The denial of a request by the City of Des Plaines to send back to the Chicago Zoning Board of Appeals an earlier decision to permit the operation of an adult bookstore on Touhy Avenue, across from a mobile home park, may be appealed to the Illinois Appellate Court.

Des Plaines City Attorney Dave Wiltse said this week that he will seek permission from Acting Mayor Tony Arredia to file an appeal following a Cook County Circuit Court judge's decision last Friday to send back to the Zoning Board its earlier decision to allow the operation.

Judge Thomas P. Durkin denied Des Plaines' motion following a hearing conducted in downtown Chicago last Friday. Wiltse had argued that the Chicago Zoning Board's decision to approve an adult special use application for Touhy Avenue Operating Company and Anthony Musso failed to comply with the Illinois Open Meetings Act. "Procedurally", said Wiltse, the Zoning Board's decision was flawed. In addition, said Wiltse, the decision to approve the request was against the weight of evidence. The court, however, ruled that evidence Wiltse presented, including his contention that a violation of the Open Meetings Act resulted, was irrelevant and/or without basis. In addition, Judge Durkin said that Des Plaines did not file for an administrative review of the Zoning Board hearing until Mar. 31, 1999, which is more than the time allowed for such a filing.

For about the last year and one-half, Des Plaines has been trying to prevent the adult bookstore which is located across from a school bus stop and the mobile home park. Construction of the bookstore building is nearing completion. The property where the bookstore will be located is in the extreme northern part of Chicago, north of O'Hare Airport and across from unincorporated Elk Grove Township. Des Plaines' boundaries are located a short distance to the east, west and northeast.

"He (Judge Durkin) said that if we had an objection with the Open Meetings Act we should have filed a complaint with the Cook County State's Attorney within the 60 days rather than the Court," said Wiltse. He explained that it was unknown on Jan. 15, when the Zoning Board conducted its hearing, that members would render a decision at that time. Wiltse explained that a letter notifying him of the Board's decision to permit the bookstore, arrived at his office on Feb. 25.

In Judge Durkin's ruling, he acknowledged that those opposing the bookstore "expressed concern about the potential sexual abuse, prostitution and other crimes because of the proximity to several trailer parks. Finally, the opposing parties presented testimony that hundreds of children may be put at risk by coming into contact with patrons of the adult bookstore." Durkin cited the applicant's real estate appraiser's testimony that the proposed bookstore "would not cause an adverse affect on commercial or industrial enterprises or substantial injury to the value of surrounding property." Additionally, said the ruling, testimony from a former City of Chicago Police Commander, that based on his education and experience he did not believe that an adult bookstore would increase sexual activity.

Added Durkin, "Des Plaines contends that Musso failed to inform the ZBA of an arrest for prostitution and keeper of a disorderly house that occurred in 1993 at the applicant's other bookstore...The ZBA maintains that the 1993 prostitution arrest, which was dismissed, at the applicant's other adult bookstore is irrelevant..."