Posted by: Patricia Salkin | May 31, 2018

IL Appeals Court Reverses Dismissal Claims Arising from Grant of Special Use Permit

This post was authored by Matthew Loeser, Esq.

Ogle County granted a special-use permit to operate a “Motor Carrier Facility” to store garbage trucks and dumpsters on a property owned by the Stukenbergs and STKE, LLC. The property was located in an AG-1 agricultural zoning district, and surrounded by private property containing unimproved farmland and rural home sites, farm buildings, and single-family homes. The surrounding property was being used consistently with the AG-1 zoning. Plaintiff Paul owned property adjacent to the Stukenberg property, and the DeHavens owned property approximately 1250 feet away. Plaintiffs alleged that the proposed use would be unconstitutional as applied to their properties. In this case, Plaintiffs claimed that the trial court erroneously held that they lacked standing to challenge the County’s granting of a special-use permit on nearby property and that they did not allege a facial challenge, as required, to the ordinance approving the special use.

The court first noted that it was unclear whether a plaintiff challenging the granting of a special-use permit for a neighboring property had a duty to plead special damages. Here, Plaintiffs claimed that Paul’s property was immediately adjacent to the subject tract and that the DeHavens’ property was within 1250 feet of it. Based on the proximity of these properties, the court determined that effects such as noise and odors would be felt more acutely on plaintiffs’ properties than on those many miles distant. Furthermore, Plaintiffs allege that “run-off from the garbage dumpsters and garbage trucks would drain to the bottomland areas which were immediately adjacent to the Walter Paul property.” As such, the court held that plaintiffs adequately pleaded that they would suffer damages different from those of the public generally.

Defendants next contended that, even if the trial court erred in dismissing the entire complaint, its dismissal of count II should be affirmed because the count failed to state a claim. In count II, plaintiffs alleged that the county failed to follow its own zoning ordinance in granting the special-use permit. The court determined that if a municipality violates its own valid ordinance, its action is illegal, and the courts may enjoin it. Accordingly, the court reversed the dismissal of count II.

Plaintiffs lastly claimed that count III, which sought to enjoin the proposed use, was likewise improperly dismissed. Defendants’ argument that the claim was insufficient restated their previous arguments about the complaint in general. As such, the court declined to consider whether plaintiffs’ specific allegations were sufficient to state a cause of action for injunctive relief. Accordingly, the court reversed the dismissal of count III.

Paul v County Officials of Ogle, 2018 WL. App. 2d 170699 (IL App. 4/20/2018)

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