By James Middleton Since 2005, Plote Construction, Inc. has been involved in one form of litigation or another with Boone County. This is not to say that legal matters have occupied a significant allotment of legislative and judicial time. But, it is to say that Plote Construction came to Boone County with a goal that they obtained and their involvement with the county has required ongoing management by the Boone County Board and the Boone County state’s attorney Michelle Courier. Of late, a lawsuit was filed by Ms. Courier on behalf of Boone County seeking a temporary restraining order to require Plote to comply with the elements of their contract and the elements of the special use permit. On November 24, the honorable Judge C. Robert Tobin III handed down a written decision in the matter of County of Boone v. Plote Construction, Inc. et al. Judge Tobin’s decision denied a defense motion for dismissal of the lawsuit and he granted a temporary restraining order over Plote because of their violation of a contract with the county. The dispute that led to the lawsuit resulted from Plote allegedly operating their gravel extraction operation in rural Flora Township after the hours of operation that they had previously agreed. Judge Tobin’s written decision also denied Plote’s request that they should have extended hours of operation because Quality Aggregates enjoys extended hours of operation as part of an agreement with Boone County. Ms. Courier reasoned that the environment where Quality Aggregate operates is very different than the site operated by Plote. The extended hours request relates to a position advanced by Plote that is called “Most Favored Nation” (MFN) status that they believed should be granted to them to operate in a similar manner as does Quality Aggregate. The MFN status was included in the original agreement between Plote and Boone County in 2005 but after the special use zoning was granted to Plote to continue their operation and when a new contract was written, the MFN reference was not included. Judge Tobin opened his Opinion by recounting the history of the involvement between Plote and Boone County. The involvement dates back to 2005 when Plote filed a lawsuit naming Boone County and alleging that zoning changes made to the county zoning code were unconstitutional. The result of the lawsuit was for the then Boone County state’s attorney, James Hursh, to negotiate a settlement to the lawsuit. Plote wanted to reopen property that they held in rural Flora Township as a quarry. The essence of the settlement between the parties, according to Judge Tobin’s analysis, “They reached a settlement agreement that, in general terms, bound the County to issue a special use permit to Defendant’s for the use of the property as a quarry.” The county could impose their ordinances to govern the special use that would be extended for a five-year term and to allow for a renewal process. The initial agreement and special use process was approved by the Boone County Board and that agreement included the MFN language that allowed Plote to operate the quarry on days and at times comparable to the agreement with Quality Aggregate. During the contract renewal process, Plote sought to retain the MFN provision and this matter was debated at the County Board level. However, the MFN reference was not included in the new agreement and, instead, the County imposed specific hours and days of operation. What resulted were a number of resident complaints from those that reside in close proximity to the quarry indicating that Plote was operating in violation of the renewed agreement. On August 12, 2014, the Boone County senior building inspector, Drew Bliss, found that Plote was operating outside the parameters of the revised agreement. Plote had never applied for modification of the terms of the revised agreement. Judge Tobin also wrote, “Therefore, on August 12, 2014, Defendant’s were operating their quarry outside the hours of operation allowed for under their special use permit but within the
extended hours established in Quality Aggregates’ special
use permit.” Plote was operating their quarry as if the
MFN language remained within the revised agreement.
Judge Tobin also provided his analysis to support denial
of the motion by Plote to dismiss the lawsuit. He cited
the Illinois Code that details what a motion to dismiss is
designed to accomplish. “The primary purpose of a Section
2-619 motion is to provide a means to dispose of issues of
law or easily proved issues of fact. However, if it cannot
be determined with reasonable certainty that the alleged
defense exists the motion should not be allowed.” Judge
Tobin posed a number of questions within the context of a
motion to dismiss and concluded that the questions cannot
be answered. He wrote, “Based upon evidence unknown
to the Court, it is possible Defendants can assert a cause of
action; likewise, it is equally possible (again, based upon
evidence unknown to the Court) Plaintiff could have a
defense. Because of this uncertainty, the motion to dismiss
by Plote was denied.
Judge Tobin then engaged in an extended discussion of
the County’s motion seeking a temporary restraining order.
The purpose the county sought was for the judge to restrain
the activity of Plote and require them to limit their hours
and days of operation according to the previous agreement
and not according to the hours and days of operation
granted to Quality Aggregates.
Ms. Courier clarified, “Plote wants to be compared to
Quality Aggregates and their situation is very different from
Plote.” She explained that the environment where Quality
Aggregates operates is not adjacent to or near residential
areas that have been in existence for many years. The site
where the Plote quarry is located has residences that are
directly adjacent to where the blasting and rock removal
process is occurring.
Judge Tobin concluded his analysis of how and when
a restraining order may be granted and explained how
court approved tests were not successfully argued by the
Defendant to avoid imposition of the restraining order.
Judge Tobin wrote, “The Plaintiff alleges that an ordinance
was passed that controlled the hours of operation of the
Defendant’s quarry. There is a presumption that the
ordinance is valid. The Plaintiff submitted an affidavit
asserting Defendants have operated their business outside
the hours of operation allowed in the ordinance and special
use permit. Defendant does not deny such operation
occurred. The County Code grants Plaintiff the authority
to seek injunctive relief.” The judge asserted in that the
merits of a cause of action seeking a permanent injunction
would likely succeed and for that reason, the temporary
restraining order was granted.
It should be noted that the temporary restraining order
bars Plote from continuing their quarrying operations
outside the hours and days of operation specified in the
ordinance that guides that activity or in the special use
permit.
Ms. Courier said that another status hearing is scheduled
in Judge Tobin’s Court on January 15 when her office will
continue to pursue a permanent injunction. If successful,
the goal of the lawsuit would bar Plote from operating their
quarry in abrogation of the parameters of the ordinance and
the special use permit.
