City of Elgin v. County of Cook

JUSTICE GREIMAN,

concurring in part and dissenting in part:

I concur in the thoughtful and thorough analysis of the majority in affirming the dismissal of counts I, II, IV and V of the complaint filed in the Cook County proceedings and agree that the amended complaint offered does not afford plaintiffs any relief. I further concur in affirming the orders of the circuit court in the Kane County proceedings.

However, I must respectfully dissent from the majority’s view that count III states a cause of action in its challenge of an ordinance to which we must give presumptive validity.

Perhaps the operative acronym for this entire matter is NIMBY, not in my back yard! The siting of any landfill or balefill causes concern to every community and opposition to this project is certainly understandable. However, it would be difficult to find a municipal official who disagrees with the notion that these waste problems must be addressed on a regional basis, perhaps with some form of local veto as to siting.

Government at every level has recognized the need for a rational approach to disposing of waste matter for our millions of citizens. In that regard, the State provides a method whereby units of local government may pool their resources and establish plans and sites for the disposition of waste (Ill. Rev. Stat. 1989, ch. 127, par. 743.2) and a procedure for local approval of such siting (Ill. Rev. Stat. 1989, ch. lll1/2, par. 1039.2). Accordingly, SWANCC was organized in an effort to establish a landfill in an abandoned gravel pit in one of the few remaining sparsely settled areas of Cook County to meet the needs of the member communities.

Operation and licensure of the landfill remains subject to the regulation and standards of the Illinois Environmental Protection Agency, which has approved the project, and the United States Environmental Protection Agency, which had not yet approved the project at the time of oral arguments before this court. In addition, the project has been considered by the United States Army Corps of Engineers under the mandate of the Water Resources Development Act of 1988.

The majority looks to La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 145 N.E.2d 65, and Sinclair Pipe Line Co. v. Village of Richton Park (1960), 19 Ill. 2d 370, 167 N.E.2d 406, for the guidelines to be fulfilled in setting aside an otherwise properly adopted zoning ordinance and concludes that count III states a cause of action. I do not agree.

As to the La Salle I Sinclair factors, the majority first acknowledges that the complaint fails to allege facts indicating the existing uses and zoning of nearby property and then attempts to satisfy this guideline by taking judicial notice of the Village of Bartlett’s zoning for construction of 2,024 residential units. The majority, however, selectively exercises judicial notice and neglects to take such notice of the existing industrial park to the east of the subject premises. Moreover, the property where the 2,024 residential units are to be constructed was annexed to the Village of Bartlett by an annexation ordinance adopted 17 months after defendants filed their petition with the County of Cook for approval of the site as a landfill and six months after Cook County granted special use approval. Furthermore, the Bartlett annexation ordinance actually allows mining operations to be conducted for an indefinite period of time anywhere on the allegedly residential property. Additionally, the subject property is adjacent on the north to an active strip mining operation.

The second factor, i.e., the extent to which property values are diminished by the zoning ordinance, cannot be satisfied by a general allegation that revenues of surrounding communities may be reduced indirectly by reason of the diminution of property values. Such an allegation would make every zoning change which has any impact upon neighboring communities subject to attack.

The third and fourth factors consider the extent to which the zoning ordinance promotes public health, safety or general welfare. The majority cites plaintiffs’ allegations of greater traffic from heavy trucks and possible water contamination as problems for which there is nothing in the record to show a contrary public interest or balancing of hardships. To the contrary, paragraph after paragraph of plaintiffs’ complaint spells out the very public purpose for which this property is to be used. Moreover, the statutes which authorize the creation of SWANCC must be given consideration in determining whether the record is silent on balanced public interests.

As to the suitability of the property for the petitioned use, the fifth factor considered, the record is clear that the property is an abandoned gravel pit. In the words of plaintiffs’ complaint, the property is "so ravaged *** that extraordinary costs [would] be incurred in developing the subject property for those uses for which it would otherwise be better suited.” Moreover, the pleadings disclose that only 200 of more than 400 acres are to be used as a landfill with the balance of the land to be used as a buffer zone.

The sixth factor considers the time period that the premises have been vacant. The complaint establishes that the property is an abandoned gravel pit and plaintiffs do not suggest that such status was not the case for any period prior to the filing of the initial request for the rezoning of the parcel.

The seventh and eighth factors address the questions of whether a comprehensive zoning plan exists and whether the ordinance at issue is in harmony with such a plan. Allegations that the Site is not in harmony with the comprehensive zoning plans of the City of Elgin, the Village of Bartlett or the Village of Wayne are beside the point and do not provide a basis to strike down a Cook County ordinance. The property at issue is located in Cook County and zoned for industrial uses. Sections 6.14 and 6.24 of the Cook County zoning ordinance specifically enumerate sanitary landfills and solid waste landfills as permissible special uses in the zoning district applicable to the subject property.

The final factor directs attention to the evidence of community need for the proposed use. The General Assembly has enacted legislation to provide for the disposal of waste on a multicommunity basis. Such activity is a traditional function of local government and rests within the authority of such units of local government to determine the most effective manner in which to address the disposition of waste.

I do not believe that the allegations of the complaint, most of which are conclusory and speculative at best, overcome the presumption of validity which is afforded the ordinance. I believe that plaintiffs failed to plead facts which, if proven, would demonstrate that the application of Cook County’s zoning ordinance is unreasonable, arbitrary and bears no substantial relation to public health, safety or welfare.