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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 449 U.S. 1126

## Text

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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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How the Federal Question is Presented .....................eeeeeeeeees 4
The Questions Presented are Substantial..................:..ceeeee 5
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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
Baker v. Carr, 369 U.S. 186 (1962 ) ..........ccccecceeeeeee
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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~ Monell vy. New York City Dep't. of Social Services,
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Smyth v. Ames, 18S. Ct. 418 (1898 ) 0... eeeeeeeee

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0904%3A1. Public record. Not legal advice.