Kathryn E. Zenoff
Kathryn E. Zenoff

An appeals panel ruled traffic safety concerns shouldn’t halt a north-suburban development deal involving the Roman Catholic Archdiocese of Chicago.

The 2nd District Appellate Court found a trial judge was justified in ruling against the village of Libertyville in its lawsuit against the developer.

The Lake County village rejected plans for a housing subdivision on land owned by the archdiocese fearing a projected influx of motorists.

The village specifically argued left turns from the development onto Butterfield Road, a four-lane county highway, would be too perilous. But then-Lake County Associate Judge Michael J. Fusz last year agreed with the church that those fears were overblown. The panel last week found no reason to disturb that conclusion.

“The record shows that the court thoughtfully addressed the voluminous evidence presented at trial and weighed the credibility of the witnesses. In doing so, the court considered Libertyville’s concerns in light of the benefits that the proposed development would indisputably bring to the community,” Justice Kathryn E. Zenoff wrote in the 17-page unpublished order.

“The court ultimately determined that Libertyville’s concerns did not justify its decisions with respect to the revised application. Consequently, we cannot say that the court’s conclusions were against the manifest weight of the evidence,” she wrote.

The property at issue is a 40-acre chunk of the University of St. Mary at the Lake Seminary, which the archdiocese contracted to sell in 2014 for $15 million to a group called Roanoke, which aimed to develop a housing subdivision.

The contract was contingent upon the development group getting all necessary government approvals. The developer initially filed a request with the village to have the land rezoned and to create multiple access points to the neighborhood. However, at the request of the archdiocese — which also leases land to a nearby golf course and believed the second access road would cost too much and disrupt golf activities — it modified the proposal so there was only one ingress and egress point.

The plan was to have right- and left-turn lanes with a stop sign as vehicles turned onto Butterfield Road. Roanoke also eventually proposed installing a traffic light at its own expense at a nearby intersection to control traffic.

A study the group commissioned found that between 7 and 8 a.m. on weekdays, about 33 drivers would make a left turn out of the neighborhood.

Another figure, the control delay, was calculated to be more than four minutes in a green-red sequence. A control delay is calculation for how much time a signal adds to a commute through slowing and stopping versus having no signal there. Anything more than 50 seconds for any intersection lacking a traffic light warrants the lowest possible grade — in this case, an F.

Still, the group concluded that while there would be long delays, there will be enough gaps in traffic to accommodate the motorists in the proposal.

Lake County preliminarily approved the plan. But Libertyville’s village board in March 2017 voted against it, citing its own traffic engineer’s concerns that motorists turning out of the subdivision would feel pressured to take risks if traffic backed up or would settle for turning right, then making a U-turn farther up the road.

Roanoke terminated the purchase contract in May 2017. In June, the archdiocese filed substantive due process claims, asking a circuit court to rule the village had acted arbitrarily and that the plan was reasonable.

Fusz ruled the village acted unreasonably by relying almost exclusively on the four-minute data point calculated by Roanoke’s traffic study group. He ordered the plan to go through, subject to reasonable final approval.

Libertyville appealed, arguing it had valid concerns about safety. In the ruling last Tuesday, Zenoff cited LaSalle National Bank of Chicago v. County of Cook, a 1957 Illinois Supreme Court decision noting municipal zoning decisions must be arbitrary or unrelated to health, safety and morals for a court to overturn them.

The six factors that the court identified as relevant in ruling on municipal zoning ordinances include the existing uses of nearby property; the extent to which property values are hurt by the zoning regime; the extent to which the damage to property values relate to health, safety and morals of the community; the gain to the public versus the hurt to the property owner; suitability of the property at-issue for the zoned purposes; length of time the property has been vacant, relative to development in the area.

Libertyville didn’t dispute that most of the factors weigh in favor of the archdiocese, admitting it wants the property to be developed and that such a project will positively help the village. But it cited factors three and four — relating to the health, safety and morals and the public gain/private loss — as favoring the village.

The panel deemed Fusz’s decision was not contrary to the weight of the evidence, noting he found the archdiocese’s traffic expert “much” more credible than the village’s. That the expert testified the control delay of 248.2 seconds was too high, arguing the number was more in the range of 67.5 to 81 seconds.

Zenoff, joined by Justices Joeseph E. Birkett and Michael J. Burke in the decision, also noted the village’s traffic expert testified that 95% of the time there would only be three cars or less in the queue to make a left turn. They also wrote the court was entitled to look at Lake County’s approval of the plan and a reasonable conclusion from the evidence was that the single access road plan was “safe and adequate.”

Finally, the panel ruled Libertyville’s argument that the plan didn’t conform to its Subdivision Code was forfeited because it wasn’t brought up until after trial.

“Instead, at trial, both Libertyville and the [a]rchdiocese treated Libertyville’s decisions with respect to the revised application as a package deal that was denied because of concerns as to the adequacy of ingress and egress,” the panel wrote.

Robert Thomas O’Donnell Jr. of O’Donnell Callaghan LLC in Libertyville represented the archdiocese in the case.

He said on Friday that his client is pleased with the decision, that the court’s language was definitive and that he hopes it means the development will go through.

He noted that Roanoke, the development group, terminated the contract after Libertyville rejected the project.

“There is no entity under contract right now. So it may be Roanoke, it may be some other party,” O’Donnell said. “That’s frankly one of the unfortunate things from the archdiocese’s standpoint, is they lost a contract, which was one of the whole purposes of getting this development approved.”

Betsy L. Gates-Alford of the Filippini Law Firm in Evanston represented Libertyville in the case. She could not be reached for comment.

The case is The Catholic Bishop of Chicago v. Village of Libertyville, 2020 IL App (2d) 190368-U.