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Barbara Ruisard, Jeff Reber, Jennifer and Bill Dillard, Karen . and Forrest Dean, Rebecca and v. the Village of Glen Ellyn

November 29, 2010

BARBARA RUISARD, JEFF REBER, JENNIFER AND BILL DILLARD, KAREN . AND FORREST DEAN, REBECCA AND JOHN DUMERER, MARIE AND JIM NEWMAN, KRISTIN AND JAMES RISNER, AND SUSAN AND JEROME ZYBKO, PLAINTIFFS-APPELLANTS,
v.
THE VILLAGE OF GLEN ELLYN, T-MOBILE CENTRAL LLC, AND T-MOBILE USA, INC., , DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Du Page County No. 08--CH--2550 Honorable Bonnie M. Wheaton Judge, Presiding.

JUSTICE BOWMAN delivered the opinion of the court: Plaintiffs, Barbara Ruisard, Jeff Reber, Jennifer and Bill Dillard, Karen and Forrest Dean, Rebecca and John Dumerer, Marie and Jim Newman, Kristin and James Risner, and Susan and Jerome Zybko, are residents of Glen Ellyn who oppose the addition of cell phone antennae to the Glen Ellyn water tower. Plaintiffs' pleadings, which culminated in a second amended complaint, relied on two ordinances passed by the Village of Glen Ellyn (Village). Defendants, the Village, T-Mobile Central LLC, and T-Mobile USA, Inc. (T-Mobile), moved to dismiss plaintiffs' second amended complaint. The trial court granted defendants' motion to dismiss, and plaintiffs appeal. We affirm in part, reverse in part, and remand the cause.

I. BACKGROUND

On February 11, 1991, the Village passed ordinance No. 3810, which granted a special-use permit for the construction of a water tower on certain property owned by the Village. Glen Ellyn Ordinance No. 3810 (eff. February 11, 1991). Ordinance No. 3810 provides that this special-use permit is "subject to the following conditions," including the condition that "[a]ntennas on the new tower are to be kept at a minimum."

Sixteen years later, in 2007, there were 13 antennae on the water tower. That year, T-Mobile applied for a special-use permit to install nine additional antennae on the water tower. On August 27, 2007, the Village passed ordinance No. 5606, entitled an "Ordinance Granting T-Mobile, Inc. approval of a Special Use Permit to allow the installation of a Cellular Antenna Structure On the Village of Glen Ellyn Water Tower." Glen Ellyn Ordinance No. 5606 (eff. August 27, 2007). Ordinance No. 5606 includes "findings of fact" that: "1.) the cellular telephone reception of a substantial number of Glen Ellyn residents and visitors to the community will be greatly improved by the addition of an antenna at this location which will enhance the public health and safety; 2.) technological changes have allowed the size of the cellular telephone antenna to be reduced in size; 3.) the location of a total of only three cellular telephone companies on the water tower along with some essential public uses has kept such placement of antennae on the water tower at a minimum and; 4.) the presence of federal law which limits the discretion of the Village Board regarding alternate placement of antennae on private property could result in less desirable placement if the Village-owned site was not, in this case, available." Glen Ellyn Ordinance No. 5606 (eff. August 27, 2007). Ordinance No. 5606 allows a "7-foot 5-inch cellular antenna structure*fn1 to be placed on the top of the 125-foot municipal water tower" for a total height of "132 feet 5 inches." Glen Ellyn Ordinance No. 5606 (eff. August 27, 2007).

Nearly one year after the passage of ordinance No. 5606, on July 7, 2008, plaintiffs filed their complaint for injunctive and other relief as well as a motion for a temporary restraining order to prevent the installation of T-Mobile's structure and antennae. Shortly thereafter, plaintiffs filed their first amended complaint on July 24, 2008. The Village and T-Mobile filed individual motions to dismiss under sections 2--615 and 2--619 of the Code of Civil Procedure (Code) (735 ILCS 5/2--615, 2--619 (West 2008)), seeking dismissal under several different theories.

A. Trial Court Order

On April 1, 2009, the trial court issued a written memorandum opinion in response to defendants' motions to dismiss plaintiffs' first amended complaint. According to the court, counts I, II, and III, "stripped of irrelevant rhetoric," alleged that the Village had violated ordinance No. 3810 by failing to keep the number of antennae on the water tower to a minimum. Counts IV, V, and VI, "similarly stripped of irrelevant rhetoric," alleged that the Village had violated ordinance No. 5606 by allowing T-Mobile to construct its antennae beyond the height restriction.

The court began by discussing what plaintiffs needed to allege in their complaint to establish standing. Counts I and IV were premised on section 11--13--15 of the Illinois Municipal Code (Municipal Code), which states as follows:

"In case any building or structure, including fixtures, is constructed, reconstructed, altered, repaired, converted, or maintained, or any building or structure, including fixtures, or land, is used in violation of an ordinance *** any owner or tenant of real property, within 1200 feet in any direction of the property on which the building or structure in question is located who shows that his property or person will be substantially affected by the alleged violation, in addition to other remedies, may institute any appropriate action or proceeding (1) to prevent the unlawful construction, reconstruction, alteration, repair, conversion, maintenance, or use, (2) to prevent the occupancy of the building, structure, or land, (3) to prevent any illegal act, conduct, business, or use in or about the premises, or (4) to restrain, correct, or abate the violation. ***

An owner or tenant need not prove any specific, special or unique damages to himself or his property or any adverse effect upon his property from the alleged violation in order to maintain a suit under the foregoing provisions." 65 ILCS 5/11--13--15 (West 2008).

The court noted that in order to have standing to challenge either ordinance No. 3810 or ordinance No. 5606 under section 11--13--15 of the Municipal Code, plaintiffs needed to allege that they were owners or tenants within 1,200 feet of the water tower. (It is undisputed that plaintiffs are all residents within 1,200 feet of the water tower.)

Counts II and V were premised on section 10--10--18(B) of the Glen Ellyn Zoning Code (Zoning Code), which states:

"In case any building or structure is erected, constructed, reconstructed, altered, repaired, converted, or maintained, or any building, structure or land is used in violation of this Zoning Code, the proper authorities of the Village or any person whose property value or use is or may be affected by such violation may, in addition to other remedies, institute an appropriate action or proceeding in equity to prevent such unlawful erection, construction, reconstruction, alteration, repair, conversion, maintenance or use, to restrain, correct or abate such violation, to prevent the occupancy of said building, structure or land or to prevent any illegal act, conduct, business or use in or about the premises ***." Glen Ellyn Zoning Code §10--10--18(B) (amended eff. June 1, 1989).

The court noted that to establish standing under the Zoning Code, plaintiffs needed to allege that they were persons "whose property value or use is or may be affected by such violation."

Finally, counts III and VI sought a declaratory judgment that T-Mobile acquired no rights to install the structure and antennae. According to the court, standing under those counts required plaintiffs to allege facts "constituting an actual case or controversy."

With respect to counts I, II, and III based on ordinance No. 3810's "at a minimum" requirement, the court recognized that that phrase was susceptible to "any number of interpretations." The court reasoned that it should give deference to the Village's own interpretation, especially given the changes that had taken place over the 16-year period between the adoption of ordinance No. 3810 and ordinance No. 5606. Nevertheless, the court determined that it need not define the phrase "at a minimum," because plaintiffs had "simply failed to allege how they are or will be damaged by the existence of an additional 9 antennae in addition to the 13 antennae already atop the water tower." According to the court, plaintiffs' allegations were "vague and amorphous" and related "to the existence of the water tower and the cellular telephone antennae in general." To establish their standing to enforce ordinance No. 3810, the court stated, plaintiffs needed to "plead facts to establish that they [would] be damaged by the specific installation of additional antenna[e]." Emphasis in original. Because plaintiffs had failed to allege "facts to support their standing under either of the State or Village statutes," they were likewise unable to obtain a declaratory judgment. In other words, by plaintiffs' failure to allege facts to support their standing, the court concluded that "there [was] no case or controversy."

With respect to ordinance No. 5606, the court noted that under section 11--13--25 of the Municipal Code, a challenge to the ordinance itself must be brought within 90 days of its enactment:

"(a) Any decision by the corporate authorities of any municipality, home rule or non-home rule, in regard to any petition or application for a special use, variance, rezoning, or other amendment to a zoning ordinance shall be subject to de novo judicial review as a legislative decision, regardless of whether the process in relation thereto is considered administrative for other purposes. Any action seeking the judicial review of such a decision shall be commenced not later than 90 days after the date of the decision." 65 ILCS 5/11--13--25 (West 2008).

The court reasoned that under section 11--13--25, plaintiffs' case could not be "centered on the propriety of the ordinance." However, the "verbiage" of plaintiffs' first amended complaint appeared to "challenge the entirety" of ordinance No. 5606 itself. This was not allowed, because section 11--13--25 barred plaintiffs from seeking de novo review of ordinance No. 5606 beyond the 90-day limitations period. Furthermore, plaintiffs' argument that ordinance No. 5606 could still be attacked based on T-Mobile's lack of compliance with the ordinance's terms and conditions was, according to the court, "interesting but misplaced." While plaintiffs could seek enforcement of ordinance No. 5606, they could not collaterally attack it after the expiration of the 90-day period. Plaintiffs' arguments that their properties were or would be devalued by the existence of the antennae on the water tower were "germane only to the entire Ordinance, not to the issue of the antennae extending above the permitted height per Ordinance 5606." The court went on to say that although plaintiffs alleged that their properties were or would be adversely affected by the adoption of ordinance No. 5606, they "failed to allege how they [were or would be] disadvantaged by the violation of that ordinance, i.e. the exceeding of the height limitation contained in the ordinance." (Emphasis in original.) Because their challenge to the ordinance itself was time-barred, plaintiffs needed to allege how they were negatively impacted by the "violation, and this they have failed to do." (Emphasis in original.) The court thus determined that plaintiffs had failed to plead facts that would establish their "standing to petition for enforcement of Ordinance 5606." As a result, there was no actual case or controversy, and counts IV, V, and VI were stricken for failure to state a cause of action.

After dismissing plaintiffs' first amended complaint in its entirety, the trial court granted plaintiffs leave to file a second amended complaint. Plaintiffs filed their second amended complaint for injunctive and other relief on May 8, 2009.

B. Second Amended Complaint

We begin by summarizing the lengthy "Factual Background" of plaintiffs' second amended complaint. The water tower was constructed in 1992 pursuant to ordinance No. 3810. In 1994, Ameritech was granted a special-use permit to construct two, three-foot-high cellular antennae on top of the water tower. (Verizon subsequently purchased Ameritech's antennae.) At that time, the only antennae on top of the water tower were two DuComm safety antennae dedicated to the Village's police and fire departments. In 1999, AT&T was granted a special-use permit to install 9 antennae directly below the ball of the water tower, bringing the total number of antennae to 13. T-Mobile was then granted a special-use permit in 2007 to install a structure and nine antennae on top of the water tower (ordinance No. 5606). Prior to the Village's decision to grant this special-use permit, plaintiffs opposed the installation of T-Mobile's antennae, arguing that adding nine antennae could create dangerous levels of radio frequency (RF) emissions; that T-Mobile's antennae could interfere with the transmissions of DuComm's two safety antennae; that such a "highly visible, galactic structure" sitting atop the water tower would diminish property values; and that ordinance No. 3810 prohibited the Village from "nearly doubling" the number of antennae on the water tower. Despite these objections, the Village granted T-Mobile a special-use permit to install the structure and antennae.

Plaintiffs alleged in their second amended complaint that they had standing to enforce ordinance Nos. 3810 and 5606. As they argued prior to the enactment of ordinance No. 5606, plaintiffs alleged that the installation of T-Mobile's antennae violated ordinance No. 3810 because defendants were not keeping antennae "at a minimum." In addition, plaintiffs alleged that defendants had violated ordinance No. 5606 in four ways: (1) by exceeding the antennae height restriction; (2) by the unauthorized mounting of Verizon antennae on the T-Mobile structure; (3) by constructing large, high voltage equipment on the water tower lot but neither on nor in the water tower; and (4) by creating potentially dangerous levels of RF emissions.

First, plaintiffs alleged that prior to the installation of T-Mobile's structure and nine antennae, the only antennae that could be seen from all views were the two DuComm safety antennae. However, the original DuComm antennae were much lower and narrower than now. The DuComm antennae had been relocated onto T-Mobile's structure and exceeded the 140-foot height restriction by approximately 7 feet. (Ordinance No. 5606 permits T-Mobile to relocate the DuComm antennae if necessary to ensure that DuComm maintains an unobstructed view. It states that "[i]n the event that the DuComm antennas exceed their current height of 140 feet, such relocation will require approval of a Special Use Permit for such purpose." Glen Ellyn Ordinance No. 5606 (eff. August 27, 2007).) The Village conceded that T-Mobile would have to seek a new special-use permit because it could not bring the DuComm antennae into compliance with the 140-foot height restriction in ordinance No. 5606. T-Mobile had not applied for such a special-use permit.

Second, plaintiffs alleged that prior to the installation of T-Mobile's structure and antennae, the two Verizon antennae were barely visible due to their location on the water tower. However, T-Mobile had relocated Verizon's antennae onto its structure, making them "highly visible from all views" and making them exceed the 132.5-foot-height restriction by 2.5 feet. According to plaintiffs, no language in ordinance No. 5606 permitted T-Mobile to relocate Verizon's two antennae. Also, ordinance No. 5606 provides that the antennae on the structure (other than the DuComm antennae) may not exceed a height of 132.5 feet. While plaintiffs had previously alleged that T-Mobile's own antennae exceeded the 132.5-foot-height restriction because at least one of the antennae was 133.14 feet high, plaintiffs conceded that during the pendency of the instant lawsuit, defendants had succeeded in lowering T-Mobile's antennae below the 132.5-foot-height restriction. Still, defendants "did not and could not lower the DuComm or Verizon" antennae "within their respective 140- and 132.5[-foot]-height restrictions." (As for the AT&T antennae, plaintiffs conceded that because of their location on the stem of the water tower, they were not nearly as visible as the T-Mobile antennae.)

Third, plaintiffs alleged that ordinance No. 5606 requires that "all equipment related to TMobile's operation" of its antennae "be mounted on or contained within" the water tower. However, defendants had installed "dangerous high voltage equipment" on the water tower lot but "neither mounted on nor contained within" the water tower. Plaintiffs relied on T-Mobile's "Narrative Statement," which was incorporated into ordinance No. 5606, in which T-Mobile stated that the "establishment, maintenance and operation of this communications facility will be wholly contained in and on the existing municipal water tank." According to plaintiffs, the narrative statement said nothing about locating large, high voltage electrical boxes on the water tower lot.

Fourth, plaintiffs alleged that T-Mobile submitted an RF emissions compliance report as part of its application for a special-use permit. The report concluded that, based on modeling measurements, T-Mobile's antennae did not present any health risks to humans. Within the past month, however, defendants had "permanently affixed a conspicuous, highly visible sign to the outside" of the water tower, which reads "CAUTION Beyond this point: Radio frequency fields at this site may exceed FCC rules for human exposure." Below that, the sign reads "For your safety, obey all posted signs and site guidelines for working in radio frequency environments." In small print, the sign says "[i]n accordance with Federal Communications Commission rules on radio frequency emissions 47 CFR 1.1307(b)." Plaintiffs alleged that by "acknowledging the presence of potentially dangerous levels of radio frequency fields," defendants were violating ordinance No. 5606. Also, plaintiffs alleged that ordinance No. 5606 does not authorize the posting of any signage on the water tower.

Plaintiffs went on to allege, in their factual background, that they were damaged in two ways. First, plaintiffs' property values had decreased by at least 3% to 5% because T-Mobile's structure and antennae were "highly visible, incredibly unsightly, and completely inconsistent" with a residentially zoned neighborhood; they changed the fundamental character of the water tower into a cellular tower; and they interfered with plaintiffs' use and enjoyment of their properties by obstructing views and blocking sight lines. To quantify the "negative impact," plaintiffs attached their own affidavits averring that "the loss to their respective properties ranges anywhere from $11,000 to $54,000." Second, T-Mobile's structure and antennae created the possibility of a health hazard by emitting dangerous levels of RF emissions, which had caused plaintiffs' properties to diminish and had caused plaintiffs to experience "concern, fear, anxiety, or emotional unrest."

As in plaintiffs' first amended complaint, counts I, II, and III of their second amended complaint pertained to ordinance No. 3810, whereas counts IV, V, ...


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