Avery v. GRI Fox Run, LLC

• Decision Date: 15 April 2020
• Docket Number: No. 2-19-0382,2-19-0382
• Citation: 442 Ill.Dec. 582,160 N.E.3d 155,2020 IL App (2d) 190382
• Parties: Brian AVERY and Carolyn Avery, Plaintiffs-Appellants, v. GRI FOX RUN, LLC, and Roundy's Illinois, LLC, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

2020 IL App (2d) 190382
160 N.E.3d 155
442 Ill.Dec. 582

Brian AVERY and Carolyn Avery, Plaintiffs-Appellants,
v.
GRI FOX RUN, LLC, and Roundy's Illinois, LLC, Defendants-Appellees.

No. 2-19-0382

Appellate Court of Illinois, Second District.

Opinion filed April 15, 2020

Michael M. Roth and Ryanne Bush Dent, of Ice Miller LLP, of Lisle, for appellants.

Jason M. Metnick and Monica J. Paine, of Meltzer, Purtill & Stelle LLC, of Chicago, for appellee GRI Fox Run, LLC.

Lorne T. Saeks, of Much Shelist, P.C., of Chicago, for other appellee.

JUSTICE JORGENSEN delivered the judgment of the court, with opinion.

442 Ill.Dec. 586

¶ 1 Plaintiffs, Brian and Carolyn Avery, sued defendants, GRI Fox Run, LLC (Fox Run), the owner of a strip mall, and Roundy's Illinois, LLC (Mariano's), the operator of Mariano's Fresh Market grocery store (Mariano's store). Plaintiffs sought (1) to enjoin, via private enforcement ( 65 ILCS 5/11-13-15 (West 2018) ), alleged violations of the City of Naperville's (City) land-use ordinance and (2) damages for alleged noise, light, and air nuisances arising from the operation of the Mariano's store. The trial court granted defendants' motions to dismiss ( 735 ILCS 5/2-615 (West 2018) ) plaintiffs' second amended complaint, with prejudice. Plaintiffs appeal, arguing that the trial court erred in dismissing their complaint and in denying their oral motion to file a third amended complaint. We reverse and remand.

¶ 2 I. BACKGROUND

¶ 3 On June 13, 2018, plaintiffs sued defendants. In July 2018, after the strip mall was sold, plaintiffs moved for leave to file a first amended complaint, to substitute Fox Run (for Bradford Fox Run, LLC) as a defendant. The trial court granted plaintiffs' motion. On November 16, 2018, the trial court dismissed plaintiffs' first amended complaint (see id. ), without prejudice, finding that the complaint's allegations lacked specificity, were conclusory, and were insufficient for the court to determine if the Moorman doctrine would apply (see Moorman Manufacturing Co. v. National Tank Co. , 91 Ill. 2d 69, 61 Ill.Dec. 746, 435 N.E.2d 443 (1982) ).

¶ 4 On January 14, 2019, plaintiffs filed a second amended complaint in which they alleged that they own a home in a residential neighborhood, at 1367 Hunter Circle in Naperville. The home was built in 1991, Brian purchased it in 1994, and Carolyn started living there in 1998. The home has a fenced-in backyard, along with a deck and an in-ground pool.

¶ 5 Fox Run owns two parcels of property at 1212 South Naper Boulevard in Naperville. The Mariano's store occupies and operates on one of the parcels (Mariano's property). The front of the Mariano's property faces west toward Naper Boulevard, with loading docks behind the building on the east side. The rear of the Mariano's property abuts the rear property line of plaintiffs' property.

¶ 6 When plaintiffs moved into their home, the Mariano's property was occupied by a Dominick's grocery store. At the time, the Dominick's property was zoned

160 N.E.3d 160

442 Ill.Dec. 587

"R1A Low Density Single-Family Residence District Planned Unit Development." Dominick's, plaintiffs alleged, erected a large fence to shield its residential neighbors from its loading-dock activities. It also maintained large conifer trees that shielded the store's operations from the residential neighborhood behind it. A large grassy retention area also buffered the Dominick's building from part of the residential neighborhood behind it, including plaintiffs' property. The Dominick's loading-dock operations and truck deliveries were distant from plaintiffs' property and the volume, frequency, time-of day, or duration of noise did not disturb plaintiffs. Nor did they violate the City's zoning regulations. During the years of the Dominick's operations, the exterior lighting did not shine excessive brightness or glare onto plaintiffs' property. Nor did the noise and odors from the loading-dock operations and truck deliveries interfere with plaintiffs' quiet and peaceful use of their property. In late 2013, Dominick's ceased operations at the Mariano's property.

¶ 7 In August 2014, Mariano's leased the Mariano's property. In April 2015, the property was rezoned as a "B2 Commercial Shopping Center District." Afterward, the building that Dominick's occupied was demolished, and a new building was constructed to house the Mariano's store. Plaintiffs alleged that the Mariano's building's location was substantially different from the Dominick's store's location. The building and the loading dock were farther east and north, so the building was substantially closer to plaintiffs' property. A section of the retention area was excavated and removed, and the area is now paved and serves as an approach and departure area for Mariano's trucks.

¶ 8 Plaintiffs further alleged that the truck-delivery approach and departure area is now directly behind their property and that no fencing or other noise barriers shield residential owners, including plaintiffs, directly behind the loading dock area. Further, the large conifer trees that buffered noise, light, and plaintiffs' view of the Dominick's operations were destroyed by defendants' excavation and construction of the Mariano's store. The Mariano's operations, according to plaintiffs, are substantially different from the Dominick's operations, in that Mariano's has many more deliveries–including during early-morning hours and late into the night–and the deliveries are closer to plaintiffs' property and much louder. Further, the Mariano's operations, including activities at the loading docks and the approach and departure areas and the resulting traffic, are not shielded. Their impact is perceptible at plaintiffs' property. Other businesses' operations at the strip mall, they noted, have not changed in any perceptible way.

¶ 9 Plaintiffs alleged that, under the relevant Naperville zoning regulations, noise levels for commercial uses may not exceed 62 decibels during the hours of 7 a.m. to 7 p.m. The regulations also provide that noise levels for commercial uses may not exceed 55 decibels from 7 p.m. to 7 a.m. City of Naperville Municipal Code § 6-14-4 (amended Sept. 6, 2016) (Noise Ordinance).

¶ 10 According to plaintiffs, the Mariano's operations violate the Noise Ordinance, because the noise generated by trucks at the property are audible at plaintiffs' property line and exceeds allowable limits. Truck traffic at the loading docks directly west of plaintiffs' property has increased greatly due to the number of trucks that make deliveries to the store "at all hours of the day and night". The truck traffic is audible at plaintiffs' property line and has greatly increased since the Dominick's operations. Plaintiffs further alleged that, "[t]ests conducted according to the

160 N.E.3d 161

442 Ill.Dec. 588

testing methods specified in the Noise Ordinances, using properly calibrated sound level meters, have found that the truck noise from deliveries to the Mariano's significantly exceeds allowable limits."

¶ 11 Plaintiffs further alleged that the city's measurements testing at the property line determined that truck-delivery noise from the Mariano's operations exceeded the Noise Ordinance's permissible decibel levels on several dates in 2016 and 2017, including May 12, 17, and 23, 2016; June 1, 3, 7, 22, 23, and 27, 2016; July 5 and 6, 2016; August 4, 2016; and January 11 and 18, 2017. The city issued citations for the truck noise, and Mariano's pleaded guilty and paid $1000 in fines for the violations occurring on January 11 and 18, 2017. Plaintiffs asserted that the citations have not deterred Mariano's or changed its truck-delivery practices and conduct and that it continues to violate the Noise Ordinance. The truck noise continues to exceed the ordinance's limits "virtually every day," including May 7, 8, 15, 21, and 22, 2018; June 2, 2018; and November 19, 2018. During one 24-hour period in the fall of 2018, there were more than 100 ordinance violations in the day and night. According to plaintiffs, they "often" experience noise levels of 100 decibels or more from the truck traffic. Truck-delivery noise, they asserted, violates the Noise Ordinance and is continuous and ongoing.

¶ 12 Plaintiffs asserted that defendants know of the violations but have failed to remedy the issues. In addition to the foregoing violations, plaintiffs alleged that the City had also cited Mariano's on June 17, 22, and 29, 2016, for allowing deliveries prior to 6 a.m. Mariano's paid $250 in fines for each of these violations. On June 23, 2016, a Mariano's representative acknowledged and apologized to a City representative for the Noise Ordinance violations. Further, in 2016, Mariano's representatives corresponded with City representatives concerning noise-abatement methods, including noise-baffling fences; use of electric-powered rather than diesel-powered trailers; and ceasing the use of mobile refrigerated units. Mariano's solicited bids for sound-abatement panels but never installed them or implemented any sound-abatement measures. In 2016, the City notified Mariano's that its business operations were affecting the quality of life...