Wal-Mart suit no 'slam dunk,' Kane Co. judge say

A Kane County judge is considering arguments whether to dismiss a group of West Dundee residents' lawsuit trying to block Wal-Mart from opening in their neighborhood.

Judge Michael Colwell heard arguments Monday on the village of West Dundee's motion to dismiss the suit, which claims the village board erroneously granted Wal-Mart a special use permit to build a supercenter near the corner of Huntley Road and Elm Avenue.

Colwell said the case "is not a slam dunk" and described both sides' arguments as "troublesome." He indicated he would issue a decision by March 26, the case's next court date.

Residents filed the suit in September, saying the village board failed to follow its own ordinances in granting Wal-Mart permission to build the 186,000 square-foot store.

Bob Gildo, an attorney representing seven residents of the Tartans Glen subdivision, said the ordinance requires that the 30-acre site near Spring Hill Mall be zoned for residential use after Meijer opted not to build on the site in 2000.

"We rely on the village to do what the ordinances say," said Toni Martell, a resident named in the suit. "It specifically states that Meijer didn't go through, so the zoning went back to residential."

However, West Dundee attorney John Brechin said there's no such thing as an ordinance requiring an automatic return to a residential zoning designation.

Though the village's ordinances say a zoning can be reverted if a building permit is not applied for after six months, Brechin said, another ordinance requires a hearing before a rezoning can take place.

"To be reverted without notice and a public hearing would be a violation of due process," Brechin said. "The two (ordinances) must be read together because the automatic revert encompasses the due process of the second section, why else would you have both sections?"

Colwell questioned the validity of that argument.

"You're saying that you should not have passed the first ordinance and there's a second ordinance you should follow because that's the one you like better," Colwell said.

The lawsuit also names Wal-Mart, site owner General Growth Properties and neighboring Spring Hill Mall as defendants.