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updated: 3/12/2014 4:51 AM

Property owners sue DuPage to build gas station near Glen Ellyn

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  • The owners of a property near Glen Ellyn have filed a federal lawsuit against DuPage County in an effort to allow a gas station to be built on their land.

    The owners of a property near Glen Ellyn have filed a federal lawsuit against DuPage County in an effort to allow a gas station to be built on their land.
    Daily Herald file photo


A federal lawsuit alleges DuPage County committed an "arbitrary, capricious and unreasonable" act by refusing to let a gasoline station, convenience store and car wash be built near Glen Ellyn.

The suit, filed Monday by Nebraska-based Buck's Inc. and the land owners, is asking the court to declare the project can proceed at the northeast corner of Butterfield Road and Route 53.

In the complaint, the plaintiffs argue there wasn't a justifiable reason for the county board to deny Buck's Inc.'s request for a conditional-use permit for the Mobil station and Bucky's convenience store. The board voted 14-4 in December to deny the application.

"The rejection of the plaintiffs' application deprives plaintiffs of the ability to develop and use the subject property to highest and best use," the lawsuit states.

County officials declined to comment about the lawsuit because it's pending litigation.

A spokesman for the state's attorney's office said he couldn't comment because the office hadn't been served the lawsuit papers. "But as with any lawsuit brought against the county, we will vigorously defend the county's interests," spokesman Paul Darrah said.

Property owners Nicolette Bauer and Raymond Bozicnick were planning to sell the roughly 2.4-acre site to Buck's for a proposed purchase price that "greatly exceeds $75,000," according to the lawsuit.

But first, Buck's needed to get permission from DuPage to build a station with 10 gas pumps, a roughly 6,800-square-foot convenience store and a car wash.

At the time of their vote, county board members who rejected the plan cited concerns about air pollution, traffic and the size of the project.

Neighbors who opposed the project claimed the gas station and convenience store would attract so many cars and trucks that toxic air pollutants would increase.

The pollutants, they argued, could pose a health risk for children using neighboring Butterfield Park District facilities.

An expert hired by the park district, however, didn't assert the proposed development would exceed the regulatory limitations for benzene set by the Illinois Environmental Protection Agency, according to the lawsuit.

Experts representing Buck's testified the proposed gas station wouldn't create any type of emissions that would be harmful to any adjacent property owners or users, the lawsuit says.

In addition to the environmental concerns, some county board members said the proposed development would be too large for the property, which once housed a smaller Shell station that was torn down roughly 15 years ago.

Opponents also claimed the project would make the traffic situation at the busy intersection worse.

The lawsuit references the previous gas station and also mentions that the county board in 2000 approved a similar request for a new gas station and car wash facility. That project was never built.

The lawsuit says the latest proposal is in harmony with surrounding uses and is the "most appropriate use" of the property.

"The county's denial of plaintiff's application was arbitrary, capricious, unreasonable, erroneous and contrary to law, fact and logic," according to the suit

In addition to a declaration about use of the property, the plaintiffs are asking the county to pay their attorneys fees and "any other and further damages and relief" that the court deems just and necessary.

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