Village of Algonquin v. Village of Barrington Hills

• Court: Appellate Court of Illinois
• Writing for the Court: BOWMAN
• Citation: Village of Algonquin v. Village of Barrington Hills, 626 N.E.2d 329, 254 Ill.App.3d 324 (Ill. App. 1993)
• Decision Date: 30 December 1993
• Docket Number: No. 2-93-0193,2-93-0193
• Parties: , 193 Ill.Dec. 296 The VILLAGE OF ALGONQUIN, Plaintiff-Appellant, v. The VILLAGE OF BARRINGTON HILLS, Defendant-Appellee.

Page 329

626 N.E.2d 329

254 Ill.App.3d 324, 193 Ill.Dec. 296

The VILLAGE OF ALGONQUIN, Plaintiff-Appellant, v. The VILLAGE OF BARRINGTON HILLS, Defendant-Appellee.

No. 2-93-0193.

Appellate Court of Illinois Second District.

Dec. 30, 1993.

Andrew T. Freund, David W. McArdle (argued), Valeree D. Marek, Zukowski, Rogers, Flood & McArdle, Crystal Lake, for Village of Algonquin.

George J. Lynch (argued), Andrew D. James, Burke, Warren & MacKay, P.C., Chicago, for Village of Barrington Hills.

Justice BOWMAN delivered the opinion of the court:

Plaintiff, the Village of Algonquin, appeals from a judgment of the circuit court of McHenry County which upheld the validity of a resolution adopted by defendant, the Village of Barrington Hills. The resolution ordered a road to be closed at Barrington Hills' municipal border with neighboring Algonquin. Algonquin sought declaratory and injunctive relief on grounds that the resolution was void. Claiming the trial court erred, Algonquin contends on appeal that adoption of the ordinance was beyond the scope of Barrington Hills' authority and constituted unreasonable, arbitrary, and capricious municipal action.

The thoroughfare at issue here, Spring Creek Road, runs west from Barrington Hills into Algonquin. Haeger's Bend Road, which runs generally in a north-south direction, intersects Spring Creek Road near the western edge of Barrington Hills. Approximately 1,200 feet west of Haeger's Bend, the municipal boundary between Algonquin and Barrington Hills also crosses Spring Creek Road.

During the period from 1982 to 1987, the daily traffic volumes on the roads in Barrington Hills increased on average in excess of 100%. As the result of this increase and the corresponding damage to the roads in Barrington Hills, Robert Lenzini, the Barrington Hills village engineer, sent a confidential memorandum, dated July 31, 1987, to the village administrator of Barrington Hills. Lenzini stated:

"Village streets are becoming more difficult to maintain even though we are spending greater amounts of money each year. This puts all of the Village staff at a disadvantage when trying to justify the increased spending when the results do not appear to be accomplishing what is expected; namely, improve streets.

All of the problems, of course, are due to lack of structural strength of our pavements due to either an absence of sufficient base or lack of adequate drainage. This was not of great importance 10 to 15 years ago because of the low volume of traffic experienced by the road system, but the secret is now out. Barrington Hills provides a pleasant short cut to or bypass around Barrington. Due to this, we are experiencing an increase in traffic on our roads and the resulting higher rate of failure due to aforesaid deficiencies."

Lenzini then proposed two options for dealing with the problem: (1) reconstruct the roads to accommodate the heavier traffic, at a likely cost of $400,000 to $500,000 per mile, or (2) make village roads less accessible to through traffic by closing selected entry points to the system. Among others, Lenzini suggested that Spring Creek Road be closed at the village limits west of Haeger's Bend Road. The memo concluded:

"We can, of course, continue repairing the roads in the current manner. But if we do, everyone must understand there will be an increased demand on the Village budget for sufficient monies to adequately maintain the Village street systems."

On July 18, 1988, Barrington Hills held a public hearing to discuss the proposed closing of Spring Creek Road. Lenzini made a presentation in which he described the problem and his suggested solutions. Subsequently, on August 22, 1988, Barrington Hills passed resolution No. 88-18 closing Spring Creek Road at the Algonquin/Barrington Hills border. The resolution recited in relevant part:

"WHEREAS, the Village of Barrington Hills maintains certain roads and regulates the traffic thereon; and

WHEREAS, the Board of Trustees has received information from the Village Engineer concerning the future condition of the roads and the traffic volume; and

WHEREAS, the elimination of/or restricting traffic in the opinion of the Village Engineer is a cost effective measure to preserve and maintain the condition of the roads and their utility for the motoring public; * * *

NOW THEREFORE BE IT RESOLVED * * *:

Section One: The Village President and Board of Trustees finds [sic] and believes [sic] that in the furtherance of public safety Spring Creek Road, west of Haeger's Bend Road is hereinafter a no outlet street to all but authorized emergency vehicles."

On September 1, 1988, pursuant to its resolution, Barrington Hills placed barricades on Spring Creek Road at the village's boundary with Algonquin. Algonquin filed this suit six days later. Following a bench trial, the court entered a memorandum opinion and order. The court made a number of factual findings, ultimately concluding that Algonquin had not adequately shown that Barrington Hills' adoption of the resolution to close Spring Creek Road was improper. Algonquin now contends that this finding was contrary to the manifest weight of the evidence. Findings of fact made by the trial court sitting without a jury will not be disturbed unless they are against the manifest weight of the evidence. (Harris Trust & Savings Bank v. Village of Barrington Hills (1989), 133 Ill.2d 146, 157, 139 Ill.Dec. 852, 549 N.E.2d 578; Hausmann v. Hausmann (1992), 231 Ill.App.3d 361, 365, 172 Ill.Dec. 937, 596 N.E.2d 216.) For a finding to be contrary to the manifest weight of the evidence, an opposite conclusion must be clearly apparent. (Schackleton v. Federal Signal Corp. (1989), 196 Ill.App.3d 437, 445, 143 Ill.Dec. 309, 554 N.E.2d 244.) We affirm.

As Algonquin acknowledges, Barrington Hills has the right, pursuant to statute, to regulate the use of its streets. (See 65 ILCS 5/11-80-2, 5/11-80-20 (West 1992); 605 ILCS 5/7-101 (West 1992).) Algonquin also recognizes the well-established rule that a municipal enactment, adopted pursuant to statutory authority, is presumptively valid. (See Coryn v. City of Moline (1978), 71 Ill.2d 194, 199, 15 Ill.Dec. 776, 374 N.E.2d 211; Greater Peoria Sanitary & Sewage Disposal District v. Hermann (1987), 153 Ill.App.3d 398, 401, 106 Ill.Dec. 222, 505 N.E.2d 769.) However, Algonquin asserts that resolution No. 88-18 was void ab initio because it was adopted for an improper purpose.

Although stated in a number of different ways, Algonquin essentially takes the position that the true purpose of the resolution is to serve private rather than public interests. In its first formulation of this argument Algonquin claims the resolution serves only the interests of three Barrington Hills trustees and other Barrington Hills residents who live along Spring Creek Road. Barrington Hills does not dispute that a municipal enactment which allows public property to be devoted to a purely private purpose is void because it is beyond the power which the municipal officials possess. (See Ill. Const.1970, art. VIII, § 1(a); O'Fallon Development Co. v. City of O'Fallon (1976), 43 Ill.App.3d 348, 354-55, 2 Ill.Dec. 6, 356 N.E.2d 1293.) Rather, Barrington Hills responds that Algonquin did not make this argument at trial and may not make it now. It is well settled that issues not raised in the trial court cannot be raised for the first time on appeal and are deemed waived. (Meerbrey v. Marshall Field & Co. (1990), 139 Ill.2d 455, 467, 151 Ill.Dec. 560, 564 N.E.2d 1222.) Algonquin did not point out to us either in its reply brief or at oral argument where it raised this precise issue. Consequently, it is waived. Even if it were not waived, though, Algonquin could not prevail on this argument.

Algonquin focuses only on the restrictions on use of Spring Creek Road itself, asserting that Barrington Hills residents, but no others, can use Spring Creek to access Haeger's Bend Road. However, Algonquin did not produce evidence to support this position. It did not show, for example, that nonresident motorists, who happened to already be driving within Barrington Hills, could not take Spring Creek west, the same as any resident of the village. Nor did it show that nonresidents could not enter the Village of Barrington Hills from the west at some other location and then proceed to Spring Creek Road and travel on it in either an east or west direction. On the contrary, the evidence was that all motorists, whether residents or not, may freely use any of the village streets. The only thing they may not do is enter or leave the western edge of Barrington Hills on Spring Creek Road. Moreover, as will be shown, the resolution is aimed at protecting Barrington Hills' overall street system from the deleterious effects of increasing traffic volume. Thus, while it is true that Barrington Hills residents will benefit from better streets, so will any other member of the public driving on those streets. All in all, the evidence does not support Algonquin's argument that the only people benefited by the resolution are the trustees and other residents who live along Spring Creek Road. Consequently, Algonquin has not shown that resolution No. 88-18 was adopted for purely private purposes and is, therefore, void.

The circumstances of this case are totally unlike those in the authority invoked by Algonquin. In People ex rel. Burton v. Corn Products Refining Co. (1918), 286 Ill. 226, 121 N.E. 574, a municipal ordinance authorized a private corporation to build a bridge over and across the street in order to connect the corporation's buildings, which were located on either side of the street. A subsequent ordinance vacated that portion of the street located on the corporation's property. Soon after this ordinance was approved the corporation fenced the vacated section of the street and excluded the public from using it. Both ordinances were held to be void since they were beyond the power...