Under the Illinois Municipal Code, residents had standing to enforce the village’s zoning ordinances regarding the placement of cell phone antennae on the village water tower because the residents lived within the specified area, and they claimed they were substantially affected by the violations of the ordinances. The residents sufficiently pleaded claims that the zoning ordinance was violated with respect to certain height restrictions and equipment placement because those restrictions were regulated by the ordinance — not by federal law. But the residents’ claims regarding radio frequency levels were preempted by federal law. Finally, they failed to state a claim that a 2007 zoning ordinance that allowed additional towers violated a 1991 ordinance, which required that the number of towers be kept to a minimum.
The plaintiffs are village residents who challenged the addition of cell phone antennas to the village’s water tower. In 1991, the village passed an ordinance granting a special-use permit for the construction of a water tower. That ordinance contained a provision requiring that antennas on the water tower were to be kept at a minimum. In 2007, there were 13 antennas, owned by two different cell phone companies, on the water tower, and the village passed an ordinance granting another company’s request to install nine more cell-phone antennae on the water tower. Further, one ordinance provided that a 7-foot 5-inch cellular antenna structure could be placed on top of the 124-foot municipal water tower. One year later, the plaintiffs filed their complaint against the village and the cell phone company for injunctive relief and for a temporary restraining order to prevent the installation of the antennae.
In plaintiffs’ second amended complaint, they claimed that they had standing to enforce both ordinances, because they lived within 1,200 feet of the tower and their property values or use of their property was affected by the ordinance violations. Premised on Section 11-13-15 of the Illinois Municipal Code (65 ILCS 5/11-13-15), the plaintiffs alleged that the 2007 ordinance was violated when one company’s antenna exceeded the ordinance’s height restriction, and that the 2007 ordinance adding the installation of the nine antennae violated the “at a minimum” requirement in the 1991 ordinance. The plaintiffs further alleged that the defendants would create dangerous levels of RF emissions, and that they would be substantially affected by these ordinance violations because of the unsightliness, inconsistency with the residentially zoned neighborhood, diminished property values, and obstruction of view.
The trial court granted defendants’ joint motion to dismiss. The trial court believed that many of the items subject to the complaint were preempted by the Telecommunications Act. It would also appear that the trial court believed the plaintiffs did not have standing to challenge the ordinances under Section 11-13-15 of the Municipal Code because of the 90-day statute of limitations, as the trial court stated that the plaintiffs failed to cure the standing issue. The plaintiffs appealed.
The appellate court disagreed with the trial court on the standing issue. Section 11-13-15 of the Municipal Code provides that any owner of real property within the specified area may institute an action if the owner shows that his or her property or person will be substantially affected by the alleged violation. All plaintiffs reside within the specified area, and they alleged diminished property values, personal injuries caused by exposure to RF levels, and emotional unrest from living next to a health and safety hazard. The plaintiffs also had standing under the village zoning code because it specifically provides standing to property owners “whose property value or use is or may be affected by [zoning code] violation.” Therefore, the appellate court determined that the plaintiffs did have standing.
The appellate court, however, determined that the passage of the 2007 ordinance did not violate the 1991 ordinance. Rather, the 2007 ordinance was in conformity with the 1991 ordinance because the village included a factual finding in the 2007 ordinance that the “at a minimum” requirement in the 1991 ordinance was being complied with. Therefore, the appellate court determined that the plaintiffs failed to state a claim that the “at a minimum” requirement in the 1991 ordinance would be violated by the addition of nine antennae.
As for the violations of the 2007 ordinance, the appellate court determined that the village, as the owner of the water tower and the property the water tower sits on, was a proper defendant in this case. The appellate court then determined that the plaintiffs failed to state a cause of action regarding the RF levels because such claims are preempted by the Telecommunications Act. The appellate court, however, determined that the plaintiffs’ other claims of violations of the 2007 ordinance were sufficient to state a cause of action because the heights restrictions and equipment placement were regulated by the ordinance, not the Telecommunications Act.
Therefore, the appellate court affirmed the trial court’s decision regarding the plaintiff’s claims of violations of the 1991 ordinance. The appellate court reversed the trial court’s decision in regards to the standing issue and its decisions on the counts regarding the other claims regarding violations of the 2007 ordinance, and remanded the case back to the trial court.
Ruisard v Village of Glen Ellyn, 939 N.E. 2d 1084 (Ill. App. 11/29/2010)
The opinion can be accessed at: http://legal.iml.org/files/pages/6210/2-09-1083.pdf
This abstract appears on the website of the Illinois Municipal League.
