway base as a substitute for crushed stone; a small portion of the recycled asphalt is also mixed with virgin materials for use in approved grades of recycle mixes.

The crushing plant is described by its manufacturer as a "Portable Crushing & Screening Plant," and weighs 107,000 pounds, is approximately 64 feet long, 14 feet high and 16 feet wide. It has the capacity to crush approximately 150 to 300 tons of asphalt per hour. It contains an impact crusher, a feed hopper, a vibrating feeder, screens and numerous conveyors. It consists of multiple, separate sections which extend out from its center at right angles. It is mounted upon a large portable platform with twelve large tires and it is accessible by a ladder and staircase. Its platform has hydraulic loading and leveling jacks. It is not one entire piece of machinery, but is instead comprised of several different components used together.

The crushing plant contains an operator platform with a remote control panel to control the operations of the plant. It is powered by electricity, either hard-wired into existing high voltage power lines or from a diesel generator housed inside a nearby trailer. Although the crushing plant is mounted on a wheeled platform, it is not self-propelled; it can be moved, however, by semi-tractor truck. If moved on a roadway, the crushing plant requires a special trailer and an overweight permit. Prior to moving, certain conveyors and component parts of the crushing plant must be removed ...


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