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Brown v. County of Lake

JANUARY 24, 1966.

ROBERT ANDREW BROWN AND BERTHA EVANS BROWN, PLAINTIFFS-APPELLANTS,

v.

THE COUNTY OF LAKE, A BODY POLITIC AND CORPORATE IN THE STATE OF ILLINOIS; WILLIAM CLARK, JR., AND CAROLYN CLARK, HIS WIFE, AND E.M. MELAHN, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of the Nineteenth Judicial Circuit, Lake County; the Hon. PHILLIP W. YAGER, Judge, presiding. Affirmed in part and reversed and remanded in part.

ALLOY, J.

Rehearing denied February 14, 1966.

This cause is before us on transfer from the Supreme Court of this State. The plaintiffs, Robert Andrew Brown and Bertha Evans Brown, filed a declaratory judgment action as against the defendant, County of Lake, and the defendants, William Clark, Jr. and Carolyn Clark, his wife, and E.M. Melahn. The Clarks own a farm located directly across Belvidere Road from the property of plaintiffs and have entered into a contract with defendant E.M. Melahn who intends to construct a cemetery on the Clark property after he has completed his purchase of the property. The Clark-Melahn property consists of about 70 acres located on the north side of plaintiffs' property and separated by State Route No. 120, a four-lane divided, limited access freeway. The Clarks and Melahn filed a petition for a special permit with the enforcing officer under the Lake County Zoning Ordinance. It was referred to the Zoning Board of Appeals which conducted a hearing on the petition and published notice thereof as required by the ordinance. Following this hearing in which plaintiffs participated as objectors, the Zoning Board of Appeals made a report to the County Board of Supervisors recommending that the permit be authorized. The County Board of Supervisors adopted a resolution authorizing issuance of the special permit on April 9, 1964.

Thereafter, plaintiffs filed their complaint for declaratory judgment in two counts. Count I alleges that plaintiffs' property will be substantially diminished in value by construction of the proposed cemetery on the premises across the road, without corresponding benefits to the public, and that the action of the County Board of Supervisors in authorizing the permit is, therefore, arbitrary, capricious and unreasonable. In Count II, the plaintiffs challenge the constitutionality of the entire special use procedure of the Lake County Zoning Ordinance and contend that the ordinance contains no standards to guide the County Board in granting or denying permits and is, therefore, violative of the due process clauses of the State and Federal constitutions and the equal protection clause of the Federal constitution. Plaintiffs pray for injunctive relief as against defendants and also that the Lake County Board of Supervisors be permanently enjoined from issuing such permit for the use of the land as a cemetery and that a decree be entered that the issuance of the special permit was unlawful and void.

Motions to dismiss were filed by defendants.

In Count I of the complaint, plaintiffs allege that they reside on their property consisting of 342 acres upon which they conduct farming and husbandry operations; that since the adoption of the Lake County Zoning Ordinance in 1939, both plaintiffs' and defendants' property have been zoned in Classification "F"; that the highest and best use of plaintiffs' property is for residential farming purposes; that on April 9, 1964, defendants Clark and Melahn obtained from the Lake County Board of Supervisors a special permit authorizing the defendants to use their property for a cemetery and said defendants intend to use their land for such purpose. Attached to the complaint is a map showing the zoning of the area in question. This map shows that a special permit was issued to a Serbian Monastery to operate a cemetery on land adjoining plaintiffs' property on the southeast and there was also a special permit to the Gages Lake Sanitary District to operate a sewage treatment plant on land immediately adjoining defendants' land to the north. Immediately to the north of plaintiffs' property are two parcels of land zoned for general business.

The complaint further alleges that use of defendants' land will drastically change the character of the neighborhood, reduce the value of plaintiffs' land, and because of damage to plaintiffs which far outweighs any benefit to the public, the action of the County Board of Supervisors in granting the permit is arbitrary and capricious. Count II of the complaint contains substantially the same allegations but seeks to have the special use provision of the Lake County Zoning Ordinance declared unconstitutional and void.

Under the terms of the Lake County Zoning Ordinances, one of the many permitted uses of land in the "F" classification is for cemeteries provided a permit is obtained from the Lake County Board of Supervisors. No such special permit is issued until after a public hearing is held before the Lake County Zoning Board of Appeals and action thereafter taken by the County Board of Supervisors as to the issuance of the permit. We are thus considering the question of authorization of a permitted use and the validity of the procedure which authorizes such special use rather than a change of zoning classification.

On appeal in this court, appellants contend that the "Special Use" provisions of the ordinance are entirely void in that they contain no standards to guide the action of the County Zoning authorities. Under the terms of the Lake County Zoning Ordinance, certain special uses, including cemeteries, are permitted in the "F" zoning district, but such special uses are subject to a special permit authorized by the County Board of Supervisors which "shall contain certain conditions governing the use requested" after compliance with the procedural regulations under the ordinance in obtaining such permit. Under the terms of the ordinance, an application for a special permit and the reasons in support thereof is required to be filed with the enforcing officer who is then required to submit it to the Zoning Board of Appeals for consideration and report to the County Board of Supervisors. It is further provided that a special permit shall provide for an annual inspection by the authorized Lake County inspector to determine if conditions imposed by the County Board to govern the issuance of a special permit have been complied with. It is also provided that a special permit may be renewed annually upon receipt of an application and fee.

The ordinance likewise provides that no special permits shall be authorized by the County Board without a hearing before the Zoning Board of Appeals. Notice of the time and place of the hearing and publication in the newspaper of general circulation in the county and a hearing in the township affected are required and within a reasonable time after the hearing, the Zoning Board of Appeals is required to make a report to the County Board of Supervisors. There is no specific provision as to what should be contained in the report. After receiving the report from the Zoning Board of Appeals, the County Board of Supervisors either authorizes or refuses to authorize the issuance of the permit. There are no provisions limiting the County Board of Supervisors in its action in authorizing or refusing to authorize issuance of the permit.

The special permit procedure with which we are concerned in the instant case was considered by the Supreme Court of this state in Kotrich v. County of Du Page, 19 Ill.2d 181, 166 N.E.2d 601. In that case, the ordinance was challenged on the ground that there is no statutory authority for the procedure of issuing special permits and that the Du Page County Ordinance did not establish specific standards by which the County Board of Supervisors is to judge whether a special permit should be granted. The Du Page County Ordinance likewise did not specifically delineate a set of standards to guide the County Board of Supervisors and, while there are variances in the language, the ordinances are fundamentally similar in character. The Supreme Court in determining that the Zoning Ordinance was not invalid, specifically stated (at page 187):

"Since the Board of Supervisors is a legislative body, precise standards to govern its determination are not required."

A number of cases are cited by the plaintiffs where the courts have adhered to the contention that a failure to provide standards was sufficient to invalidate an ordinance, but it is notable that in none of the Illinois cases referred to, do the ordinances provide, prior to the issuance of a permit, that notice be published and a public hearing be held on the merits of the petition. It is apparent that the Lake County Zoning Ordinance, after requiring the procedure of a hearing after notice to parties, then vests with the County Board of Supervisors the right by legislative action, to determine whether a special permit should be issued. As indicated in the case of Kotrich v. County of Du Page, supra, such procedure by the legislative body does not violate constitutional provisions. There is no delegation of legislative authority to the administrative officer under the act.

A suggestion is also made that the Lake County Zoning Ordinance in its "Special Use" provisions goes beyond the scope of authority granted under the Enabling Act (Ill Rev Stats 1963, c 34, § 3151). The Supreme Court in Kotrich v. County of Du Page, supra, indicated (at page 186) that a residual category of special uses cannot, without distortion, be included in the customary classification and is permissible as a means of implementing the powers conferred by the statute. The inclusion of "special use" technique in ordinances has likewise been ...


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