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Monday, February 11, 2013

Cellular Antennas Did Not Violate Village Ordinances

Neighbors filed a lawsuit against a cellular provider and a municipality claiming that the relocation of antennas on the Village's water tower violated Village ordinances.  The Second District Appellate Court upheld the trial court's ruling in favor of the Village and cellular provider, finding that the antennas did not violate any Village ordinance and there was no violation that would authorize an award of attorneys fees under the Adjoining Landowner Act or fines under Village ordinances. Ruissard v. Village of Glen Ellyn, 2013 IL App (2d) 120480-U (February 6, 2013).
The lawsuit was brought in 2008, after the Village approved a special use permit to allow the cellular provider to install cellular antennas on the Village's water tower. The plaintiffs claimed that the Village and cellular provider violated the Village Code and the special use permit ordinance when certain public safety equipment was relocated to allow the installation of the cellular antennas.  The appellate court had previously affirmed the dismissal of 3 of the 6 counts in the amended complaint, and remanded 3 other counts to the trial court.  After the initial apellate court decision and before trial, the Village approved a special use permit to allow the public safety antennas to exceed the 140-foot height restriction.  Following a bench trial, the trial court ruled against the plaintiffs on the remaining 3 counts of the amended complaint, which decision was appealed to the Second District.
On appeal, the plaintiffs argued first that the special use permit did not "moot" the ordinance violation because the defendants violated the ordinance by failing to obtain the special use permit prior to installing the antennas on the tower.  The plaintiffs argued that even if the special use ordinance did moot the violation, they were still entitled to attorney fees under Section 11-13-15 of the Illinois Municipal Code (the Adjoining Landowner Act) because all they needed to show was that the defendants were engaged in prohibited activity of violating an ordinance. The appellate court first ruled that there was no violation of Village ordinances because the subsequent approval of the special use permit mooted any alleged violation.  Second, the court denied the plaintiffs attorneys fees under Section 11-13-15, finding that the defendants were not in violation of Village ordinance because (1) the Village Code does not contain a height limitation for antennas and (2) the height restriction applied to antenna structures, not individual antennas. The court agreed with the defendants that in order to obtain attorneys fees under the Adjoining Landowner Act, the trial court must make a finding that defendants engaged in some prohibited activity.  In this case, plaintiffs did not present evidence establishing a violation, so they were not entitled to attorney fees.  The court also rejected plaintiffs argument that they are entitled to fines under the Village's zoning code.

The court's ruling was filed under Illinois Supreme Court Rule 23.

Post Authored by Julie Tappendorf, Ancel Glink


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