Ruisard v. the Vill. of Glen Ellyn

• Decision Date: 29 November 2010
• Docket Number: No. 2–09–1083.,2–09–1083.
• Citation: 939 N.E.2d 1048,345 Ill.Dec. 868,51 Communications Reg. (P&F) 1310,406 Ill.App.3d 644
• Parties: Barbara RUISARD, Jeff Reber, Jennifer and Bill Dillard, Karen and Forrest Dean, Rebecca and John Dumerer, Marie and Jim Newman, Kristin and James Risner, and Susan and Jerome Zybko, Plaintiffs–Appellants,v.The VILLAGE OF GLEN ELLYN, T–Mobile Central LLC, and T–Mobile USA, Inc., Defendants–Appellees.
• Court: United States Appellate Court of Illinois

406 Ill.App.3d 644
939 N.E.2d 1048
345 Ill.Dec. 868
51 Communications Reg. (P&F) 1310

Barbara RUISARD, Jeff Reber, Jennifer and Bill Dillard, Karen and Forrest Dean, Rebecca and John Dumerer, Marie and Jim Newman, Kristin and James Risner, and Susan and Jerome Zybko, Plaintiffs–Appellants,
v.
The VILLAGE OF GLEN ELLYN, T–Mobile Central LLC, and T–Mobile USA, Inc., Defendants–Appellees.

No. 2–09–1083.

Appellate Court of Illinois, Second District.

Nov. 29, 2010.

[939 N.E.2d 1049]

Charles Chejfec, Katten Muchin Rosenman LLP, Chicago, for Forrest Dean, Karen Dean, Bill Dillard, Jennifer Dillard,

[939 N.E.2d 1050]

John Dumerer, Rebecca Dumerer, Jim Newman, Marie Newman, Jeff Reber, James Risner, Kristin Risner, Barbara Ruisard, Jerome Zybko, Susan Zybko.Ellen K. Emery, Stewart H. Diamond, Adam B. Simon, Ancel Glink Diamond Bush DiCianni & Krafthefer, PC, Chicago, for The Village of Glen Ellyn.Raiford D. Palmer, Sullivan Taylor & Guimna, P.C., Wheaton, T–Mobile Central LLC, T–Mobile USA, Inc.Justice BOWMAN delivered the opinion of the court:

[345 Ill.Dec. 870 , 406 Ill.App.3d 646] Plaintiffs, Barbara Ruisard, Jeff Reber, Jennifer and Bill Dillard, Karen and Forrest Dean, Rebecca and John Dumerer, Marie and Jim Newman, Kristin and James Risner, and Susan and Jerome Zybko, are residents of Glen Ellyn who oppose the addition of cell phone antennae to the Glen Ellyn water tower. Plaintiffs' pleadings, which culminated in a second amended complaint, relied on two ordinances passed by the Village of Glen Ellyn (Village). Defendants, the Village, T–Mobile Central LLC, and T–Mobile USA, Inc. (T–Mobile), moved to dismiss plaintiffs' second amended complaint. The trial court granted defendants' motion to dismiss, and plaintiffs appeal. We affirm in part, reverse in part, and remand the cause.

I. BACKGROUND

On February 11, 1991, the Village passed ordinance No. 3810, which granted a special-use permit for the construction of a water tower on certain property owned by the Village. Glen Ellyn Ordinance No. 3810 (eff. February 11, 1991). Ordinance No. 3810 provides that this special-use permit is “subject to the following conditions,” including the condition that “[a]ntennas on the new tower are to be kept at a minimum.”

[406 Ill.App.3d 647] Sixteen years later, in 2007, there were 13 antennae on the water tower. That year, T–Mobile applied for a special-use permit to install nine additional antennae on the water tower. On August 27, 2007, the Village passed ordinance No. 5606, entitled an “Ordinance Granting T–Mobile, Inc. approval of a Special Use Permit to allow the installation of a Cellular Antenna Structure On the Village of Glen Ellyn Water Tower.” Glen Ellyn Ordinance No. 5606 (eff. August 27, 2007). Ordinance No. 5606 includes “findings of fact” that: “1.) the cellular telephone reception of a substantial number of Glen Ellyn residents and visitors to the community will be greatly improved by the addition of an antenna at this location which will enhance the public health and safety; 2.) technological changes have allowed the size of the cellular telephone antenna to be reduced in size; 3.) the location of a total of only three cellular telephone companies on the water tower along with some essential public uses has kept such placement of antennae on the water tower at a minimum and; 4.) the presence of federal law which limits the discretion of the Village Board regarding alternate placement of antennae on private property could result in less desirable placement if the Village-owned site was not, in this case, available.” Glen Ellyn Ordinance No. 5606 (eff. August 27, 2007). Ordinance No. 5606 allows a “7–foot 5–inch cellular antenna structure¹ to be placed on the top of the 125–foot municipal water tower” for a total height of “132 feet 5 inches.” Glen Ellyn Ordinance No. 5606 (eff. August 27, 2007).

[939 N.E.2d 1051 , 345 Ill.Dec. 871]

Nearly one year after the passage of ordinance No. 5606, on July 7, 2008, plaintiffs filed their complaint for injunctive and other relief as well as a motion for a temporary restraining order to prevent the installation of T–Mobile's structure and antennae. Shortly thereafter, plaintiffs filed their first amended complaint on July 24, 2008. The Village and T–Mobile filed individual motions to dismiss under sections 2–615 and 2–619 of the Code of Civil Procedure (Code) (735 ILCS 5/2–615, 2–619 (West 2008)), seeking dismissal under several different theories.

A. Trial Court Order

On April 1, 2009, the trial court issued a written memorandum opinion in response to defendants' motions to dismiss plaintiffs' first amended complaint. According to the court, counts I, II, and III, “stripped of irrelevant rhetoric,” alleged that the Village had violated ordinance No. 3810 by failing to keep the number of antennae on the [406 Ill.App.3d 648] water tower to a minimum. Counts IV, V, and VI, “similarly stripped of irrelevant rhetoric,” alleged that the Village had violated ordinance No. 5606 by allowing T–Mobile to construct its antennae beyond the height restriction.

The court began by discussing what plaintiffs needed to allege in their complaint to establish standing. Counts I and IV were premised on section 11–13–15 of the Illinois Municipal Code (Municipal Code), which states as follows:

“In case any building or structure, including fixtures, is constructed, reconstructed, altered, repaired, converted, or maintained, or any building or structure, including fixtures, or land, is used in violation of an ordinance * * * any owner or tenant of real property, within 1200 feet in any direction of the property on which the building or structure in question is located who shows that his property or person will be substantially affected by the alleged violation, in addition to other remedies, may institute any appropriate action or proceeding (1) to prevent the unlawful construction, reconstruction, alteration, repair, conversion, maintenance, or use, (2) to prevent the occupancy of the building, structure, or land, (3) to prevent any illegal act, conduct, business, or use in or about the premises, or (4) to restrain, correct, or abate the violation. * * *

* * *

An owner or tenant need not prove any specific, special or unique damages to himself or his property or any adverse effect upon his property from the alleged violation in order to maintain a suit under the foregoing provisions.” 65 ILCS 5/11–13–15 (West 2008).

The court noted that in order to have standing to challenge either ordinance No. 3810 or ordinance No. 5606 under section 11–13–15 of the Municipal Code, plaintiffs needed to allege that they were owners or tenants within 1,200 feet of the water tower. (It is undisputed that plaintiffs are all residents within 1,200 feet of the water tower.)

Counts II and V were premised on section 10–10–18(B) of the Glen Ellyn Zoning Code (Zoning Code), which states:

“In case any building or structure is erected, constructed, reconstructed, altered, repaired, converted, or maintained, or any building, structure or land is used in violation of this Zoning Code, the proper authorities of the Village or any person whose property value or use is or may be affected by such violation may, in addition to other remedies, institute an appropriate action or proceeding in equity to prevent such unlawful erection, construction, reconstruction, alteration, repair, conversion, maintenance or use, to restrain, correct or abate such

[345 Ill.Dec. 872 , 939 N.E.2d 1052]

violation, to prevent the occupancy of said [406 Ill.App.3d 649] building, structure or land or to prevent any illegal act, conduct, business or use in or about the premises * * *.” Glen Ellyn Zoning Code § 10–10–18(B) (amended eff. June 1, 1989).

The court noted that to establish standing under the Zoning Code, plaintiffs needed to allege that they were persons “whose property value or use is or may be affected by such violation.”

Finally, counts III and VI sought a declaratory judgment that T–Mobile acquired no rights to install the structure and antennae. According to the court, standing under those counts required plaintiffs to allege facts “constituting an actual case or controversy.”

With respect to counts I, II, and III based on ordinance No. 3810's “at a minimum” requirement, the court recognized that that phrase was susceptible to “any number of interpretations.” The court reasoned that it should give deference to the Village's own interpretation, especially given the changes that had taken place over the 16–year period between the adoption of ordinance No. 3810 and ordinance No. 5606. Nevertheless, the court determined that it need not define the phrase “at a minimum,” because plaintiffs had “simply failed to allege how they are or will be damaged by the existence of an additional 9 antennae in addition to the 13 antennae already atop the water tower.” According to the court, plaintiffs' allegations were “vague and amorphous” and related “to the existence of the water tower and the cellular telephone antennae in general.” To establish their standing to enforce ordinance No. 3810, the court stated, plaintiffs needed to “plead facts to establish that they [would] be damaged by the specific installation of additional antenna[e].” Emphasis in original. Because plaintiffs had failed to allege “facts to support their standing under either of the State or Village statutes,” they were likewise unable to obtain a declaratory judgment. In other words, by plaintiffs' failure to allege facts to support their standing, the court concluded that “there [was] no case or controversy.”

With respect to ordinance No. 5606, the court noted that under section 11–13–25 of the Municipal Code, a challenge to the ordinance itself must be brought within 90 days of its enactment:

“(a) Any decision by the corporate authorities of any municipality, home rule or non-home rule, in regard to any petition or application for a special use, variance, rezoning, or other...