COD, Glen Ellyn both happy with judge's ruling?

  • A judge ruled Tuesday that the College of DuPage is not exempt from the jurisdiction of the village of Glen Ellyn.

      A judge ruled Tuesday that the College of DuPage is not exempt from the jurisdiction of the village of Glen Ellyn. Scott Sanders | Staff Photographer

Updated 11/9/2011 5:24 AM

A judge ruled Tuesday that the College of DuPage isn't exempt from the jurisdiction of the village of Glen Ellyn -- an opinion that prompted widely different interpretations by the two sides.

In a 20-page opinion released in court Tuesday, DuPage County Circuit Judge Terence M. Sheen indicated that the college may be subject to village building inspections, permitting and approvals, despite the college's contention that building projects fall within the exclusive jurisdiction of the Illinois Community College Board.


"Although capital improvement plans must be approved by the (ICCB), oversight and regulation is expected on the local level and is not prescribed by (the) state legislature," Sheen wrote. "Ultimately, although the Public Community College Act grants some autonomy to community colleges to decide how to handle health and safety issues, it does not legislatively pre-empt other governmental agencies from regulating or inspecting buildings."

Glen Ellyn declared the ruling a victory, while College of DuPage characterized it as more neutral, that there is overlapping jurisdiction on many issues.

Sheen's "ultimate decision was there's overlapping jurisdiction in many areas, but he didn't go into more detail," COD attorney Ken Florey said.

But Glen Ellyn Village Attorney Stewart Diamond said the ruling confirms the regulation authority of the village and municipalities across the state.

"(COD) spent a lot of time and money trying to find out the answer to this question, and the answer is they are subject to regulation," Diamond said. "They had a far-out theory they wanted to try and they tried it, and I think now they should operate under reality."

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College officials never sought village inspections after beginning a major building program in 2007, maintaining that a peer review process by architects and engineers hired by the college went above and beyond any local regulations.

While the judge's ruling indicates the village has some jurisdiction over COD's 273-acre campus, it didn't go so far as to say it has complete control.

The village had asked the judge for a broader ruling that would have prevented the college from violating any sections of the municipal code. But Sheen wrote that such a ruling "would neglect areas where the legislature has expressly pre-empted the power of home-rule units."

So he advised that state law requires courts to perform a three-part test to determine if a municipality's home-rule power is valid:

• The municipality's exercise of power must pertain to its government and affairs.


• The state legislature must not have specifically pre-empted the power or function that the municipality seeks to exercise.

• If the first two conditions exist, then the courts must "determine the proper relationship between the local ordinance and the relevant state statute."

Theoretically, that could have the village and college back in court every time there is a disagreement, but the judge encouraged the two sides to work cooperatively.

For future construction projects on campus, Florey agreed that the college would "have to have some interaction with the village," but the degree of that interaction is unclear.

Also in his opinion, Sheen wrote, "the (ICCB) and the village can exercise power concurrently and the Public Community College Act encourages intergovernmental cooperation" -- perhaps encouraging the two sides to revisit a stalled intergovernmental agreement that fell through this summer.

In a statement, COD President Robert Breuder suggested the college may appeal the judge's ruling.

"We believe that eventually a higher court may need to resolve this question of authority which we had hoped would be addressed in circuit court (Tuesday)."

The college statement also mentioned again the possibility of the college attempting to deannex from Glen Ellyn.

Florey also has petitioned the ICCB for change within its administrative rules that specifically addresses what building and construction codes the college must comply with.

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