Illinois Wood Energy Partners, L.P. v. County of Cook

• Decision Date: 03 November 1995
• Docket Number: No. 1-95-1191,1-95-1191
• Citation: 281 Ill.App.3d 841,217 Ill.Dec. 388,667 N.E.2d 477
• Parties: , 217 Ill.Dec. 388 ILLINOIS WOOD ENERGY PARTNERS, L.P., a Delaware limited partnership, Kes Bloom, Inc., a Delaware corporation, and Pec Bloom I, Inc., an Illinois corporation, Plaintiffs-Appellees, v. COUNTY OF COOK, a body politic and corporate and Donald Wlodarski, Commissioner of Building and Zoning of the County of Cook, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 477

667 N.E.2d 477

281 Ill.App.3d 841, 217 Ill.Dec. 388

ILLINOIS WOOD ENERGY PARTNERS, L.P., a Delaware limited partnership, Kes Bloom, Inc., a Delaware corporation, and Pec Bloom I, Inc., an Illinois corporation Plaintiffs-Appellees, v. COUNTY OF COOK, a body politic and corporate and Donald Wlodarski, Commissioner of Building and Zoning of the County of Cook, Defendants-Appellants.

No. 1-95-1191.

Appellate Court of Illinois First District, Sixth Division.

Nov. 3, 1995.

Rehearing Denied Dec. 27, 1995.

Jack O'Malley, State's Attorney of Cook County, Chicago, for Appellants (Patricia M. Shymanski, Deputy State's Attorney Chief, Civil Actions Bureau, and Patricia M. Moser, Jayman A. Avery III, Jeffrey S. McCutchan and Andrew M. Varga, Assistant State's Attorneys, of counsel).

William J. Harte, Ltd., Chicago, for Appellees (William J. Harte, Joan M. Mannix, Stephen L. Garcia and Cynthia E. Cervini, of counsel).

Justice ZWICK delivered the opinion of the court:

Plaintiffs instituted this action seeking a writ of mandamus to compel issuance of a grading permit by the Cook County Department of Building and Zoning and requesting injunctive and declaratory relief. The trial court granted summary judgment in favor of plaintiffs on their claims for mandamus and for declaratory judgment, but dismissed their claim for injunctive relief. On appeal, defendants challenge the entry of summary judgment for plaintiffs as well as the denial of their motion to disqualify the law firm of Schain, Firsel & Burney, Ltd.

Plaintiffs desired to construct a facility which they characterized as a power plant in south suburban Cook County which would produce electrical energy from a turbine generator powered by steam created in a boiler fueled by incineration of waste wood chips. The electricity then would be sold to Commonwealth Edison. The site on which plaintiffs intended to construct the proposed facility was a 27-acre parcel located in unincorporated Cook County with a zoning classification of I-3 Intensive Industrial. Such a zoning designation is intended to provide lands for use by heavy or intense industries and is designed primarily for manufacturing, assembling, and fabricating activities, including large scale or specialized operations whose external effects will be felt to some degree by surrounding zoning districts.

Section 6.33 of the Zoning Ordinance set forth the permitted uses in the I-3 zoning district which include air, railroad, water freight terminals, railroad switching and classification yards, repair shops and round houses, and buildings for chemical processing and manufacturing, foundries, heavy machinery production, leather tanning or processing, paint products manufacturing, plastic manufacturing, rubber processing, steel production and fabrication, and power plants.

On December 9, 1992, Thomas R. Burney of the law firm of Schain, Firsel and Burney, Ltd., acting on behalf of the plaintiffs, sent a letter to Cook County Zoning Administrator Kellie Peterson. In his letter, Burney expressed plaintiff's need for a definitive decision from the County that their proposed facility qualified as a power plant, an enumerated permitted use in the I-3 district. The letter stated, in pertinent part, as follows:

"Pursuant to Section 13.23 of the Cook County Zoning Ordinance, your Department has the authority to issue certificates indicating that the proposed building, structure or use complies with the provisions of this Ordinance. We are requesting that you, as Zoning Administrator, issue a certificate of zoning that the use described herein is an enumerated permitted use in the I-3 District.

As the attached report explains, there is some ambiguity in the I-3 District and [the plaintiffs] [are] interested in obtaining a definitive decision that this use as described herein is not an incinerator, which is an enumerated special use in the Cook County Zoning Ordinance. As we describe below, neither of these terms are defined in the Cook County Zoning Ordinance and, therefore, my client has requested that we obtain a decision.

We would welcome the opportunity to present the merits of our position to the Cook County Zoning Board of Appeals which is charged with the responsibility for interpreting the Cook County Zoning Ordinance. If you would feel more comfortable referring this matter to the Zoning Board of Appeals pursuant to administrative appeal, we would be happy to proceed to that forum for a definitive decision."

One week later, on December 16, 1992, the Zoning Administrator sent a letter to Alex R. Seith, Chairman of the Zoning Board of Appeals, which stated, in pertinent part, as follows:

"Pursuant to Section 13.32 of the Cook County Zoning Ordinance, I have been requested to issue a Zoning Certification that the attached Proposed Use is an Enumerated Permitted Use in the I-3 Intensive Industrial District under the Cook County Zoning Ordinance.

* * * * * *

Mr. Thomas Burney of Schain, Firsel & Burney, has respectfully requested an opportunity to address the Zoning Board of Appeals on this subject. Please notify myself or Mr. Burney of a convenient time and date for this meeting. Thank you for your cooperation."

The matter was then considered by the Zoning Board of Appeals without any further action taken by the Zoning Administrator. The hearings were conducted in executive session on January 20, 1993, and on February 3, 1993. Plaintiffs appeared at these hearings along with their legal counsel, Schain, Firsel & Burney, Ltd., and presented evidence relevant to the zoning certification of the parcel on which their proposed facility was to be constructed. Although the Zoning Board of Appeals did not exclude the public from these executive sessions, it did not publish or post an agenda for these two hearings. The Board of Appeals did not notify the Zoning Administrator or the general public that it would consider the plaintiffs' request for a zoning certificate at the meetings scheduled for January 20, 1993, and February 3, 1993. The record reveals that no party other than the plaintiffs received notice or an opportunity to comment on the proposed facility, or to participate in the proceedings before the Zoning Board of Appeals.

The record does not contain a transcript of either session, but the minutes of those meetings reflect that Alex R. Seith, who was Chairman of the Zoning Board of Appeals and "of counsel" to the firm of Schain, Firsel & Burney, Ltd., abstained from the discussion of plaintiffs' request for a zoning certificate and refrained from voting on the matter.

Following these two executive sessions, a letter was sent to the Zoning Administrator on February 19, 1993. The letter stated that the Zoning Board of Appeals had "reviewed [the Zoning Administrator's] request for a Zoning Ordinance interpretation" concerning plaintiffs' proposal. This letter, which purports to have been signed by Seith in his official capacity as Chairman of the Board of Appeals, was addressed to the Zoning Administrator and did not indicate that copies were sent to any other party. The letter stated that upon consideration of the testimony and written materials presented by the plaintiffs, the Board determined that the proposed use was a wood-fueled power plant and a permitted use under the I-3 Intensive Industrial District.

The Zoning Administrator did not forward this letter to plaintiffs or to their counsel or otherwise inform them of its contents. However, it is clear that the plaintiffs acquired a copy of the letter. The record does not reveal how, when or under what circumstances the plaintiffs obtained it.

Relying upon the Board's decision that the proposed facility was a power plant and not an incinerator, plaintiffs began the process of obtaining the necessary federal, state and local regulatory approvals and permits required for the project.

On October 7, 1993, the Board of Trustees of Sauk Village requested that the Zoning Board of Appeals reverse the determination reflected in the letter of February 19, 1993, because they believed that the proposed facility should be deemed an incinerator rather than a power plant. The Zoning Board of Appeals responded to this request in a letter signed by Seith and dated December 2, 1993, which stated that the "Board made a decision which is embodied in the letter of February 19, 1993. You requested in fact that we reverse that decision. The Board discussed the matter in an open meeting, reviewed the facts of record and unanimously concluded that the decision of February 19, 1993, is correct."

On January 12, 1995, plaintiffs filed an application for a grading permit to begin grading the property in preparation for constructing their proposed facility. On January 23, 1995, the Zoning Administrator sent a letter to Seith, which stated, in pertinent part, as follows:

"This letter comes to respectfully request that you and members of the Zoning Board of Appeals reconsider [plaintiffs'] proposed facility and the proposed use and zoning ordinance interpretation you rendered indicating that '[plaintiffs'] proposed use is an enumerated permitted use' in the I-3 zoning district. I have received numerous letters and calls that lead me to believe [plaintiffs have] consistently altered their original proposal and given conflicting testimony throughout their permitting process to various regulatory bodies. In fact, I believe that we will shortly be receiving correspondence from the Illinois Environmental Protection Agency indicating their opinion that the [plaintiffs'] facility is a solid waste incinerator.

It would appear Chairman Seith that several issues need to be addressed regarding this facility and that it may be in the best interest of the County to conduct another public hearing that will allow for evidence and testimony, from a variety of sources, to be presented and made part of the public record."

The following day, the Cook County Department of...