{ "id": 140281, "name": "ALLIED ASPHALT PAVING COMPANY, Plaintiff-Appellant, v. THE VILLAGE OF HILLSIDE, Defendant-Appellee", "name_abbreviation": "Allied Asphalt Paving Co. v. Village of Hillside", "decision_date": "2000-06-09", "docket_number": "No. 1\u201499\u20142057", "first_page": "138", "last_page": "148", "citations": [ { "type": "official", "cite": "314 Ill. App. 3d 138" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "702 N.E.2d 303", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "299 Ill. App. 3d 964", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 221528 ], "year": 1998, "pin_cites": [ { "page": "975" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/299/0964-01" ] }, { "cite": "711 N.E.2d 10", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "304 Ill. App. 3d 214", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 564613 ], "year": 1999, "pin_cites": [ { "page": "217" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/304/0214-01" ] }, { "cite": "668 N.E.2d 601", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "parenthetical": "\"A civil contempt order is coercive, not punitive, and is designed to bring a defendant's conduct in line with a prior court order\"" } ], "opinion_index": 0 }, { "cite": "282 Ill. App. 3d 628", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 159566 ], "year": 1996, "pin_cites": [ { "page": "636", "parenthetical": "\"A civil contempt order is coercive, not punitive, and is designed to bring a defendant's conduct in line with a prior court order\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/282/0628-01" ] }, { "cite": "692 N.E.2d 855", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "295 Ill. App. 3d 264", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 45754 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/ill-app-3d/295/0264-01" ] }, { "cite": "545 N.E.2d 695", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "131 Ill. 2d 196", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5570158 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "205-06" }, { "page": "206" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/131/0196-01" ] }, { "cite": "637 N.E.2d 1160", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "265 Ill. App. 3d 526", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 872519 ], "year": 1994, "pin_cites": [ { "page": "529" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/265/0526-01" ] }, { "cite": "583 N.E.2d 720", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "222 Ill. App. 3d 382", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5260970 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "388" }, { "page": "388" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/222/0382-01" ] } ], "analysis": { "cardinality": 946, "char_count": 22805, "ocr_confidence": 0.746, "pagerank": { "raw": 6.414293856945671e-08, "percentile": 0.39660169376670223 }, "sha256": "a93bd212d346d682342a993109bcb5e852e17a3c5cf99b705a33323b1c758983", "simhash": "1:01cc1d27f916da55", "word_count": 3653 }, "last_updated": "2023-07-14T20:48:47.280070+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ALLIED ASPHALT PAVING COMPANY, Plaintiff-Appellant, v. THE VILLAGE OF HILLSIDE, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE HARTMAN\ndelivered the opinion of the court:\nFollowing a hearing on the Village of Hillside\u2019s (Village) motion for a rule to show cause against Allied Asphalt Paving Company (Allied), the circuit court held Allied in contempt of court for operating its Hillside asphalt manufacturing plant in violation of a consent decree (Consent Decree), which the Village and Allied previously had executed to resolve then-pending litigation between those two parties. Allied appeals the court\u2019s findings, arguing that (1) the court erred in finding that Allied violated the Consent Decree; (2) the Village brought its rule to show cause motion without proper municipal authorization; and (3) the court erred in refusing to admit evidence offered by Allied at the hearing.\nSince 1960, Allied has owned property in Hillside upon which it engages in the manufacture of asphalt. Allied\u2019s Hillside site consists of approximately 15 acres of property west of Mannheim Road and south of the Eisenhower Expressway. Allied\u2019s property is bordered on the west by a vehicle air emissions testing facility. A number of residences are located adjacent to the south and southwest portions of Allied\u2019s property, on which it manufactures new asphalt and recycles used asphalt.\nThe genesis of the current proceeding stems from a 1986 suit for declaratory judgment brought by Allied against the Village. In 1986, Allied was operating its asphalt manufacturing plant in Hillside under a special use permit authorized by a Village ordinance. One of the conditions of the special use permit was that Allied\u2019s \u201cplant facilities, exclusive of office buildings, office accommodations or roadways, be located not less than 400 feet southerly of the southerly line of Congress Street Expressway (now known as the Eisenhower Expressway)\u201d and that \u201cthere shall be no extension, addition or new construction of plant facilities and structures, exclusive of office buildings, office accommodations or roadways, beyond the outer perimeter of the land area within which such facilities and structures are [now] located.\u201d\nIn May 1986, the Village Zoning Board of Appeals (Zoning Board) determined at a public hearing that Allied was in violation of its special use permit because it was storing large piles of discarded used asphalt within 400 feet of the southerly line of the Eisenhower Expressway. The Zoning Board concluded that the used asphalt piles were \u201cplant facilities\u201d and therefore were in violation of the special use permit. The Zoning Board recommended revocation of Allied\u2019s special use permit.\nAs a result of the Zoning Board\u2019s recommendation, Allied filed its 1986 complaint for declaratory judgment, disputing whether the stockpiles of used asphalt constituted \u201cplant facilities.\u201d In resolution of the litigation, the Village and Allied executed the Consent Decree, which provided, inter alia, that the discarded piles of asphalt were excluded from the definition of \u201cplant facilities\u201d under the special use permit. Although the Consent Decree allowed storage of the used asphalt within the restricted area, the Consent Decree prohibited Allied from stockpiling the discarded asphalt in excess of 26 feet in height. The Consent Decree further provided that Allied could operate only one \u201casphalt plant\u201d on its Hillside property and further stated:\n\u201cThat the plant facilities, exclusive of office buildings, office accommodations or roadways, be located not less than four hundred (400) feet south of the southerly line of the Congress Street Expressway (now known as Eisenhower Expressway ***.\nThat there shall be no extension, addition or new construction of plant facilities and structures, exclusive of office buildings, office accommodations or roadways, beyond the outer perimeter of the land area within which such facilities and structures are located on the date of this order.\u201d\nThe Consent Decree lastly provided that \u201cthis suit is hereby dismissed with prejudice and without costs as to either party, except that the Court shall retain jurisdiction over the parties hereto for the sole purpose of enforcing compliance with the terms of this Consent Decree.\u201d\nIn July 1998, the Village sought a rule to show cause against Allied, alleging that Allied was in violation of the Consent Decree by virtue of its operating a \u201ccrushing plant,\u201d used to process and recycle the discarded asphalt, within the prohibited 400 feet south of the Eisenhower Expressway. The Village also alleged that Allied stockpiled discarded asphalt in excess of the 26-foot limit, also in violation of the Consent Decree.\nResponding, Allied agreed that its crushing plant was located within 400 feet of the southerly line of the Eisenhower Expressway, but claimed that \u201cthe equipment utilized for the crushing of asphalt within four (400) hundred feet south of the southerly line of the Eisenhower expressway is mobile equipment on wheels and thus does not constitute the construction of any structure or other plant facilities upon its property.\u201d\nAn evidentiary hearing was conducted to determine whether Allied was in violation of the Consent Decree. At the hearing, the circuit court heard evidence from both Village officials and Allied employees as to nature of the crushing plant and viewed a videotape of the crushing plant in operation.\nThe evidence presented at the hearing established that the crushing plant is separate from the actual asphalt plant where the new asphalt is manufactured. The crushing plant\u2019s purpose is to recycle the discarded asphalt into reprocessed asphalt, which is used for roadway base as a substitute for crushed stone; a small portion of the recycled asphalt is also mixed with virgin materials for use in approved grades of recycle mixes.\nThe crushing plant is described by its manufacturer as a \u201cPortable Crushing & Screening Plant\u201d and weighs 107,000 pounds, is approximately 64 feet long, 14 feet high and 16 feet wide. It has the capacity to crush approximately 150 to 300 tons of asphalt per hour. It contains an impact crusher, a feed hopper, a vibrating feeder, screens and numerous conveyors. It consists of multiple, separate sections which extend out from its center at right angles. It is mounted upon a large portable platform with 12 large tires and it is accessible by a ladder and staircase. Its platform has hydraulic loading and leveling jacks. It is not one entire piece of machinery, but is instead comprised of several different components used together.\nThe crushing plant contains an operator platform with a remote control panel to control the operations of the plant. It is powered by electricity, either hard-wired into existing high voltage power lines or from a diesel generator housed inside a nearby trailer. Although the crushing plant is mounted on a wheeled platform, it is not self-propelled; it can be moved, however, by semi-tractor truck. If moved on a roadway, the crushing plant requires a special trailer and an overweight permit. Prior to moving, certain conveyors and component parts of the crushing plant must be removed and its power source disengaged. On several occasions since the mid-1980s, Allied has moved the crushing plant to other areas within its property.\nTo facilitate the recycling process, the crushing plant is located adjacent to the discarded piles of used asphalt, within the disputed 400-foot area. The crushing, or recycling, process begins when a front-end loader picks up a load of the discarded asphalt from the pile and dumps that load into the crushing plant\u2019s hopper. A conveyor moves the broken asphalt into the jaw crusher, where the irregular pieces of broken asphalt are crushed into smaller, nugget-shaped sizes. The crushed asphalt then falls onto other conveyors, continuing the process. For several years, Allied has operated the crushing plant on its property in the same restricted location. At no time prior to filing its motion for rule to show cause did the Village request that Allied move or cease operating the crushing plant.\nAt the hearing, there was no dispute that the location of the crushing plant was within the 400-foot restricted area. The only issue concerned whether the crushing plant was a \u201cmanufacturing facility\u201d pursuant to the Consent Decree. At the conclusion of the hearing, the circuit court found that, despite its mobility, the crushing plant was a \u201cmanufacturing facility\u201d within the purview of the Consent Decree. Accordingly, after finding that there was no showing as to why Allied \u201cshould not be held in contempt for failure to abide by the decree,\u201d the court entered a finding of indirect civil contempt against Allied, assessing a penalty of $215 per day. Allied appeals the court\u2019s findings.\nI\nAllied initially contends that the circuit court improperly held it in indirect civil contempt of court. Specifically, Allied maintains that the court erred in finding that the crushing plant was a \u201cplant facility\u201d pursuant to the Consent Decree.\nIn the instant case, the circuit court\u2019s finding of contempt was based upon its interpretation of the Consent Decree. A Consent Decree is considered a contract between the parties and, accordingly, the law of contracts controls its interpretation. Flora Bank & Trust v. Czyzewski, 222 Ill. App. 3d 382, 388, 583 N.E.2d 720 (1991). Like other contracts, consent decrees must be construed to give effect to the intention of the parties which, when there is no ambiguity in the terms, must be determined from the language of the consent decree alone. Flora Bank & Trust, 222 Ill. App. 3d at 388. A term will be found to be ambiguous only if it is reasonably or fairly susceptible to more than one interpretation; a term or provision is not rendered ambiguous merely because the parties do not agree on its meaning or application. Pennsylvania Life Insurance Co. v. Pavlick, 265 Ill. App. 3d 526, 529, 637 N.E.2d 1160 (1994).\nAllied argues that the crushing plant is not a \u201cplant facility\u201d pursuant to the Consent Decree. In advancing this position, Allied claims that the crushing plant \u201cfits nicely within the title of construction equipment or contractor\u2019s equipment.\u201d Allied also insists that any other interpretation of the crushing plant would render the Consent Decree \u201cabsurd.\u201d Nevertheless, a review of the record reveals that the circuit court correctly determined, from the language of the Consent Decree, that the crushing plant was a \u201cplant facility.\u201d\nTo aid its interpretation of the term \u201cplant facility,\u201d the circuit court looked to the supreme court\u2019s opinion in Van\u2019s Material Co. v. Department of Revenue, 131 Ill. 2d 196, 545 N.E.2d 695 (1989), where the court considered the issue of whether the purchase of two ready-mix concrete trucks qualified for a manufacturing tax exemption. The Department of Revenue argued for a limited interpretation of the term \u201cmanufacturing facility,\u201d to processes that occur in a fixed location, relying upon its own regulation which stated, \u201c[t]his exemption includes machinery and equipment which replaces machinery and equipment in an existing manufacturing facility as well as machinery and equipment which is for use in an expanded or new manufacturing facility.\u201d Van\u2019s, 131 Ill. 2d at 205-06. The Van\u2019s court declined to find that the phrase \u201cmanufacturing facility\u201d was limited to activities which occur only in a fixed location. Instead, the court held:\n\u201cWhile it may be true that one of the definitions of the word \u2018facility\u2019 alludes to its being a place, we also note the following definitions: (1) \u2018something that promotes the ease of any action, operation, transaction, or course of conduct\u2019; (2) \u2018something *** that is built, constructed, installed, or established to perform some particular function or to serve or facilitate some particular end.\u2019 (Webster\u2019s Third New International Dictionary 812-13 (1986).\u201d Van\u2019s, 131 Ill. 2d at 206.\nSee also Nokomis Quarry Co. v. Department of Revenue, 295 Ill. App. 3d 264, 692 N.E.2d 855 (1998).\nGuided by the language and logic of Van\u2019s, the circuit court in the present case concluded that the mere fact that the crushing plant was mounted on wheels and could be moved, albeit with effort, did not necessarily defeat its characterization as a plant or manufacturing \u201cfacility.\u201d On the contrary, the court determined that the size, operation and use of the crushing plant together established that it was a manufacturing facility within the purview of the Consent Decree.\nAllied criticizes the circuit court\u2019s interpretation of and reliance on the supreme court\u2019s decision in Van\u2019s, which Allied claims is distinguishable from the instant case. Of course, Van\u2019s involved the interpretation and applicability of the use tax. Nevertheless, Van\u2019s is instructive.\nThe undisputed evidence established that the crushing plant was a massive piece of machinery with numerous conveyors and other component parts. It was neither self-powered nor self-propelled. It had to be hard-wired to existing power lines or an adjacent generator housed in a trailer. It could be moved only by a semi-tractor trailer truck. Its component parts were installed at its location and it was used to completely recycle discarded asphalt. Allied\u2019s attempts to describe the crushing plant as construction equipment or contractor\u2019s equipment flies in the face of reason and logic, particularly where the crushing plant clearly performed a complete manufacturing process\u2014 the recycling of used asphalt. The circuit court did not err in finding that the crushing plant was a plant facility within the purview of the Consent Decree.\n\u20223 Allied also claims that the Village \u201cseeks a sanction for a restriction which is not specifically defined or identified in the Consent Decree\u201d and can claim no \u201cinjury as a result of the crushing activity in the current location.\u201d Whether the Village can claim \u201cinjury\u201d is irrelevant; the only question before the circuit court was whether Allied violated the terms of the Consent Decree. The Consent Decree is specific as to the restricted activity in the prohibited area: Allied could operate only one asphalt plant on its property and was prohibited from extending, adding to or constructing new facilities onto the existing asphalt plant beyond the current outer perimeter of the asphalt plant. The Consent Decree also provided that \u201cthe plant facilities *** be located not less than four hundred (400) feet south of\u2019 the Eisenhower Expressway. Simply because the Consent Decree did not define the phrase \u201cplant facility\u201d does not render it unenforceable.\nAllied also claims that the circuit court\u2019s finding runs counter to applicable principles of zoning and land use law. Specifically, Allied maintains that forcing it to move the crushing plant from the northern boundary of its property to the southern or southwestern boundaries would place the crushing plant in closer proximity to residential areas, in contravention of established land use and zoning principles. Nevertheless, as the court noted, it was not determining land use or zoning issues, but was interpreting the Consent Decree which both the Village and Allied had executed. Accordingly, Allied\u2019s argument in this regard fails.\nAllied also urges that the Consent Decree lacks the specificity required for a finding of contempt and that its conduct was not willful; therefore, imposition of sanctions was improper. Notwithstanding Allied\u2019s position, the Consent Decree was sufficiently clear and specific as to the conduct and activity prohibited. Moreover, whether Allied\u2019s conduct was willful is irrelevant; the circuit court found Allied in civil, not criminal, contempt, and its imposition of sanctions was prospective and not punitive. See City of Mattoon v. Mentzer, 282 Ill. App. 3d 628, 636, 668 N.E.2d 601 (1996) (\u201cA civil contempt order is coercive, not punitive, and is designed to bring a defendant\u2019s conduct in line with a prior court order\u201d).\nWhether a party has committed indirect civil contempt is a question of fact for the circuit court which will not be overturned on appeal unless against the manifest weight of the evidence. Busey Bank v. Salyards, 304 Ill. App. 3d 214, 217, 711 N.E.2d 10 (1999). In the instant case, the circuit court\u2019s determination was not against the manifest weight of the evidence where that evidence revealed that Allied violated the Consent Decree by operating the crushing plant, a \u201cplant facility,\u201d within the prohibited 400-foot area south of the Eisenhower Expressway.\nII\nAllied also asserts that the Village did not properly authorize the \u201cprosecution of this action.\u201d Specifically, Allied complains that the Village, prior to moving for a rule to show cause, never conducted an open meeting during which the subject was addressed. The Village initially responds that the appropriate public body authorized the legal action in a closed portion of one of its public meetings. Alternatively, the Village contends that the present case does not involve a final municipal decision to file a lawsuit, but only involves the filing of a motion in pending case.\nHere, on the fourth day of the evidentiary hearing, after several witnesses already had testified, Allied sought leave of the circuit court to file its amended affirmative defenses, in which it claimed that the Village\u2019s motion was \u201cfiled by its attorney without the Village, acting through its Board of Trustees, having passed an appropriate form of motion, resolution, ordinance or other form of action during the course of an open and public meeting authorizing or approving such action.\u201d (Emphasis in original). Although the court granted Allied leave to file, the court later found Allied\u2019s position to be without merit:\n\u201cI am making a finding at this time that what is before me is the continuation and further advancing of litigation that was filed in the year 1986. There was a decree entered in this case in 1989. This is not a new case. This is not new litigation. This is not the inception of litigation. This is the further advancement of a lawsuit that was filed in 1986, and I take the position that what I am dealing with here is a supplemental proceeding in a previously-filed lawsuit. Therefore, I find it not necessary for new authorization by the legislative branch of the government in Hillside. The very number of the case, it\u2019s a 1986 case, not a case that was filed in 1998, it\u2019s not a case filed in 1999. There was no necessity for refiling. All they did is serve papers in an existing lawsuit.\u201d\nThe Open Meetings Act (5 ILCS 120/1 et seq. (West 1996)), upon which Allied relies, provides that when litigation has been filed and is pending before a court, the public body may hold closed meetings to consider that litigation and issues relating to it. 5 ILCS 120/2(c)(ll) (West 1996). The circuit court correctly recognized that the Village\u2019s rule to show cause motion emanated from \u201cpending litigation.\u201d Moreover, as is evident from the Consent Decree, the court retained jurisdiction over the parties to resolve any disputes and enforce compliance of the Consent Decree. Accordingly, Allied\u2019s contention in this regard also fails.\nIII\nAllied finally argues that the circuit court erred in refusing to consider evidence offered by Allied that Village officials knew of the location of the crushing plant for years before filing the rule to show cause. Allied contends that this evidence \u201cmight have been instructive on whether [the Village] deemed its location to be in violation of the consent decree.\u201d The Village responds that such evidence was irrelevant to the issue of whether Allied violated the Consent Decree.\nWhen Allied attempted to elicit testimony that Village officials had been aware of the location of the crushing plant for years, yet had neither notified Allied nor invoked the Consent Decree to prohibit Allied\u2019s use of the crushing plant, the circuit court forestalled the inquiry, finding it irrelevant. Although not relying upon a theory of estoppel, Allied instead argued that evidence of the Village\u2019s conduct was relevant in determining the Village\u2019s own interpretation of the Consent Decree.\nNevertheless, the Village\u2019s prior knowledge of the crushing plant has little relevance to the instant inquiry. The exclusion or admission of evidence rests within the discretion of the circuit court and will not be reversed absent an abuse of that discretion. Wojcik v. City of Chicago, 299 Ill. App. 3d 964, 975, 702 N.E.2d 303 (1998). Here, the court did not abuse its discretion in excluding evidence irrelevant to the actual issue in the case, namely, whether the crushing plant was a plant facility pursuant to the Consent Decree and whether the present location of the crushing plant violated the conditions contained in the Consent Decree.\nFor the foregoing reasons, the judgment of the circuit court is affirmed.\nAffirmed.\nTHEIS, P.J., and GREIMAN, J., concur.\nThe process by which Allied manufactures new asphalt involves the mixing of stone and sand aggregate, brought by conveyer to a heating drum. After heating, the stone and sand mixture is then distributed across a set of screens and into storage bins, where it is equally proportioned and distributed into another mixer where liquid asphalt is added. After further mixing, the end material is either dumped into a truck or into a slat conveyor which takes the finished product into storage silos. The machinery by which the new asphalt is manufactured comprises the asphalt plant and, for the most part, is not enclosed within a building, with the exception of the enclosed \u201cpug mill\u201d where the heating of the asphalt takes place. The components of the asphalt plant include a feed hopper system, which drops the product into a fixed conveyor; the fixed conveyor brings the product to a dryer and then feeds the product into the tower, which contains a screening deck and the pug mill mixer. The asphalt plant also contains a \u201cbag house,\u201d which filters the exhaust air, asphalt tanks which store the liquid asphalt, and a silo system which holds the final product. All these components are stationary and fixed to a cement foundation. The recycling of discarded and used asphalt does not take place within the asphalt plant.\nThe circuit court also heard extensive evidence as to whether Allied was stockpiling used asphalt in excess of the height limit. Allied, however, does not appeal the circuit court\u2019s finding as to the height of the discarded piles of asphalt.", "type": "majority", "author": "JUSTICE HARTMAN" } ], "attorneys": [ "Fuller & Berres, of South Barrington (Warren R. Fuller and Karen A. Berres, of counsel), for appellant.", "Schain, Burney, Ross & Citron, Ltd., of Chicago (Glenn C. Sechen and James R. Griffin, of counsel), for appellee." ], "corrections": "", "head_matter": "ALLIED ASPHALT PAVING COMPANY, Plaintiff-Appellant, v. THE VILLAGE OF HILLSIDE, Defendant-Appellee.\nFirst District (5th Division)\nNo. 1\u201499\u20142057\nOpinion filed June 9, 2000.\nFuller & Berres, of South Barrington (Warren R. Fuller and Karen A. Berres, of counsel), for appellant.\nSchain, Burney, Ross & Citron, Ltd., of Chicago (Glenn C. Sechen and James R. Griffin, of counsel), for appellee." }, "file_name": "0138-01", "first_page_order": 156, "last_page_order": 166 }