MARY WHIPPLE, MONTY WHIPPLE, DONNA COLEMAN, PHYLLIS COLEMAN, MORGAN COLEMAN, JOE HARMON, DEE HARMON, RITA WHIPPLE, MALCOLM WHIPPLE, MARK WOLD, SUE WOLD, FRED BLUE, and MONICA BLUE, Plaintiffs-Appellants,
THE VILLAGE OF NORTH UTICA, La Salle County, Illinois, and ARAMONI LLC, Defendants-Appellees.
from the Circuit Court of the 13th Judicial Circuit, La Salle
County, Illinois. Circuit No. 14-MR-62 Honorable Cornelius J.
Hollerich, Judge, Presiding.
JUSTICE LYTTON delivered the judgment of the court, with
opinion. Presiding Justice Holdridge concurred in the
judgment and opinion. Justice McDade concurred in part and
dissented in part, with opinion.
1 Plaintiffs, 13 owners and possessors of land in La Salle
County, filed a three-count complaint against defendants, the
Village of North Utica and Aramoni LLC, seeking to invalidate
several village ordinances that allowed Aramoni to operate a
silica sand mine in Waltham Township and requesting an
injunction based on prospective nuisance. The trial court
granted defendants' motion to dismiss plaintiffs'
second amended complaint under section 2-615 of the Code of
Civil Procedure (Code) (735 ILCS 5/2-615 (West 2014)), and
plaintiffs' appeal. We reverse the dismissal of counts I
and III and remand for further proceedings.
2 I. BACKGROUND
3 Aramoni is a sand mining company that owns approximately
497 acres north of Interstate 80 in Waltham Township near
Utica, Illinois. Aramoni's property is comprised of
tracts A, B, C, D and E. Plaintiffs own, reside on, and/or
operate farmland that is adjacent to or within ½ mile
of the company's mining property.
4 In 2009, North Utica annexed tracts A and B into the
village pursuant to an annexation agreement between Aramoni
and North Utica. Tracts A and B contain 375 acres of
Aramoni's property. Both tracts were previously zoned A-1
Agricultural and retained that designation under the
5 In August of 2013, Aramoni petitioned the village to amend
the 2009 annexation agreement to include tracts C, D, and E,
which the county had also zoned A-1 Agricultural. At the time
Aramoni petitioned the village, a moratorium on new sand
mines and high capacity wells had been imposed in La Salle
County, which prevented Aramoni from constructing a silica
sand mine on property outside the village limits. The
proposed amendments to the 2009 annexation agreement stated
that future use of all five tracts of land would be silica
sand mining. The petition was contingent upon North Utica
granting (1) A-1 Agricultural zoning to tracts C, D, and E,
and (2) a special use permit allowing Aramoni to mine silica
sand from the entire 497-acre parcel. Under North Utica
zoning ordinances, mining is a permissible special use in A-1
6 North Utica Planning Commission and North Utica Board of
Trustees held joint hearings on the petitions. Plaintiffs and
other members of the community opposed the proposed
amendments and the special use permit. They testified that
the proposed mine threatened their health and safety,
jeopardized the productivity of their farmland, and
interfered with the use and enjoyment of their property. The
planning commission voted to recommend that the village deny
the proposed annexation agreement and the special use permit.
7 One week after the planning commission recommended denying
the petition, the board of trustees voted to approve
Aramoni's application for annexation and rezoning and its
special use permit, with the proposed amendments. The
amendments as approved permitted Aramoni to (1) develop and
operate a silica sand mine on tracts A-E, (2) operate the
mine continuously seven days a week, and (3) blast with
explosives during daylight hours Monday through Friday and on
Saturdays under "certain meteorological
conditions." The amendments also prohibited trucks that
were leaving the mine from using North Utica roads except for
8 In addition to the permitted activities, the agreement
stated that the operation of a mine under the special use
ordinance "will not constitute a nuisance" under
the village nuisance ordinance. The agreement provided that
Aramoni would comply with "appropriate laws, rules and
regulations of all local, state and national governmental
agencies, " and stated that Aramoni agreed not to
"cause negative impact upon any existing farm drainage
tile and to repair any disruption caused by Developer."
A provision of the agreement also provided that Aramoni would
offer to enter into a well protection agreement with those
persons owning property within ½ mile of the mine.
9 In connection with the agreement, North Utica adopted six
ordinances allowing Aramoni to operate the property as a
silica sand mine. In exchange, Aramoni agreed to pay a fee of
$100, 000 to the village and eight additional quarterly
payments of $50, 000, as well as a fee of $0.20 per ton of
sand extracted from the proposed mine.
10 Plaintiffs filed a complaint against the Village of North
Utica and Aramoni seeking administrative review of the
annexation agreements and claiming that the related permits
for rezoning, variance, and special use violated local
ordinances and Illinois law. Defendants moved to dismiss, and
the trial court granted the motion on the basis that
administrative review was not permissible for a zoning action
taken by a legislative body.
11 Plaintiffs then filed an amended complaint for declaratory
judgment and injunctive relief. The amended complaint
contained two counts alleging that North Utica violated
plaintiffs' substantive and procedural due process rights
and that, by adopting the mining ordinances, the village
unlawfully surrendered its police powers to regulate any
nuisance generated by the mine. Defendant again moved to
dismiss under section 2-615 of the Code, claiming that
plaintiffs failed to state a cause of action, and under
section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9)
(2014)), arguing that plaintiffs lacked standing to bring a
zoning action against them.
12 The trial court denied defendants' section 2-619
motion, holding that plaintiffs had standing to bring a claim
for violation of their substantive due process rights based
on their legally cognizable interest in property adjacent to
or nearby the proposed mine. However, the court granted
defendants' motion to dismiss the complaint pursuant to
section 2-615 of the Code, finding that plaintiffs'
allegations were insufficient to sustain a cause of action
for constitutional relief. The court dismissed
plaintiffs' complaint without prejudice, noting that the
owners and residents had not raised substantive due process
issues in their previous pleadings.
13 In response to the court's order, plaintiffs filed a
second amended complaint, reasserting substantive due process
violations and including two new claims: equal protection and
prospective nuisance. Count I alleged that North Utica's
adoption of the amended agreement and ordinances and approval
of the special use permit violated plaintiffs'
substantive due process rights. Count II claimed that the
adoption of the ordinances violated plaintiffs' equal
protection rights. Count III alleged prospective nuisance
based on the planned construction and operation of the
proposed silica sand mine.
14 In addition to the general allegations of harm contained
in the first amended complaint, the second amended complaint
contained detailed factual allegations that the sand mine
would harm plaintiffs' property and alleged that the mine
constituted a prospective nuisance in relation to nearby
residents. Plaintiffs set forth specific harms that would
likely occur if Aramoni was allowed to operate its sand mine
in Waltham Township, including (1) harm to plaintiffs by
exposure to airborne silica sand, (2) harm to the level of
plaintiffs' wells and the quality of their well water,
(3) harm due to flooding of plaintiffs' properties, (4)
damage to plaintiffs' farm tiles, (5) extreme noise
caused by blasting during extended hours, (6) harm related to
increased truck traffic, (7) harm caused by lighting at the
sand mine, and (8) diminution of plaintiffs' property
15 Defendants filed a motion to dismiss, seeking dismissal
based on lack of standing under section 2-619 of the Code and
failure to state a cause of action under section 2-615 of the
Code. The trial court found that plaintiffs had standing to
bring their complaint, but granted defendants' motion to
dismiss under section 2-615, finding that plaintiffs failed
to state a cause of ...