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Thornber v. Village of North Barrington

April 20, 2001

TERRY THORNBER, RUTH THORNBER, JACKIE LEBLANC, DONALD KNEPP, SUZANNE LAFOLLETTE, PHIL KOUCHOUKOS, LAURA WETHEIMER, MEL PROBST, GREG BLUS, DONALD P. DARGE, ELIZABETH MCKEE, HAROLD REINHART, MICHAEL GALASINSKI, CHRISTINE GALASINSKI, EVELYN RICHER, LARRY DEBOER, RITA DEBOER, DAVID N. LOVING, ASTRID LOVING, AND JEAN SCELZO, PLAINTIFFS-APPELLANTS,
v.
THE VILLAGE OF NORTH BARRINGTON; AMERITECH MOBILE COMMUNICATIONS, N/K/A CHICAGO SMSA LIMITED PARTNERSHIP; SPRINTCOM, INC.; AT & T WIRELESS P.C.S., INC., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Lake County. No. 97-CH-800 Honorable Wallace B. Dunn, Judge, Presiding

The opinion of the court was delivered by: Justice McLAREN

Plaintiffs, Terry Thornber and Ruth Thornber and other owners of residential property located in North Barrington, Illinois, filed a complaint against the Village of North Barrington; Ameritech Mobile Communications, n/k/a/ Chicago SMSA Limited Partnership; SprintCom, Inc.; and AT & T Wireless P.C.S., Inc., seeking invalidation of an amendment to North Barrington's zoning ordinance that allowed construction of a cellular telecommunications monopole at the village hall. Plaintiffs challenged the validity of the ordinance on the grounds of improper zoning, spot zoning, and contract zoning. The matter proceeded to a bench trial. At the close of plaintiffs' case, the trial court entered a directed finding in favor of defendants on the contract zoning claim and dismissed as moot the portion of the complaint seeking to enjoin construction of the cell tower at the village hall, since it had already been completed. At the close of all the evidence, the trial court entered judgment in favor of defendants on the counts of plaintiffs' complaint for improper zoning and spot zoning. On appeal, plaintiffs contend that the directed finding on the count for contract zoning and the judgments in favor of defendants on the counts for unlawful zoning and spot zoning are against the manifest weight of the evidence. For the following reasons, we affirm.

The Village of North Barrington is an Illinois municipal corporation. It is a small community comprising five square miles. It is composed of approximately 2,500 residents living in 1,000 households. Plaintiffs are a group of homeowners who reside in the vicinity of the North Barrington village hall. They organized an entity known as "NOPE," an acronym for "Neighbors Opposed to Pole Encroachment." Plaintiffs live within one-half mile of the village hall and purchased their homes prior to March 1998, when a cellular facility was erected on the village hall property.

The zoning ordinance at issue is known as the Village of North Barrington Ordinance No. 724. Village of North Barrington, Ill., Zoning Ordinance Amendment, Ordinance No. 724 (eff. July 21, 1997). The zoning ordinances for the village established three residential zoning districts, R-1, R-2, and R-3, categorized by the size of the property; a golf course district; an office and research district; and a business district. In 1997, the official zoning map of the village identified the location of various zoning districts within the village boundaries. Although the village provided for zoning in the above categories, the property within the village had no zoning districts for business, commercial, or industrial uses. The entire village was zoned for residential uses.

In 1991, the village amended its zoning ordinance to permit, by special use, the construction and operation of a municipal government facility on property owned by the village and zoned for residential uses. The village hall was constructed in 1992 on a 10-acre parcel pursuant to the special use ordinance. The village hall property encompasses a municipal government building where employees are situated and public meetings are conducted, a 50-car asphalt parking lot, and parking lot pole lighting. Although zoned residential R-1, the village hall property has not been used for residential purposes since the construction of the municipal government facility in 1992.

Defendants include the Village of North Barrington and providers of cellular communication services, Ameritech, SprintCom, and AT & T Wireless. Cellular and personal wireless communications are provided to subscribers through an integrated network of cell facilities. The cell facility includes an antenna mounted on a free-standing monopole or similar structure of sufficient height. Electronic equipment associated with the tower is maintained in a shed.

In 1993, defendant Ameritech identified service gaps in its cellular network and sought to erect a wireless facility at the village hall site. At the time, the village's zoning ordinances did not contain any provisions specifically addressing the placement or construction of cell facilities within the village. It did address the use of antennae, which were permitted uses in all zoning districts but contained a height restriction. Thus, Ameritech sought a height variance for the antenna required of its planned cellular facility. The village zoning board of appeals held a public hearing on September 14, 1993, and voted to deny Ameritech's request. As a result, Ameritech withdrew its application.

Instead, Ameritech constructed a cellular facility on residentially zoned property on the border of North Barrington in unincorporated Lake County. At the time of the construction, there were no ordinances prohibiting or regulating the construction of cell facilities in Lake County. Village officials considered the site of the Ameritech tower to be a major gateway to the village that was readily visible to many residents. Since the Village of North Barrington was unable to prevent the construction of the Ameritech tower, it passed Resolution No. 980, disapproving of the cell facility at that location.

The Lake County facility did not solve Ameritech's coverage problems in North Barrington. On April 11, 1997, Ameritech's outside counsel corresponded with the village attorney, expressing a renewed desire to locate a cell facility on village property. The village officials met to discuss Ameritech's renewed request and the village's lack of any ordinance specifically governing cell facilities. The village determined that there was a need to address the future placement and construction of cell facilities within the village boundaries by way of amendments to its zoning ordinances.

Under village procedures, the plan commission makes recommendations concerning amendments to zoning ordinances. Those recommendations are then sent to the village board for decision. The plan commission met to discuss a proposed amendment to the zoning code to make cellular facilities a special use in areas zoned residential R-1 and a permitted use on municipal property and to amend the height restrictions on antennae to allow for the cellular facility monopole. After consideration of public comment on the proposed text amendment, the plan commission recommended consultation with experts and consultants before revision of the proposed ordinances. The proposed amendments were rejected by the plan commission.

After consideration of the recommendations of the plan commission, and two meetings with public comment, the village board passed a comprehensive wireless ordinance, known as Ordinance No. 723 (Village of North Barrington, Ill., An Ordinance Amending the Village of North Barrington Municipal Code by Adding Title XII, Telecommunications, Chapter 1 "Personal Wireless Service Facilities," Ordinance No. 723 (eff. July 21, 1997)), and Ordinance No. 724 (Village of North Barrington, Ill., Ordinance Amendment, Ordinance No. 724 (eff. July 21, 1997)). The protection of the roadway vistas on village gateways and minimizing the visibility of future wireless facilities from the greatest number of residents were paramount considerations. Without any regulation, the village trustees believed that cellular providers would continue to locate on village borders as Ameritech had done in 1993. If the towers were located on their own public site, the village would obtain and maintain control over the construction of cellular towers. Further, the location of the tower on village property would enable the collection of revenue to be used for public benefit.

Ordinance No. 723 contains detailed and specific regulations on height, setbacks, screening, and other aesthetic factors, as well as safety regulations for cellular facilities. It also mandates the co-location of cellular facilities, to prevent against the construction of numerous monopoles by various cellular providers. The village board also passed Ordinance No. 724, a text amendment, that allowed cellular communication facilities to be a permitted use on the village hall property and a special use on all property zoned R-1, provided that the cell facility comply with village Ordinance No. 723.

On July 28, 1997, the village approved Ameritech's proposal for a cellular facility on village hall property, and negotiations for the terms of a lease ensued. On August 11, 1997, the village board met and approved a lease with Ameritech for the cellular tower on village property. However, the lease was not executed until November 1997.

Ameritech's cellular monopole was constructed on village hall property and became operational in 1998. Later, defendants Sprint and AT & T obtained permission to ...


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