Stop NorthPoint Files Response to Motion to Dismiss

...

NorthPoint's argument that some degree of inconvenience or unpleasantly is inevitable in an industrialized society misses the point.  

...

The development represents a substantial invasion of the public's use and enjoyment of their land.  In a 24-hour day, 10,000 additional trucks equate to 417 trucks per hour; 7 per minute; one every 9 seconds.  We have the right to proceed to discovery on these claims and there is no basis for the Motion to Dismiss.

...

Counts I and II sufficiently allege public and private nuisance claims. Only by ignoring the specific factual allegations of the complaint can the Defendants advocate dismissal of these claims. Plaintiffs have the right to proceed to discovery on these claims and there is no basis for Defendants’ motion to dismiss. Accordingly, the Court must deny the Defendants’ motions to dismiss as to these Counts.

The Annexation Agreement between Joliet and EastGate is so uncertain and indefinite, that no contract was ever formed. While parties may intend to make a contract, if the content of the agreement is unduly uncertain and indefinite, no contract is formed. If the essential terms are so uncertain that there is no basis for deciding whether the agreement has been kept or broken, there is no contract. “A contract must be definite and certain in its conditions and courts will not supply missing terms so as to infuse a contract with the requisite certainty.”

...

Northpoint’s so-called "closed loop" is not possible without the bridge over Route 53. Northpoint is currently prohibited from constructing the bridge at Walter Strawn Drive based on the Village of Elwood’s opposition to the bridge. The existing prohibitions make fulfillment of the contract terms impossible and make the contract unenforceable.

The provision that “[i]f the approvals necessary ... are not secured in a reasonable timeframe the Parties shall mutually agree to an alternate location...” is vague and indefinite thereby making it impossible to determine whether the agreement has been kept or broken.

...

The fact that there are no alternate locations provided for in the Agreement, itself, makes the Agreement unenforceable. The public has no clue where this alternate location might lie for it is at the whim of Joliet and Eastgate, provided they can agree on a location. The community has no idea if this alternate location is next to a school, church, or a residential area. It is unknown what local roads will be utilized or whether such roads can even support heavy semitrucks. Not knowing where this location lies makes it impossible to evaluate the environmental impact the Development will have and the impact the Trucking Terminal will have on the health, safety and welfare of area residents, as well the impact on traffic.

...

Lack of standing is an affirmative defense, and the burden of proving the defense rests on the party asserting it. Defendants have not sustained their burden. In addition to the public trust doctrine, which confers standing, Plaintiffs have standing in that they allege direct injuries to their rights, and they have standing as third party beneficiaries. Without exposing itself to charges of corruption, Joliet cannot maintain that it entered into the Agreement for the benefit of Eastgate/Northpoint. We trust that Joliet officials will not claim that they entered into the Agreement for their own personal gain. It follows that Joliet entered into the Agreement for the benefit of local residents. Thus, the Court must deny Defendants’ motion to dismiss Count III.

The Complaint shows that contiguity between the northern and southern portions of the land sought to be annexed is, as a prima facie matter, are not legally contiguous. Defendants admit the lack of contiguity but dismiss its relevance and importance. ... By knowingly including a significant portion of property that could not be annexed, and was therefore illusory, Joliet confused and misled the public regarding the Agreement.

The purpose and motives of the illusion have not yet fully manifested. It appears, however, that the southern portion was included to provide the illusion that a traffic loop and a bridge would in fact be built, while in reality the plan is to reroute traffic within the contiguous northern portion of the annexed property when the bridge is abandoned. Importantly, the illusion undermines the enforceability of the Agreement because the essential terms (i.e. a traffic loop requiring a bridge) of the Agreement are impossible to perform and was used to mislead the public as to what was really being planned and approved.

...

Defendants offer no valid grounds for dismissal of Count IV and Plaintiffs are entitled to conduct discovery on whether the vast amount of land to be annexed is contiguous.

....

Defendants admit that “contiguity is essential for annexation” but argue that contiguity is not essential for an annexation agreement. This lawsuit not only seeks to invalidate the Agreement, but it seeks a declaratory judgment that the Annexation of the Property is unlawful and invalid and an injunction enjoining the Defendants from proceeding with the Development.

Further, Defendants do not dispute that Eastgate’s failure to acquire the FAA property means that there is a lack of contiguity. In fact, Defendants state that “[they] do not contend that the southern section is currently contiguous, which is why that part has not yet been annexed.” They contend that the “the only thing that matters is that it is contiguous at the time that it is annexed.”

Defendants’ argument is a non-sequitur for it is acknowledged that the property must be contiguous before it can be annexed and that the Development fails without the annexation. It is the Defendants, not the Plaintiffs, who are putting the cart before the horse. Joliet held public hearings for the annexation of property that currently cannot be annexed. The Court must deny Defendants’ motion to dismiss Count IV.

At a minimum, questions of fact exist as to whether Joliet substantially complied with the notice requirements for its December 3rd, 10th, 15th and 16th public hearings. There is no merit to Defendants’ argument that Joliet “substantially complied” with the notice requirements because the contradictory notices “correctly identified the place, time and location of the City Council meeting and identified Ordinances related to the Annexation Agreement.” The numerous notice deficiencies set forth in the complaint do not evidence substantial compliance. The purported notices are at best confusing and fail to provide meaningful notice.

...

A fundamental requirement of due process is notice and the opportunity to be heard “at a meaningful time and in a meaningful manner.” When an annexation is accomplished in such a manner as to deprive potential objectors of notice of the annexation proceeding, it will be considered void on the basis of fraud and abuse of the court's process. Joliet’s lack of transparency is insulting to its residents and the surrounding community and raises the concern of what its officials are trying to hide. The Court must deny Defendants’ motion to dismiss Count V.

Defendants fail to address Plaintiffs’ claims that Joliet violated 65 ILCS 5/11-15.1-3 of the Municipal Code regarding notice. Thus, Defendants have waived any challenge to Count VI.

...

Joliet violated the Municipal Code by its failure to give notice that it was holding a public hearing on the Agreement. Joliet’s notice that that “it would consider ordinances in partial fulfillment of the Annexation and Development Agreement” is not sufficient under § 11-15.1-3.

Joliet must not be allowed to run roughshod over the statutory notice requirements.

The entire Development is premised on a bridge being built over Walter Strawn Drive at Illinois Route 53 to accommodate Eastgate’s so-called “Closed Loop Truck Network.” Defendants do not contest that Eastgate is currently legally prohibited from constructing the bridge given Elwood’s opposition to the bridge. Knowing this, Eastgate and Joliet added the provision that “[i]f the approvals necessary ... are not secured in a reasonable timeframe, the Parties shall mutually agree to an alternate location...”.

Hence, in all likelihood a bridge will not be able to be built over Walter Strawn Drive. Yet, Eastgate’s entire presentation at the public hearings assumed that the bridge would be constructed for its “Closed Loop Truck Network.” The fact that this contemplated bridge cannot be built represents a material change to the nature of the Agreement. Therefore, the contingent alternative bridge location amounts to an amendment to the Agreement. Pursuant to Section 11- 15-1.3 of the Municipal Code, such an amendment cannot be made without a public hearing that is properly noticed.

...

Plaintiffs are entitled to a declaration that the alternate bridge location would constitute an amendment to the Agreement thereby nullifying the prior actions/hearings taken and making the Agreement unenforceable.

Plaintiffs allege viable due process violations based on the inability to cross examine representatives of Northpoint and Joliet officials. At the December 15th and 16th, 2020 City Council hearings, Northpoint representatives testified in favor of the Development. Yet, members of the public were not allowed to question these representatives.

...

In this case, fundamental fairness required that interested parties at the December 15th and 16th hearings be given the opportunity to cross examine witnesses. All four hearings, including the December 3rd and December 10th public hearings before the Plan Commission and the Plan Commission and the Joliet Zoning Board of Appeals, where special use permits and zoning variances were sought, are so interconnected that it would be improper to exempt the December 15th and 16th hearings from the right to cross-examine. Accordingly, the Court must deny the motion to dismiss Count VIII.

...

Defendants do not contest that the City Council hearings are subject to the Illinois Open Meetings Act. Instead, they argue that the hearings were not subject to the Governor’s Executive Order because the Executive Order applies to businesses, nonprofits, and other organizations--and not to local governments. There is no support for such a contention and Defendants’ position cannot be reconciled with the plain language of the Order. The Executive Order contains no exemptions for public hearings before governmental bodies.

The Court must deny the defendants’ motion to dismiss Count IX.

Click here to download and read the response