Whipple v. Vill. of N. Utica

• Decision Date: 25 April 2017
• Docket Number: Appeal No. 3-15-0547
• Parties: Mary WHIPPLE, Monty Whipple, Donna Coleman, Phyllis Coleman, Morgan Coleman, Joe Harmon, Dee Harmon, Rita Whipple, Malcolm Whipple, Mark Wold, Sue Wold, Fred Blue, and Monica Blue, Plaintiffs–Appellants, v. The VILLAGE OF NORTH UTICA, La Salle County, Illinois, and Aramoni LLC, Defendants–Appellees.
• Court: United States Appellate Court of Illinois

2017 IL App (3d) 150547
79 N.E.3d 667

Mary WHIPPLE, Monty Whipple, Donna Coleman, Phyllis Coleman, Morgan Coleman, Joe Harmon, Dee Harmon, Rita Whipple, Malcolm Whipple, Mark Wold, Sue Wold, Fred Blue, and Monica Blue, Plaintiffs–Appellants,
v.
The VILLAGE OF NORTH UTICA, La Salle County, Illinois, and Aramoni LLC, Defendants–Appellees.

Appeal No. 3-15-0547

Appellate Court of Illinois, Third District.

Opinion filed April 25, 2017

Kerry D. Nelson and William C. Meyers, of Goldberg Kohn Ltd., Nancy C. Loeb and Deborah G. Musiker, of Bluhm Legal Clinic, both of Chicago, and Walter J. Zukowski, of Zukowski Law Offices, of Peru, for appellants.

Jamie A. Robinson and Ronald S. Cope, of Nixon Peabody LLP, of Chicago, Herbert J. Klein, of Jacob & Klein, Ltd., and James A. Andreoni, of Perona, Peterlin, Andreoni & Brolley, LLC, both of Peru, for appellees.

Kate E. Schwartz, of Hughs Socol Piers Resnick & Dym, Ltd., of Chicago, for amicus curiae La Salle County Farm Bureau.

Albert F. Ettinger, of Chicago, for amici curiae Openlands et al.

Presiding Justice Holdridge concurred in the judgment and opinion.

Justice McDade concurred in part and dissented in part, with opinion.

OPINION

JUSTICE LYTTON delivered the judgment of the court, with opinion.

¶ 1 Plaintiffs, 13 owners and possessors of land in La Salle County, filed a three-count complaint against defendants, the Village of North Utica and Aramoni LLC, seeking to invalidate several village ordinances that allowed Aramoni to operate a silica sand mine in Waltham Township and requesting an injunction based on prospective nuisance. The trial court granted defendants' motion to dismiss plaintiffs' second amended complaint under section 2–615 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2–615 (West 2014) ), and plaintiffs' appeal. We reverse the dismissal of counts I and III and remand for further proceedings.

¶ 2 I. BACKGROUND

¶ 3 Aramoni is a sand mining company that owns approximately 497 acres north of Interstate 80 in Waltham Township near Utica, Illinois. Aramoni's property is comprised of tracts A, B, C, D and E. Plaintiffs own, reside on, and/or operate

79 N.E.3d 671

farmland that is adjacent to or within ½ mile of the company's mining property.

¶ 4 In 2009, North Utica annexed tracts A and B into the village pursuant to an annexation agreement between Aramoni and North Utica. Tracts A and B contain 375 acres of Aramoni's property. Both tracts were previously zoned A–1 Agricultural and retained that designation under the agreement.

¶ 5 In August of 2013, Aramoni petitioned the village to amend the 2009 annexation agreement to include tracts C, D, and E, which the county had also zoned A–1 Agricultural. At the time Aramoni petitioned the village, a moratorium on new sand mines and high capacity wells had been imposed in La Salle County, which prevented Aramoni from constructing a silica sand mine on property outside the village limits. The proposed amendments to the 2009 annexation agreement stated that future use of all five tracts of land would be silica sand mining. The petition was contingent upon North Utica granting (1) A–1 Agricultural zoning to tracts C, D, and E, and (2) a special use permit allowing Aramoni to mine silica sand from the entire 497–acre parcel. Under North Utica zoning ordinances, mining is a permissible special use in A–1 Agricultural zones.

¶ 6 North Utica Planning Commission and North Utica Board of Trustees held joint hearings on the petitions. Plaintiffs and other members of the community opposed the proposed amendments and the special use permit. They testified that the proposed mine threatened their health and safety, jeopardized the productivity of their farmland, and interfered with the use and enjoyment of their property. The planning commission voted to recommend that the village deny the proposed annexation agreement and the special use permit.

¶ 7 One week after the planning commission recommended denying the petition, the board of trustees voted to approve Aramoni's application for annexation and rezoning and its special use permit, with the proposed amendments. The amendments as approved permitted Aramoni to (1) develop and operate a silica sand mine on tracts A–E, (2) operate the mine continuously seven days a week, and (3) blast with explosives during daylight hours Monday through Friday and on Saturdays under "certain meteorological conditions." The amendments also prohibited trucks that were leaving the mine from using North Utica roads except for local deliveries.

¶ 8 In addition to the permitted activities, the agreement stated that the operation of a mine under the special use ordinance "will not constitute a nuisance" under the village nuisance ordinance. The agreement provided that Aramoni would comply with "appropriate laws, rules and regulations of all local, state and national governmental agencies," and stated that Aramoni agreed not to "cause negative impact upon any existing farm drainage tile and to repair any disruption caused by Developer." A provision of the agreement also provided that Aramoni would offer to enter into a well protection agreement with those persons owning property within ½ mile of the mine.

¶ 9 In connection with the agreement, North Utica adopted six ordinances allowing Aramoni to operate the property as a silica sand mine. In exchange, Aramoni agreed to pay a fee of $100,000 to the village and eight additional quarterly payments of $50,000, as well as a fee of $0.20 per ton of sand extracted from the proposed mine.

¶ 10 Plaintiffs filed a complaint against the Village of North Utica and Aramoni seeking administrative review of the annexation agreements and claiming that the related permits for rezoning, variance, and special use violated local ordinances and

79 N.E.3d 672

Illinois law. Defendants moved to dismiss, and the trial court granted the motion on the basis that administrative review was not permissible for a zoning action taken by a legislative body.

¶ 11 Plaintiffs then filed an amended complaint for declaratory judgment and injunctive relief. The amended complaint contained two counts alleging that North Utica violated plaintiffs' substantive and procedural due process rights and that, by adopting the mining ordinances, the village unlawfully surrendered its police powers to regulate any nuisance generated by the mine. Defendant again moved to dismiss under section 2–615 of the Code, claiming that plaintiffs failed to state a cause of action, and under section 2–619(a)(9) of the Code ( 735 ILCS 5/2–619(a)(9) (2014) ), arguing that plaintiffs lacked standing to bring a zoning action against them.

¶ 12 The trial court denied defendants' section 2–619 motion, holding that plaintiffs had standing to bring a claim for violation of their substantive due process rights based on their legally cognizable interest in property adjacent to or nearby the proposed mine. However, the court granted defendants' motion to dismiss the complaint pursuant to section 2–615 of the Code, finding that plaintiffs' allegations were insufficient to sustain a cause of action for constitutional relief. The court dismissed plaintiffs' complaint without prejudice, noting that the owners and residents had not raised substantive due process issues in their previous pleadings.

¶ 13 In response to the court's order, plaintiffs filed a second amended complaint, reasserting substantive due process violations and including two new claims: equal protection and prospective nuisance. Count I alleged that North Utica's adoption of the amended agreement and ordinances and approval of the special use permit violated plaintiffs' substantive due process rights. Count II claimed that the adoption of the ordinances violated plaintiffs' equal protection rights. Count III alleged prospective nuisance based on the planned construction and operation of the proposed silica sand mine.

¶ 14 In addition to the general allegations of harm contained in the first amended complaint, the second amended complaint contained detailed factual allegations that the sand mine would harm plaintiffs' property and alleged that the mine constituted a prospective nuisance in relation to nearby residents. Plaintiffs set forth specific harms that would likely occur if Aramoni was allowed to operate its sand mine in Waltham Township, including (1) harm to plaintiffs by exposure to airborne silica sand, (2) harm to the level of plaintiffs' wells and the quality of their well water, (3) harm due to flooding of plaintiffs' properties, (4) damage to plaintiffs' farm tiles, (5) extreme noise caused by blasting during extended hours, (6) harm related to increased truck traffic, (7) harm caused by lighting at the sand mine, and (8) diminution of plaintiffs' property values.

¶ 15 Defendants filed a motion to dismiss, seeking dismissal based on lack of standing under section 2–619 of the Code and failure to state a cause of action under section 2–615 of the Code. The trial court found that plaintiffs had standing to bring their complaint, but granted defendants' motion to dismiss under section 2–615, finding that plaintiffs failed to state a cause of action as to all three counts. The court's written order dismissed plaintiffs' complaint with prejudice.

¶ 16 II. STANDING

¶ 17 Before reaching the substance of plaintiffs' arguments, we must first address defendants' claim that plaintiffs lack standing to challenge North Utica's annexation ordinances and its decision to grant Aramoni a special use permit.

79 N.E.3d 673

¶ 18 A party with an injury in fact to a "legally cognizable interest" has standing to bring a claim for that injury. Village of Chatham v. County of Sangamon , 216 Ill.2d 402, 419, 297 Ill.Dec. 249, 837 N.E.2d 29 (2005). The injury, threatened or actual, must be "(1) distinct and palpable; (2) fairly traceable to defendant's actions; and (3) substantially likely to be prevented or redressed by the grant of the requested relief." Wexler v. Wirtz Corp. , 211...