Judge throws out North Aurora asphalt complaint

A judge has ruled that a North Aurora law prohibiting odors and smells from crossing the property line of an in-town asphalt plant are “unconstitutionally vague and unenforceable.”

The decision this week by Kane County Judge Thomas Mueller came after the village sued Geneva Construction over its operation of an asphalt plant at 216 E. Butterfield Road.

Mueller dismissed the village's request to fine Geneva Construction up to $750 per violation and shut down the plant, but left the door open for the village to refile a nuisance complaint.

Patrick Kinnally, attorney for Geneva Construction, argued that the village's ordinance prohibiting any odor from crossing the property line was unenforceable and that the plant has an operating permit issued by the Illinois Environmental Protection Agency.

“(The ordinance) does not indicate any quantifiable basis upon which to determine a violation. Hence, it results in arbitrary enforcement such as the current (court) action,” Kinnally wrote in court papers.

He could not immediately be reached for comment Friday.

Mueller's ruling also dismissed North Aurora's allegations that the plant was a public nuisance, but there remains the possibility for the village to refile that complaint in the future.

“The court finds to state a cause of action for public nuisance, there must be a substantial interference by defendant,” Mueller wrote.

Attorney Kevin Drendel, attorney for the village, could not immediately be reached for comment.

The village filed a complaint against Geneva Construction in late 2011. The law was enacted in the 1970s when the plant first began to operate and since then, cornfields around the plant have transformed into subdivisions.

According to court documents, North Aurora resident Jean Kaitis, who lives near the plant, called police several times last year to complain of a distinct, strong and pungent odor emanating from the plant that caused her nausea and prevented her at times from opening the windows on her home.

An officer who took the police report also could smell the odors.

Kaitis said Friday that she had no comment on Mueller's ruling.