Vill. of NORTHFIELD v. BP America INC.

• Decision Date: 27 July 2010
• Docket Number: No. 1-10-0142.,1-10-0142.
• Parties: VILLAGE OF NORTHFIELD, Plaintiff-Appellant, v. BP AMERICA, INC., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

403 Ill.App.3d 55
933 N.E.2d 413
342 Ill.Dec. 827

VILLAGE OF NORTHFIELD, Plaintiff-Appellant,
v.
BP AMERICA, INC., Defendant-Appellee.

No. 1-10-0142.

Appellate Court of Illinois,First District, Second Division.

July 27, 2010.

933 N.E.2d 414

COPYRIGHT MATERIAL OMITTED.

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Klein, Thorpe and Jenkins, LTD, Chicago (Everette M. Hill, Jr., Michael J. Duggan and Kathleen T. Henn, of counsel), for Appellants.

Albert, Whitehead, P.C., Chicago (Charles G. Albert, Laurie D. Jaffe, Henry J. Ford, Jr., of counsel), for Appellees.

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Justice HOFFMAN delivered the opinion of the court:

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The narrow question before this court is whether a local ordinance defining an abandoned gasoline service station as a nuisance is preempted by section 11-31-1 of the Illinois Municipal Code (Municipal Code) (65 ILCS 5/11-31-1 (West 2008)). For the reasons which follow, we conclude that it is not.

The facts giving rise to this appeal are not in dispute. BP America, Inc., (BP) is the owner of a parcel of real estate commonly known as 1900 Willow Road in Northfield, Illinois. An abandoned gasoline service station is currently situated on BP's property.

On March 17, 2009, the Village of Northfield (the Village) issued BP a citation alleging that the abandoned gasoline service station violated section 11-81 of the Northfield Village Code (Village Code). In relevant part, section 11-81 of the Village Code provides that:

“A. Any gasoline service station determined by the community development director or his/her designate to be abandoned shall be deemed a public nuisance which adversely affects surrounding property values and the public safety and welfare. A gasoline service station shall be considered abandoned if it is not operated for at least three hundred (300) hours in any sixty (60) day time period. Whenever the community development director or his/her designate shall determine that any service station is abandoned, he shall immediately so notify, either in person or by certified mail, the owner or operator of the premises and issue an order of abatement that must be complied with within ninety (90) days. A nuisance caused by abandonment may be abated only as follows:

(1) Placing the station back in operation for a minimum of six (6) hours per day, six (6) days per week.

(2) Razing all structures in accordance with the National Fire Protection Association sections B-4-1 and B-4-2 and all ordinances of the village.

* * *

(3) Making an appropriate application for a change in use of the premises to a permitted or special use.

* * *

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B. Upon failure of the owner to abate the nuisance, the village may abate said nuisance pursuant to the nuisance abatement provisions of this code.” Northfield Village Code § 11-81 (amended January 25, 1999).

The Village Code further provides that any person causing a nuisance shall be fined not less than $100, and not more than $750, each day that the nuisance continues. Northfield Village Code § 14-17 (amended September 24, 2002); Northfield Village Code appendix D, art. XIIIA (amended December 1, 2008).

When BP failed to comply with the requirements of section 11-81, the Village initiated this lawsuit in the Circuit Court of Cook County. On August 19, 2009, a hearing was held to determine whether BP violated section 11-81 of the Village Code. That same day, the circuit court found that section 11-81 was constitutional and ordered BP to pay a daily fine of $750 for 21 days, totaling $15,750.

Thereafter, BP filed a motion to reconsider, arguing that it was not required to pay a fine because the Village's ordinance was preempted by section 11-31-1 of the Municipal Code (65 ILCS 5/11-31-1 (West 2008)). On December 1, 2009, the circuit court entered a written memorandum order, finding that section 11-31-1

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of the Municipal Code preempted section 11-81 of the Village Code. As a consequence, the circuit court granted BP's motion to reconsider and vacated the order it previously entered on August 19, 2009. This appeal followed. ¹

In urging reversal, the Village contends that the circuit court erred in finding preemption. The Village asserts that it had the statutory authority to define what constitutes a nuisance and that its determination in section 11-81 of the Village Code that an abandoned gasoline service station is a nuisance does not conflict with section 11-31-1 of the Municipal Code. The resolution of these issues

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requires us to interpret state statutes and determine whether state law preempts a local ordinance. These are questions of law subject to de novo review. See Hawthorne v. Village of Olympia Fields, 204 Ill.2d 243, 254-55, 274 Ill.Dec. 59, 790 N.E.2d 832 (2003).

The Village is a non-home-rule unit. Accordingly, it may exercise only those powers enumerated in the Illinois Constitution or conferred upon it, either expressly or impliedly, by state statute. Hawthorne, 204 Ill.2d at 255, 274 Ill.Dec. 59, 790 N.E.2d 832. In this case, the Village contends that its enactment of the ordinance in question was authorized by section 11-60-2 of the Municipal Code (65 ILCS 5/11-60-2 (West 2008)).

Section 11-60-2 of the Municipal Code provides that “the corporate authorities of each municipality may define, prevent, and abate nuisances.” 65 ILCS 5/11-60-2 (West 2008). Pursuant to this broad grant of authority, non-home-rule units like the Village may implement ordinances regulating nuisances. Village of Sugar Grove v. Rich, 347 Ill.App.3d 689, 696, 283 Ill.Dec. 559, 808 N.E.2d 525 (2004). Traditionally, a municipality's determination as to what constitutes a nuisance will be upheld unless it is clearly erroneous. Village of Sugar Grove, 347 Ill.App.3d at 696, 283 Ill.Dec. 559, 808 N.E.2d 525.

The stated purpose of section 11-81 of the Village Code is to prevent a public nuisance “which adversely affects * * * the public safety and welfare.” BP does not dispute that an abandoned gasoline service station can be detrimental to the public's health, safety, or welfare. Ordinances are presumed valid, and the party challenging an ordinance, in this case BP, bears the burden of proving invalidity. Village of Beckmeyer v. Wheelan, 212 Ill.App.3d 287, 294, 155 Ill.Dec. 514, 569 N.E.2d 1125 (1991). Based on the record before us, we cannot say that the Village's decision to define an abandoned gasoline service station as a nuisance is clearly erroneous. As a consequence, we conclude that section 11-60-2 of the Municipal Code provided the Village with adequate statutory authority to enact section 11-81 of the

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Village Code. A municipality's authority to act, however, is an issue entirely separate from the question of whether this power has been preempted by the superior authority of another lawmaking body. Pesticide Public Policy Foundation v. Village of Wauconda, 117 Ill.2d 107, 111, 109 Ill.Dec. 790, 510 N.E.2d 858 (1987). Accordingly, we must determine whether state law preempts section 11-81 of the Village Code.

It is well established that municipalities may not adopt ordinances which infringe upon the spirit of the state law or are repugnant to the general policy of the state. Hawthorne, 204 Ill.2d at 258-59, 274 Ill.Dec. 59, 790 N.E.2d 832; City of De Kalb v. White, 227 Ill.App.3d 328, 331, 169 Ill.Dec. 349, 591 N.E.2d 522 (1992); Village of Mundelein v. Hartnett, 117 Ill.App.3d 1011, 1015, 73 Ill.Dec. 285, 454 N.E.2d 29 (1983). Whether a local ordinance is preempted by state authority

403 Ill.App.3d 59

is a question of legislative intent. State Bank of Waterloo v. City of Waterloo, 339 Ill.App.3d 767, 771, 275 Ill.Dec. 98, 792 N.E.2d 329 (2003).

As it did before the circuit court, BP...