Mchenry County Defenders v. City of Harvard

891 N.E.2d 1017

McHENRY COUNTY DEFENDERS, INC., and Susan Hayden, Plaintiffs-Appellants and Cross-Appellees, v. THE CITY OF HARVARD, Chuck Marzahl, Phil Ulmer, Joel Berg, Scott Dikun, Scott Logan, Darrell Perkins, Tom Hay, Jay Nolan, Brian Leyden, Debra Szczap, and Rick Adams, Defendants-Appellees and Cross-Appellants.

No. 2-07-0386.

Appellate Court of Illinois, Second District.

July 2, 2008.

Christopher C. Kendall, Law Office of Christopher C. Kendall, P.C., Chicago, IL, for Appellant.

Zukowski, Rogers, Flood, & McArdle, Attorneys at Law, Kevin G. Costello, Jennifer J. Gibson, Zukowski, Rogers, Flood & McArdle, Crystal Lake, IL, for Appellee/Cross-Appellant.

Justice BOWMAN delivered the opinion of the court:

Plaintiffs, McHenry County Defenders, Inc., and Susan Hayden, brought an action under section 17 of the Illinois Natural Areas Preservation Act (Preservation Act) (525 ILCS 30/17 (West 2004)) and section 11(b) of the Illinois Endangered Species Protection Act (Endangered Species Act) (520 ILCS 10/11(b) (West 2004)) (collectively Acts), seeking to require the City of Harvard (City) and its elected officials (collectively defendants) to engage in environmental consultations with the Illinois Department of Natural Resources (IDNR). Plaintiffs alleged that the Acts required defendants to engage in such consultations before passing ordinances allowing Meyer Material (Meyer) to proceed with a proposed gravel pit and mining operation on several hundred acres of land that the City agreed to annex. The trial court granted summary judgment for plaintiffs, ruling that defendants had violated the relevant statutes by failing to consult with the IDNR before passing ordinances regarding the gravel mining operation. The trial court ordered defendants to consult with the IDNR. However, the trial court had also previously granted defendants' motion to dismiss plaintiffs' request to declare the relevant ordinances void. It had further denied plaintiffs' motion for leave to amend their complaint to request that the City be ordered to pass an ordinance nullifying the previous ordinances. Plaintiffs seek such relief on appeal. Defendants have filed a cross-appeal in which they argue that the trial court erred in granting summary judgment for plaintiffs, because the gravel mining operation was not funded carried out, or authorized by the City, as required by the Acts, and because the consultation process was completed in both 2001 and 2005. We affirm.

I. BACKGROUND

Plaintiff McHenry County Defenders, Inc., is a nonprofit corporation dedicated to environmental preservation. Plaintiff Susan Hayden is a City resident who lives about one quarter of a mile south of the subject property. The City is located in McHenry County. When this case originated, defendant Jay Nolan was the City's mayor and defendants Chuck Marzahl, Phil Ulmer, Joel Berg, Scott Dikun, Scott Logan, Darrell Perkins, and Tom Hay were City aldermen. During the pendency of the case, Brian Leyden, Debra Szczap, and Rick Adams were elected City aldermen and added as defendants.

The subject site is located at 8605, 8521, and 9106 Lawrence Road and consists of about 792 acres. Before annexation, the property was located in unincorporated McHenry County, next to but outside of the City's corporate limits. It was zoned under a McHenry County zoning ordinance as "`A-1' — Agricultural" and was used as farmland. The Lawrence Creek flows through the subject property and into the Piscasaw Creek, which is downstream from the property. The Piscasaw Creek area is a Natural Area Inventory Site (Inventory Site) (see 525 ILCS 30/17 (West 2004); 17 Ill. Adm.Code § 4010.110 et seq., adopted at 18 Ill. Reg. 7253 (eff. May 3, 1994)) that begins at the Wisconsin border and follows the path of the Piscasaw Creek through McHenry County. According to plaintiffs, the creek flows a little more than one quarter of a mile west of the proposed gravel mine.

The Slippershell mussel and the Blandings turtle are on the State's list of threatened species. Hayden is a wildlife ecologist for the McHenry County Conservation District (Conservation District), where she is responsible for inventorying several animal groups, including the Slippershell mussel and the Blandings turtle. The Lawrence Creek runs within 100 feet of Hayden's property. Hayden has documented a Blandings turtle about 1,000 feet from the subject property, between the site and Lawrence Creek. She has also documented a Blandings turtle in Beck's Woods, which is an Inventory Site through which the Piscasaw Creek runs. Hayden has tracked about two to six Blandings turtles every year since 1999. The Conservation District has documented Slippershell mussels in the Lawrence and Piscasaw Creeks, within one mile of the subject property.

At all relevant times, Meyer has owned the subject property. In 2004, Meyer sought to have the City annex the property, and it also sought a conditional use permit and zoning variance to allow it to use the property for a gravel mining operation. On December 8, 2004, after public hearings, the City adopted ordinances to: (1) approve an annexation agreement between it and Meyer regarding the subject property (ordinance No.2004-159); (2) annex the property into the City's corporate limits (ordinance No.2004-160); and (3) grant a conditional use permit and zoning variance to allow the property to be used for a gravel mining operation (ordinance No.2004-161).

The annexation agreement contains a recital stating that the City has "concluded that the annexation of the Property to the City * * * would enable the City to control the development of the area and serve the best interest of the City." The agreement further provides, in relevant part, as follows. The City will enact an ordinance annexing the property. The City will also adopt an ordinance amending the City's map to classify the property as "M-1, Manufacturing District," with conditional use for a sand and gravel operation; a concrete crushing and recycling facility; a concrete ready mix plant; and a bituminous asphalt plant. The conditional use permit for the bituminous asphalt plant requires that Meyer pay the City 30 cents for each ton of asphalt hauled from the property. The City has a right to stop all operations on the property if the annexation agreement or a City ordinance is violated. Excavation is not to take place within 100 feet of any street or boundary line, and setbacks for deep mining shall be at least 150 feet. Meyer shall landscape the property's boundaries in accordance with the "Mine Report" plan, along with some additional requirements. Meyer will install additional fencing consistent with recommendations made by the City's engineer. After 10 years, Meyer must donate 50 acres of the land to the City to use as a park. The agreement also contains requirements regarding things such as reclamation, storm water detention, dumping, days and hours of operation, entrances, ground water, site maintenance, and fees.

In August 2001, several years before the City annexed the subject property, Meyer initiated an environmental consultation process with the IDNR pursuant to the Acts. At that time, the IDNR determined that there were no endangered or threatened species in the area. In September 2001, the IDNR issued an "Endangered Species Consultation Program Agency Action Report" that stated that the consultation process was terminated.

In November 2004, around the time Meyer petitioned the City for annexation of the subject property, the IDNR, through Keith Shank, notified the City that it was requiring a new consultation because the previous consultation was over two years old and because, since that time, the IDNR had received reports documenting sightings of the Blandings turtle and the Slippershell mussel near the subject property. The IDNR believed that the proposed gravel mining operation could possibly adversely affect these species and the Piscasaw Creek Inventory Site. David Nelson, a City employee, responded to Shank's e-mail by stating that he had passed the information on to Meyer and its engineers, and that "[o]bviously the City of Harvard will not sign off on this proposal without this review, and direction from the department."

On March 25, 2005, Meyer applied for a surface mining permit with the IDNR's Office of Mines and Minerals (OMM). In processing the application for the permit, the OMM began an environmental consultation process with the IDNR's Office of Realty and Environmental Planning (OREP), pursuant to the statutes at issue. The OREP issued letters opining that the project was likely to adversely impact the essential habitat of the Blandings turtle and Slippershell mussel and the species themselves. The OREP recommended, among other things, that no mining be performed between November and March; that exclusionary fencing be installed before construction begins, to keep turtles out of construction areas; and that artificial nesting grounds for the turtles be constructed to offset any that may be destroyed. It also recommended that Meyer obtain an "Incidental Take Authorization" in case Blandings turtles were destroyed in the course of construction or mining activities. On October 31, 2005, the OREP terminated the consultation process with the OMM. On March 3, 2006, the OMM issued Meyer a mining permit.

Plaintiffs filed the instant action on June 6, 2005. Plaintiffs asked the trial court to: (1) declare that the City violated section 17 of the Preservation Act and section 11(b) of the Endangered Species Act by not engaging in environmental consultations before approving the annexation agreement and Meyer's petition for rezoning; (2) declare void City ordinance Nos.2004-159, 2004-160, and 2004-161; (3) issue a writ of mandamus requiring the City to consult with the IDNR; and (4) award plaintiffs their costs.

On August 16, 2005, defendants filed a combined motion to dismiss under sections 2-615 and 2-619...