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Paul v. County of Ogle

Court of Appeals of Illinois, Second District

April 20, 2018

WALTER PAUL, LINETTE DeHAVEN, and CURTIS DeHAVEN, Plaintiffs-Appellants,
v.
THE COUNTY OF OGLE, MIKE STUKENBERG, COLLEEN M. STUKENBERG, and STKE, LLC, Defendants-Appellees.

          Appeal 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 and opinion.

          OPINION

          SCHOSTOK JUSTICE

         ¶ 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.[1] 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. Id.

         ¶ 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 ...


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