Village of Northfield v. BP America, Inc. , 403 Ill. App. 3d 55 ( 2010 )

SECOND DIVISION
FILED: July 27, 2010
No. 1-10-0142
VILLAGE OF NORTHFIELD, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellant, ) COOK COUNTY
)
v. ) No. 0920512901
)
BP AMERICA, INC., ) HONORABLE
) ROGER FEIN,
Defendant-Appellee. ) JUDGE PRESIDING
JUSTICE HOFFMAN delivered the opinion of the court:
The narrow question before this court is whether a local
ordinance defining an abandoned gasoline service station as a
nuisance is preempted by section 11-31-1 of the Illinois
Municipal Code (Municipal Code) (65 ILCS 5/11-31-1 (West 2008)).
For the reasons which follow, we conclude that it is not.
The facts giving rise to this appeal are not in dispute. BP
America, Inc., (BP) is the owner of a parcel of real estate
commonly known as 1900 Willow Road in Northfield, Illinois. An
abandoned gasoline service station is currently situated on BP's
property.
On March 17, 2009, the Village of Northfield (the Village)
issued BP a citation alleging that the abandoned gasoline service
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station violated section 11-81 of the Northfield Village Code
(Village Code). In relevant part, section 11-81 of the Village
Code provides that:
"A. Any gasoline service station
determined by the community development
director or his/her designate to be abandoned
shall be deemed a public nuisance which
adversely affects surrounding property values
and the public safety and welfare. A
gasoline service station shall be considered
abandoned if it is not operated for at least
three hundred (300) hours in any sixty (60)
day time period. Whenever the community
development director or his/her designate
shall determine that any service station is
abandoned, he shall immediately so notify,
either in person or by certified mail, the
owner or operator of the premises and issue
an order of abatement that must be complied
with within ninety (90) days. A nuisance
caused by abandonment may be abated only as
follows:
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(1) Placing the station back
in operation for a minimum of six
(6) hours per day, six (6) days per
week.
(2) Razing all structures in
accordance with the National Fire
Protection Association sections B-
4-1 and B-4-2 and all ordinances of
the village.
***
(3) Making an appropriate
application for a change in use of
the premises to a permitted or
special use.
***
B. Upon failure of the owner to abate
the nuisance, the village may abate said
nuisance pursuant to the nuisance abatement
provisions of this code." Northfield Village
Code § 11-81 (amended January 25, 1999).
The Village Code further provides that any person causing a
nuisance shall be fined not less than $100, and not more than
$750, each day that the nuisance continues. Northfield Village
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Code § 14-17 (amended September 24, 2002); Northfield Village
Code appendix D, art. XIIIA (amended December 1, 2008).
When BP failed to comply with the requirements of section
11-81, the Village initiated this lawsuit in the Circuit Court of
Cook County. On August 19, 2009, a hearing was held to determine
whether BP violated section 11-81 of the Village Code. That same
day, the circuit court found that section 11-81 was
constitutional and ordered BP to pay a daily fine of $750 for 21
days, totaling $15,750.
Thereafter, BP filed a motion to reconsider, arguing that it
was not required to pay a fine because the Village's ordinance
was preempted by section 11-31-1 of the Municipal Code (65 ILCS
5/11-31-1 (West 2008)). On December 1, 2009, the circuit court
entered a written memorandum order, finding that section 11-31-1
of the Municipal Code preempted section 11-81 of the Village
Code. As a consequence, the circuit court granted BP's motion to
reconsider and vacated the order it previously entered on August
19, 2009. This appeal followed.1
1
Prior to the appeal being fully briefed, this court denied
BP's motion to dismiss for lack of jurisdiction. Although BP
argued in its motion that the December 1, 2009, order was not a
final judgment, a judgment is final and appealable if it terminates
the litigation between the parties on the merits or disposes of the
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In urging reversal, the Village contends that the circuit
court erred in finding preemption. The Village asserts that it
had the statutory authority to define what constitutes a nuisance
and that its determination in section 11-81 of the Village Code
that an abandoned gasoline service station is a nuisance does not
conflict with section 11-31-1 of the Municipal Code. The
resolution of these issues requires us to interpret state
statutes and determine whether state law preempts a local
ordinance. These are questions of law subject to de novo review.
See Hawthorne v. Village of Olympia Fields, 204 Ill. 2d 243, 254-
55, 790 N.E.2d 832 (2003).
The Village is a non-home-rule unit. Accordingly, it may
exercise only those powers enumerated in the Illinois
parties' rights with regard to either the entire controversy or a
separate part thereof. R.W. Dunteman Co. v. C/G Enterprises, Inc.,
181 Ill. 2d 153, 159, 692 N.E.2d 306 (1998). In its December 1,
2009, order, the circuit court determined that section 11-81 of the
Village Code was preempted by section 11-31-1 of the Municipal
Code, thereby effectively finding that the Village could not pursue
its citation against BP. Consequently, the circuit court's
December 1, 2009, order disposed of the parties' rights with regard
to the entire controversy and is, therefore, final and appealable.
See R.W. Dunteman Co., 181 Ill. 2d at 159.
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Constitution or conferred upon it, either expressly or impliedly,
by state statute. Hawthorne, 204 Ill. 2d at 255. In this case,
the Village contends that its enactment of the ordinance in
question was authorized by section 11-60-2 of the Municipal Code
(65 ILCS 5/11-60-2 (West 2008)).
Section 11-60-2 of the Municipal Code provides that "the
corporate authorities of each municipality may define, prevent,
and abate nuisances." 65 ILCS 5/11-60-2 (West 2008). Pursuant
to this broad grant of authority, non-home-rule units like the
Village may implement ordinances regulating nuisances. Village
of Sugar Grove v. Rich, 347 Ill. App. 3d 689, 696, 808 N.E.2d 525(2004). Traditionally, a municipality's determination as to what
constitutes a nuisance will be upheld unless it is clearly
erroneous. Village of Sugar Grove, 347 Ill. App. 3d at 696.
The stated purpose of section 11-81 of the Village Code is
to prevent a public nuisance "which adversely affects *** the
public safety and welfare." BP does not dispute that an
abandoned gasoline service station can be detrimental to the
public's health, safety, or welfare. Ordinances are presumed
valid, and the party challenging an ordinance, in this case BP,
bears the burden of proving invalidity. Village of Bechmeyer v.
Wheelan, 212 Ill. App. 3d 287, 294, 569 N.E.2d 1125 (1991).
Based on the record before us, we cannot say that the Village's
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decision to define an abandoned gasoline service station as a
nuisance is clearly erroneous. As a consequence, we conclude
that section 11-60-2 of the Municipal Code provided the Village
with adequate statutory authority to enact section 11-81 of the
Village Code. A municipality's authority to act, however, is an
issue entirely separate from the question of whether this power
has been preempted by the superior authority of another lawmaking
body. Pesticide Public Policy Foundation v. Village of Wauconda,
117 Ill. 2d 107, 111, 510 N.E.2d 858 (1987). Accordingly, we
must determine whether state law preempts section 11-81 of the
Village Code.
It is well established that municipalities may not adopt
ordinances which infringe upon the spirit of the state law or are
repugnant to the general policy of the state. Hawthorne, 204
Ill. 2d at 258-59; City of DeKalb v. White, 227 Ill. App. 3d 328,
331, 591 N.E.2d 522 (1992); Village of Mundelein v. Hartnett, 117
Ill. App. 3d 1011, 1015, 454 N.E.2d 29 (1983). Whether a local
ordinance is preempted by state authority is a question of
legislative intent. State Bank of Waterloo v. City of Waterloo,
339 Ill. App. 3d 767, 771, 792 N.E.2d 329 (2003).
As it did before the circuit court, BP maintains that the
Village's ordinance defining an abandoned gasoline service
station as a nuisance is preempted by section 11-31-1 of the
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Municipal Code (65 ILCS 5/11-31-1 (West 2008)). In relevant
part, section 11-31-1 reads:
"The corporate authorities of each
municipality may demolish, repair, or enclose
or cause the demolition, repair or enclosure
of dangerous and unsafe buildings or
uncompleted and abandoned buildings within
the territory of the municipality and may
remove or cause the removal of garbage,
debris, and other hazardous, noxious, or
unhealthy substances or materials from those
buildings.
***
The corporate authorities shall apply to
the circuit court of the county in which the
building is located (i) for an order
authorizing action to be taken with respect
to a building if the owner or owners of the
building ***, after at least 15 days' written
notice so to do, have failed to put the
building in a safe condition or to demolish
it or (ii) for an order requiring the owner
or owners of record to demolish, repair, or
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enclose the building or to remove garbage,
debris, and other hazardous, noxious, or
unhealthy substances or materials from the
building." 65 ILCS 5/11-31-1(a) (West 2008).
A careful examination of section 11-31-1 reveals no specific
provision limiting a municipality's ability to regulate an
abandoned building to the procedures provided for in that section
of the Municipal Code. Consequently, it cannot be said that
section 11-31-1 expressly preempts local ordinances which provide
alternative methods for defining and abating such nuisances.
However, because the Village is a non-home-rule unit, legislative
intent to preempt a local ordinance may be implied. See
Hawthorne, 204 Ill. 2d at 258-59. We, therefore, will consider
the applicability of both forms of implicit preemption, field
preemption (see Pesticide Public Policy Foundation, 117 Ill. 2d
at 115-16) and conflict preemption (see People ex rel. Ryan v.
Village of Hanover Park, 311 Ill. App. 3d 515, 525-26, 724 N.E.2d
132 (1999)).
Field preemption occurs where the legislature enacts such a
comprehensive scheme of regulations as to reasonably imply that
there is no room for additional regulation by local
municipalities. Pesticide Public Policy Foundation, 117 Ill. 2d
at 115-16. Although section 11-31-1 of the Municipal Code
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provides municipalities with "a quick an effective means of
removing those unused and dilapidated structures that present
danger and blight" (City of Chicago v. Nielsen, 38 Ill. App. 3d
941, 945, 349 N.E.2d 532 (1976)), we do not believe that the
statute is so comprehensive as to demonstrate the legislature's
intent to preclude additional regulation of abandoned buildings
by local municipalities. As previously discussed, section 11-60-
2 of the Municipal Code (65 ILCS 5/11-60-2 (West 2008)) also
provides non-home-rule units like the Village with the authority
to "define, prevent, and abate nuisances," including abandoned
gasoline service stations. By expressly delegating to local
municipalities the additional authority to define and abate
nuisances, the legislature further demonstrated that it did not
intend to supersede the local regulation of abandoned buildings
in its entirety. See State Bank of Waterloo, 339 Ill. App. 3d at
771-72 ("where authority is expressly delegated to local
governments to regulate in an area, the legislature did not
intend the state's regulatory authority to preempt the field
entirely"). Accordingly, we conclude that field preemption does
not preclude the Village from regulating abandoned gasoline
service stations pursuant to section 11-81 of the Village Code.
Finally, we consider whether section 11-81 of the Village
Code is nullified by conflict preemption. Relying on the
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differences in the definitions of "abandoned" contained in
section 11-31-1 of the Municipal Code and section 11-81 of the
Village Code, BP contends that the Village's ordinance conflicts
with the state statute. Specifically, BP asserts that section
11-81 of the Village Code provides that a gasoline service
station shall be considered "abandoned" if it is not in operation
for at least 300 hours in any 60-day time period (Northfield
Village Code § 11-81 (amended January 25, 1999)); whereas, to be
considered "abandoned" under subsection 11-31-1(d) of the
Municipal Code, the property must: (1) be tax delinquent or have
outstanding water bills for two or more years, (2) be unoccupied
by the persons legally in possession, and (3) contain a dangerous
or unsafe building. 65 ILCS 5/11-31-1(d) (West 2008). In
addition, BP cites to subsection 11-31-1(f) of the Municipal
Code, which defines "abandoned" property as having (1) been tax
delinquent for two or more years and (2) unoccupied by the
persons legally in possession. 65 ILCS 5/11-31-1(f) (West 2008).
We briefly note that subsections 11-31-1(d) and 11-31-1(f)
of the Municipal Code contain special procedures allowing
municipalities to obtain title to certain abandoned properties
(see 65 ILCS 5/11-31-1(d) (West 2008)) or allowing for the
testing and removal of hazardous substances and petroleum
products contained therein (see 65 ILCS 5/11-31-1(f) (West
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2008)). Although these subsections include their own separate
definitions for "abandoned," section 11-31-1 does not define
"abandoned" when it is used in the general provisions allowing a
municipality to "demolish, repair, or enclose *** uncompleted and
abandoned buildings." See 65 ILCS 5/11-31-1(a) (West 2008).
Because it is undefined, this statutory term must be given its
plain and ordinary meaning. Price v. Philip Morris, Inc., 219
Ill. 2d 182, 243, 848 N.E.2d 1 (2005). In general, abandonment
occurs when the owner, with the intention of relinquishing all
rights, leaves the property free to be appropriated by any other
person. Bell Leasing Brokerage, LLC v. Roger Auto Service, Inc.,
372 Ill. App. 3d 461, 467, 865 N.E.2d 558 (2007). Regardless of
which definition is applied, however, it is clear that the
Village's ordinance and the Municipal Code define "abandoned"
differently. Nevertheless, the mere fact that a state statute
and a local ordinance are not identical does not mean that the
two regulations are in conflict for the purposes of preemption.
See City of DeKalb, 227 Ill. App. 3d at 331.
Under the federal doctrine of preemption, conflict
preemption arises "where compliance with both federal and state
regulations is a physical impossibility *** ' [citation], or
where the 'state law stands as an obstacle to the accomplishment
and execution of the full purposes and objectives of Congress.'
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[Citations.]" Ray v. Atlantic Richfield Co., 435 U.S. 151, 158,
55 L. Ed. 2d 179, 188-89, 98 S. Ct. 988, 994 (1978); see also
People v. Chicago Magnet Wire Corp., 126 Ill. 2d 356, 371-72, 534
N.E.2d 962 (1989). Employing similar reasoning, Illinois courts
have also found that state statutes conflict with local
ordinances when it is impossible to comply with both regulations
(cf. Village of Wauconda v. Hutton, 291 Ill. App. 3d 1058, 1061,
684 N.E.2d 1364 (1997) (finding that a local ordinance requiring
a sailboarder to wear a personal floatation device to be
inconsistent with a state statute specifically providing that
personal floatation devices were not required for sailboards)),
or when the local ordinance stands as an obstacle to the
accomplishment and execution of the full purposes and objectives
of the state (cf. People ex rel. Ryan, 311 Ill. App. 3d at 528(finding that local ordinances allowing for alternative traffic
programs that did not trigger court adjudications disrupted the
function of the judiciary and undermined the policies set forth
by the legislature regarding the duties of the Secretary of
State).
In this case, nothing prevents BP from complying with both
section 11-81 of the Village Code and section 11-31-1 of the
Municipal Code. Despite BP's assertions to the contrary, section
11-31-1 of the Municipal Code does not grant property owners the
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right to operate a gasoline service station for less than 300
hours in any 60-day time period. It merely provides
municipalities with the authority to "demolish, repair, or
enclose *** uncompleted and abandoned buildings." See 65 ILCS
5/11-31-1(a) (West 2008). Accordingly, compliance with the
Village's ordinance does not make it impossible for BP to
exercise any rights granted by state law. In addition, section
11-81 of the Village Code does not stand as an obstacle to the
purposes and objectives of the legislature in enacting section
11-31-1 of the Municipal Code. Indeed, the Village's ordinance
furthers 11-31-1's purpose of providing municipalities with the
power to abate public nuisances which may prove detrimental to
public health, safety, and welfare. City of Bloomington v. Bible
Truth Crusade, 197 Ill. App. 3d 793, 796, 555 N.E.2d 117 (1990);
City of Peru v. Bernardi, 81 Ill. App. 3d 227, 231, 401 N.E.2d 1(1980). For these reasons, we conclude that conflict preemption
does not bar section 11-81 of the Village Code.
In sum, we find that section 11-31-1 of the Municipal Code
does not preempt, either expressly or implicitly, section 11-81
of the Village Code. Having so found, we reverse the order of
the circuit court granting BP's motion to reconsider and remand
the matter back to the circuit court for further proceedings.
Reversed and remanded.
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THEIS and KARNEZIS, JJ., concur.
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