WALTER PAUL, LINETTE DeHAVEN, and CURTIS DeHAVEN, Plaintiffs-Appellants,
THE COUNTY OF OGLE, MIKE STUKENBERG, COLLEEN M. STUKENBERG, and STKE, LLC, Defendants-Appellees.
from the Circuit Court of Ogle County. No. 16-MR-41 Honorable
John C. Redington, Judge, Presiding.
JUSTICE SCHOSTOK delivered the judgment of the court, with
opinion. Justices Zenoff and Burke concurred in the judgment
1 Plaintiffs-Walter Paul, Linette DeHaven, and Curtis
DeHaven-appeal the trial court's order dismissing their
amended complaint against defendants-the County of Ogle
(county), Mike Stukenberg, Colleen M. Stukenberg, and STKE,
LLC. Plaintiffs contend that the trial court erroneously held
that they lacked standing to challenge the county's
granting of a special-use permit on nearby property and that
they did not allege a facial challenge, as required, to the
ordinance approving the special use. We reverse and remand.
2 Plaintiffs' amended complaint alleged the following.
The county had granted a special-use permit to operate a
"Motor Carrier Facility" to store garbage trucks
and dumpsters on property owned by the Stukenbergs and STKE,
LLC. The property was located in an AG-1 agricultural zoning
district. It was surrounded by private property containing
unimproved farmland and rural home sites, farm buildings, and
single-family homes. The surrounding property was generally
being used consistently with the AG-1 zoning.
3 Paul owned property adjacent to the Stukenberg property,
and the DeHavens owned property approximately 1250 feet away.
Plaintiffs alleged that the proposed use would be
unconstitutional as applied to their properties pursuant to
the factors enumerated in La Salle National Bank of
Chicago v. County of Cook, 12 Ill.2d 40 (1957), and
Sinclair Pipe Line Co. v. Village of Richton Park,
19 Ill.2d 370 (1960). The complaint alleged that each of the
La Salle/Sinclair factors militated against
granting the proposed use.
4 Specifically, plaintiffs alleged that their properties
would be devalued by the proposed use. Dumpsters would be
stored near Paul's property. A staff report from the
county planning and zoning department showed that
approximately 30% of the Stukenbergs' property drained
poorly and flooded frequently. Any runoff from dumpsters and
garbage trucks would drain to the low-lying areas immediately
adjacent to Paul's property. "All further
drainage" from the Stukenbergs' property would drain
across the Paul property and there was a potential for
groundwater contamination. There would be increased noise and
odors, as well as increased traffic.
5 The complaint further alleged that the proposed use did not
promote the health, safety, or general welfare of the public.
Moreover, the Stukenbergs' property was not suitable for
the proposed use, as it was zoned AG-1, included a house, and
was frequently flooded. According to the staff report, the
property consisted of " 'prime farm land.'
6 The complaint alleged that the property had not been vacant
as zoned, having been purchased in 2016. It also alleged that
there was no community need for the proposed use and that the
use was inconsistent with the comprehensive plans of both the
county and the Village of Forreston. Accordingly, count I sought
a declaratory judgment that the ordinance approving the
special use was unconstitutional.
7 Count II alleged that the county violated its own zoning
ordinance in approving the special use. Plaintiffs alleged
that a "Motor Carrier Facility, " as defined by the
county's zoning ordinance, allowed for the storage of
trucks or buses but did not allow for the storage of
dumpsters. Further, the ordinance provided that vehicle
maintenance be conducted only on vehicles owned and operated
by the owner of the property, whereas the vehicles to be
stored on the property here were owned by another entity and
would need to be serviced if they did not run properly. Count
III sought to enjoin defendants from developing the site
pursuant to the special-use permit.
8 Defendants moved to dismiss (735 ILCS 5/2-615 (West 2016)),
arguing that Napleton v. Village of Hinsdale, 229
Ill.2d 296 (2008), required plaintiffs to mount a facial
attack on the special-use ordinance, which they had failed to
do and which, in any event, they lacked standing to do. The
trial court agreed and dismissed the complaint with
prejudice. Plaintiffs timely appeal.
9 Plaintiffs first contend that the trial court erred in
concluding that they lack standing. Standing requires some
injury to a legally cognizable interest. Village of
Chatham v. County of Sangamon, 216 Ill.2d 402, 419
(2005). The claimed injury, whether actual or threatened,
must be distinct and palpable, fairly traceable to the
defendant's actions, and substantially likely to be
prevented or redressed by granting the relief requested.
Id. at 419-20.
10 We note that the cases are unclear as to what, if
anything, a plaintiff must plead to establish standing in a
case such as this one. Plaintiffs invoke the general rule
that lack of standing is an affirmative defense that may be
raised in a motion pursuant to section 2-619(a)(9) of the
Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2016)).
Winnebago County Citizens for Controlled Growth v. County
of Winnebago, 383 Ill.App.3d 735, 739 (2008). Generally,
a plaintiff need not allege facts to establish his or her
standing; rather, it is the defendant's burden to plead
and prove a lack of standing. Id.
11 However, defendants rely on Garner v. County of Du
Page, 8 Ill.2d 155 (1956), where the court stated that
"for a party to have standing in a court of equity to
complain about the use of another's property, he has the
burden of proving that he has suffered a special damage by
reason of such use which differs from that suffered by the
general public." Id. at 158-59. In that case,
the complaint was not dismissed pretrial but, after trial,
the court entered judgment for the defendant. The supreme
court affirmed, holding that the plaintiffs, who lived
1½ and 3 miles from the proposed development,
"failed to prove damage which is different from that
suffered by the public generally and therefore have no
standing to maintain the action." Id. at 159.
Defendants also cite Treadway v. City of Rockford,
28 Ill.2d 370 (1963). There, the court held that the
plaintiffs proved a "sufficient special interest and
damage to justify maintenance of this action, " in that
their property would be devalued by the construction of a
proposed shopping center. Id. at 376.
12 In People ex rel. Klaeren v. Village of Lisle,
202 Ill.2d 164, 176 (2002), the court again considered
whether neighboring landowners had standing to complain about
a proposed development. The court cited Yusuf v. Village
of Villa Park, 120 Ill.App.3d 533, 538 (1983), which
held that allegations of a diminution in value and a loss of
quiet enjoyment of property, caused by additional traffic and
noise, were enough to confer standing on adjoining property
owners. Klaeren, 202 Ill.2d at 176. The
Klaeren court found that identical allegations in
the case before it, as well as testimony from a preliminary
injunction hearing, were sufficient to convey standing.
13 It is thus unclear whether a plaintiff challenging the
granting of a special-use permit for a neighboring property
has a duty to plead special damages. We need not resolve the
issue here, however, as plaintiffs have clearly done so.
14 It is true that the complaint does not contain the magic
words that plaintiffs will suffer damages different from
those sustained by the general public, but defendants cite no
case holding that such language is required. Indeed, the
allegations in the complaint are very similar to those found
to be sufficient to confer standing in cases such as
Klaeren. See also Whipple v. Village of North
Utica, 2017 IL App (3d) 150547. Plaintiffs allege that
Paul's property is immediately adjacent to the subject
tract and that the DeHavens' property is within 1250 feet
of it. Based on proximity alone, common sense ...