Winnebago County Citizens for Controlled Growth v. County of Winnebago

SUPREME COURT CASES

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State: Illinois

Court: 2nd District Appellate

Docket No: 2-07-0362 Rel

Case Date: 06/18/2008

Preview:No. 2--07--0362 Filed: 6-18-08 ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT ______________________________________________________________________________ WINNEBAGO COUNTY CITIZENS FOR CONTROLLED GROWTH, ) Appeal from the Circuit Court ) of Winnebago County. ) Plaintiff-Appellant, ) ) v. ) No. 06--MR--239 ) THE COUNTY OF WINNEBAGO, SCOTT ) H. CHRISTIANSEN, in His Official Capacity, ) DAVID F. JOHNSON, in His Official Capacity,) WINNEBAGO COUNTY ZONING BOARD ) OF APPEALS, CAROL WILKE, in Her ) Official Capacity, and DYN CANNELL, LLC, ) ) Defendants-Appellees ) ) (Rockton Township, The Village of Rockton, ) Dale Adams, in His Official Capacity, Martin ) Simpson, in His Official Capacity, David ) DeGroot, in His Official Capacity, Ruth Ann ) Roth, in Her Official Capacity, Scott Scull, in ) His Official Capacity, Winnebago County ) Health Department, Ann O. Schroeder, ) Thomas E. Jencius, Cynthia S. Campbell, ) Gerald A. Paulson, Natural Land Institute, ) Larry A. Weber, Clifford D. Wilson, Bernard ) E. Walsh, Mark A. Baker, Farm Bureau Board ) of Winnebago County, Elaine Pierce, Cheryl ) Bradley, Diane Ott, Donald J. Stein, Marie ) Darin, Kathleen Gummow, Carrie Schommer, ) Honorable and Shirland School District Number 134, ) Janet R. Holmgren, Defendants). ) Judge, Presiding. ______________________________________________________________________________ PRESIDING JUSTICE GILLERAN JOHNSON delivered the opinion of the court:

No. 2--07--0362 The plaintiff, Winnebago County Citizens for Controlled Growth (WCCCG), filed suit following the passage of an ordinance by the defendant, the County of Winnebago, which granted the defendant Dyn Cannell, LLC, a special use permit to construct a planned community development (PCD) in Rockton, Illinois. The defendants moved to dismiss the complaint, arguing that WCCCG lacked standing to bring the suit. The trial court denied the motion to dismiss as to counts III and IV of the complaint, but granted the motion as to counts I and II and dismissed those counts, finding that there was no just reason to delay enforcement or appeal of its order. WCCCG appealed. We reverse and remand. PROCEDURAL BACKGROUND On January 31, 2006, Dyn Cannell filed an application for a special use permit allowing it to build a PCD on approximately 123 acres of land in Winnebago County (the subject property). The majority of the lots in the PCD were to be 27,000 square feet, and the average lot size was to be approximately 33,000 square feet. In addition to single-family homes, the PCD was to include a sports recreation area, a playground, and additional open space or recreational areas. According to WCCCG, the subject property is located approximately one-half mile north of the Nygren Wetlands, a nature preserve. The subject property is at a higher location than the wetlands, allowing runoff to flow into the wetlands from the subject property. The Winnebago County Soil and Conservation District determined that 87.7% of the soil within the subject property is suitable for a conventional septic absorption system, but the sandy nature of the soil requires a "restricted" rating mandating a minimum lot size of 43,650 square feet. The remaining soils within the subject property cannot support septic systems.

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No. 2--07--0362 On April 18, 2006, the Winnebago County Zoning Board of Appeals held a hearing on the application. An attorney for Dyn Cannell spoke in support of the PCD application. An attorney for some of the objectors (the same attorney that currently represents WCCCG) questioned Dyn Cannell's attorney regarding certain aspects of the proposal and made a closing statement. In addition, 15 private citizens appeared and spoke against the PCD application. Following these comments, the zoning board deliberated publicly. Board members expressed concern that the proposed PCD could be detrimental to or endanger the public welfare because septic systems were proposed for lots of less than 43,650 square feet. Other negative comments related to the lot size (less than one acre) as being out of character for the largely rural surrounding area and to the lack of information regarding the PCD's likely impact on utilities, access roads, other necessary facilities, and traffic. The zoning board voted unanimously to deny the PCD application. On June 8, 2006, the PCD application came before the Winnebago County Board. The minutes of the meeting do not reflect any discussion or findings related to the PCD. The county board voted 19 to 4 to approve the PCD, and the board issued a special use permit to Dyn Cannell for the PCD. On July 5, 2006, WCCCG was incorporated as an Illinois not-for-profit corporation. Its members include 68 persons, 14 of whom own property adjacent to the subject property. Ten of the persons who spoke at the hearing before the zoning board are members. On July 12, 2006, WCCCG filed suit in the circuit court of Winnebago County. It filed an amended complaint on November 13, 2006. Count I of the amended complaint sought review under the Administrative Review Law (735 ILCS 5/3--101 et seq. (West 2006)) of the County's decision to grant the special use permit. Count II (the LaSalle claim) alleged that the County's grant of the special use permit violated substantive due process, as set forth in LaSalle National Bank of Chicago

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No. 2--07--0362 v. County of Cook, 12 Ill. 2d 40 (1957). Counts III and IV sought a declaratory judgment that section 90--57 of the Winnebago County Code (Winnebago County Code

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