APPEAL from the Circuit Court of Knox County; the Hon. FRED G.
WOLFE, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 16, 1953.
This is an appeal from a final decree of the circuit court of Knox county wherein the circuit court decreed that a Knox County zoning resolution was unconstitutional and void insofar as it related to or prohibited the use of land for the recovery of coal by strip method of mining, and permanently enjoined the defendants from enforcing and carrying out the provisions of the zoning resolution in reference to such strip mining.
The constitutionality of a county zoning ordinance being involved the appeal properly comes here.
The basis of the trial court's holding, as stated in its written decree, was that the restrictions against strip mining in the zoning resolution generally and as applied to the plaintiff's property have no real or substantial relationship to the public health, safety, morals, or general welfare, and that such restrictions generally, and as applied to the plaintiff, are arbitrary, unreasonable, and confiscatory. The trial court also held as a basis of its decree that there was a nonconforming use of plaintiff's land at the time of the adoption of the zoning resolution.
This case again presents to the court the constitutional conflict between private property rights and the police power of the State and its political subdivisions.
Defendants-appellants predicate their appeal on the following propositions: First, a zoning resolution and its amendments are presumed to be valid. (Kinney v. City of Joliet, 411 Ill. 289; County of Du Page v. Henderson, 402 Ill. 179.) Second, the decree of the trial court is erroneous. Third, there was no nonconforming use by the plaintiff. Last, the court will not substitute its judgment for that of a legislative body. County of Du Page v. Henderson, 402 Ill. 179.
Plaintiff-appellee's answer thereto in substance is: First, the legislative determination as to what is a proper exercise of police power is not conclusive. (2700 Irving Park Building Corp. v. City of Chicago, 395 Ill. 138.) Second, the propriety of a zoning regulation or of its application in a particular case must be decided by the court from the facts and circumstances in evidence. (Forbes v. Hubbard, 348 Ill. 166.) Third, that the evidence and findings compel the conclusion reached by the trial court.
In this case voluminous testimony, both oral and documentary, was taken by a special master in chancery. The special master made eighty separate findings of fact in his report, objections to six of which by the defendants were overruled by the trial court. The plaintiff objected to numerous of the master's findings, and the trial court sustained in part such objections to part of the findings and made ten additional findings as prayed by the plaintiff.
An examination of the record clearly discloses that most of the basic facts involved in the present case, as found by the master and approved and confirmed by the trial court, are supported by the evidence. Such approved and confirmed findings will not be disturbed by this court unless they are against the manifest weight of the evidence. Wurth v. Hosmann, 410 Ill. 567; Zeta Building Corp. v. Garst, 408 Ill. 519; Schmalzer v. Jamnik, 407 Ill. 236.
There being substantial and credible evidence on both sides of each question presented it is believed that the following factual conclusions of the master and trial court must be accepted by this court as the facts in this case.
On October 5, 1949, the board of supervisors of Knox County adopted a zoning resolution pursuant to the County Zoning Act. (Ill. Rev. Stat. 1951, chap. 34, pars. 1521 et seq.) The first notice of township hearings preparatory to enactment of such zoning resolution was published on August 2, 1949.
The zoning resolution divides the unincorporated area of Knox County into seven districts, which resolution regulated, restricted and limited the location of businesses, buildings, and use in the various districts for the stated purposes of promoting public health, safety, morals, and general welfare, conserving the values of property throughout the county, and lessening or avoiding congestion in the public streets and highways. Strip mining of coal in all the districts except the "G" district was prohibited. Approximately 90 percent of the unincorporated area of the county lies outside of the "G" district.
The practice of mining coal by the open cut or strip method results in the top soil being turned under and the topography left in a broken and rough condition. At the inception of the strip-mining operation, a large excavation is made, about 90 feet in width, extending from the top surface to the coal seam. The excavated material from the opening is deposited to one side. The piles of this excavated material are known as spoil piles or ridges ranging in height from 20 to 60 feet. As the mining operation progresses, the excavating machines proceed laying aside the materials overlying the coal so that the area is left in a series of long ridges with peaks about 50 feet apart and with intervening valleys from 10 to 60 feet in depth.
The plaintiff owns in fee, or controls by lease, option, or contract to purchase, 2987 1/2 acres of land containing approximately 1300 coal acres situated in the "C" district of Salem Township of Knox County, which was immediately north and adjacent to the "G" district. Such interests were acquired by the plaintiff beginning in October, 1932, long before the zoning resolution was proposed, for the express purpose of mining the coal underlying such land by the strip method. The cost thereof to plaintiff was $464,523 and a remaining contractual liability of $200,732. Approximately 5,500,000 tons of number 5 coal and 1,000,000 tons of number 6 coal, with a total gross value in excess of $25,000,000, can be recovered by plaintiff from said property. Such property has a value of $5000 per acre for strip-mining purposes and an average value of $250 per acre for ordinary farming purposes. Prior to the adoption of the zoning resolution, plaintiff had surveyed and mapped most of said real estate, drilled more than 1700 test drill holes, determining the extent of coal underlying the land which could be recovered by strip mining. Prior to the zoning resolution, plaintiff had also constructed a new haulage road on the property and a new power line thereon for use in connection with future mining of coal underlying said real estate and in the present mining operations of plaintiff in the "G" district immediately south of the "C" district. Also prior to the adoption of the resolution, plaintiff had invested in plant equipment and other facilities to be used in strip mining the lands in dispute, along with lands immediately to the south thereof, a total sum of $3,431,561.32, which at the time of trial had a depreciated value of $753,028.78.
The coal under such land cannot be practically, economically or safely recovered by any process other than strip mining. Plaintiff, however, at the time of the adoption of the zoning resolution and at the time of trial, had not opened any pit or recovered any coal by any mining method in the "C" district.
Knox County is predominantly an agricultural community lying in the heart of the corn belt and possessing soil and climatic conditions giving agricultural yields per acre in excess of the average yields for the State of Illinois, the principal crops grown being corn, oats, soybeans, and pasture, there being extensive livestock production. Over 92 percent of the land area of the county is devoted to agricultural purposes, one half of which is devoted to pasture. Knox County and Salem Township are both static, as that term is used in planning and zoning, as to conditions that might change them from a rural to urban manner of living. The population of Salem Township decreased from 1360 in 1920 to 1286 in 1940. The population of Knox County increased from 46,727 in 1920 to 52,250 in 1940 to 54,150 in 1950. There ...