People ex rel. Klaeren v. Village of Lisle

• Decision Date: 13 October 2000
• Docket Number: No. 2-99-1256.,2-99-1256.
• Citation: 250 Ill.Dec. 122,737 N.E.2d 1099,316 Ill. App.3d 770
• Parties: The PEOPLE ex rel. Robert J. KLAEREN II, Frieda Chernobrov, Carle R. Wunderlich II, and Aizik Chernobrov, Plaintiffs-Appellees, v. The VILLAGE OF LISLE, Meijer, Inc., and Saint Procopius Abbey, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

737 N.E.2d 1099

316 Ill. App.3d 770

250 Ill.Dec. 122

The PEOPLE ex rel. Robert J. KLAEREN II, Frieda Chernobrov, Carle R. Wunderlich II, and Aizik Chernobrov, Plaintiffs-Appellees, v. The VILLAGE OF LISLE, Meijer, Inc., and Saint Procopius Abbey, Defendants-Appellants.

No. 2-99-1256.

Appellate Court of Illinois, Second District.

October 13, 2000.

Thomas F. Geselbracht, David L. Reifman, Gilly Nadel, Danielle Meltzer Cassel, and Daniell Sveska, all of Piper, Marbury, Rudnick & Wolfe, and Robert J. DiLeonardi, Chicago, and Robert T.C. Kay, of Peregrine, Stime, Newman, Ritzman & Bruckner, Ltd., Wheaton, for appellants.

Mark W. Daniel, John R. Zemenak, and Scott E. Pointner, all of Rathje, Woodward, Dyer & Burt, Wheaton, for appellees.

Justice HUTCHINSON delivered the opinion of the court:

This matter reaches us as an interlocutory appeal of an order granting a preliminary injunction preventing defendants Saint Procopious Abbey (the Abbey) and Meijer, Inc. (Meijer), from continuing site preparation required for the construction of a Meijer retail store on a parcel of land owned by the Abbey pursuant to the terms of a contract for the sale of the parcel between Meijer and the Abbey. Plaintiffs are adjoining landowners, who alleged that, because of procedural defects, ordinances enacted by another defendant, Village of Lisle (the Village), annexing the Abbey property, rezoning the property, and authorizing construction as a planned unit development (PUD) were void.

Plaintiffs originally brought suit in their individual capacities but later added a count sounding in quo warranto, suing on behalf of the State. For the sake of clarity we will refer to them simply as "plaintiffs," whether they are acting as individuals or as the real parties in interest in the quo warranto action.

[Nonpublishable material removed under Supreme Court Rule 23.]

Defendants timely appeal and contend that (1) plaintiffs lack standing to challenge the annexation and rezoning; (2) plaintiffs do not have a protectable interest in the continuation of the existing zoning; (3) plaintiffs are unlikely to succeed on the merits of their claim because due process does not require cross-examination in a zoning hearing; (4) plaintiffs are unlikely to succeed on the merits of their claim because Illinois statutory law does not create a right to cross-examination; (5) plaintiffs have not demonstrated irreparable injury; and (6) the trial court abused its discretion when it only required a bond of $5,000. We address defendants' third and fourth contentions in the published portion of this opinion. Defendants' remaining contentions are addressed in the nonpublished portion of the opinion. We affirm.

BACKGROUND

July 9, 1998 Hearing

Plaintiffs' challenge to the annexation and rezoning focused on procedural irregularities at the July 9, 1998, joint public hearing, and the testimony elicited at the hearing on the preliminary injunction also centered on the conduct of the July 1998 hearing. A transcript of that public hearing is contained in the record and reveals that on July 9, 1998, the Village board of trustees (board), the Village plan commission (plan commission), and the Village zoning board of appeals (ZBA) each convened a public hearing regarding the Meijer proposal at the Village hall. Each board then independently moved to recess its hearing and reconvene in the auditorium of a local junior high school. When the hearing reconvened, the mayor described the procedure as follows:

"This is a public hearing. It is not a debate. There will be no attempt at tonight's hearing to answer any question raised by the audience. Questions may be addressed during the review process I just described.

To the extent possible the speaker will address questions and concerned [sic] raised by the combined boards this evening.

* * *

The petitioner will be first subject to any questions by the assembled boards. We will attempt to deal with each individual aspect of the presentation as it's made.

People in the audience speaking in favor of the proposal will then be heard. People in the audience speaking in opposition of the proposal will then be heard. The petitioner will then be allowed to make closing comments.

After closing comments by the petitioner, the public hearing will be adjourned.

Public records will remain open for written comments by interested parties. Any written comments must be received at the Village offices by 4:30 p.m. Friday, July 31st.

* * *

To be fair to everyone in the audience, I ask that you limit your comments to two minutes each. I will be the time keeper and will let you know when 15 seconds remain.

* * *

No one will be allowed to speak a second time until everyone has an opportunity to speak once. That requirement will also be applicable to members of the assembled boards."

The first witness on behalf of Meijer was Dave Kasparik, an architect. Kasparik described the design of the proposed store and presented an artist's rendering of the completed building. Jacques Gourguechon, a land planner, described the proposed site plan, the location of the building, and the land use on the property. Donald O'Hara, a traffic consultant, presented the results of a traffic study conducted on roads surrounding the site and described the anticipated impact of the development and made recommendations for mitigating the impact. Christopher Burke, a hydraulic engineer, described the plans to accommodate water runoff and wetland mitigation. During the presentation, a number of members of the assembled bodies asked questions.

Following Meijer's presentation, the mayor invited those in favor to speak. Two members of the audience spoke in favor of the development. The mayor then invited those opposed to the development to speak.

The first individual to speak in opposition of the project was Scott Harbek. Harbek indicated that he represented a group calling itself "No Meijer on Maple." Harbek indicated that the group had collected over 2,000 signatures on a petition opposing the development. Harbek further stated that nine representatives from different subdivisions in Lisle had prepared three- to five-minute presentations on behalf of the group. Harbek asked whether such a presentation would be permitted, and the mayor responded that only a single representative would be allowed to speak on behalf of the organization and that the two-minute time limit would be enforced. The mayor further explained:

"Rather than try and debate with you the procedure we are going to try and follow, I tried to explain at the beginning of the meeting. My instructions would give everyone who wants to speak or had a written comment an opportunity to be heard. I think that is fair.

No matter what we do it is going to be characterized as being unfair. That being the case, we are going to proceed with the suggestion I made. You have two minutes, beginning now."

Harbek then opined that the proposed development would have a greater impact on traffic than the Meijer representative predicted. Harbek further opined that such a development was inappropriate for the neighborhood and would decrease the quality of life.

Howard Richter, a real estate appraiser, testified that he was familiar with Meijer stores and had conducted economic impact analyses on similar, unrelated projects. Richter admitted that he had not inspected the neighborhood but opined that homes in the blocks surrounding the development would be adversely impacted not less than 15% and those homes within a one-mile radius would be impacted 5% to 7%. Richter further stated that the public response to the proposal evidenced by the size of the crowd at the hearing supported his opinion of the impact on property values. The mayor interrupted, stating "15 seconds." Richter then addressed the issue of tax increment financing (TIF). The mayor interrupted again, stating, "Mr. Richter you are out of time. Thank you very much."

Another opponent, Michael Pfeifer, raised several concerns, including the possibility of parking lot traffic, snow removal operations, and garbage compactors creating noise pollution in the area. Pfeifer concluded, "So if you all would address those things, I would appreciate it." The Meijer representatives did not respond, and no member of the board, the plan commission, or the ZBA questioned the Meijer representatives further in response to Pfeifer's comments.

Many other individuals, including one of the plaintiffs, spoke in opposition to the proposal. Many speakers made only general comments, but several identified questions they wanted the assembled bodies to ask of the Meijer representatives. On several occasions the mayor warned individuals that their time had expired or was about to expire. After the final speaker, the mayor stated, "With that, we'll close the audience participation."

Plaintiffs' Complaint

On February 11, 1999, plaintiffs filed a complaint against the Village seeking, among other things, an injunction to prevent a vote approving the annexation and rezoning. The trial court held that plaintiffs failed to name a necessary party and denied the injunction. On February 15, the board adopted ordinances annexing and rezoning the parcel and approving an annexation agreement with Meijer. The cause was continued several times, and plaintiffs amended their complaint to add Meijer and the Abbey as defendants and added a count sounding in quo warranto. On September 14, 1999, the trial court entered a temporary restraining order that halted excavation and landscaping work on the property. On October 4, 1999, the trial court conducted a hearing on plaintiffs' motion for a preliminary injunction.

[Nonpublishable material removed under Supreme Court Rule 23.]

Trial Court's Ruling

On October 18, 1999, the trial court issued a memorandum opinion and order granting the preliminary injunction. The trial court relied on E & E Hauling, Inc. v. County of Du Page, 77 Ill.App.3d 1017, 33...