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La Salle Nat. Bank v. County of Cook

JUNE 3, 1965.

LA SALLE NATIONAL BANK, A NATIONAL BANKING ASSOCIATION, AS TRUSTEE UNDER THE PROVISIONS OF A TRUST AGREEMENT DATED DECEMBER 18, 1959, AND KNOWN AS TRUST NO. 23824, AND THE AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, A NATIONAL BANKING ASSOCIATION, AS TRUSTEE UNDER THE TRUST AGREEMENT DATED MAY 23, 1959, AND KNOWN AS TRUST NO. 14490, PLAINTIFFS-APPELLANTS,

v.

THE COUNTY OF COOK, A BODY POLITIC AND CORPORATE, DEFENDANT-APPELLEE, AND THE VILLAGE OF LEMONT, INTERVENOR-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. CHARLES S. DOUGHERTY, Judge, presiding. Judgment affirmed.

MR. JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT.

This is an appeal from a judgment dismissing plaintiffs' claim for declaratory relief in a zoning case. Plaintiffs, as trustees of certain land trusts, are the owners of the property involved, which is located in an unincorporated area of Cook County near the Village of Lemont. The beneficial interests are apparently held by Arcole Midwest Corporation (Arcole), which desires to use the property for a quarry, one hundred feet deep and occupying forty-five acres of a fifty-six acre plot. The plot is zoned M-3, heavy industrial district. A quarry is a special use within that classification, and a special permit from the Cook County Board of Commissioners is required for such use. The board refused to issue a permit, and plaintiffs brought this declaratory judgment action. The Village of Lemont was allowed to intervene as a defendant.

The principal issues are: (a) whether the requirement of a special use permit for a quarry in an M-3 manufacturing district is within the police power, it being contended by the plaintiffs that there is no legitimate reason therefor premised upon public health, safety, comfort, morals or the general welfare; (b) whether the standards relative to the granting of a special use permit have been met; and (c) whether the ordinance, as it applies to plaintiffs' property, is invalid because it amounts to a taking without adequate compensation.

The property consists of fifty-six acres, bisected in a generally northeast-southwest direction by a 150-foot wide public service right of way, and is located near the southwest corner of Bluff and Stephens Roads in Cook County. Bluff Road runs east and west and is the county line between Cook County and Du Page County to the north. There are about twenty-four homes located along that road, which will be separated from the subject property by a 266-foot wide strip of land which has been zoned M-1, or light manufacturing. Stephens Road runs in an approximately northwest to southeast direction. To the north of the intersection of Bluff and Stephens Roads there is an area in Du Page County which is zoned R-1, residential. There are homes in that area. To the northwest, about 1500 feet from the subject property, is the developing Santa Fe Railroad Co. Industrial Park. To the northeast is the Argonne National Laboratory. The proposed quarry is adjacent to Stephens Road on the east and is about one-fourth of a mile north of the village limits of Lemont. The Sanitary District Canal runs in a generally northeast-southwest direction just south of the property, as does the Du Page River and the tracks of the Santa Fe Railroad. Within the past five years, rock which had been left along the Sanitary Canal at the time it was built has been gradually removed and the area's capacity for industrial development has been enhanced.

To the east of Stephens Road, the only available road crossing the Sanitary Canal in the area, is a rock crushing plant. The president of Arcole testified that any rock quarried would be transferred by a conveyor belt under the Stephens Road Bridge over the Sanitary Canal, under the tracks of the Santa Fe Railroad trestle to the rock crushing plant. A defense witness estimated the cost of such conveyor belt at $300,000. The rock crushing plant is located on land owned by the Sanitary District. It was formerly leased to Arcole, but is now leased to Consumers Company (Consumers). Consumers has a contract with Arcole to process the rock quarried from the subject property. The contract has not been put in evidence, but the testimony of Arcole's president revealed that Arcole was to be paid a royalty of six cents a ton.

Further to the east of Stephens Road, on the edge of the Sanitary Canal, several barge slips are being constructed by the Lemont Industrial District, Inc. The construction involves the use of explosives and is similar to a quarry operation in that a temporary dam is used to hold back water of the Sanitary Canal while the slips are being quarried out of solid rock. The rock so quarried from the slips is transported to the same rock crushing plant which would crush the rock from the proposed quarry.

To the west of Stephens Road, between the Des Plaines River and the Sanitary Canal, is an asphalt plant, the Lemont Stone and Material Company plant and a concrete plant. South of the Canal at this point is the Tri-Central Terminal with its storage tanks, and just to the west is the Ceco Steel Products plant.

The evidence reveals that the whole area around Lemont in the Des Plaines River Valley contains excellent Niagara dolomite limestone to great depths, with outcroppings that break the surface in several areas. This limestone is especially useful as a basis for concrete and as a base or bed for highway construction. In the immediate area are four flagstone quarries. These are "strip" operations which do not use explosives and in that respect they should be distinguished from plaintiffs' proposed type of quarry operation, which will use explosives. There are about eight abandoned quarries in the Lemont area. No new quarry has been planned or projected in that area in the last fifty years. The nearest operating quarries are in Hodgkins, Hillside, McCook, Thornton Township, and at 29th and Halsted Streets in Chicago.

Under the zoning ordinance in question any production, processing, cleaning, servicing, testing, repair or storage of materials, goods, or products which conform to certain performance standards and which are not injurious or offensive to the occupants of adjacent premises by reason of the omission or creation of noise, vibration, smoke, dust or other particular matter, toxic and noxious materials, odors, fire or explosive hazards or glare or heat, are allowed in an M-3 manufacturing district. Air, railroad, water freight terminals, railroad switching and classification yards and repair shops and roundhouses, among other things, are permitted in an M-3 heavy manufacturing district.

Certain types of usage, however, called special uses, which might come within an M-3 district classification, are subjected to the requirement that a special permit be obtained from the County Board. Such special uses include storage of flammable or explosive vapors or gases, garbage dumps, junk yards, and excavations of sand, gravel or raw material. Also included in that class of special uses, requiring prior examination and approval, are those involving the storage, utilization or manufacture of materials or products which decompose by detonation. It is admitted that a quarry falls within this last class of special uses.

The special use technique as a permissible method of land use regulation has been upheld against various claims of unconstitutionality. Kotrich v. County of DuPage, 19 Ill.2d 181, 166 N.E.2d 601; Hartung v. Village of Skokie, 22 Ill.2d 485, 177 N.E.2d 328; Columbus Park Congregation of Jehovah's Witnesses v. Board of Appeals, of City of Chicago, 25 Ill.2d 65, 182 N.E.2d 722; Ward v. Village of Skokie, 26 Ill.2d 415, 186 N.E.2d 529; Camboni's, Inc. v. DuPage County, 26 Ill.2d 427, 187 N.E.2d 212; Frost v. Village of Glen Ellyn, 30 Ill.2d 241, 195 N.E.2d 616.

The court in the Kotrich case, supra, said that the special use technique was developed as a means of providing for 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; that such uses generally occupy rather large tracts of land, and that they cannot be categorized in any given use zone without the danger of excluding beneficial uses or including dangerous ones. Instead of excluding such uses from certain zones entirely, they are included as a special use, because there may be circumstances under which the public body charged with that duty may conclude that the benefits to be derived will offset the potential harm, and conditions with respect thereto are provided.

Plaintiffs argue that the county zoning ordinance requiring a special use permit is unconstitutional because there is no sound reason premised upon public health, safety, comfort, morals or the general welfare requiring a special use permit for a quarry operation in an M-3, heavy industrial zoning district. It appears to us, however, that there is a rational basis for distinguishing between a quarry using explosives and the other permitted uses in such district. The court in Peet v. Dolese & Shepard Co., 41 Ill. App.2d 358, 190 N.E.2d 613, said, p 368:

"[I]t is a matter of common knowledge that the use of dynamite as an explosive is intrinsically dangerous; this includes consequential injury resulting from an explosion by reason of concussion or vibration, as well ...


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