Harris Bank of Roselle v. Village of Mettawa

611 N.E.2d 550, 243 Ill. App. 3d 103, 183 Ill. Dec. 287, 1993 Ill. App. LEXIS 375
CourtAppellate Court of Illinois
DecidedMarch 22, 1993
Docket2-92-0624
StatusPublished
Cited by25 cases

This text of 611 N.E.2d 550 (Harris Bank of Roselle v. Village of Mettawa) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harris Bank of Roselle v. Village of Mettawa, 611 N.E.2d 550, 243 Ill. App. 3d 103, 183 Ill. Dec. 287, 1993 Ill. App. LEXIS 375 (Ill. Ct. App. 1993).

Opinion

JUSTICE DOYLE

delivered the opinion of the court:

Plaintiffs, Harris Bank of Roselle, as trustee under trust agreement 12672, dated August 10, 1987, and Newton Korhumel, filed a complaint in the circuit court of Lake County, pursuant to section 2 — 701 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 701), seeking a declaration that the Village of Mettawa Ordinances Nos. 192 and 198 were void with respect to a particular parcel of plaintiffs’ property. Defendant, the Village of Mettawa, timely appeals from orders denying defendant’s motions to dismiss both counts of plaintiffs’ complaint (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 619(a)(9)) and granting plaintiffs’ motion for summary judgment.

Defendant raises the following issues on appeal: (1) whether the trial court erred in concluding plaintiffs had standing to bring the underlying action; (2) whether the trial court erred in concluding that plaintiffs had sustained their burden of proof in overcoming the presumptive validity of Ordinances Nos. 192 and 198; (3) whether village Ordinance No. 192 was within the statutory authority of the village; (4) whether the trial court erred in concluding that village Ordinance No. 192, which had extraterritorial effect, was unenforceable as to plaintiffs’ property because it was beyond the home rule powers of the village; and (5) whether the trial court erred in concluding that village Ordinance No. 198, which had extraterritorial effect, was unenforceable as to plaintiffs’ property because it amounted to zoning and not road control and because the ordinance violated plaintiffs’ due process rights.

Plaintiff Harris Bank of Roselle, as trustee for the benefit of plaintiff Newton Korhumel and his family, holds legal title to the subject property in this action, an 84-acre parcel of unincorporated, vacant land located in Lake County bordered by Interstate 94 to the east, Illinois Route 60 to the south and Bradley Road to the west. This parcel is located outside, but adjacent to, the corporate limits of the Village of Mettawa. The subject property is not served by a sanitary sewer, and North Shore Sanitation has refused to extend service to the property.

Defendant is a home rule municipal corporation located in Lake County. Portions of Bradley Road are within the municipal boundaries of the village. The municipal boundary of the village, containing a portion of Bradley Road, abuts plaintiffs’ property. Bradley Road is a public, two-lane road running from Illinois Route 60 north to Illinois Route 176. The portion of Bradley Road located south of 1-94 is accessed by properties currently zoned for single-family residences, including plaintiffs’ property. The portion of Bradley Road located north of 1-94 is accessed by properties zoned for a number of uses, including office and research, industrial and residential. Bradley Road provides the sole means of access to plaintiffs’ property. A parcel of land, known as the Bennett property, is located within the corporate boundaries of the village and is zoned residential. On October 16, 1990, by Ordinance No. 3 — 90, the village approved a proposal for construction of a residential housing project on the Bennett property, finding that approval for such a plan was in the best interests of the Village of Mettawa. The Bennett development will implement a wastewater treatment system.

On January 22, 1991, defendant passed Ordinance No. 192, which provides in part:

“ARTICLE II. SANITARY SEWAGE.
SECTION 8.201. Treatment By Irrigation Prohibited. Within the corporate limits of the Village of Mettawa and the territory adjoining it between Bradley Road and the Illinois Toll Road (Interstate 94) ***:
A. It shall be unlawful for any person, firm, or corporation to permit and/or cause to be permitted the treatment of sanitary sewerage and/or sanitary wastewater by irrigation; and
B. No person, firm, or corporation shall undertake to treat sanitary sewerage and/or sanitary wastewater by means of irrigation of any type, including but not limited to spray irrigation.
SECTION 8.202. Definitions.
* * *
B ***
1. ‘Irrigation’ including ‘Spray Irrigation’, shall mean the moistening of the surface of land with treated or untreated sanitary sewerage and including any land treatment type sanitary sewerage facility whether or not such facility has received the approvals required by the Northeastern Illinois Planning Commission, the Illinois Environmental Protection Agency, or any other governmental entity, but excluding sanitary sewerage septic systems.
2. ‘Sanitary Sewerage’ and/or ‘Sanitary Wastewater’, shall mean a combination of the water-carried wastes from residences, business buildings, institutions, and other establishments.
SECTION 8.203. Penalties. Any person, firm or corporation who violates or aids and abets in the violation of any of the provisions of this Article is guilty of a misdemeanor ***.”

Plaintiffs’ property is wholly contained within the extraterritorial areas Ordinance No. 192 specifically purports to regulate.

On September 3, 1991, plaintiffs filed a petition for rezoning of the subject property, from “E” zoning to “U” zoning, to permit its development as an office campus. The petition further requested that the Lake County board grant the subject property a conditional use permit for a wastewater land treatment facility. Section 3.05 of the Wastewater Land Treatment Site Regulation Act (Ill. Rev. Stat. 1991, ch. lll1^, par. 583.05) further required plaintiffs to obtain a permit from the Illinois Environmental Protection Agency prior to establishing, operating, managing or maintaining the wastewater land treatment system which they proposed to utilize for the development.

On November 13, 1991, defendant approved resolution No. 91— 8 protesting and objecting to the proposed rezoning and the issuance of a conditional use permit with respect to plaintiffs’ property. A copy of this ordinance was submitted by defendants to the Lake County zoning board of appeals during hearings on plaintiffs’ rezoning petition.

On November 20, 1991, defendant approved Ordinance No. 198, which provides, in part:

“ACCESS TO ROADS *** 1. The Village roads named above [Little St. Mary’s Road, Old School Road and Bradley Road] may be accessed only from single family residential properties and from areas platted and containing single family residences.”

On November 20, 1991, defendant also prepared a memorandum of law directed to the Lake County zoning board of appeals regarding plaintiffs’ rezoning petition, entitled “Mettawa’s Memorandum of Law on Access to its Roads,” indicating the position that the village can deny access to its road, or limit it to single-family dwellings. A copy of Ordinance No. 198 was attached, and both items were filed with the zoning board of appeals on the following day. A copy of Ordinance No.

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Bluebook (online)
611 N.E.2d 550, 243 Ill. App. 3d 103, 183 Ill. Dec. 287, 1993 Ill. App. LEXIS 375, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harris-bank-of-roselle-v-village-of-mettawa-illappct-1993.