Libertyville: The Village had its day in court this morning, with a brisk Q&A between a panel of three appellate court justices and two lawyers who represented both sides of the debate– “Did the lower court make a mistake when it green-lighted the Church’s plans to build a 148-unit subdivision on Butterfield Road?”
As you can guess, the proposed answers were, “yes” and “no”.
As you will recall, in February 2019, the Lake County 19th Circuit court held in favor of the Church that their development could go ahead. The court ruled that the Village could offer no credible proof that the traffic on Butterfield would be dangerous to the health and safety of Libertyville residents. This ruling hinged on the court’s belief that Lake Street at Butterfield Road would not be a dangerous intersection, and that the development’s single access point further south would also not be dangerous to residents entering and exiting the development.
Inherent in that decision was the court found the Village had been unreasonable and capricious in refusing to change the zoning of the area to accommodate the development.
The Village chose to appeal this ruling. It’s reversible, on the basis that the developer had not complied with the Village’s subdivision code. The code is steeped in engineering and planning requirements, out of which bubbles a concern for our health and welfare. To wit: traffic is dangerous.
The 2nd Appellate Court is located on the banks of the Fox River in Elgin, Illinois just off route 25, and south of I-90. It’s a well-dressed building with free parking and pretty efficient entry, unlike Lake County’s 9th Circuit Court in Waukegan where parking is iffy, conflict is more apparent and real, and the justice is being dispensed retail.
Inside the Elgin courthouse you can see large, high-ceilinged courtrooms, paneled in cherry, with a raised bench for the three black-gowned justices. A foot lower is the single-miked podium and desk for the attorney. There is ample desk space to lay out volumes of material. But frankly, not enough time to use it all. The counter-space could afford two attorneys lying nose-to-nose in a final thumb wrestle if necessary. The court room also provided for a couple visitor rows. Interesting to note, there is no steno taking minutes of the proceedings.
What the courthouse does enjoy however is the continual train whistles echoing across the Fox as the freights labor their way back and forth, oblivious to the closed-door grumbling and pleading going on just yards away.
The justices–who commendably had prepped by reading the Village’s 3,000-page appeal statement, plus review the lower court’s 8 days of testimony and final decision– peppered the Village with questions. In 15 minutes, the basic question was formulated, “Where in the lower court trial did the Village ever talk about the subdivision code, while instead only testifying to the traffic safety issue?”
Our response was that the Church never complained about the subdivision code, only the negative zoning decision. So that’s all we defended against.
With that established, the Church’s attorney stepped forward to bat away the justices’ questions. These generally focused on any challenges or approvals that might alert the developer to change plans to comply. “No, in fact we were agreeing to comply, or getting approvals in every negotiation of a planned development. A planned development allows for Village and developer to side-step zoning rules in favor of creative alternatives. For example, narrow alleys and no driveways with small lots provide room for more open space for all residents.”
Following that 15 minute dialogue, the Village attorney resumed for a 5-minute rebuttal where again he re-iterated that both zoning compliance and subdivision code had to be upheld, and that the lower court ruling should be reversed.
The chief justice then closed the session with a promise to find a decision. No time-line was offered, but outside the court, we heard it could take months.
When I asked the Village’s attorney to sum up our position, that despite the Planned Development process, both the Zoning Ordinance and the Subdivision Code both had to be upheld, to paraphrase, he observed: “You can’t have one without the other. You can’t plead innocence to the judge that you were obeying the speed limit while you ran the red light.”