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Pioneer Trust & Sav. Bk. v. Mchenry Cty.

OPINION FILED SEPTEMBER 24, 1968.

PIONEER TRUST & SAVINGS BANK, TRUSTEE, ET AL., APPELLANTS,

v.

THE COUNTY OF MCHENRY, APPELLEE.



APPEAL from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of McHenry County; the Hon. PHILIP W. YAGER, Judge, presiding.

MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 21, 1968.

We granted leave to appeal to plaintiffs, who are the record title holders and the beneficial owners of land in McHenry County, in order to review the decision of the Second District Appellate Court (89 Ill. App.2d 257) reversing a judgment of the McHenry County circuit court. The circuit court had declared section 15 of the McHenry County zoning ordinance arbitrary and void as applied to the plaintiff's property, enjoined its enforcement against the property, and directed issuance to plaintiffs of all necessary permits and licenses for the erection of a mobile homes park and mobile homes sales enterprise upon the subject property. The appellate court held that since the plaintiffs failed to show that there was a "public necessity" for granting a conditional use permit for the proposed use it would have been improper under section 15 for the County Board of Supervisors to issue such a permit, that the Board's refusal of the permit was not arbitrary or unreasonable, and that the judgment for the plaintiffs in the trial court was therefore error.

The land upon which plaintiffs seek to establish the mobile homes park and sales enterprise consists of 33 acres of vacant land which is presently zoned "I-1" light industrial district as it was when plaintiffs purchased it. The land is part of a larger tract of 111 acres which plaintiffs bought for approximately $110,000 in 1959. Plaintiffs have since sold some 10 acres. The subject property is contiguous to the Chicago and Northwestern Railroad right of way which forms its northeasterly boundary, and the Northwest Highway, a heavily traveled arterial highway, adjoins the property on the northwest. Forming its western boundary is Sands Road, and plaintiffs own the tract of approximately 66 1/2 acres zoned for "F" farming purposes which is adjacent to and immediately south of the subject property. Directly across the Northwest Highway from the subject property is land zoned "I-1" which is vacant except for a structure formerly used as a foreign automobile sales and service plant. Across Sands Road to the northwest of the site is a tract of land zoned for "I-1" industrial purposes utilized by the Ero Manufacturing Company and the Major Lighting Control Company. Directly west across Sands Road from the subject property is a par-three golf course, and to the northeast across the Northwestern Railroad right of way is a large tract of land zoned for "I-2" heavy industrial purposes used by the Standard Redi-Mix Concrete Company for a quarry, and the Suburban Oil Company for an asphalt batch plant. Proceeding westward from the subject property along the Northwest Highway are a number of commercial establishments including a driving range, an automobile agency, a motel, a trailer rental facility, a boat company, a furniture store and several restaurants. In the area south of the Northwest Highway, to the west of the subject property, is a residential subdivision described by a defense witness as a "depressed area" because of the improper development of undersized lots and the stigma resulting from inadequate septic tank and water systems. Interspersed with the residential subdivision are a drive-in theatre, a "kiddie" land, and a Baptist church; and across the road which forms the western boundary of the subdivision is a quarry of the Consumers Company.

The master who heard the evidence in this case included the following comment in his findings: "The subject property lies in an area best described as a zoning conglomerate * * *. The area appears to be characterized by lack of order and planning. It is subject to uses obviously more detrimental to adjacent properties than that proposed by plaintiffs."

Prior to the commencement of this action in the trial court plaintiffs filed a petition with the McHenry County Zoning Board of Appeals requesting that a conditional use permit be issued for the use of the subject property as a mobile homes park and sales operation. Under the County's zoning ordinance, trailer camps or trailer sales were permissible in any district upon the issuance of a "conditional use" permit, but no district was provided for the establishment of such uses as a matter of right. After a public hearing, the McHenry County Zoning Board of Appeals recommended that plaintiffs' application be denied and the County Board of Supervisors followed the recommendation, denying the plaintiffs' request for the proposed conditional use. The record contains no indication of the reason for such denial.

Section 15 of the McHenry County zoning ordinance which is attacked as invalid in the factual context of this case enumerates some 24 conditional uses which under the language of the ordinance have "unique characteristics" and thus "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." Mobile homes parks and mobile homes sales enterprises are included among the ordinance's conditional uses, and the following standards are incorporated in the ordinance as conditions precedent for the issuance of a conditional use permit:

"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 ...


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