Wright v. Winnebago County

• Decision Date: 22 June 1979
• Docket Number: No. 77-359,77-359
• Citation: 73 Ill.App.3d 337,29 Ill.Dec. 347,391 N.E.2d 772
• Parties: , 29 Ill.Dec. 347 Ronald G. WRIGHT and Patricia Rose Wright, Plaintiffs-Appellants, v. COUNTY OF WINNEBAGO, a body politic and corporate, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 772

391 N.E.2d 772

73 Ill.App.3d 337, 29 Ill.Dec. 347

Ronald G. WRIGHT and Patricia Rose Wright, Plaintiffs-Appellants, v. COUNTY OF WINNEBAGO, a body politic and corporate, Defendant-Appellee.

No. 77-359.

Appellate Court of Illinois, Second District.

June 22, 1979.

Thomas & Thomas, James W. Keeling, Rockford, for plaintiffs-appellants.

Daniel D. Doyle, State's Atty., James M. Hess, Asst. State's Atty., Rockford, for defendant-appellee.

GUILD, Justice:

Plaintiffs, Ronald and Patricia Wright, are owners of property in Winnebago County presently zoned for agricultural use. In May, 1976 Ronald Wright petitioned the county for a special use permit to allow use of the property as a Restricted Landing Area (hereinafter RLA). A public hearing was held before the Zoning Board on June 22, 1976, at which a representative of the City-County Planning Commission testified in favor of the petition. The Zoning Board, however, recommended denial of the petition and the County Board did subsequently deny the petition. Ronald Wright then filed suit for injunctive relief and declaratory judgment, claiming denial of the special use permit to be a violation of the due process clause of the constitutions of the United States and Illinois. Patricia Wright was added as a party plaintiff without objection. The circuit court denied plaintiffs' request for relief, finding the denial to be reasonable. A post-trial motion, contending that the basis for denying the special use permit had been preempted by the Illinois Aeronautics Act (Ill.Rev.Stat.1975, ch. 151/2, P 22.1 Et seq.) and the Federal Aviation Act of 1958 (72 Stat. 731, 49 U.S.C. §§ 1301 Et seq.), was denied on March 31, 1977. Plaintiffs appeal.

Plaintiffs' property is about 20 acres in size and roughly rectangular, approximately 333 feet from east to west by 2600 feet from north to south. It is improved with a house, garage and a storage building. It is surrounded by agricultural land with a few scattered homes. Rockton Road runs east and west along the northern boundary of the property. The proposed runway would run from south to north with takeoffs probably being to the north.

Plaintiff Ronald Wright testified that he worked as an airline mechanic in Belvidere. He is a licensed pilot and owns one airplane, which he would like to use to fly to and from work in appropriate weather. He estimated an average of one or two takeoffs and landings per day from the field on three or four days a week during the summer months. He admitted that failure to receive the special use permit for the RLA would not reduce the market value of his property.

Mr. Burrille Coppernoll, a flight safety coordinator with the Illinois Department of Transportation, Division of Aeronautics, testified about the general procedures of that division and as to his inspections of plaintiffs' property. Mr. Coppernoll indicated that upon receipt of an application the Division conducted an initial inspection to see if the proposed property could meet the State safety requirements for an RLA. If a safe RLA were possible, the Division would notify the neighbors and local government that an RLA was under consideration. If, and only if, the property already had or then receives appropriate zoning from local authorities and already has met or is altered to meet the safety requirements, the Division would issue a certificate for the RLA. Regular inspections are carried out by the Division's representatives to insure maintenance of property safety standards. A certificate can be revoked if the property becomes unsafe for any reason. The Division does not consider the nature of the surrounding area except as it would affect the safety of the landing strip itself.

Mr. Coppernoll made two "initial" inspections of plaintiffs' property and indicated that, with removal of certain obstacles at its northern end and with proper grading, seeding and moating of the runway, the property would be suitable for an RLA. A field engineer for Commonwealth Edison testified with regard to the possibility of burying the power lines on plaintiffs' property.

David Atkins, the principal planner of the County Planning Commission, testified that his office had recommended approval of the RLA because it was not inconsistent with the general plan for the area.

Warren Johnson, a real estate broker, testified that he had sold 20 homes in a subdivision near the nearby Honnejah RLA both before and after that RLA began operations and that the existence of the RLA had had no effect on prices of the homes there. He also stated that a house 400 feet from a landing field that had fewer than 10 landings and takeoffs per day would not be reduced in value by the existence of that field. Paul Fridley, a developer, also had sold homes near RLAs and testified that the landing areas had not reduced values of the homes sold. Noriss Leviss, a real estate broker and licensed appraiser, testified that the existence of four other RLAs in the area had not "affected the development of the residential areas adjacent thereto" and that an RLA on plaintiffs' property would have no affect on the value of the property around it.

Arnold Moen, a county zoning official and building officer, testified for the defendant that plaintiffs' property was in a township that was developing into a residential area in a "fairly rapid" manner.

Three of plaintiffs' neighbors testified that they believed that the proposed RLA would reduce the value of their property. Mr. C. Hulbert testified that he lived near another RLA in Winnebago County, and that he and his wife had been significantly disturbed by noise from the RLA.

Thomas Eddie, a land surveyor, testified as to the dimensions, grade and other characteristics of the Wright's property in connection with whether the proposed RLA would be technically safe as a landing field. Albert Ruhmann, a county zoning official and commercial airline pilot, explained in detail the Illinois Division of Aeronautics glide slope regulations and their potential application to plaintiffs' property. Messrs. Eddie and Ruhmann both indicated that, in their opinions, the proposed RLA would not be in compliance with the technical safety standards set by the Illinois Division of Aeronautics. Their testimony, however, was based on the property as it was when they examined it, not on any of the potential alterations suggested by Mr. Coppernoll of the State Aeronautics Division.

Plaintiffs claim that the denial of the special use permit was an unconstitutional deprivation of property in violation of the due process clauses of the federal and Illinois constitutions. The Illinois Supreme Court set forth the test for determining the constitutional validity of a zoning ordinance in Tomasek v. City of Des Plaines (1976), 64 Ill.2d 172, 179-80, 354 N.E.2d 899, 903, as follows:

"An ordinance will be presumed to be valid, and the one attacking an ordinance bears the burden of demonstrating its invalidity. The challenging party must establish by clear and convincing evidence that the ordinance, as applied, is arbitrary and unreasonable and bears no substantial relation to the public health, safety or welfare."

The factors which a trial court should properly consider in weighing the validity of a zoning ordinance are: (1) the existing uses and zoning of nearby property; (2) the extent to which surrounding property would be depreciated by the proposed use; (3) the suitability of the subject property for the zoned purposes; (4) the extent to which the reduction in the value of the property promotes the health, safety, morals or general welfare of the public; and (5) the relative gain to the public as compared to the hardship imposed on the property owner. American National Bank & Trust Co. of Rockford v. City of Rockford (1977), 55 Ill.App.3d 806, 13 Ill.Dec. 620, 371 N.E.2d 337.

In applying these factors to the instant case, the trial court found the denial of the special use permit to be reasonable, stating:

"I have considered all the evidence produced and believe plaintiff's exhibit 26, delineating the present landing strips in defendant county, best demonstrates defendant's basis for denial of the permit in this instance. Almost all of the existing landing areas are to the north and northeast of Rockford in territory now basically zoned agricultural, but rapidly changing to residential. The defendant has drawn its line for this use and has done so reasonably. It must balance the interest of the few who wish to make this use of their property against the interest of the many who would be required To see, hear and possibly fear such use over and near their property, on property they may otherwise consider purchasing and building homes upon.

The defendant has determined the saturation point for this use in this area and its judgment may not be overturned on the evidence presented in this case. " (Emphasis added.)

Plaintiffs contend the trial court's finding that "defendant has drawn its line" and "determined the saturation point" to be against the manifest weight of the evidence. Plaintiffs agree that the county has the right to limit the number of RLAs but, rather, allege that no such limiting "line" was in fact drawn. This allegation is supported by the record; defendant has not shown that the denial of plaintiffs' special use permit was due to the number of RLAs already operating. Neither the administrative denial of the permit nor defendant's answer mentioned any such "line" basis for denying the special use permit. The exhibit expressly relied on by the trial court was introduced by plaintiffs and not defendant.

More significantly, three county officials testified at the trial and none alleged that the county had drawn any "line" or indicated that any "saturation point" had been determined. None stated that the county would not continue to allow new RLAs in plaintiffs' part of the county. David Atkins, the principal planner of the county,...