Pioneer Trust and Sav. Bank v. McHenry County
| Decision Date | 29 November 1967 |
| Docket Number | No. 12142,Gen. No. 67--79,12142 |
| Citation | 232 N.E.2d 816,89 Ill.App.2d 257 |
| Parties | PIONEER TRUST & SAVINGS BANK, as Trustee under Trust, and Joseph N. Novelle and Lillian L. Novelle, Appellees, v. The COUNTY OF McHENRY, a body politic and corporate, Appellant. |
| Court | United States Appellate Court of Illinois |
Richard R. Cross, Woodstock, Asst. Atty. Gen. Roy C. Palmer, Chicago, for appellant.
Jack M. Siegel, Chicago, Joslyn, Joslyn & Green, Woodstock, for appellees.
Pioneer Trust & Savings Bank, as Trustee, the record title holder of the land in question, and Joseph N. Novelle and Lillian L. Novelle, the beneficial owners, brought this action against the defendant, County of McHenry, asking that defendant's zoning ordinance, as applied to plaintiffs' property, be declared arbitrary and void; that the defendant, its officers and agents, be enjoined from enforcing the provisions of such ordinance against the property in question; and that they be directed to issue necessary permits, licenses, etc., so that such property may be used for a mobile home park and a mobile home sales operation. The trial court entered a judgment in favor of the plaintiffs, from which the defendant has appealed.
Under defendant's zoning ordinance, there is no general zoning use classification under which land may be developed or used as a trailer park or camp as a matter of right; such use, however, is permitted as a special use.
Section 15 of the defendant's zoning ordinance relating to the special or conditional use of land provides, in part, as follows:
'The purpose of this classification is to establish standards for those uses which, because of their unique characteristics cannot be properly classified in any particular district or districts, without consideration, in each case, of the impact of those uses upon neighboring land and of the public need for the particular use at the particular location.
'A. The Conditional Uses are as follows:
(1) Uses publicly or municipally operated and those uses traditionally affected with a public interest.
(2) Uses entirely private in character, but of such an unusual nature that their operation may give rise to unique problems with respect to their impact upon neighboring property and public facilities.
'Standards: No conditional use shall be approved unless, after public hearing, and recommendation of the McHenry County Zoning Board of Appeals, as is provided, the Board of Supervisors shall find:
(1) That there is a public necessity for the conditional use.
(2) That the establishment, maintenance, or operation of the conditional use will not be detrimental to or endanger the public health, safety, morals, comfort, or general welfare.
(3) That the conditional use will not be injurious to the use and enjoyment of other property in the immediate vicinity for the purposes already permitted, nor substantially diminish and impair property value within the neighborhood.
(4) That the establishment of the conditional use will not impede the normal and orderly development and improvement of surrounding property for uses permitted in the district.
(5) That adequate utilities, access roads, drainage, and the other necessary facilities have been or are being provided.
(6) That adequate measures have been or will be taken to provide ingress and egress so designed as to minimize traffic congestion in the public streets.
(7) That the conditional use shall in all other respects conform to the applicable regulations of the McHenry County Zoning Ordinance for the district in which it is located.
'B. Upon a finding of the McHenry County Board of Appeals that the above conditions have been met, and upon the approval of said finding by the Board of Supervisors, in accordance with the provisions of this Ordinance, they shall cause to be issued a Conditional Use Permit to the applicant, incorporating within such permit the conditions under which it is issued, including, but not limited to, restrictions upon the height and bulk of any structure so approved, the duration of the permit so approved, and other regulatory restrictions as shall be by them deemed necessary.
'C. The following uses of land or structures, or both, may be permitted within any district as herein defined, subject to the provisions as hereinabove set forth:
(18) Trailer Camps as defined in Section 1;
(19) Trailer Sales as defined in Section 1;
* * *.'
The subject property, consisting of approximately 33 acres, is vacant, is zoned 'I-1' Light Industrial District and was so zoned when plaintiffs purchased it. At the time of the purchase, the land was a part of a larger tract of approximately 110 acres, which plaintiffs purchased for $110,000.
The Chicago and Northwestern Railroad forms the northeasterly boundary of the property in question, and the Northwest Highway--a heavily traveled highway--the northwesterly boundary. It is abutted by a public highway on the west and on the west side thereof is a par-three golf course. Immediately to the east of the property is a 66 acre tract, also owned by plaintiffs, which is zoned for farming. Across the road, to the south of the land owned by plaintiffs, is a single family residence. Directly across the highway, to the north of the property, is land zoned I-1, Light Industrial District. Beyond that, to the northeast and across the highway and railroad, is land zoned I-2 and used for a quarry. West of the property, along the Northwest Highway, are a number of commercial establishments.
Plaintiffs filed a petition with the county Zoning Board of Appeals for a conditional use permit for a trailer camp and sales operation, as required by Section 15 of the zoning ordinance. The Zoning Board of Appeals recommended that the petition be denied; the County Board of Supervisors concurred and denied the petition for the permit. Plaintiffs then filed this suit. The matter was referred to a master who found: (1), that all of the conditions imposed by Section 15 of the Zoning Ordinance have or will be met with the exception that plaintiffs have failed to establish that there is a 'public necessity' for the use proposed; (2), that the requirement of establishing 'public necessity' is unconstitutional and effectively operates to prohibit an otherwise lawful use of land; (3), that section 15 is unconstitutional in that it is arbitrary and deprives plaintiffs of property without due process of law; and (4), that said section creates a classification which bears no substantial relation to the public welfare, and is, therefore, void generally or invalid as applied to plaintiffs' property.
The trial court overruled defendant's objections to the master's report and adopted its findings except (4), which the court adopted only to the extent that Section 15 was invalid as applied to the subject property.
Illinois courts have recognized the special use technique, albeit not without some misgivings, as a valid zoning device, and under such use, the defendant county had the right to prohibit certain land uses within its corporate limits except by the issuance of a special permit. Ward v. Village of Skokie, 26 Ill.2d 415, 186 N.E.2d 529 (1962); Kotrich v. The County of Du Page, 19 Ill.2d 181, 166 N.E.2d 601 (1960); Illinois Bell Telephone Co. v. Fox, 402 Ill. 617, 85 N.E.2d 43 (1949); La Salle Nat. Bank v. County of Cook, 60 Ill.App.2d 39, 208 N.E.2d 430 (1965); International Harvester Co. v. Zoning Board, 43 Ill.App.2d 440, 193 N.E.2d 856 (1963); Rosenfeld v. Zoning Board of Appeals of Chicago, 19 Ill.App.2d 447, 154 N.E.2d 323 (1958). In Kotrick, the court specifically held that the County Zoning Enabling Act (Ill.Rev.Stat.1965, ch. 34, par. 3151) permits the creation of a residual category of special uses which can not, without distortion, be included in the customary use classifications.
Special use provisions are of relatively recent origin, but have become commonplace in modern zoning ordinances. Furry, Special Use: A New Concept in Illinois Zoning, 48 Ill.Bar.Jour. 488 (1960); Babcock, Zoning Administration in Illinois, University of Chicago, Law Review, Vol. 26, No. 4, pp. 509, 519 (1959). The recent and widespread utilization of this technique and its validity as a means to regulate the use of land, even when challenged under various claims of unconstitutionality, are indicated in both Kotrich v. The County of Du Page, supra, 19 Ill.2d 185, 166 N.E.2d 601 and La Salle Nat. Bank v. County of Cook, supra, 60 Ill.App.2d 45, 208 N.E.2d 430, and cases cited therein.
The function of the special use classification is to provide for infrequent types of land use which are necessary and desirable, but which are potentially incompatible with the uses usually allowed in residential, commercial and industrial zones. To categorize such uses in any of the given use zones, presents a potential danger of excluding beneficial uses or including those not compatible with surrounding uses in most situations. Illinois Bell Telephone Co. v. Fox, supra. The special use technique provides a flexible approach to a narrow and difficult facet of land use control. It permits a use which otherwise might be entirely prohibited in certain zones where the adverse effect on surrounding land is not too great, and the public need for the specific use at the particular location warrants it. Lazarus v. Village of Northbrook, 31 Ill.2d 146, 150, 151, 199 N.E.2d 797 (1964); Kotrich v. The County of Du Page, supra, 19 Ill.2d 184, 185, 166 N.E.2d 601.
In order to sustain the validity of the exercise of the police power in limiting land to a special use classification as a trailer camp, such limitation must be founded on a reasonable basis in the public welfare. In Suburban Ready-Mix v. Village of Wheeling, 25 Ill.2d 548, 552, 185 N.E.2d 665 (1962), the court held that azoning ordinance is invalid, which prohibits from all industrial use districts, the...
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