Lake County v. Zenko

• Decision Date: 30 August 1988
• Docket Number: No. 2-87-0841,2-87-0841
• Citation: 528 N.E.2d 414,123 Ill.Dec. 869,174 Ill.App.3d 54
• Parties: , 123 Ill.Dec. 869 The COUNTY OF LAKE, Plaintiff and Counterdefendant-Appellant, v. Norman ZENKO, Defendant and Counterplaintiff-Appellee.
• Court: United States Appellate Court of Illinois

Page 414

528 N.E.2d 414

174 Ill.App.3d 54, 123 Ill.Dec. 869

The COUNTY OF LAKE, Plaintiff and Counterdefendant-Appellant, v. Norman ZENKO, Defendant and Counterplaintiff-Appellee.

No. 2-87-0841.

Appellate Court of Illinois Second District.

Aug. 30, 1988.

Fred L. Foreman, Lake County State's Atty., Joseph E. Kolar, Asst. State's Atty., Waukegan, for Lake County.

Berle L. Schwartz, Andi C. Goldfine, Highland Park, for Norman Zenko.

Justice UNVERZAGT delivered the opinion of the court:

Plaintiff, the County of Lake (County), appeals from a directed finding entered in the circuit court of Lake County for defendant-counterplaintiff, Norman Zenko. The County filed an amended complaint against Zenko seeking, inter alia, to enjoin his operation of a junkyard in violation of the Lake County zoning ordinance. Zenko answered, asserted affirmative defenses, and countercomplained for a declaratory judgment that, inter alia, the zoning of the premises as light industrial (LI) was invalid, the restrictions on junkyards in areas zoned LI and the area limitation for a junkyard use in intensive industrial (II) zones was arbitrary and capricious, and the definition of "junk yard" in the ordinance was not authorized by the zoning enabling act and was so arbitrary and unreasonable as to render the definition void.

Upon motion by Zenko for a directed verdict at the close of the plaintiff's evidence, the court found Zenko's activities constituted a junkyard use as defined in the ordinance, determined the definition of junkyard as applied to Zenko was not authorized by law, and was arbitrary, unreasonable, discriminatory and confiscatory. The court also determined the use and area limitations in the Lake County zoning ordinance for junkyards are not applicable to Zenko's property and present activities and that the present zoning of the property insofar as it prevents the use of the premises for Zenko's present operations is discriminatory, arbitrary, capricious and is an unconstitutional exercise of the police power delegated to the plaintiff. The court's order specified there was no just reason for delaying enforcement or appeal. (107 Ill.2d R. 304(a).) We reverse.

Although the County provides a statement of the procedural history of the case, its "Statement of Facts" makes no reference to the evidence received at trial, nor does the argument portion of its brief relate its citations of authority to the evidence received at trial, all in violation of Supreme Court Rule 341 (107 Ill. 2d Rules 341(e)(6), (e)(7)). In spite of these deficiencies, we proceed to consider the merits of the issue which, as narrowly circumscribed by the County, presents a question of law; that is, whether the definition of "junk yard" in article 2 of the Lake County zoning ordinance is unreasonable and, therefore, invalid.

Article 2 of the Lake County zoning ordinance defines "Junk Yard" as:

"Any land or structure used for a salvaging operation, including, among other things, the storage and sale of waste paper, rags, scrap metal, and discarded materials, and the collecting, dismantling, storage, and salvaging of unlicensed, inoperative vehicles." (Emphasis in original denoting that term is also defined in the ordinance.) Lake County, Ill., Zoning Ordinance art. II (May 12, 1987).

The court's order specifically found that "[t]he activities of Defendant Counter-Plaintiff consists [sic ] of the purchase and dismantling of used cars, the housed storage and sale of useable mechanical parts thereof, and the external storage and sale of the body parts thereof, and the hauling and sale to Rondout Iron & Metal of the non-saleable [sic ] parts thereof." An average of 230 vehicles were on defendant's lot on any given day. Although the court found defendant's activities did constitute a junkyard use as defined, it found the definition as applied to the defendant's activities was not authorized by law, and was arbitrary, unreasonable, discriminatory and confiscatory. It found City of Watseka v. Blatt (1943), 320 Ill.App. 191, 50 N.E.2d 589, dispositive.

In Watseka, the property owner appealed a guilty verdict entered against him on a complaint charging him with violating a city zoning ordinance " 'by unlawfully extending and operating a junk yard on premises within the business district' of the city." ( Watseka, 320 Ill.App. at 192, 50 N.E.2d 589.) The property owner operated a legal nonconforming use of a junkyard and a used auto parts business on Lot A. After the effective date of the ordinance prohibiting the establishment or operation of a junkyard except in an industrial district, the property owner purchased Lots B and C and extended his nonconforming use onto the newly purchased lots in an area designated a business district.

The property owner contended the relevant zoning enabling act, section 95 of article 5 of the Cities and Villages Act (Ill.Rev.Stat.1939, ch. 24, sec. 65.94), did not include by the power to "regulate" the location of junk dealers, the power to "prohibit" such locations. The court disagreed, noting that the enabling act expressly delegated the power to restrict locations and prohibit uses. Based on the evidence concerning the property owner's use of the premises, however, the court found that, as applied to him, the ordinance prohibiting his extension of the nonconforming use was so arbitrary and unreasonable as to be void where the use neither contravened nor conflicted with any of the other objects or purposes of section 1 of the zoning enabling act. Those expressed objects or purposes were " 'to the end that adequate light, pure air and safety from fire and other dangers may be secured, that the taxable value of land and buildings throughout the city, village or incorporated town may be conserved, that congestion in the public streets may be lessened or avoided, and that the public health, safety, comfort, morals and welfare may otherwise be promoted.' " Watseka, 320 Ill.App. at 198, 50 N.E.2d 589.

Of significance here, the court also found the definition of junkyard was not in accordance with the provisions of the zoning enabling act and was so arbitrary and unreasonable as to render that section void. The term "junk yard" was defined there as:

" '[A] plot of ground, which may be covered with buildings; partly covered with buildings, or without any buildings, which plot is used for the buying, selling, storing, and trading of old iron, rags, hides, furs, old furniture, rubber, wool, used cars, used car parts, old metals, bottles and the like commonly called junk.' " Watseka, 320 Ill.App. at 193, 50 N.E.2d 589.

For reasons unclear to us, the city of Watseka as appellee argued that the word "and" in the concluding phrase of the definition should be construed as a disjunctive conjunction; i.e., "or the like commonly called junk," thus effectively separating the definition's qualifying language from the items specifically enumerated therein. As a result, the Watseka court concluded:

"If, as contended by appellee, the word 'and,' as used therein, is to be interpreted as 'or,' it is obvious that dealing in either hides, furs, rubber, wool, used cars or used car parts, does not, without some other specification or qualification, constitute dealing in junk or make the place of any such business a junk yard. The ordinance does not comply with any accepted definition of the junk business. Webster's definition of 'junk' is: 'Old iron, or other metal, glass, paper, cordage, or other waste or discarded material which may be treated or prepared so as to be used again in some form.' Dealing in used cars and used car parts carries with it the idea of their being used again for their original purpose, without reprocessing. Junk, as the term is ordinarily understood, means articles that have outlived their usefulness in their original form, and are commonly gathered up and sold to be converted into another product, either of the same or of a different kind by some manufacturing process." Watseka, 320 Ill.App. at 201-202, 50 N.E.2d 589.

In the instant cause, the trial court did not feel the addition of the phrase "and the collecting, dismantling, storage, and salvaging of unlicensed, inoperative vehicles" in the Lake County ordinance meant that that was junk since, as in Watseka, used cars and used car parts "is not dealing in what is commonly called junk." The court here also considered "the new, current Webster's definition of junk," the variation being, " '[s]econd-hand, worn, or discarded articles of any kind having little or no commercial value.' " Based on the evidence it had heard, the court concluded that there was commercial value to the automobile parts and that the arguably less commercially valuable hulks of the vehicles were removed from the premises within a reasonable period of time.

As to whether the evidence showed he was engaged in the "salvaging" of unlicensed, inoperative vehicles, Zenko argued that the term "salvage" was not defined in the ordinance, was ambiguous, and that the ambiguity should be resolved against the ordinance in favor of his right to the unrestricted use of his property. It was his position that what occurred at Rondout Iron & Metal, for instance, was "salvaging," i.e., the collection of materials having no usable purpose in the form in which they were manufactured and the reprocessing of those materials in some fashion into some new usable item.

The County argues the 1943 Watseka decision should be accorded little precedential value in construing the current Lake County zoning ordinance and asserts the definition of the term "junk yard" in the ordinance embodies the current, commonly accepted definition of the term. We agree.

Initially, we note the County's power to enact a zoning ordinance is provided in section 1 of "An Act in relation to county zoning" (Ill.Rev.Stat.1987, ch. 34, par. 3151). Inasmuch as an express legislative grant of power or authority includes the grant of...