                                             SECOND DIVISION
                                             FILED: July 27, 2010




No. 1-10-0142



VILLAGE OF NORTHFIELD,                 )     APPEAL FROM THE
                                       )     CIRCUIT COURT OF
     Plaintiff-Appellant,              )     COOK COUNTY
                                       )
v.                                     )     No. 0920512901
                                       )
BP AMERICA, INC.,                      )     HONORABLE
                                       )     ROGER FEIN,
     Defendant-Appellee.               )     JUDGE PRESIDING



     JUSTICE HOFFMAN delivered the opinion of the court:

     The narrow question before this court is whether a local

ordinance defining an abandoned gasoline service station as a

nuisance    is   preempted   by   section   11-31-1   of   the   Illinois

Municipal Code (Municipal Code) (65 ILCS 5/11-31-1 (West 2008)).

For the reasons which follow, we conclude that it is not.

     The facts giving rise to this appeal are not in dispute.          BP

America, Inc., (BP) is the owner of a parcel of real estate

commonly known as 1900 Willow Road in Northfield, Illinois.            An

abandoned gasoline service station is currently situated on BP's

property.

     On March 17, 2009, the Village of Northfield (the Village)

issued BP a citation alleging that the abandoned gasoline service
No. 1-10-0142

station violated section 11-81 of the Northfield Village Code

(Village Code).     In relevant part, section 11-81 of the Village

Code provides that:

                  "A.      Any     gasoline      service       station

          determined       by     the    community      development

          director or his/her designate to be abandoned

          shall     be   deemed    a    public      nuisance    which

          adversely affects surrounding property values

          and     the    public    safety     and    welfare.        A

          gasoline service station shall be considered

          abandoned if it is not operated for at least

          three hundred (300) hours in any sixty (60)

          day   time     period.        Whenever     the    community

          development      director      or   his/her       designate

          shall determine that any service station is

          abandoned, he shall immediately so notify,

          either in person or by certified mail, the

          owner or operator of the premises and issue

          an order of abatement that must be complied

          with within ninety (90) days.                    A nuisance

          caused by abandonment may be abated only as

          follows:




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No. 1-10-0142

                         (1)   Placing the station back

                 in operation for a minimum of six

                 (6) hours per day, six (6) days per

                 week.

                         (2)   Razing all structures in

                 accordance with the National Fire

                 Protection Association sections B-

                 4-1 and B-4-2 and all ordinances of

                 the village.

                                      ***

                         (3)     Making       an    appropriate

                 application for a change in use of

                 the     premises    to   a    permitted          or

                 special use.

                                      ***

                 B.    Upon failure of the owner to abate

          the    nuisance,     the   village         may    abate      said

          nuisance pursuant to the nuisance abatement

          provisions of this code."            Northfield Village

          Code § 11-81 (amended January 25, 1999).

The Village     Code   further   provides          that    any   person       causing   a

nuisance shall be fined not less than $100, and not more than

$750, each day that the nuisance continues.                      Northfield Village




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No. 1-10-0142

Code § 14-17 (amended September 24, 2002); Northfield Village

Code appendix D, art. XIIIA (amended December 1, 2008).

       When BP failed to comply with the requirements of section

11-81, the Village initiated this lawsuit in the Circuit Court of

Cook County.         On August 19, 2009, a hearing was held to determine

whether BP violated section 11-81 of the Village Code.          That same

day,        the    circuit   court   found   that   section   11-81   was

constitutional and ordered BP to pay a daily fine of $750 for 21

days, totaling $15,750.

       Thereafter, BP filed a motion to reconsider, arguing that it

was not required to pay a fine because the Village's ordinance

was preempted by section 11-31-1 of the Municipal Code (65 ILCS

5/11-31-1 (West 2008)).          On December 1, 2009, the circuit court

entered a written memorandum order, finding that section 11-31-1

of the Municipal Code preempted section 11-81 of the Village

Code.       As a consequence, the circuit court granted BP's motion to

reconsider and vacated the order it previously entered on August

19, 2009.         This appeal followed.1

       1
           Prior to the appeal being fully briefed, this court denied

BP's motion to dismiss for lack of jurisdiction.              Although BP

argued in its motion that the December 1, 2009, order was not a

final judgment, a judgment is final and appealable if it terminates

the litigation between the parties on the merits or disposes of the



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No. 1-10-0142

      In urging reversal, the Village contends that the circuit

court erred in finding preemption.              The Village asserts that it

had the statutory authority to define what constitutes a nuisance

and that its determination in section 11-81 of the Village Code

that an abandoned gasoline service station is a nuisance does not

conflict   with     section     11-31-1    of   the    Municipal      Code.         The

resolution    of     these    issues    requires      us    to    interpret      state

statutes   and      determine    whether      state   law    preempts       a    local

ordinance.    These are questions of law subject to de novo review.

See Hawthorne v. Village of Olympia Fields, 204 Ill. 2d 243, 254-

55, 790 N.E.2d 832 (2003).

      The Village is a non-home-rule unit.                  Accordingly, it may

exercise     only     those     powers     enumerated        in     the     Illinois


parties' rights with regard to either the entire controversy or a

separate part thereof. R.W. Dunteman Co. v. C/G Enterprises, Inc.,

181 Ill. 2d 153, 159, 692 N.E.2d 306 (1998).                 In its December 1,

2009, order, the circuit court determined that section 11-81 of the

Village Code was preempted by section 11-31-1 of the Municipal

Code, thereby effectively finding that the Village could not pursue

its   citation     against    BP.      Consequently,       the    circuit       court's

December 1, 2009, order disposed of the parties' rights with regard

to the entire controversy and is, therefore, final and appealable.

See R.W. Dunteman Co., 181 Ill. 2d at 159.



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No. 1-10-0142

Constitution or conferred upon it, either expressly or impliedly,

by state statute.        Hawthorne, 204 Ill. 2d at 255.             In this case,

the Village     contends    that   its     enactment     of   the   ordinance     in

question was authorized by section 11-60-2 of the Municipal Code

(65 ILCS 5/11-60-2 (West 2008)).

     Section 11-60-2 of the Municipal Code provides that "the

corporate authorities of each municipality may define, prevent,

and abate nuisances."         65 ILCS 5/11-60-2 (West 2008).               Pursuant

to this broad grant of authority, non-home-rule units like the

Village may implement ordinances regulating nuisances.                     Village

of Sugar Grove v. Rich, 347 Ill. App. 3d 689, 696, 808 N.E.2d 525

(2004).    Traditionally, a municipality's determination as to what

constitutes   a    nuisance    will   be    upheld     unless   it    is    clearly

erroneous.    Village of Sugar Grove, 347 Ill. App. 3d at 696.

     The stated purpose of section 11-81 of the Village Code is

to prevent a public nuisance "which adversely affects *** the

public    safety   and    welfare."        BP   does    not   dispute      that   an

abandoned gasoline service station can be detrimental to the

public's health, safety, or welfare.                 Ordinances are presumed

valid, and the party challenging an ordinance, in this case BP,

bears the burden of proving invalidity.                Village of Bechmeyer v.

Wheelan, 212 Ill. App. 3d 287, 294, 569 N.E.2d 1125 (1991).

Based on the record before us, we cannot say that the Village's




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No. 1-10-0142

decision to define an abandoned gasoline service station as a

nuisance is clearly erroneous.            As a consequence, we conclude

that section 11-60-2 of the Municipal Code provided the Village

with adequate statutory authority to enact section 11-81 of the

Village Code.    A municipality's authority to act, however, is an

issue entirely separate from the question of whether this power

has been preempted by the superior authority of another lawmaking

body.   Pesticide Public Policy Foundation v. Village of Wauconda,

117 Ill. 2d 107, 111, 510 N.E.2d 858 (1987).                 Accordingly, we

must determine whether state law preempts section 11-81 of the

Village Code.

     It is well established that municipalities may not adopt

ordinances which infringe upon the spirit of the state law or are

repugnant to the general policy of the state.                Hawthorne, 204

Ill. 2d at 258-59; City of DeKalb v. White, 227 Ill. App. 3d 328,

331, 591 N.E.2d 522 (1992); Village of Mundelein v. Hartnett, 117

Ill. App. 3d 1011, 1015, 454 N.E.2d 29 (1983).               Whether a local

ordinance   is   preempted   by   state    authority    is   a   question   of

legislative intent.     State Bank of Waterloo v. City of Waterloo,

339 Ill. App. 3d 767, 771, 792 N.E.2d 329 (2003).

     As it did before the circuit court, BP maintains that the

Village's   ordinance    defining    an     abandoned    gasoline    service

station as a nuisance is preempted by section 11-31-1 of the




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No. 1-10-0142

Municipal Code (65 ILCS 5/11-31-1 (West 2008)).                              In relevant

part, section 11-31-1 reads:

                "The       corporate          authorities           of    each

          municipality may demolish, repair, or enclose

          or cause the demolition, repair or enclosure

          of    dangerous            and     unsafe       buildings          or

          uncompleted          and    abandoned         buildings        within

          the   territory        of    the    municipality          and    may

          remove     or    cause       the    removal       of      garbage,

          debris,      and      other       hazardous,      noxious,        or

          unhealthy substances or materials from those

          buildings.

                                            ***

                The corporate authorities shall apply to

          the circuit court of the county in which the

          building        is     located          (i)    for     an       order

          authorizing action to be taken with respect

          to a building if the owner or owners of the

          building ***, after at least 15 days' written

          notice    so    to     do,       have    failed      to   put     the

          building in a safe condition or to demolish

          it or (ii) for an order requiring the owner

          or owners of record to demolish, repair, or




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No. 1-10-0142

              enclose the building or to remove garbage,

              debris,     and    other    hazardous,     noxious,       or

              unhealthy substances or materials from the

              building."       65 ILCS 5/11-31-1(a) (West 2008).

      A careful examination of section 11-31-1 reveals no specific

provision      limiting    a     municipality's       ability      to   regulate    an

abandoned building to the procedures provided for in that section

of the Municipal Code.               Consequently, it cannot be said that

section 11-31-1 expressly preempts local ordinances which provide

alternative     methods        for   defining   and   abating      such      nuisances.

However, because the Village is a non-home-rule unit, legislative

intent   to    preempt     a     local   ordinance     may   be     implied.       See

Hawthorne, 204 Ill. 2d at 258-59.               We, therefore, will consider

the applicability of both forms of implicit preemption, field

preemption (see Pesticide Public Policy Foundation, 117 Ill. 2d

at 115-16) and conflict preemption (see People ex rel. Ryan v.

Village of Hanover Park, 311 Ill. App. 3d 515, 525-26, 724 N.E.2d

132 (1999)).

      Field preemption occurs where the legislature enacts such a

comprehensive scheme of regulations as to reasonably imply that

there    is     no      room     for     additional     regulation           by   local

municipalities.         Pesticide Public Policy Foundation, 117 Ill. 2d

at   115-16.      Although       section    11-31-1    of    the    Municipal     Code




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No. 1-10-0142

provides      municipalities       with       "a    quick   an        effective    means     of

removing those unused and dilapidated structures that present

danger and blight" (City of Chicago v. Nielsen, 38 Ill. App. 3d

941, 945, 349 N.E.2d 532 (1976)), we do not believe that the

statute is so comprehensive as to demonstrate the legislature's

intent to preclude additional regulation of abandoned buildings

by local municipalities.            As previously discussed, section 11-60-

2 of the Municipal Code (65 ILCS 5/11-60-2 (West 2008)) also

provides non-home-rule units like the Village with the authority

to "define, prevent, and abate nuisances," including abandoned

gasoline service stations.                 By expressly delegating to local

municipalities         the    additional        authority        to    define     and   abate

nuisances, the legislature further demonstrated that it did not

intend to supersede the local regulation of abandoned buildings

in its entirety.            See State Bank of Waterloo, 339 Ill. App. 3d at

771-72       ("where    authority        is     expressly         delegated       to    local

governments      to    regulate     in    an       area,   the    legislature       did     not

intend the state's regulatory authority to preempt the field

entirely").       Accordingly, we conclude that field preemption does

not    preclude       the    Village     from      regulating         abandoned    gasoline

service stations pursuant to section 11-81 of the Village Code.

       Finally, we consider whether section 11-81 of the Village

Code    is    nullified       by   conflict         preemption.          Relying       on   the




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No. 1-10-0142

differences         in    the    definitions          of    "abandoned"            contained   in

section 11-31-1 of the Municipal Code and section 11-81 of the

Village Code, BP contends that the Village's ordinance conflicts

with the state statute.                   Specifically, BP asserts that section

11-81    of    the       Village     Code     provides       that      a    gasoline    service

station shall be considered "abandoned" if it is not in operation

for at least 300 hours in any 60-day time period (Northfield

Village Code § 11-81 (amended January 25, 1999)); whereas, to be

considered          "abandoned"           under    subsection          11-31-1(d)       of     the

Municipal Code, the property must:                     (1) be tax delinquent or have

outstanding water bills for two or more years, (2) be unoccupied

by the persons legally in possession, and (3) contain a dangerous

or   unsafe     building.            65    ILCS    5/11-31-1(d)            (West    2008).      In

addition, BP cites to subsection 11-31-1(f) of the Municipal

Code, which defines "abandoned" property as having (1) been tax

delinquent      for       two   or     more    years       and   (2)       unoccupied    by    the

persons legally in possession.                    65 ILCS 5/11-31-1(f) (West 2008).

       We briefly note that subsections 11-31-1(d) and 11-31-1(f)

of     the    Municipal         Code      contain      special       procedures         allowing

municipalities to obtain title to certain abandoned properties

(see    65    ILCS       5/11-31-1(d)         (West    2008))       or     allowing     for    the

testing       and     removal        of    hazardous        substances         and     petroleum

products      contained         therein       (see     65    ILCS        5/11-31-1(f)        (West




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No. 1-10-0142

2008)).   Although these subsections include their own separate

definitions    for   "abandoned,"     section    11-31-1       does   not   define

"abandoned" when it is used in the general provisions allowing a

municipality to "demolish, repair, or enclose *** uncompleted and

abandoned buildings."        See 65 ILCS 5/11-31-1(a) (West 2008).

Because it is undefined, this statutory term must be given its

plain and ordinary meaning.           Price v. Philip Morris, Inc., 219

Ill. 2d 182, 243, 848 N.E.2d 1 (2005).               In general, abandonment

occurs when the owner, with the intention of relinquishing all

rights, leaves the property free to be appropriated by any other

person.   Bell Leasing Brokerage, LLC v. Roger Auto Service, Inc.,

372 Ill. App. 3d 461, 467, 865 N.E.2d 558 (2007).                 Regardless of

which   definition    is   applied,    however,      it   is   clear   that   the

Village's ordinance and the Municipal Code define "abandoned"

differently.     Nevertheless, the mere fact that a state statute

and a local ordinance are not identical does not mean that the

two regulations are in conflict for the purposes of preemption.

See City of DeKalb, 227 Ill. App. 3d at 331.

     Under     the   federal    doctrine        of    preemption,       conflict

preemption arises "where compliance with both federal and state

regulations is a physical impossibility *** ' [citation], or

where the 'state law stands as an obstacle to the accomplishment

and execution of the full purposes and objectives of Congress.'




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No. 1-10-0142

[Citations.]"      Ray v. Atlantic Richfield Co., 435 U.S. 151, 158,

55 L. Ed. 2d 179, 188-89, 98 S. Ct. 988, 994 (1978); see also

People v. Chicago Magnet Wire Corp., 126 Ill. 2d 356, 371-72, 534

N.E.2d 962 (1989).         Employing similar reasoning, Illinois courts

have    also    found      that   state    statutes      conflict     with    local

ordinances when it is impossible to comply with both regulations

(cf. Village of Wauconda v. Hutton, 291 Ill. App. 3d 1058, 1061,

684 N.E.2d 1364 (1997) (finding that a local ordinance requiring

a    sailboarder    to     wear   a   personal     floatation       device   to   be

inconsistent with a state statute specifically providing that

personal floatation devices were not required for sailboards)),

or   when    the   local    ordinance     stands    as   an   obstacle       to   the

accomplishment and execution of the full purposes and objectives

of the state (cf. People ex rel. Ryan, 311 Ill. App. 3d at 528

(finding that local ordinances allowing for alternative traffic

programs that did not trigger court adjudications disrupted the

function of the judiciary and undermined the policies set forth

by   the    legislature     regarding     the   duties   of   the    Secretary    of

State).

       In this case, nothing prevents BP from complying with both

section 11-81 of the Village Code and section 11-31-1 of the

Municipal Code.      Despite BP's assertions to the contrary, section

11-31-1 of the Municipal Code does not grant property owners the




                                        -13-
No. 1-10-0142

right to operate a gasoline service station for less than 300

hours     in   any    60-day        time    period.         It   merely   provides

municipalities       with    the     authority      to    "demolish,   repair,    or

enclose *** uncompleted and abandoned buildings."                      See 65 ILCS

5/11-31-1(a)     (West      2008).         Accordingly,     compliance    with    the

Village's      ordinance     does    not     make    it   impossible   for   BP    to

exercise any rights granted by state law.                   In addition, section

11-81 of the Village Code does not stand as an obstacle to the

purposes and objectives of the legislature in enacting section

11-31-1 of the Municipal Code.               Indeed, the Village's ordinance

furthers 11-31-1's purpose of providing municipalities with the

power to abate public nuisances which may prove detrimental to

public health, safety, and welfare.                 City of Bloomington v. Bible

Truth Crusade, 197 Ill. App. 3d 793, 796, 555 N.E.2d 117 (1990);

City of Peru v. Bernardi, 81 Ill. App. 3d 227, 231, 401 N.E.2d 1

(1980).     For these reasons, we conclude that conflict preemption

does not bar section 11-81 of the Village Code.

     In sum, we find that section 11-31-1 of the Municipal Code

does not preempt, either expressly or implicitly, section 11-81

of the Village Code.          Having so found, we reverse the order of

the circuit court granting BP's motion to reconsider and remand

the matter back to the circuit court for further proceedings.

     Reversed and remanded.




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No. 1-10-0142

     THEIS and KARNEZIS, JJ., concur.




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