Government, Legal

Apples, Oranges and The Pits

The Church’s plan: 148 cluster homes on 33 acres. One access point.

Yesterday the Lake County 19th Circuit Courtroom 205 heard closing arguments from the Archdiocese of Chicago vs. the Village of Libertyville, case 17MR0001013.

After 9 full days of throwing paper at each other and the judge, witnesses grilled, the final decision comes down to choosing between safety and due process.
While the weight of the issue is whether the Church can go ahead with its 148 houses on 33 acres, or not, the arguments came down to the definition of “safe”, and a village board’s right to vote its conscience.

The key word is arguments. The parties had different paths of logic.  Like apples and oranges.

The Church first of all defended its development plan on the precedent of the LaSalle/Sinclair Factors, which is a set of Illinois measures used to evaluate zoning changes.

One by one, the Church counsel ticked off their presumed compliance with the factors. Will the development fit the neighborhood, yes. Is the Church losing money as is, yes.  Will the Village make money, yes. Do health, safety and welfare benefits offset any downsides, yes. Is the land unsuitable as currently zoned, yes. Has it been vacant a long time, yes. Does the Village need the homes, yes. Was it in the Village Plan, yes.

Each of the points is debatable, but that wasn’t the pivotal point of the Church’s argument.  Their real bone to pick was the “arbitrary, unreasonable, unjustified and capricious” decision by the village board to vote down the plan because it was unsafe for access and egress.

The Church’s “arbitrary etc” charge is based on two dueling traffic consultants’ reports, spiced with a good measure of Lake County DOT traffic data, computer models, and some established science about traffic weight times, traffic gaps, highway capacity, and mixed up–no, osterized with a lot of math.  Recall Twain’s concern about lies, damned lies, and statistics.

The Village had decided back in 2017 that residents presently have difficulty making left turns in and out of the neighborhood, and the development’s single access would further aggravate the situation, with the certain threat of an accident.  The lack of a traffic signal, and a second access are at the bottom of this scrum, and how they got there is not important today, other than to say that the Church knew of the problem long ago, and should have planned it better when they had the chance.

Northbound on Butterfield during morning commute. Choosing the right gap may be difficult.

But where the Church built its argument was on the “non-credible” village consultant’s findings.  Instead, its own consultant should be the respected source.  To that end, their counsel spent considerable time stressing that all published reports regard the access “adequate” and it was never claimed that they were “unsafe”.  That is solely the village’s determination.

But in fact, when the DOT witness had testified earlier that the access was adequate, she also offered that other people may disagree.

When confronted with the notion that a high traffic area may complicate entry and exit to the development, including those difficult left turns, the Church’s comment was, “We have an arterial highway that has to move traffic fast.  The property is in direct conflict.  But that’s the risk of all development today.”

For the Village, the argument was from a different angle.  While the Church pointed to all of the LaSalle Sinclair factors as the standard,  the Village focused only on one factor: health, safety and welfare.   “Despite the beauty and luxury of homes promised, they pale compared to safety.  The proposed increase in home values won’t compensate for safety and loss of life.”

The judge himself intruded on the closing argument for the Village.   He asked if the safety is any worse at Ridgewood and Lake streets, to which the Village counsel replied that just because those intersections are also difficult, doesn’t justify adding yet another.  When the judge challenged the supposed hardship of drivers waiting for a gap in the traffic, Village counsel observed, citing the Highway Capacity Manual, that while statistics may indicate that the intersection is relatively open for turns, the reality of a long wait in a car to make a left turn may reduce a driver’s tolerance to choose the right gap in the traffic.  The judge countered, “that’s just common sense,” to which the Village replied, “that doesn’t make it any less dangerous.”

There is much give and take between the judge and village counsel about a traffic lights, wait times, gaps in traffic, and there is a moment when it’s suggested that the Village’s position is somewhat hypothetical.  The reply is noteworthy: “Actually, everything here is hypothetical.  The home values are hypothetical.  Home sales are hypothetical.  Nobody knows.  We just have to guess.  The Village decided it was unsafe.”

In his conclusion, village counsel noted that the evidence supported the Village’s legislative determination to be a reasonable, rational decision.  “At peak times, both morning and afternoon there will be an inadequate gap decision made by a driver.  We aren’t going to test it out and see how it goes.  The beauty and luxury homes are not worth it.”

Since the beginning of the trial, the judge has frequently returned to the viability and feasibility of a signal light at the Lake/Butterfield intersection.  It may factor in the nature and specifics of his decision.  He complimented and thanked both attorneys for their preparations and comprehensive presentations of the arguments, and after requesting a 15-page summary of all facts from each, hoped to reach a decision by January 31, 2019.

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