Indian Hill Neighbors' Ass'n v. American Cablesystems

525 N.E.2d 984, 171 Ill. App. 3d 789, 121 Ill. Dec. 677, 1988 Ill. App. LEXIS 817
CourtAppellate Court of Illinois
DecidedJune 7, 1988
Docket87-3096
StatusPublished
Cited by6 cases

This text of 525 N.E.2d 984 (Indian Hill Neighbors' Ass'n v. American Cablesystems) 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
Indian Hill Neighbors' Ass'n v. American Cablesystems, 525 N.E.2d 984, 171 Ill. App. 3d 789, 121 Ill. Dec. 677, 1988 Ill. App. LEXIS 817 (Ill. Ct. App. 1988).

Opinion

JUSTICE SCARIANO

delivered the opinion of the court:

This action was brought by the plaintiff homeowners’ association to enjoin defendant, the cable television franchisee in the Village of Wilmette, from installing cable and accessory equipment in village-owned parkways which adjoin properties owned by the members of the association. Upon motion of the defendant, brought pursuant to section 2 — 619 of the Code of Civil Procedure (DI. Rev. Stat. 1985, ch. 110, par. 2 — 619), the trial court dismissed the action. Plaintiff now seeks review of the trial court’s holding that the Illinois Municipal Code (111. Rev. Stat. 1985, ch. 24, par. 11 — 42—11.1(b)) barred plaintiff from obtaining injunctive relief against defendant, American Cable-systems, Inc. (hereinafter ACI).

Plaintiff, Indian Hill Neighbors’ Association, Inc., is a not-for-profit corporation whose members are homeowners in a section of the Village of Wilmette known as “Indian Hill,” which is recognized as a distinct residential community with a unique character, including its virtual absence of above-ground utility facilities. The residential properties located in Indian Hill are subject to certain uniform restrictions established by covenants running with the land which prohibit the installation of above-ground electrical wiring and equipment. The sidewalks are located at the street curb, and, as a result, the parkways, or rights-of-way, where certain underground utilities are located, are not physically separated or visibly distinct from the front lawns of the homes. Indian Hill residents have planted trees and shrubs, installed driveways, water sprinkling systems and other fixtures on the rights-of-way adjoining their properties, and they have maintained these rights-of-way as a contiguous and undifferentiated portion of their front lawns apparently since the community was developed.

ACI, a Massachusetts limited partnership engaged in the business of owning and operating cable television systems, was granted the Wilmette cable television franchise pursuant to the terms of the village’s Cable Television ordinance, which states in pertinent part:

“Any franchise granted hereunder shall give to the Grantee, subject to the provisions of this Ordinance, the right and privilege at its own expense, to construct, erect, operate, modify and maintain in, upon, along, above, over and under the streets, such towers, antennas, cables, electronic equipment, and other network appurtenances necessary for the operation of a BTN (Broadband Telecommunications Network) in the Village.”

Another section of the same ordinance defines a street, among other things, as a right-of-way which has been dedicated to the public and maintained under public authority or by others and located within the village limits. All of the cable to be laid by ACI in the Indian Hill area and all necessary equipment would be located on the rights-of-way owned by the village.

To install cable television facilities in Indian Hill, ACI will excavate for and install 200 flush-to-the-ground vaults (2.5 feet long and 1.5 feet wide) and 18 above-ground “pedestals” containing electric wiring, together with underground cable to link them. These fixtures would be spread over a six-mile area.

Plaintiff maintains that the trenching and excavation required by the project would damage and destroy root systems of trees and shrubs, underground sprinkler systems, utility lines, drainage tiles and other fixtures. Plaintiff further maintains that the presence of the above-ground pedestals would detract from the unique character of the community and would permanently disrupt or destroy the planned landscapes of the Indian Hill properties.

ACI is required by the ordinance to restore the rights-of-way necessitated by the construction of the cable television system as follows:

“Grantee shall, at its own expense and in a manner approved by the Village, restore to Village standards and specifications any damage or disturbance caused to the public way as a result of its operations or construction on its behalf. Grantee shall guarantee and maintain such restoration for a period of one year against defective materials or workmanship.”

ACI has also agreed to work in conjunction with an independent landscape expert hired by the village to avoid damage to trees and landscaping. Further, ACI has notified residents, asking them for the location of all underground fixtures and other installations, and has plans to work with the utility companies to avoid damage to their facilities.

The trial judge granted ACI’s motion to dismiss plaintiff’s action on the ground that subsection 11 — 42—11.1(b) of the Elinois Municipal Code (111. Rev. Stat. 1985, ch. 24, par. 11 — 42—11.1(b)) bars plaintiff from maintaining the suit. That statute provides:

“In any instance in which a municipality has granted a franchise to any community antenna television company to construct, operate or maintain a cable television system within a designated franchise area, no property owner, condominium association, managing agent, lessee or other person in possession and control of any improved or unimproved real estate located within such designated franchise area shall forbid or prevent such cable television franchisee from entering upon such real estate for the purpose of and in connection with the construction or installation of such cable television system and cable television facilities, nor shall any such properly owner, condominium association, managing agent, lessee or other person in possession or control of such real estate forbid or prevent such cable television franchisee from constructing or installing upon, beneath or over such real estate, including any buildings or other structures located thereon, hardware, cable, equipment, materials or other cable television facilities utilized by such cable franchisee in the construction and installation of such cable television system ***.” Ill. Rev. Stat. 1985, ch. 24, par. 11— 42 — 11.1(b).

Plaintiff argues that the trial court incorrectly applied this provision of the Code to the issues herein because the association is not the owner of the property in question. Indeed, the parties are in agreement that the plaintiff association neither owns nor possesses nor controls any property in the Indian Hill area. Consequently, after we winnow through all of the issues remaining in this case, the fundamental one, underlying all others, relates to the standing of plaintiff to bring this suit.

The complaint filed in this case alleges that the plaintiff association was organized for the purposes of promoting the general welfare of the property owners of Indian Hill, and preserving and protecting the natural surroundings of the Indian Hill area; accordingly, it claims an interest in “the character of the neighborhood.” Illinois courts have consistently held that a party seeking relief must establish that he has a direct, personal claim related to his own property or that he will suffer injury in his individual capacity to a substantive, legally protected interest. Spring Mill Townhomes Association v. Osla Financial Services, Inc. (1983), 124 Ill. App. 3d 774,

Related

Bartow v. Ford Motor Co.
Appellate Court of Illinois, 2003
Cable Television & Communications Ass'n v. Ameritech Corp.
680 N.E.2d 445 (Appellate Court of Illinois, 1997)
Cable Television v. Ameritech Corp.
Appellate Court of Illinois, 1997

Cite This Page — Counsel Stack

Bluebook (online)
525 N.E.2d 984, 171 Ill. App. 3d 789, 121 Ill. Dec. 677, 1988 Ill. App. LEXIS 817, Counsel Stack Legal Research, https://law.counselstack.com/opinion/indian-hill-neighbors-assn-v-american-cablesystems-illappct-1988.