Petition — Village of Hoffman Estates v. Village of Barrington Hills

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80-908 | Firs

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IN THE MICHAEL RODAK, Jp. CLERK

Supreme Court of the United States

OCTOBER TERM, 1980

VILLAGE OF HOFFMAN ESTATES,

A Municipal Corporation, et. al.

Petitioner,

v.

VILLAGE OF BARRINGTON HILLS,

A Municipal Corporation, et. al.

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF ILLINOIS

RICHARD N. WILLIAMS

1200 North Gannon Drive

Hoffman Estates, Illinois 60196

(312) 882-9100

Counsel for Petitioner

Pandick Press Midwest, Inc., Chicago © 454-7600

i

QUESTIONS PRESENTED

1. Whether a State Court’s finding that granted standing

of non-contiguous municipalities to challenge zoning decisions

of the Petitioner is violative of Article III, Section 2 of the

United States Constitution as it relates to said municipalities

claim of denial of due process of law under the Fourteenth

Amendment of the United States Constitution.

2. Whether a State Court’s finding that non-contiguous

municipalities can allege due process rights in their corporate™

municipality function to challenge a zoning decision of another

municipality under the Fourteenth Amendment of the United

States Constitution is violative of the Constitution of the United

States.

NOTE: Parties to the proceeding in the Supreme Court of

Illinois:

VILLAGE OF BARRINGTON HILLS, a municipal corpo-

ration, and VILLAGE OF SOUTH BARRINGTON, a mu-

nicipal corporation,

Plaintiffs-Appellants,

v.

VILLAGE OF HOFFMAN ESTATES, a municipal corpo-

ration, NEDERLANDER REALTY COMPANY OF IL-

LINOIS, a corporation, PERFORMANCE PROPERTIES,

INC., a Delaware corporation, NED-PROP, an Illinois Joint

Venture, RKO GENERAL, INC., a New York corporation,

PIONEER BANK AND TRUST CO., as Trustee under

Trust No. 13552, dated April 24, 1962, FRED HANSEN and

ETHEL HANSEN,

Defendants-Appellees.

il

TABLE OF CONTENTS.

PAGE

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Constitutional Provisions and Statutes Involved .................. 2

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Appendix

Decision of the Cook County Circuit Court .................. la

Decision of the Appellate Court of Illinois................... » 3a

Decision of the Supreme Court of Illinois..................... 13a

Denial of Petition for Rehearing by the Supreme

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TABLE OF AUTHORITIES.

Cases.

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Warth v. Seldin, 422 U.S. 490 (1975) co.cc

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Gladstone Realtors v. Bellwood, 441 US. 91

City of New York v. Richardson, 473 F2d 923,

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Williams v. Mayor and City Council of Baltimore,

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Constitution and Other Authorities.

Article III, Section 2 of the United States Con-

TIRE ere Pace ST ERPs A ENS We ELD RRP A,

Fourteenth Amendment of the United States Con-

i ed

-

8

No.

IN THE

Supreme Court of the Qnited States

OCTOBER TERM, 1980

VILLAGE OF HOFFMAN ESTATES,

A Municipal Corporation, et. al.

Petitioner,

vy.

VILLAGE OF BARRINGTON HILLS,

A Municipal Corporation, et. al.

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF ILLINOIS

The Petitioner, Village of Hoffman Estates, respectfully

prays that a writ of certiorari issue to review the judgment of

the Illinois Supreme Court entered September 26, 1980,

denying petition for rehearing of the Illinois Supreme Court’s

opinion of May 12, 1980.

OPINIONS BELOW

On October 23, 1978, a final order upon a Motion to

Dismiss was entered in the Cook County Circuit Court that the

Villages of Barrington Hills and South Barrington did not have

standing to bring the litigation against Petitioner ( Appendix

A). An appeal was taken by Respondents to the Appellate

Court of Illinois, First District.

2

On August 21, 1979, the Appellate Court of Illinois

affirmed the order of the Circuit Court (Appendix B). The

opinion was certified for publication by the Court and was

reported at 394 N. E. 2d 599. An appeal was taken by

Respondents to the Supreme Court of Illinois.

On May 12, 1980, the Supreme Court of Illinois reversed

the judgment of the Appellate Court ( Appendix C). The

opinion was certified for publication by the Court and was

reported at 410 N. E. 2d 37. A petition for rehearing was filed

in the Supreme Court of Illinois.

On September 26, 1980, the Supreme Court of Illinois

denied the petition for rehearing (Appendix D).

JURISDICTION

This Petition of Certiorari has been filed within 90 days of

the denial of the petition for rehearing by the Illinois Supreme

Court filed September 26, 1980 and is timely docketed in this

Court.

The jurisdiction of this Court is invoked under 28 U.S.C.

Section 1257(3).

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The pertinent provisions of Article Three and the

Fourteenth Amendment of the Constitution of the United

States are set forth in Appendix E.

STATEMENT OF THE CASE

Petitioner, Village of Hoffman Estates, is a home rule

municipality. Original Defendants, Nederlander Realty Com-

pany of Illinois, Performance Properties, Inc., Ned-Prop and

RKO General, Inc. (hereinafter “the Nederlander Group’),

3

_are related corporate entities and joint ventures who, at the time

{ of Respondents suit, intended to construct an outdoor music

theatre on the property that is the subject of this litigation.

Respondents are both municipal corporations. The Village

of Barrington Hills is not a home rule municipality. The Village

of South Barrington is a home rule municipality.

The Nederlander Group planned to construct an outdoor,

open-air music theatre, to be known as the Poplar Creek Music

Theatre on 212 acres of land within the Village of Hoffman

Estates and in close proximity to but not contiguous to Barring-

ton Hills and South Barrington. The theatre was alleged to seat

approximately 20,000 people: 6,000 in an auditorium structure

and 14,000 in the open. Parking spaces were to be provided for

6,000 to 7,500 automobiles. Concessions and other commercial!

activities will be conducted ancillary to the concerts and music

programs and other performances that were to be offered by

the theatre. The Nederlander Group intended to present

performances at the theatre a minimum of one hundred days

during the summer season of each year. All music perform-

ances were to be electronically amplified.

On August 22, 1978, following 21 public hearings, Hoff-

man Estates passed and approved three ordinances authorizing

the Nederlander Group to use the subject property for an

outdoor music theatre. Ordinances No. 1039-1978 and 1041

authorized an annexation agreement relating to the subject

property. Ordinance No. 1040-1978 annexed the property to

Hoffman Estates. Ordinance No. 1041 rezoned part of the

subject property in the B-2 Business District in order to permit

the construction and operation of the theatre. The balance was

classified in the “F” Farming District. Prior to August 22, 1978,

the theatre site had been classified in the R-1 Single Family

Residence District under the Cook County Zoning Ordinance.

Land use in the immediate vicinity of the subject property

is characterized as forest preserve and single family residences

on two-or-more acre lots, farm residences, farming activities,

open space and woodlands.

4

The Respondents’ six-count complaint alleged that the

construction and operation of the theatre would be inconsistent

with the character of the area and the trend of its development

and would inflict specific and distinct injury upon Barrington

Hills and South Barrington in violation of due process of law

under the federal and state constitutions.

Both Barrington Hills and South Barrington alleged that

the theatre would cause forms of special damage to them,

including expenses for additional police, expenses to clear litter,

additional police equipment, decrease in real property taxes due

to decrease in property values, public safety hazards within

each Village due to traffic congestion, impaired public security

and protection due to the diversion of police officers from their

ordinary duties in order to monitor theatre crowds and traffic,

degradation of ambient air quality due to vehicular traffic

exhaust emissions, substantial increases in sound levels, and

hazards to the health, safety and welfare of the residents of

both Barrington Hills and South Barrington, before, during and

after performances. Both Villages alleged that their ability to

provide essential public services would be impaired by oper-

ation of the outdoor music theatre.

Petitioner contended in its motion to dismiss that the

Respondents’ allegation of special injuries did not state a cause

of action on any constitutional ground so as to confer standing

on them to maintain this action. The ruling of the Circuit Court

and Appellate Court sustained that motion. The Illinois

Supreme Court reversed holding that the effects of rezoning by

the Village of Hoffman Estates “portend” adverse effect upon

Respondent municipalities thereby giving them a real interest in

the subject matter of the controversy.

HOW THE FEDERAL QUESTION IS PRESENTED

Petitioner joined with Nederlander in its Motion to Dis-

miss filed October 10, 1978 in the Circuit Court of Cook

County, Illinois (Appendix F) and at Paragraph 6 raised the

5

issue of Respondents’ lack of standing on Constitutional

grounds as alleged by Respondents under a due process of law

claim as no taking of property was alleged or occurred.

Further, said motion argued Respondents failed to state a cause

of action for relief (Paragraph 3) and that any injuries alleged

were general and, therefore, Respondents were not “aggrieved”

parties for purposes of standing (Paragraph 11).

It is upon this Motion to Dismiss that the Circuit Court

filed its Order of Dismissal which was affirmed by the Appellate

Court and reversed by the Illinois Supreme Court finding that

Respondents original complaint did demonstrate a “real inter-

est” in the controversy and Respondents were “aggrieved

parties” with standing to go forward on their claim that they

were denied due process of law under the Federal Constitution.

THE QUESTIONS PRESENTED ARE SUBSTANTIAL

1. THERE IS NO BASIS FOR GRANTING STANDING OF

NON-CONTIGUOUS MUNICIPALITIES TO CHAL-

LENGE THE ZONING DECISION OF ANOTHER ML-

NICIPALITY.

In Orr v. Orr, 440 U.S. 268 (1979), this Court permitted

issues Of standing under Article III, Section 2 of the Con-

stitution of the United States to be reviewed by the Court

although the appeal was from a federal question considered by

a State Court. A claim in Petitioner’s case herein was that the

adoption of a zoning ordinance by the Village of Hoffman

Estates was a denial of due process of law under the Federal

and State Constitution to the non-contiguous municipalities of

Barrington Hills and South Barrington. The Illinois Supreme

Court granted standing to the non-contiguous municipalities

Stating that the effects of rezoning “portend direct, substantial

and adverse effects upon the plaintiff municipalities”.

6

The test of standing as determined in Warth v. Seldin, 422

U.S. 490 (1975) is “whether the plaintiff has ‘alleged such a

personal stake in the outcome of the controversy’ to warrant his

invocation of Federal-Court jurisdiction” 422 U.S. 498-499,

quoting Baker v. Carr, 369 U.S. 186 (1962).

By any definition of a municipal corporation the grievance

is generalized. As stated in Warth v. Seldin, “the Court has

held that when the asserted harm is a ‘generalized grievance’

shared in substantially equal measure by all or a large class of

citizens, that harm alone normally does not warrant exercise of

jurisdiction” 422 US. at 499.

Quoting portions of Warth v. Seidin in Gladstone Realtors

v. Bellwood, 441 U.S. 91 (1979), this Court {ound that a crucial

element of standing to be an injury in fact. It was stated that to

“demonstrate the ‘personal stake’ in the litigation necessary to

satisfy the Constitution, the party must suffer ‘a distinct and

palpable injury’ that bears a ‘fairly traceable’ causal connection

to the challenged action”. 441 U.S. at 120.

The action of the Illinois Supreme Court to reverse the

Appellate Court and Circuit Court decisions denying standing

did accept as true all material allegations of the complaint. The

allegations were all prospective in nature as the suit was

brought to enjoin construction of an outdoor concert theatre

seating 20,000 persons and no damages presently ascertainable

were alleged. While threatened injury can create standing;

where the threatened injury is to the municipalities in general,

the “generalized grievance” argument becomes further general-

ized.

7

2. WHETHER A STATE COURT’S FINDING THAT NON-

CONTIGUOUS MUNICIPALITIES CAN ALLEGE DUE

PROCESS RIGHTS IN THEIR CORPORATE MUNICI-

PALITY FUNCTION TO CHALLENGE A ZONING DE-

CISION OF ANOTHER MUNICIPALITY UNDER THE

FOURTEENTH AMENDMENT OF THE UNITED

STATES CONSTITUTION IS VIOLATIVE OF THE

CONSTITUTION OF THE UNITED STATES.

It has often been held that municipalities are not “persons”

for standing to challenge state statutes within the meaning of

the Fourteenth Amendment. In City of New York v. Richard-

son, 473 F. 2d 923, (C.A.N.Y.—-1973) cert. den. 412 U.S. 950,

the Court said, “Political subdivisions of a state may not

challenge the validity of a statute under the Fourteenth Amend-

ment” 473 F. 2d at 929, and they cited as authority the opinion

of this Court in Williams vy. Mayor and City Council of

Baltimore, 289 U.S. 36 (1933) holding that a municipal

corporation has no privileges or immunities under the Federal

Constitution that it may invoke against its creator.

The issue is novel as to municipalities making claims

against other municipalities under alleged Fourteenth Amend-

ment due process claims. While the cases of Monell v. New

York City Dep’t. of Social Services, 436, U.S. 658 (1978) and

Owen v. City of Independence, _._. U.S. __-_. (1980) have

extended the definition of “persons” in 42 U.S.C. 1983 actions

to municipalities in limited fact situations, no such inter-

pretation has been made by this Court that municipalities are

“persons” for purposes of claiming the protections of Section |

of the Fourteenth Amendment.

a’

8

Said Section | first protects “citizens” and then. protects

“persons”. This Court has extended the interpretations of

“‘persons” to include artificial persons such as a corporation in

claims of denial of property rights, Smyth v. Ames, 18 S. Ct. 418

(1898). However, diligent research has found no such case

granting standing to a municipal corporation to claim property

right deprivation under the due process clause of the

Fourteenth Amendment and the matter should be addressed by

this Court before any such extension is presumed by the State

and Federal Courts.

CONCLUSION

For these reasons, a writ on certiorari should issue to

review the judgment and opinion of the Supreme Court of

Illinois.

espectfully submitted

. Teh WM Wd baws—

RICHARD N. WILLIAMS

1200 North Gannon Drive

Hoffman Estates, Illinois 60196

(312) 882-9190

Counsel for Petitioner

Appendix

la

EXHIBIT “A”

IN THE CincuIT Court OF Cook CouNnrY, ILLINOIS

COUNTY DEPARTMENT CHANCERY

(COUNTY ) (MUNICIPAL ) (DIVISION ) (DISTRICT)

VILLAGE OF BARRINGTON

HILLS, a municipal corporation,

and VILLAGE OF SOUTH

BARRINGTON, a municipal cor-

poration,

“

Plaintiffs, . No. 78 CH 5930

v.

VILLAGE OF HOFFMAN ES-

TATES, a municipal corporation, et

al.,

Defendant. ;

ORDER

THIS MATTER having come on to be heard upon the

Motions of Defendants to dismiss the Complaint for Injunction

and Other Relief, due notice having been given, the Court

having reviewed all memoranda submitted and having heard

oral argument in open court by the parties and the Court being

otherwise fully advised in the premises and, having reached its

conclusion of law herein on the issue of the standing of the

Plaintiffs to maintain this action, the Court has not considered

or ruled upon the other grounds relied upon by the Defendants

for dismissal of the Complaint or upon the matters raised in the

affidavits filed in support of Defendants’ Motions to dismiss,

and does not find it necessary to rule upon the Plaintiffs’ Motion

to Strike Portions of Defendants’ Motion to Dismiss and the

said affidavits;

IT IS HEREBY ORDERED that this Court finds that

based upon the allegations of the Complaint for Injunction and

Other Relief that the Plaintiffs, the Village of Barrington Hills

2a

and South Barrington, do not have standing to bring this

litigation against said Defendants and therefore the Motions to

Dismiss based upon the issue of standing be and the same are

hereby granted;

IT IS FURTHER ORDERED that Plaintiffs take nothing

from these Defendants and go hence without delay. There is no

just reason to delay enforcement of or appeal from this Order.

Name: WEXLER AND SHAW, LTD.

Attorney for: Certain Defendants October 23, 1978

Address: 180 N. LaSalle ENTER:

City: Chicago, IL 60601

Telephone: 726-1272

Judge

MORGAN M. FINLEY,

CLERK OF THE CIRCUIT COURT OF COOK COUNTY

3a

EXHIBIT “B”

VILLAGE OF BARRINGTON

HILLS, a municipal corporation,

and VILLAGE OF SOUTH

BARRINGTON, a municipal cor-

poration,

Plaintiffs-Appellants,

V.

VILLAGE OF HOFFMAN ES- ff: aah nee

TATES, a municipal corporation, Cook County

NEDERLANDER REALTY RENNER

COMPANY OF ILLINOIS, a cor- ~ —*No._ 78-1944

poration, PERFORMANCE Honorable

PROPERTIES, INC., a Delaware Raymond K. Berg.

corporation, NED-PROP, an Il- Judge Presiding.

linois Joint Venture, RKO GEN-

ERAL, INC., a New York corpo-

ration, PIONEER BANK AND

TRUST CO., as Trustee under

Trust No. 13552, dated April 24,

1962, FRED HANSEN, and

ETHEL HANSEN,

Defendants-Appellees. J

Mr. JUSTICE DOWING delivered the opinion of the

court:

Does one municipality have standing to challenge the

zoning decision of another municipality? That is the sole issue

in this appeal. Plaintiffs, the Village of Barrington Hills

(Barrington Hills) and the Village of South Barrington (South

Barrington), appeal an order of the circuit court of Cook

County dismissing their complaint against defendants, the

Village of Hoffman Estates (Hoffman Estates); Nederlander

Realty Company of Illinois, Performance Properties, Inc., Ned-

Prop, RKO General, Inc. (the Nederlander Group); Pioneer

Bank and Trust Company; and Fred and Ethel Hansen. The

facts alleged in the plaintiff's complaint follow.

4a

The Nederlander Group, related corporate entities and

joint venturers, plans to construct an outdoor, open-air music

theater on 212 acres of land located in Barrington Township in

close proximity’ to Barrington Hills, a non-home rule munici-

pality and South Barrington, a home rule municipality. Pioneer

Bank and Trust Company holds legal title to the property in

trust for Fred and Ethel Hansen, the beneficial owners of the

property. The theater will seat approximately 20,000 people:

6,000 in an auditorium and 14,000 in the surrounding area.

Parking spaces will be provided for 6,000 to 7,500 cars, and

concessions and other commercial activities will be conducted

ancillary to the theater’s performances and electronically ampli-

fied music programs.

On August 22, 1978, Hoffman Estates passed three ordi-

nances pertaining to the subject property: Ordinance No. 1039-

1978 authorized an annexation agreement; Ordinance No.

1040-1978 annexed the subject property to Hoffman Estates;

and Ordinance No. 1041-1978 rezoned part of the subject

property to B-2 Business District and part to “F” Farming

District to permit the construction and operation of the theater.

Prior to the adoption of these ordinances, the subject property

had been located in an unincorporated area of Cook County

and classified in the R-1 Single Family Residence District under

the Cook County zoning ordinance. Both Barrington Hills and

South Barrington by ordinance adopted a comprehensive plan

restricting the use of land in the vicinity of the subject property

to single family residences at low densities and to rural uses.

The plaintiffs’ six-count complaint further alleges that the

defendants’ adoption of the zoning ordinances and the con-

struction and operation of the theater illegally and uncon-

1The subject property is located in parts of the west 1/2 of

section 33 and the east 1/2 of section 32 of Barrington Township. It is

bound by the Northwest Tollway on the south, the Elgin, Joliet &

Eastern Railway on the west, Higgins Road on the north, and New

Sutton Road on the east. Neither plaintiff village adjoins or is

contiguous to the subject property. A point of the Village of

Barrington Hills is north of and across Higgins Road. The Village of

South Barrington is approximately 1/4 mile from the subject property.

Sa

stitutionally create a public nuisance not permitted by Hoffman

Estates’ B-2 Business District zoning. In general plaintiffs assert

that the construction and operation of the theater will be

inconsistent with the character and trend of development of the

area, and will inflict specific and distinct injury upon them. The

alleged prospective special damages which allegedly will impair

the health, safety, and general welfare of the plaintiffs’ residents

include: (1) safety hazards due to traffic congestion, (2) the

need for additional traffic police at an annual cost to Barrington

Hills of at least $42,000 and to South Barrington of $24,000;

(3) the cost of clearing litter and debris deposited by crowds en

route to and from the theater on the plaintiffs’ roads, (4) the

cost of additional police squad cars and the diversion of its

existing police force to monitor theater crowds and traffic, (5)

the degradation of ambient air quality due to vehicular traffic

exhaust emissions, (6) substantial increases in sound levels

during performances and traffic flows, and (7) decreased

municipal revenues from ad valorem real property taxes as a

result of diminished property values in the vicinity of the

theater.

The defendants’ motion to dismiss the plaintiffs’ complaint

asserts, inter alia that neither of the plaintiffs is contiguous to or

provides services to the subject property, and that none of the

facts alleged show special damages establishing that the plain-

tiffs are aggrieved parties having standing to litigate Hoffman

Estates’ zoning of the subject property. The trial court granted

the defendants’ motion, and the plaintiffs appeal.

The threshold question is when does a municipality be-

come an aggrieved person with standing to challenge a zoning

decision of another municipality. In a number of cases this

court has held that in the absence of express or implied

statutory authority, a2 municipal corporation lacked standing to

challenge the zoning of land located outside its borders in

lee

6a

unincorporated areas of Cook County. See Village of Ben-

senville v. County of Du Page (2nd Dist. 1961), 30 Ill. App. 2d

324, 174 N. E. 2d 403 (Abst.); Village of Mount Prospect v.

County of Cook ( Ist Dist. 1969), 113 Ill. App. 2d 336, 252 N. E.

2d 106; Krembs v. County of Cook \st Dist. 1970), 121 Ill. App.

2d 148, 257 N. E. 2d 120; Vil. of Arlington Heights v. County of

Cook (1st Dist. 1971), 133 Ill. App. 2d 673, 273 N. E. 2d 706;

Vil. of Arlington Heights v. Cook County (\st Dist. 1971), 3 IIl.

App. 3d 213, 278 N. E. 2d 841.

However, in Forestview Homeowners Ass’n v. Co. of Cook

(lst Dist. 1974), 18 Ill. App. 3d 230, 309 N. E. 2d 763, petition

for leave to appeal denied, 56 III. 2d 582, we upheld the Village

of Northbrook’s permissive intervention in a suit challenging

the county’s rezoning of property located approximately one

and one-half miles from Northbrook’s corporate limits. We

held that article VII, section 6(a) of the Illinois Constitution of

1970 (Ill. Const. 1970, art. VII, §6(a)) by which the Village of

Northbrook became a home rule unit provided the con-

stitutional authority to exercise any power and perform any

function pertaining to its government and affairs. We held that

when a municipality engages in litigation to enforce the public

policy manifested by its ordinances, it is engaged in a govern-

mental function.

The specific issue of a municipal corporation’s standing to

institute an action to challenge a zoning decision of an adjoin-

ing municipality was considered by our supreme court in

Hickory Hills v. Bridgeview (1977), 67 Ill. 2d 399, 367 N. E. 2d

1305. Following reference to the foregoing cases, the court

Stated:

“From an examination of the authorities (see Annot., 49

A.L.R. 3d 1126 (1973), and cases there collected ) it would

appear that the general rule that ‘an aggrieved person’

_ with a real interest in the subject matter of the controversy

may challenge a zoning ordinance is applicable to munici-

pal corporations.” (Hickory Hills, supra at 403. )

Ta

The supreme court then held that as Hickory Hills was required

to supply sewer and water facilities to the area involved, it was

an aggrieved person with a real interest in the controversy.

Thus, despite the absence of statutory authority, a municipal

corporation may challenge the zoning decision of another

municipal corporation, if such a municipality is found to be “an

aggrieved person” with a real interest in the subject matter.

Hickory Hills, supra; see also City of West Chicago v. County of

Du Page (2nd Dist. 1979), 67 Ill. App. 3d 924, 926, 385 N. E.

2d 826.

As between property owners and municipalities or coun-

ties, it is well recognized that in order to establish standing to

challenge a zoning decision determining the use to which

another’s property may be put, an individual property owner

must prove that he has suffered a special damage by reason of

such use which differs from that suffered by the general public.

( Treadway v. City of Rockford (1963), 28 Ill. 2d 370, 376, 192

N. E. 2d 351; Garner v. County of Du Page (1956), 8 Ill. 2d

155, 158-59, 133 N. E. 2d 303; Whittingham v. Village of

Woodridge (2nd Dist. 1969), 111 Ill. App. 2d 147, 150, 249

N. E. 2d 332.) Considering the meaning of the requirement

that to have standing a plaintiff must be a person “interested in

the controversy,” the supreme court in Underground Con-

tractors v. Chicago (1977), 66 Ill. 2d 371, 362 N. E. 2d 298

observed:

“The word, ‘interested’ does not mean merely having a

curiosity about or a concern for the outcome of the

controversy. Rather, the party seeking relief must possess

a personal claim, status, or right which is capable of being

affected. [Citation omitted.] The dispute must, therefore,

touch the legal relations of parties who stand in a position

adverse to one another.” ( Underground Contractors, supra

at 376.)

In Forestview, supra, and in City of West Chicago, supra,

the plaintiffs’ suits challenged zoning decisions made by county

zoning boards affecting properties located in unincorporated

8a

areas of those counties but within one and one-half miles of the

municipalities’ boundaries. In Forestview, we gleaned from the

language of article VII, section 6(c) of the Illinois Constitution

(Ill. Const. 1970, art. VII, § 6(c)) an intent to grant priority to

municipalities over counties in matters of local concern (see

Forestview, supra at 238, fn. 3). We are of the opinion that

such a priority and concern for municipality-county relations

may also be ascertained from several statutes. For example,

section | of the County Zoning Act (Ill. Rev. Stat. 1977, ch. 34,

par. 3151) provides in part that:

“Nothing in this Act shall be construed to restrict the

powers granted by statute to cities, villages and in-

corporated towns as to territory contiguous to but outside

of the limits of such cities, villages and incorporated towns.

Any zoning ordinance enacted by a city, village or in-

corporated town shall supersede, with respect to territory

within the corporate limits of the municipality, any county

zoning plan otherwise applicable.” (Ill. Rev. Stat. 1977,

ch. 34, par. 3151.)

Moreover, section 2 of that Act requires a three-fourths vote

rather than a simple majority vote of a county board zoning

land lying within one and one-half miles of the nearest adjacent

municipality if that municipality has a zoning ordinance ‘and

has protested the proposed zoning. Ill. Rev. Stat. 1977, ch. 34,

par. 3152.

Relying on section 2, the plaintiff in City of West Chicago,

supra, sought to declare the invalidity of the county’s ordinance

passed by a simple majority vote which granted a special use

permit to locate offices, a garage, and other facilities on

property zoned under the county’s R-2 zoning ordinance and

located within one and one-half miles of the city. Although

finding section 2 inapplicable, the court concluded that the city

had standing to challenge the decision based on its allegations

that the property had been classified in the city’s master plan.

The court concluded therefore that the city was an aggrieved

9a

party with a stake in the outcome of the controversy. Relying

on Hickory Hills, the court found that West Chicago had the

capacity to litigate the validity of county zoning ordinances

even absent an explicit statutory authorization to do so.

We note that section 11-12-11 of the Municipal Code

provides that if a municipality has adopted an official plan or

map, the territory subject to that plan is exempt from the

application of any less restrictive rules or regulations adopted

by a county zoning ordinance. (Ill. Rev. Stat. 1977, ch. 24, par.

11-12-11.) We are of the opinion that section 11-12-11’s

recognition of the priority of municipalities over counties in

such circumstances supports the court’s finding that the City of

West Chicago had standing to litigate the county’s zoning

decision. See also Ruegg v. Board of Cty. Com’rs, Clackamus

Cty. (1978), 32 Or. App. 77, 573 P. 2d 740, 742.

The rationale for the priority of municipalities over coun-

ties in matters of local concern becomes apparent, when, as in

forestview, it is also recognized that many of the unincorporated

areas of a county become annexed to existing municipalities. In

that case, the possibility that Northbrook would annex the

subject property and therefore would be required to provide it

with highways, public water supplies, storm sewers, sanitary

sewers and drainage created the duty to concern itself with the

development of the practically adjoining property, and con-

ferred standing on the Village of Northbrook to intervene. See

Forestview, supra at 238, fn. 4.

In the instant case the Village of Hoffman Estates has

annexed the subject property and therefore has the statutory

right to exercise all zoning and regulatory powers over it. (See

Ill. Rev. Stat. 1977, ch. 24, par. 11-13-1.) The plaintiffs do not

challenge the annexation. Other than the aforementioned

statutory authority which grants to an annexing municipality

the right to exercise all zoning and regulatory powers over the

annexed area even though it had previously been zoned by

another municipality, we have found neither constitutional nor

statutory authority from which we may glean an intent to

establish any priorities between contiguous municipalities.

10a

In the development of suburban areas, with municipalities

adjoining and contiguous one to another, the boundary lines

must start and stop at some point. The rights and powers of

each municipality must be paramount and superior to adjoining

municipalities. Otherwise the mischievous activities of one

municipality could hold in hostage the governmental functions

of another municipality. To this general rule is the delimited

exception set forth in Hickory Hills for those circumstances in

which an aggrieved municipality is also able to establish that it

has a real interest in the subject matter of the litigation.2 Even

taking as true the well pleaded allegations of the plaintiffs’

complaint, as we must for purposes of the defendants’ motion

to dismiss (see Brown v. County of Lake (2nd Dist. 1966), 67

Ill. App. 2d 144, 152, 213 N. E. 2d 790), we do not find the

plaintiffs’ allegations sufficient to fall within this exception.

In Hickory Hills, the plaintiff and defendant muncipalities

had been involved in prior litigation which resulted in a court

order requiring the plaintiff to supply sewer and water facilities

to an area located within the Village of Bridgeview. Thereafter

Bridgeview passed two rezoning ordinances, one of which

approved use of a portion of the involved area as a planned

unit development. The plaintiff municipality, as well as a

number of individual plaintiffs, sought to declare the invalidity

of the ordinance and to permanently enjoin the proposed

planned use development. They alleged, inter alia, that the

water supply, sewer, and street systems of the plaintiff were

inadequate to serve the proposed development, and that it

“would create a serious hazard to all of the plaintiffs herein and

their property and would destroy the economic value and be

detrimental to and would endanger the public health, safety,

morals, comfort and general welfare of the area.” (Hickory

Hills, supra at 401.) The trial court dismissed the complaint on

2 Although we note that a number of individual plaintiffs joined

in the suit in Hickory Hills, no individual property owners are joined

in the present suit. Thus, our remarks do not apply to the rights of

individual property owners who allege special damages by virtue of

the action of an adjoining municipality.

the ground that the earlier judgment barred the plaintiffs’

action and the appellate court affirmed. On appeal to the

supreme court, the plaintiff municipality contended that the

question of its legal right, “as an aggrieved party, showing a

demonstratively unique impact and effect on its proprietary

functions, to challenge the zoning of a contiguous municipality”

had not been adjudicated in the prior litigation. (Hickory Hills,

supra at 402.) The supreme court agreed finding that, while the

earlier case had decided which of the two municipalities had

jurisdiction over the area and that the plaintiff had a duty to

provide the services, “the question here involved is the validity

of the ordinance and its effect upon the plaintiff's continued

obligation to make sewer and water services available.” ( Hic-

kory Hills, supra.) Considering the question of plaintiffs stand-

ing for the first time, the supreme court held that a municipal

corporation may be an aggrieved person, and then concluded

that:

“[{I]n view of the prior litigation, and the order which

requires plaintiff to supply sewer and water facilities to the

area involved, plaintiff is an aggrieved person with a real

interest in the subject matter of this controversy.” ( Hickory

Hills, supra, at 403.) (Emphasis added. )

In the instant case, we can understand that the plaintiffs

may in some way be unhappy by the rezoning and development

of the subject property. However, on the basis of Hickory Hills,

we are of the opinion that it was incumbent upon the plaintiffs

to also allege facts, such as those in Hickory Hills, establishing

that they had a real interest in the controversy. Adthough, as

here, the plaintiffs in Hickory Hills alleged that the proposed

development would adversely affect their street systems, and

the economic value of their property, the supreme court did not

consider these allegations, but as we read the case, focused

solely upon the question of the ordinance’s impact on Hickory

Hills’ continued obligation and ability to provide sewer and

water services. Unlike the effect on its street systems and

property values which would likew ‘sg be felt by other neighbor-

ing municipalities, Hickory Hills’ responsibility of providing

rt

12a

water and sewer services to the area placed Hickory Hills in a

position in which the ordinance approving the proposed

planned unit development would have a “demonstratively

unique impact and effect on its proprietary functions” unlike

that of othe: municipalities, and thus gave it a real interest in

the subject matter of the controversy.

The plaintiffs’ complaint in the instant case does not allege,

and, as is apparent from the defendants’ agreement entered

into as part of the annexation to provide all services to the

subject property, cannot allege that they have been or will in

the future be required to supply water or sewer facilities, or for

that matter any services directly to the subject property. Under

these circumstances, we are of the opinion that the trial court

properly found that the plaintiffs lacked standing to litigate the

validity of the ordinance. Accordingly, the trial court’s order

dismissing the plaintiffs’ complaint must be affirmed.

Affirmed.

STAMOS, P.J., and PERLIN, J., concur.

l3a

EXHIBIT “C”

OPINION

Supreme Court

of Illinois

United States of America

STATE OF ILLINOIS

SS.:

SUPREME COURT

AT A TERM OF THE SUPREME Court, begun and held in

Springfield, on Monday, the twelfth day of May in the year of

our Lord, one thousand nine hundred and eighty, within and

for the State of Illinois.

PRESENT: JOSEPH H. GOLDENHERSH, CHIEF JUSTICE

Justice C. UNDERWOOD Justice DANIEL P. Warp

Justice Howarpb C. RYAN Justice WILLIAM G. CLARK

Justict THOMAS J. MORAN Justice THOMAS E. KLUCZYNSKI

Wittiam J. Scott, ATTORNEY GENERAL

Louit F. DEAN, MARSHAL

Attest: Ciect L. Woops, CLerk

—-—

Be IT REMEMBERED, that afterwards, to-wit, on the 20th day

of June, 1980 the opinion of the Court was filed in said cause

and entered of record in the words and figures following, to-wit:

4

Village of Barrington Hills, a munici-

pal corporation, et al., etc., Appeal dion

Appellate Court

ee First District

vs. y

y No. 52587

Village of Hoffman Estates, a munici-

pal corporation, et al., etc., et al.,

Appeliees

l4a

Docket No. 52587—Agenda’35—March 1980.

THE VILLAGE OF BARRINGTON HILLS et al., Appellants,

v. THE VILLAGE OF HOFFMAN ESTATES et al., Ap-

pellees.

MR. JUSTICE UNDERWOOD delivered the opinion of

the court:

Plaintiffs, the village of Barrington Hills ( Barrington Hills )

and the village of South Barrington (South Barrington }, fiied a

complaint challenging the adoption of particular zoning ordi-

nances and the construction of an open-air theater against

defendants, the village of Hoffman Estates ( Hoffman Estates);

Nederlander Realty Company of Illinois, Performance Proper-

ties, Inc., Ned Prop, RKO General, Inc. ( Nederlander Group);

Pioneer Bank and Trust Company; and Fred and Ethel Hansen.

The circuit court of Cook County dismissed their complaint on

the ground that plaintiffs lacked standing to maintain their

action, and the appellate court affirmed. (75 Ill. App. 3d 461.)

We granted leave to appeal.

The facts alleged in the plaintiffs’ complaint are adequately

set forth in the opinion of the appellate court and need only be

summarized here. The subject property consists of approxi-

mately 212 acres located in Barrington Township, Cook

County, and is included in a larger tract of land bounded by the

Northwest Tollway on the south, the Elgin, Joliet and Eastern

Railway on the west, Higgins Road on the north, and New

Sutton Road on the east. The corporate limits of Barrington

Hills, a non-home rule municipality and South Barrington, a

home rule municipality “are adjacent or in close proximity to

the property”; and legal title thereto is held in trust by the

Pioneer Bank and Trust Company for Fred and Ethel Hansen,

the beneficial owners of the property.

It is alleged in the complaint and admitted by the motion

to dismiss (Goodman v. Regional Transportation Authority

(1976), 66 Ill. 2d 20) that the Nederlander Group plans to

15a

develop this real estate for an open-air music theater, to be

known as the Poplar Creek Music Theater, which would

contain approximately 6,000 seats in an auditorium structure

and space in the open for an additional 14,000 persons. The

project would also require parking spaces for 6,000 to 7,500

automobiles and would involve commercial and concession

activities ancillary to the operation of the theater programs.

Among the performances contemplated by the developers are

rock concerts, jazz festivals, and country-and-western musical

programs, all of which would be electronically amplified.

Following a public hearing pertaining to the annexation of

the subject property, Hoffman Estates on August 22, 1979,

adopted three ordinances: Ordinance No. 1039-1978 authorized

the execution of an annexation agreement between the defend-

ants; Ordinance 1040-1978 authorized annexation of the real

estate; and Ordinance No. 1041-1978 rezoned a portion of the

property to B—2 central business district and the remainder to

F farming district to permit the construction and operation of

the theater. Prior to the passage of these ordinances, the real

estate was located in an unincorporated area of Cook County

and was classified in the R—1 single-family residence district

under the Cook County zoning ordinance.

The subject property is located at a substantial distance

from the residentially developed area of Hoffman Estates but is

in close proximity to residentially developed areas within the

corporate limits of Barriigton Hills and South Barrington.

Pursuant to zoning ordinances, both plaintiffs had adopted

comprehensive plans which would restrict the use of the land in

the vicinity of the subject property to low-density single-family

residences and to agricultural uses.

It was further alleged that the defendant’s adoption of the

zoning Ordinances permitting the construction and operation of

the theater denied plaintiffs due process under the Federal and

State constitutions, constituted an invalid exercise of police

power under the laws of this State, violated the zoning ordi-

l6a

nances of Hoffman Estates with respect to the B-2 central

business district, and constituted a public nuisance against

which temporary and injunctive relief was sought.

Plaintiffs further alleged that the annexation and zoning of

the subject property for use and development of the con-

templated project would occasion special injury and damage to

them in their corporate capacities because of safety hazards on

roads and highways within their corporate limits due to traffic

congestion; the need to provide additional traffic police at an

estimated annual cost to Barrington Hills of at least $42,000

and to South Barrington of not less than $24,000; the diversion

of their existing police manpower from their ordinary duties to

control theater crowds and to protect their residences from the

disorderly activity that might result from persons attending the

performances; the cost of purchasing additional squad cars for

use only during the period when the proposed music theater

would be in operation and of adding additional permanent

police officers to their payroll; the expense of clearing from the

roads and highways within their corporate limits the litter and

debris which would result from crowds arriving or leaving the

theater; the exhaust emissions from increased vehicular traffic

which would degrade ambient. air quality; the substantial

increase in sound levels in the vicinity of the subject property

resulting from music amplification and traffic; the adverse

effects upon property values and hence tax revenues within the

corporate limits of both villages; and the general impairment of +

the health, safety and welfare of residents of both municipal-

ities.

The appellate court affirmance of the trial court’s dismissal

of plaintiffs’ complaint was predicated upon its conclusion that

plaintiffs had failed to demonstrate that they were aggrieved

parties with standing to challenge Hoffman Estates’ zoning of

the subject property. Under its interpretation of this court’s

opinion in City of Hickory Hills v. Bridgeview (1977), 67 Ill. 2d

399, the appellate court-snecifically found that Barrington Hills

and South Barrington had failed to demonstrate that they had a

17a

real interest in the present controversy inasmuch as they could

not allege that they had been or would be required to provide

services directly to the subject property.

The opinion of the appellate court is predicated on an

unduly narrow reading of Hickory Hills. Since the complaining

municipality in that case was obliged under a previous court

order to provide water and sewage services to the subject

property, this court concluded that it was an aggrieved person

with a real interest in the rezoning ordinances adopted by an

adjoining municipality. Cne ordinance rezoned a portion of the

area involved from a limited-industrial district to a single-

family-residence district, and the other ordinance reclassified a

portion of the subject property to a planned unit development.

Our recognition of that municipality’s standing to sue was based

on its allegations demonstrating that it would be directly

injured in its corporate capacity by the challenged ordinances.

Nothing in Hickory Hills, however, indicates that the “real

interest” conferring standing can arise only where the objecting

municipality furnishes services directly to the subject property.

Under the rule set forth in Hickory Hills, the appellate

court in City of West Chicago v. County of Du Page (1979), 67

Ill. App. 3d 924, 926, concluded that a municipality’s objection

to a county ordinance permitting the construction of township

offices, a garage, and other facilities within 1% miles of its

single-family-residential district constituted a real interest

sufficient to permit its intervention in an action challenging the

ordinance. (See also Forrestview Homeowners Association, Inc.

v. County of Cook (1974), 18 Ill. App. 3d 230). Decisions in

other jurisdictions have similariy recognized that a municipality

has standing to challenge the zoning ordinances of another

municipality upon showing the existence of a real interest in the

subject matter of the controversy. See Borough of Cresskill v.

Borough of Dumont (1954), 15 N.J. 238, 245, 104 A. 2d 441,

444; Borough of Allendale v. Township Committee of the

Township of Mahwah (1979), 169 N.J. Super. 34, —, 404 A. 2d

50, 51; see also Ruegg v. Board of County Commissioners

(1978), 32 Or. App. 77, 79, 573 P.2d 740, 742; Annot. 49

18a

A.L.R.3d 1126 et seg. (1973); 3 A. Rathkopf, Zoning and

Planning ch. 36, sec. 1.2, at 34 (4th ed. 1979 Supp. ); Comment,

Standing to Appeal Zoning Determination: the “Aggrieved

Person”’ Requirement, 64 Mich. L. Rev. 1070, 1082 (1966).

Defendants argue that according plaintiffs standing to sue

will invite chaos in the relationships between municipalities and

flood the courts with zoning litigation. Our holding, however, is

not so broad, since it conditions a municipality’s standing to

challenge the zoning decisions of other governmental units

upon a clear demonstration that it would be substantially

directly and adversely affected in its corporate capacity.

Here, as set forth in greater detail earlier in this opinion, it

is admitted for purposes of the motion to dismiss that the

development of the proposed project under the challenged

zoning ordinances will cause Barrington Hills and South

Barrington to suffer special damages in their corporate capac-

ities in the form of a loss of municipal revenues due to a

diminution in property values, an increase in municipal ex-

penditures for the hiring of additional police manpower and

squad cars to monitor vehicular congestion, the additional

expense of clearing litter and debris on their roads and

highways that would result from theater crowds, the degrada-

tion of ambient air quality due to vehicular exhaust and the

increase in sound levels resulting from the electronic amplifica-

tion of music and traffic flows. While these effects of the

rezoning may appear less severe than those in Hickory Hills,

they nevertheless portend direct, substantial and adverse effects

upon the plaintiff municipalities in the performance of their

corporate obligations, thus giving them a real interest in the

subject matter of the controversy. Their complaint was there-

fore improperly dismissed.

The judgment of the appellate court affirming the trial

court’s order dismissing the complaint of the plaintiffs is

accordingly reversed, and the cause remanded for further

proceedings consistent with this opinion.

Reversed and remanded.

19a

EXHIBIT “D”

ILLINOIS SUPREME COURT

CLELL L. WOODS, CLERK

SUPREME COURT BUILDING

SPRINGFIELD, ILL. 62706

(217) 782-2035

September 26, 1980

Mr. Richard Williams

Attorney at Law

1200 N. Gannon Dr.

Hoffman Estates, IL 60196

No. 52587—Village of Barrington Hills, a municipal corpo-

ration, et al., etc., appellants, vs. Village of Hoff-

man Estates, a municipal corporation, et al., etc.,

et al., appellees. Appeal, Appellate Court, First

District.

The Supreme Court today denied the petition for rehearing

in the above entitled cause.

Very truly yours,

Ciail (, Weeks

Clerk of the Supreme Court

20a

EXHIBIT “E”

ARTICLE III

§ 2. Jurisdiction

Section 2. The judicial Power shall extend to all Cases, in

Law and Equity, arising under this Constitution, the Laws of

the United States, and Treaties made, or which shall be made,

under their Authority;—to all Cases affecting Ambassadors,

other public Ministers and Consuls;—to all Cases of admiralty

and maritime Jurisdiction;—to Controversies to which the

United States shall be a Party;—to Controversies between two

or more States;—between a State and Citizens of another

State;—between citizens of different States;—between citizens

of the same State claiming Lands under Grants of different

States, and between a State, or the Citizens thereof, and foreign

States, Citizens or Subjects.

AMENDMENT XIV.

§ 1. Citizenship rights not to be abridged by s_ ates

Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No State

shall make or enforce any law which shall abridge the privi-

leges or immunities of citizens of the United States; nor shall

any State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

2la

EXHIBIT “F”

IN THE CirnCcuIT CouRT

of Cook County, Illinois

County Department, Chancery Division

VILLAGE OF BARRINGTON |

HILLS, a municipal corporation,

and VILLAGE OF SOUTH

BARRINGTON, a municipal cor-

poration.

Plaintiffs,

v.

VILLAGE OF HOFFMAN ES-

TATES, a municipal corporation,

NEDERLANDER REALTY

COMPANY OF ILLINOIS, a cor- D> No. 78 CH 5930

poration, PERFORMANCE

PROPERTIES, INC., a Delaware

corporation, NED-PROP, an Il-

linois Joint Venture, RKO GEN-

ERAL, INC., a New York corpo-

ration, PIONEER BANK AND

TRUST CO., as Trustee under

Trust No. 13552, dated April 24,

1962, FRED HANSEN sand

ETHEL HANSEN,

Defendants. |

MOTION TO DISMISS COUNTS I, Hl, Il,

IV, V AND VI OF PLAINTIFF’S COMPLAINT

Defendant, Village of Hoffman Estates, a municipal corpo-

ration, by its attorney, Richard N. Williams, hereby moves this

Honorable Court for an order dismissing Counts I, II, III, IV, V

and VI of Plaintiffs complaint. As grounds, therefore, defend-

ant Village of Hoffman Estates states the following.

7]

22a

The Village of Hoffman Estates joins in the motion filed by

co-defendants, Nederlander Realty Company of Illinois, a

corporation, Performance Properties, Inc., a Delaware corpo-

ration, Ned-Prop, an Illinois Joint Venture, RKO General, Inc.,

a New York corporation, Pioneer Bank and Trust Co., as

Trustee under Trust No. 13552, dated April 24, 1962, Fred

Hansen and Ethel Hansen.

Village of Hoffman Estates

AM lb

‘Richard N. Williams

1200 N. Gannon,

Hoffman Estates, IL

23a

IN THE CIRCUIT COURT

Or Cook Counry, ILLINOIS

COUNTY DEPARTMENT, CHANCERY DIVISION

.

VILLAGE OF BARRINGTON HILLS, a

municipal corporation, and VILLAGE OF

SOUTH BARRINGTON, a municipal cor-

poration,

Plaintiffs,

v. NO. 78CH 5930

VILLAGE OF HOFFMAN ESTATES, a

municipal corporation, et al.

Defendants.

4

MOTION TO DISMISS

NOW COME the Defendants, NEDERLANDER

REALTY COMPANY OF ILLINOIS, an Illinois corporation

and PERFORMANCE PROPERTIES, INC., a Delaware cor-

poration, doing business as NED-PROP, an Illinois Joint

Venture, and PIONEER BANK AND TRUST CO., as Trustee

under Trust No. 13552, by their attorneys, WEXLER AND

SHAW, LTD., and KLAFTER, BURKE, KEANE AND

NATHAN and move to dismiss the Complaint for Injunction

and other relief of the VILLAGE OF BARRINGTON HILLS

and the VILLAGE OF SOUTH BARRINGTON, and, in

support of said Motion, state as follows:

1. That by the within action Plaintiffs contest the action of

Defendant, VILLAGE OF HOFFMAN ESTATES, in annexing

certain property which was located in an unincorporated area

of Cook County and zoning and classifying said property in the

B-2 Central Business Distin: and the F-Farming District in

accordance with the zoning ordinance of the VILLAGE OF

HOFFMAN ESTATES. The actions of the VILLAGE OF

HOFFMAN ESTATES in so zoning and annexing the subject

property are presumptively valid under Illinois law.

24a

2. That although the Plaintiffs’ Complaint sets forth six

causes of action, the real issue before this Court is the validity of

the action of the VILLAGE OF HOFFMAN ESTATES in

annexing and zoning the property in question for use as an

auditorium center for the performing arts.

3. That Plaintiffs have failed to state a cause of action

against these Defendants upon which relief can be granted.

Under the facts present in this matter, the Plaintiffs are not

capable of stating a cause of action upon which relief can be

granted.

4. That Plaintiffs have alleged apparent causes of action in

Counts I through VI respectively, sounding as follows:

Due process.

Arbitrary and capricious action of the Village.

Invalid exercise of police power of the Village.

Public nuisance.

Use of property not permitted by zoning ordi-

moa >

nance.

F. Zoning is contrary to law.

5. That the Plaintiffs, neither of which are contiguous to or

provide services to the property in question, lack authority to

litigate the validity of the annexation and zoning of the

property in question as they are not, jointly or severally, an

“aggrieved party” under the laws of Illinois. Village of Mt.

Prospect v. County of Cook, 113 Ill. App. 2d 336, 252 N. E. 2d

106; Village of Arlington Hts. v. Cook County, 133 Ill. App. 2d

673, 273 N. E. 2d 706; Village of Arlington Hts. v. County of

Cook, 3 Ill. App. 3rd 213, 278 N. E. 2d 841; Village of

Bensenville v. DuPage County, 30 Ill. App. 3d 324, 174 N. E. 2d

403.

6. That in addition to Plaintiffs’ lack of standing, Plaintiffs

cannot state a cause of action on constitutional grounds as it is

obvious on the face of the Complaint that there has not been a

confiscation of property belonging to the Plaintiffs. There has

been no taking of Plaintiffs’ property.

25a

7. That in addition to Plaintiffs’ lack of standing, Plaintiffs

cannot state a cause of action on the ground that the VILLAGE

OF HOFFMAN ESTATES acted arbitrarily and capriciously or

invalidly exercised its police power since the Plaintiffs’ only

concern is the possibility of increased costs of public services.

Said Plaintiffs have no concern for the advancement of the

VILLAGE OF HOFFMAN ESTATES as a social, economic

and political unit. The cultural and economic benefit to the

VILLAGE OF HOFFMAN ESTATES, in particular, and ‘the

northwest suburban communities, in general, established by the

record made before the VILLAGE OF HOFFMAN ESTATES,

greatly exceeds the minor inconvenience alleged by Plaintiffs.

8. That in addition to Plaintiff's lack of standing, Plaintiffs

cannot state a cause of action on the grounds of public nuisance

since, as a matter of law, the proposed use cannot be classified

as a public nuisance. (See Bauman v. Piser Undertakers Co.,

34 Ill. App. 2d 145, 180 N.E. 2d 705).

9. That Plaintiffs do not have standing to contest the use of

the property by Defendants pursuant to Statute (Chap. 24, Sec.

11-13-15) since the only property of Plaintiffs within twelve

hundred (1200) feet is allegedly a road which could not be

considered to be substantially affected as required by the

Statute. In addition, Defendants are constructing an audito-

rium, a use which is permitted under the zoning ordinance of

the VILLAGE OF HOFFMAN ESTATES, and the VILLAGE

OF HOFFMAN ESTATES has so declared the proposed

structure to be an auditorium, See. Affidavit of Richard Unwin,

Director of Community Development, Village of Hoffman

Estates, attached hereto, made a part hereof and marked

Exhibit A.

10. That Plaintiffs do not have standing to contest the

annexation of the subject property as their only remedy is a

direct proceeding by quo warranto.

11. That the alleged injury to the Plaintiffs is the alleged

increase in cost they may sustain in providing municipal

services to their residents. The Plaintiffs may not defeat zoning

26a

laws in order to avoid increased responsibilities and economic

burdens which time and natural growth invariably bring.

Neither Plaintiff is an “aggrieved” party with standing to

contest the annexation and zoning of the property in question

by the VILLAGE OF HOFFMAN ESTATES. It is obvious

from the Complaint that the alleged injuries to the Plaintiffs are

not special injuries, but rather those that would generally be

sustained by the public as a whole and all municipalities in the

general area. Therefore, Plaintiffs have failed to state a cause

of action.

12. Further, Plaintiffs, and each of them, determined to

file the instant litigation at closed meetings in violation of the

public policy expressed in the laws of the State of Illinois—to

wit, the “Illinois Open Meetings Act,” Ill. Rev. Stat., ch. 102,

Secs. 42 et seg. Thus, Plaintiffs attempt to litigate in equity in

violation of the maxim that he who seeks equity must do so

with clean hands. Plaintiffs cannct meet the burden of this

maxim in light of their violation of the law.

13. Further, these Defendants have incurred expenses

and/or obligations in excess of $4,150,000.00 as per the

affidavit of Robert Nederlander, attached hereto, made a part

hereof and marked Exhibit B. Said expenses and obligations

were incurred in reliance upon the actions of the VILLAGE OF

HOFFMAN ESTATES, and these Defendants have thereby

acquired a vested property right which grants to them the right

to complete the construction and use the property for the

purposes originally authorized by the Defendant VILLAGE.

The relief sought by the Plaintiffs cannot be granted by this

Court as the vested property rights of these Defendants are

superior to any rights of the Plaintiffs.

14. That the annexation and zoning of the property in

question took place on August 22, 1978 and construction

commenced on August 29, 1978. Plaintiffs chose not to file suit

until 4:24 p.m. on September 12, 1978 and did not file their

Petition for Preliminary Injunction until September 29, 1978.

27a

In th. interim these Defendants incurred expenses and/or

obligations which were known to the Plaintiffs and Plaintiffs by

their actions are estopped from now seeking equitable relief.

WHEREFORE, Defendants, NEDERLANDER RE-

ALTY COMPANY OF ILLINOIS and PERFORMANCE

PROPERTIES, INC., doing business as NED-PROP and PIO-

NEER BANK AND TRUST CO., as Trustee under Trust No.

13552, pray for the entry of judgment in their favor dismissing

the Complaint for injunction and other relief and for their costs

so wrongfully sustained herein.

NEDERLANDER REALTY COMPANY

OF ILLINOIS and PERFORMANCE

PROPERTIES, INC., d/b/a NED-PROP

and PIONEER NATIONAL BANK AND

TRUST CO., as Trustee under Trust No.

13552

B

y:

Wexler and Shaw, Ltd.

Klafter, Burke, Keane and Nathan