Darien Criticizes Lawsuit On Body Shop Approval

DARIEN, IL – A lawyer for Darien is asking a DuPage County judge to throw out a lawsuit over the city's approval of an auto body shop late last year.

The city's attorney, John Murphey, said nearly three dozen property owners behind the litigation have no basis for their claims.

In early November, a 4-3 City Council majority approved a Gerber Collision & Glass shop in the old CVS Pharmacy building, southeast of Lemont Road and 83rd Street.

The residents in the litigation are between 500 feet and nearly three-quarters of a mile away from the building.

In his court filing earlier this month, Murphey pointed to a nearly 70-year-old court ruling that applies to those who sue over others' property uses. Such parties must show specific damage as opposed to suffering by the public in general.

Murphey noted the residents claimed they would suffer from "pollution," but he said they gave no factual allegations.

"A violation of EPA regulations? A violation of City regulations?" Murphey said. "There are inadequate allegations of any damages... (A)ny claimed issues with pollution, even if adequately pled, are matters experienced by the public at large."

The residents also alleged Gerber's operation "will result in downhill run off in close proximity to the Wharton property." Yet Murphey said the lawsuit does not indicate the type of runoff.

He said the lawsuit further asserted that residents who live a half mile away will suffer the same "special damages" as the others who live closer.

"How can somebody living one-half mile from this redevelopment site possibly be injured by 'run off?'" Murphey asked. "If somebody living one-half mile is claimed to be at risk of suffering injury from 'pollution' from the conversion of a drug store building into a car repair facility, then those impacts are shared by the general public."

He also took issue with the lawsuit's statement about "safety concerns with truck traffic used to tow disabled vehicles, haul away parts and other scrap materials and remove hazardous waste" from Gerber.

"There are no allegations of fact as to what the 'concerns' are, and, beyond that, general concerns about truck traffic are concerns shared by the general public...," Murphey wrote.

Attorney Elizabeth Uribe, a Downers Grove resident, filed the lawsuit. She did not do so through her law firm.

Uribe did not return an emailed message for comment Wednesday.

Last April, a Uribe-run political committee contributed to a candidate against Darien Alderman Eric Gustafson in the city election, but he prevailed. Gustafson voted for Gerber, which would be in his ward.

Over several meetings, residents objected to the Gerber chain opening in the old CVS building.

Patch wrote about the lawsuit last month.