Dyn Cannell neighbors join Rockton Township in lawsuit

StoryImage( ‘/Images/Story//Auto-img-115290938715995.jpg’, ‘Graphic by Jeff Helberg, map courtesy of Expedia Streets 98’, ”);

The controversy over the proposed Dyn Cannell Planned Community Development (PCD) west of Rockton and Winnebago County’s approval will now go before the court in two separate lawsuits.

Property owners adjacent to the proposed Dyn Cannell Planned Community Development (PCD) have formed a not-for-profit group, Winnebago Citizens for Controlled Development, and are filing a separate and second lawsuit against Winnebago County.

Rockton Township was the first to announce a lawsuit against the County when Township trustees voted 3-1 June 21 to sue over the County Board’s June 8 approval of the PCD.

Developer Chris Cannell said he was not at all disturbed by the lawsuits. “It’s all right. It’s a free country,” he said.

When making the motion for the lawsuit, Rockton Township Trustee Tom Jencius’ passion was evident: “The County Board has rolled over us all the time. We have to stand up and put them on notice. It started with what they did in Roscoe. Even if we lose, the townships have to put them on notice that we are not going to take it anymore.”

Jencius remembered he started going to County Board meetings in 1994, where he said he saw the County Board lay over proposed zoning for developments in the Roscoe area over as many as five times, so residents opposing the developments had to keep coming back. “It was always the same crew…. Look at all the developments there now. Somebody from Roscoe said at the time, ‘When they’re done with us, they’re coming for you.’ Here they are.” (See map.)

Reacting to the second lawsuit, Rockton Township Trustee Dean Mohring said, “Whatever will work. Something needs to be done to get our rights back to object to these kind of developments.”

Winnebago Citizens for Controlled Development’s attorney, Ian Linnabary, said: “We anticipate filing tomorrow, but we will be filing separate lawsuits. The Township will be filing, as well as a group of citizens. There are at least five separate property owners, but I suspect there will be many more.”

Linnabary said the lawsuit has the following four counts:

Count 1—Seek administrative review of the County Board’s decision to grant the special use permit.

Count 2—Seek declaratory judgment that the ordinance passed by the County Board is unconstitutional under both the state and U.S. constitutions.

Count 3—That the section of the Winnebago County Zoning Code that allows special use permits for PCDs is unconstitutional under state and federal constitutions.

Count 4—The unconstitutional usage deprived adjacent property owners, nearby townships and municipalities from acting as legal objectors.

Linnabary noted it’s a possibility the parties may seek to have the lawsuits joined, or the court may combine them, which is a common practice.

At the June 21 Township meeting and at a community meeting in Rockton July 3, the Township and residents’ attorneys estimated that the lawsuits could cost each party $15,000 to $20,000. The citizens’ group and the Township plan several fund-raisers.

Winnebago County Deputy State’s Attorney Charles Prorok said of the County’s costs: “I really couldn’t give an estimate on that. There’s depositions, court reporters and transcripts. We’re here whether we are defending this or another lawsuit, so that doesn’t count. Then there are experts and the cost of experts.”

Saying the case could take six to nine months, Prorok couldn’t recall any other case in County history filed against the County by both residents and a municipal body. “But I can recall in the last 20 years that a municipal body has filed a motion for declaratory judgment (against the County). But I can’t recall who it was.”

One of the major contentions made by both the Township and the adjacent property owners to the PCD is that not all the evidence presented to the Winnebago County Zoning Committee and the Zoning Board of Appeals made it to the County Board members.

Specifically, the audio tape of the Zoning Board of Appeals was very poor, with the transcript that was available to County Board members being filled with many “inaudible” entries. Also, opponents assert the written testimony entered into the record was not given directly to the board members.

Cannell took the opposite viewpoint: “Well, I think the County Board did a good job. They looked at the evidence, and I applaud them for their good work,” he said.

As to whether he would start the application process all over if the County lost the lawsuit, Cannell said: “I don’t want to comment because I personally don’t even think that’s a possibility. They’d have to show that the board ignored the evidence. There’s a lot of disinformation being spread around. I don’t think what they’re saying is true. I don’t want to comment on that because I don’t think it will make it back. The County Board did what they were supposed to do. They voted unanimously. It was a landslide vote of 19-4.”

By a vote of 19-4 with five absent, the Winnebago County Board approved the PCD’s special use permit June 8. The vote overturned rejections of the PCD by the Winnebago County Zoning Committee with a 3-2 vote and the Zoning Board of Appeals with a vote of 7-0.

Rockton Township denied a special use permit for the PCD April 12.

Runoff from septic and street systems are other concerns about the development. Jerry Paulson, executive director of the Natural Land Institute, sent a letter to Cannell Feb. 23, concluding: “The Board of Directors of the Natural Land Institute has taken a position to oppose granting a Special Use Permit for the development as proposed because of our concerns about the impact on water quality in the Nygren Wetland and the fact that it is not a conservation development.”

Stanley Campbell of the BlackHawk Sierra Club is also on record against the development because of urban sprawl.

Another concern cited by adjacent property owners is heavy metals, allegedly from the Beloit Corporation, that were contained in municipal sludge dumped on the property in the 1980s.

How or if these deposits will affect future residents its hotly contested. Rockton Township has taken samples from Township property in an adjacent ditch, and is awaiting interpretation of the results.

One adjacent resident, Cheryl Bradley, attributed her poor health to the sludge, saying her personal medical records show the cause: “I’ve been drinking that water for 18 years, and they have found those metals in my body.”

“In regard to heavy metals, I am very, very confused because of all the testing I’ve done that heavy metals are not an issue,” Cannell said. “They are well below the naturally occurring average in the earth for this area and well below the Illinois TACO [Tiered Approach to Corrective Action Objectives] average. The reason I did the soil testing is because the mayor of Rockton asked me to, so they could have peace of mind about it. The company that did the testing is the same company that did the testing for the Wagon Wheel and did discover pollution there.”

Cannell added: “I think the biggest piece of misinformation out there was about the Shirland Elementary School, which I went to as a child. It was built for 300, but they have just over 140 children. For them to come out and say 60 kids from my subdivision is going to put them in danger of closing, I just don’t find them believable. I don’t believe them. They’re at half capacity.”

“That’s not true,” said Shirland School Board President Mark Baker. “Our Needs Assessment and Land Acquisition Plan filed with Winnebago County for the purpose of impact fees, clearly explains the school’s capacity: ‘The building currently has 147 students, with an estimated capacity of 150 to 220 students. The district has a strong history of keeping its elementary class sizes in the low to mid-teens. There are currently 10 classrooms designated for general education. The class sizes vary from 12 to 18 students, and this has been the philosophical class size the district and community has come to desire and appreciate. Scientifically-based educational research supports lower class
sizes and relates it to increased student achievement.’”

Baker said the superintendent, school administration and board compiled the Needs Assessment and Land Acquistion Plan. It is also the concern of the community leaders and the Shirland Board of Education that the addition of the new subdivision would stimulate additional developments similar in size and nature.

Baker added the Shirland School Board passed a motion, which is being formally drafted by attorneys, opposing the recent action of the County Board regarding the Dyn Cannell Subdivision, and voicing support of the two parties in formal opposition of the action, at its July 7 meeting.

From the July 12-18, 2006, issue

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