Smart Growth Sugar Grove v. Village of Sugar Grove

• Decision Date: 03 August 2007
• Docket Number: No. 2-06-0656.,2-06-0656.
• Citation: Smart Growth Sugar Grove v. Village of Sugar Grove, 873 N.E.2d 20, 375 Ill. App. 3d 780 (Ill. App. 2007)
• Parties: SMART GROWTH SUGAR GROVE, LLC, Plaintiff-Appellant, v. The VILLAGE OF SUGAR GROVE, Defendant-Appellee.
• Court: Appellate Court of Illinois

873 N.E.2d 20

SMART GROWTH SUGAR GROVE, LLC, Plaintiff-Appellant, v.The VILLAGE OF SUGAR GROVE, Defendant-Appellee.

No. 2-06-0656.

Appellate Court of Illinois, Second District.

August 3, 2007.

Thomas R. Burney, Katriina S. McGuire, Deborah S. Cohen, Schain, Burney, Ross & Citron, Ltd., for Smart Growth Sugar Grove.

Gary K. Mickey, Steven S. Andersson, Dean M. Frieders, Mickey, Wilson, Weiler, Renzi & Andersson, P.C., Aurora, for The Village of Sugar Grove.

Justice O'MALLEYdelivered the opinion of the court:

Plaintiff, Smart Growth Sugar Grove, LLC, filed a six-count complaint against defendant, the Village of Sugar Grove(the Village), challenging (1) the Village's refusal to rezone plaintiff's property, which the Village had annexed in accordance with an agreement with plaintiff's predecessor; and (2) a provision in the Village's comprehensive plan recommending that the Village acquire a right-of-way across plaintiff's property for a possible highway interchange.The Village moved to dismiss the complaint as untimely (see735 ILCS 5/2-619(a)(5)(West 2004)) under section 7-1-46 of the Illinois Municipal Code(Code)(65 ILCS 5/7-1-46(West 2004)), which states that a complaint directly or indirectly challenging the annexation of territory to a municipality be filed no later than a year after the annexation becomes final.The Village also argued that the counts of the complaint challenging the comprehensive plan were unripe.The trial court held that all of the counts were untimely, and it dismissed the complaint.

Plaintiff appeals, contending that (1) the two counts of its complaint attacking the Village's refusal to rezone its property are not governed by section 7-1-46 of the Code; and (2)the trial court erred in dismissing the four counts of the complaint directed against the Village's comprehensive plan, as these counts are not governed by section 7-1-46 of the Code and are ripe for adjudication.We hold that the trial court correctly dismissed the counts of the complaint challenging the annexation as time-barred and that the dismissal of the remaining counts was proper under the ripeness doctrine.Therefore, we affirm.

On October 31, 2005, plaintiff filed its complaint.It alleges the following facts common to all counts.Plaintiff owns 89.40 unimproved acres located south of I-88 on either side of Bliss Road.On July 23, 2002, the Village passed an ordinance annexing the property.In compliance with a 1991 pre-annexation agreement with plaintiff's predecessor, the Village zoned the property OR-2 office-research.In April 2005, the Village amended its comprehensive plan so that it now recommends that plaintiff's property be developed for single-family residential use, not office-research use.The plan also recommends that the Village set aside land for the development of a highway interchange at Bliss Road and I-88.The plan states that, although developing the interchange "is not an immediate priority for either the Tollway Authority or the Village," a right-of-way could be acquired "as adjacent property develops."It is not clear whether this recommendation predated plaintiff's application for rezoning, but it was in the comprehensive plan by the time that the Village staff reported on the application.

On or about September 13, 2004, plaintiff applied to the Village to rezone the property R-2 residential and for preliminary approval of a plat of subdivision so that plaintiff could develop its property with single-family homes, parks, and open spaces.In various meetings and reports, the Village staff recommended denying the rezoning application because (1) it did not set aside any land for the highway interchange that the comprehensive plan recommended; (2) in violation of a Village ordinance, plaintiff did not apply for a planned unit development (PUD); and (3) the pre-annexation agreement bound plaintiff to accept OR-2 zoning for the property.However, the staff also stated that plaintiff's proposed residential development "would be generally consistent" with the comprehensive plan and "could be an appropriate land use for the area."On September 20, 2005, the Village Board denied plaintiff's application for rezoning.(We have no record of the decision itself.)

Counts I through IV of plaintiff's complaint are directed against the comprehensive plan's proposal to use part of plaintiff's property for a highway interchange.Count I alleges that this set-aside is arbitrary and that obtaining the right-of-way would unfairly diminish the value of plaintiff's property, and it requests a judgment declaring the set-aside proposal void and enjoining the Village from enforcing it or acting upon it.Count II alleges that the set-aside violates substantive due process because plaintiff would bear an undue share of the costs of the interchange, and it requests a declaratory judgment and damages.Count III alleges that the set-aside is a taking without just compensation, and it requests a declaratory judgment and damages.Count IV, pleaded in the alternative to count III, alleges that, even if the set-aside is valid, plaintiff is entitled to just compensation from the Village.

Count V of the complaint is directed against the Village's denial of plaintiff's rezoning request and alleges as follows.Under the Village's comprehensive plan, the land south, west, and east of plaintiff's property is all designated residential.Almost all the property south of plaintiff's property is zoned R-2 residential, and plaintiff's proposed development is consistent with the two residential developments immediately to the south.The land directly east and west of plaintiff's property is used for agriculture.Directly north of plaintiff's property is I-88; the land north of I-88, in unincorporated Kane County, is used for agriculture.OR-2 zoning is not suited to plaintiff's property and is inconsistent with the trend of development in the area.Furthermore, the uses permitted by OR-2 zoning would generate more traffic, noise, and parking than plaintiff's proposed development.Therefore, the present zoning is arbitrary and capricious and effects a taking without just compensation.Count V seeks a declaratory judgment that the OR-2 zoning is unconstitutional insofar as it bars the proposed development and an injunction to prevent the Village from prohibiting or delaying the development.

Count VI of the complaint alleges that one reason that the Village denied plaintiff's request for rezoning was that a Village ordinance requires any residential subdivision consisting of more than 3 acres or more than 10 lots to be processed as a PUD.According to count VI, this requirement applies to almost all residential subdivisions in the Village, including the one that plaintiff hopes to build, and is arbitrary and capricious.Count VI asks the court to declare the PUD ordinance unconstitutional and to prohibit the Village from enforcing it against plaintiff's property.

Attached to the complaint are copies of the July 23, 2002, annexation ordinance and the pre-annexation agreement that it incorporates.The agreement is dated April 22, 1991, and is signed by the Village and Robert Cerny, plaintiff's predecessor in title.It states in part that, within 10 years, the owner shall petition the Village to annex the property and that the Village shall do so subject to the agreement's terms.Among these terms is section 2, the first paragraph of which reads:

"Upon annexation, the Property * * * shall be zoned and classified as OR-2, Office Research, district pursuant to the provisions of the current Board of the Village of Sugar Grove Zoning Ordinance regulating same, subject to the additional conditions, variations, and restrictions hereinafter set forth, and shall be used and developed only in accordance with the provisions contained herein, with all applicable statutes and ordinances, and shall be allowed the use as set forth in the currect [sic] OR classification."(Emphasis in original.)

Section 2 also states that, in any office building erected on the property, certain enumerated business uses not allowed under OR-2 zoning are permitted on the first floor of the building and that the owner may be allowed one restaurant building not exceeding five acres, subject to the Village's approval.Finally, section 2 states that the owner may continue the present nonconforming use of the property for agricultural purposes but may not expand that use.

Section 20 states that the agreement shall bind the parties and their successors for 20 years "from the date of execution hereof."Section 21 states that, if the owner sells all or part of the property, his obligations shall devolve upon the buyer to the extent of the transfer.

The Village moved to dismiss plaintiff's complaint, asserting two grounds.The Village contended first that the rezoning that plaintiff sought was barred by the agreement and by section 11-15.1 of the Code (65 ILCS 5/11-15.1-1 et seq.(West 2004)) because the agreement bound plaintiff and thus required it to accept the OR-2 zoning that the agreement imposed.The Village went further, contending that the relief that plaintiff sought was illegal because it would require the Village to breach its contractual obligation by allowing uses that the agreement prohibited.

The Village's second ground for dismissal was section 7-1-46 of the Code (65 ILCS 5/7-1-46(West 2004)), which states that "an action contesting either directly or indirectly the annexation of any territory to a municipality" may not be commenced more than a year after the date that the annexation becomes final.The Village noted that plaintiff's complaint, filed October 31, 2005, asks the trial court to abrogate the zoning that was imposed on July 23, 2002, when the Village passed the ordinance that adopted the preannexation agreement.Thus, according to the Village, the complaint indirectly challenges the annexation itself and, as a result, is untimely....