β’ 2 The section provides that any owner of real property within the specified area may institute an action if the owner shows that his property or person will be substantially affected by the alleged violation. Greer v. Illinois Housing Development Authority, 150 Ill. App. 3d 357, 389 (1986), aff'd, 122 Ill. 2d 462 (1988). As stated, there is no question that plaintiffs all reside within 1,200 feet of the water tower.
Although the argument that Judge Bedoya's decision was against the manifest weight of the evidence was not properly in the Intervenors' brief, we have decided to consider it. Consequently, in order to pass on that argument, we have been required to review all of the transcripts of all of the proceedings in the record, the pleadings, two depositions, a transcript of a hearing before a community group and to take judicial notice of the case of Greer v. Illinois Housing Development Authority (1986), 150 Ill. App.3d 357, 501 N.E.2d 723, aff'd (1988), 122 Ill.2d 462, 524 N.E.2d 561. We have not read all of the memoranda of law submitted by the parties in the trial court.
It affirmed the judgment on the pleadings in favor of the other appellants on the zoning ordinance claim, but reversed the trial court's judgment in favor of the other appellants on the building code and rehabilitation code claims. ( 150 Ill. App.3d 357.) We granted appellants' petition for leave to appeal.
Case law also supports the plaintiffs' proposition. See Greer v. Illinois Housing Development Authority, 150 Ill.App.3d 357, 385 (1986) (neighbors alleging that a proposed development violated a zoning ordinance); Nonnenmann v. Lucky Stores, Inc., 53 Ill.App.3d 509, 512 (1977) (plaintiff contesting the defendant's proposed use of the property). We therefore agree that the plaintiffs need not wait until construction has commenced to bring this suit.
Frederick also established that he lived within 1200 feet of the defendants' property and was substantially affected by the ordinance violations. See Greer v. Illinois Housing Development Authority, 150 Ill. App. 3d 357, 390 (1986), aff'd, 122 Ill. 2d 462 (1988) ("it is [the] nature of the zoning violation itself that establishes the 'substantial effect' sufficient to *** maintain [the] action"). Accordingly, Frederick was entitled to relief.
First, a response is only required when the affirmative defense contains "new matter" that was not previously set forth in the allegations of the complaint. See Greer v. Illinois Housing Development Authority, 150 Ill. App. 3d 357, 366 (1986). Second, only facts, not legal conclusions, alleged in a defense are admitted. Andrews, 256 Ill. App. 3d at 770.
Greer v. IllinoisHousing Development Authority, 150 Ill. App. 3d 357, 392, 501 N.E.2d 723, 745 (1986). It is well established a private landowner cannot maintain an action against a municipality pursuant to section 11-13-15. See, e.g., Dunlap, 394 Ill. App. 3d at 639, 915 N.E.2d at 898; Heerey v. Berke, 179 Ill. App. 3d 927, 934, 534 N.E.2d 1277, 1281 (1989) ("[T]he language of the statute does not provide a cause of action against the city by a landowner.").
Id. Section 11-13-15 of the Municipal Code permits an action by either a municipality, or an owner or tenant of real property within 1,200 feet in any direction of property allegedly used in violation of municipal or local ordinances, to seek a variety of equitable remedies for the alleged violations. Greer v. Illinois Housing Development Authority, 150 Ill. App. 3d 357, 389 (1987). ΒΆ 56 Count V was based on section 10-10-18(B) of the Zoning Code, which contains language that is very similar to the language in section 11-13-15 of the Municipal Code:
Heft v. Zoning Board of Appeals, 31 Ill.2d 266, 270-71 (1964). Generally, a court will not overturn the conclusion of an administrative agency unless that conclusion was against the manifest weight of the evidence or was arbitrary and capricious.Greer v. Illinois Housing Development Authority, 150 Ill. App.3d 357, 384 (1986). Moreover, if there is competent evidence in the record that supports the Board's findings, those findings should be affirmed.
An agency's authority must arise either from the express language of the statute or by fair implication and intendment from the express provisions of the act as an incident to achieving the objectives for which the agency was created. Greer v. Illinois Housing Development Authority, 150 Ill. App.3d 357, 383, 501 N.E.2d 723 (1986). Thus, the Act statute must contain a strong indication of legislative intent to authorize the Commission to regulate 9-1-1 surcharges.