Appeal from the Circuit Court of Cook County; the Hon. CHARLES
S. DOUGHERTY, Judge, presiding. Reversed in part and affirmed in
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. This is a zoning case, in which a declaratory judgment action was commenced on December 5, 1956. The defendant Village appeals from a judgment order entered on September 13, 1967, in which the trial court found "from the evidence adduced here that a ready-mix concrete plant is not in fact a nuisance, nor obnoxious or offensive by reason of emission of odor, dust, smoke, gas or noise . . .," and plaintiff has "a clear legal right to establish on the above described property a ready-mix concrete plant or any other use permitted in an industrial district under the Zoning Ordinance No. 555 as amended by Ordinance No. 848, in force and effect in the Village of Palatine in the month of October 1956 and thereafter."
In a previous appeal between the same parties (22 Ill. App.2d 274, 160 N.E.2d 702), this court, in an opinion by Justice McCormick filed on May 18, 1959, reversed a summary judgment for plaintiff because there was "a triable issue of fact." The cause was remanded to the Circuit Court "to take such other and further proceedings as are not inconsistent with this opinion." The pertinent facts detailed in the previous appeal need not be repeated here.
The issues presented for review on the instant appeal are: (1) Whether the proceedings in the trial court should have been governed by the Administrative Review Act; (2) Whether the judgment of the trial court finding the issues against defendant was contrary to the mandate of the Appellate Court; and (3) Whether the trial court's judgment order was too broad when said order permitted "any other use" when the only evidence was for a concrete ready-mix plant.
The subject premises are in the Village of Palatine, Illinois, and are part of a triangular tract of land which lies south of and adjacent to the right-of-way of the Chicago and Northwestern Railway and bounded by the railroad right-of-way, Hale Street, and a line parallel to and approximately 150 feet north of Washington Street. The tract consists of an industrial area, in the northwesterly portion of which there is a strip having an average length along the right-of-way of the railroad approximately 130 feet, presently occupied by the Hines Lumber Company for a lumber and building material storage and sales yard. The balance of the triangular tract, including that part which is adjacent to the railroad right-of-way, consists of approximately 95,000 square feet. Since 1951, it was beneficially owned, under a land trust, by plaintiff, Leslie W. Beaven, now deceased. It was used by him for various industrial enterprises. The entire triangular tract, together with that portion occupied by the railroad right-of-way and the Hines Lumber Company, was designated as an industrial district by the zoning ordinance in force and effect within the defendant Village at the time the instant action was commenced. Beaven, on his part of the tract, stored and maintained building equipment, material, hauling trucks, crane, concrete forms and other machinery and supplies incident to construction work.
On October 11, 1956, plaintiff Beaven applied to the defendant Village of Palatine for a permit to erect a "ready-mix concrete" plant. On October 23, 1956, the Village Board of Trustees refused to grant the permit on the ground that the proposed use would be in violation of Village ordinance No. 555 as amended by ordinance No. 848. Plaintiff Beaven on December 5, 1956, filed the instant action for a declaratory judgment in the Circuit Court of Cook County, praying that he be permitted to erect a ready-mix concrete plant. The Village answer set out ordinance No. 555 as amended by ordinance No. 848, which prohibited certain uses in industrial districts "and in general those uses which are in fact nuisances or which may be obnoxious or offensive by reason of emission of odor, dust, smoke, gas or noise." The Village later amended its answer to allege its enactment of a comprehensive zoning ordinance on December 23, 1957, which repealed ordinances Nos. 555 and 848 and rezoned plaintiff's property to a business classification (R C52). The trial court allowed plaintiff's motion for a summary judgment, which judgment, as previously noted, was reversed in 1959 by this court in 22 Ill. App.2d 274, 160 N.E.2d 702.
On August 30, 1962, plaintiff again applied to the Village for a permit to erect and maintain a "ready-mix concrete" plant. The application was denied on September 12, 1962. Plaintiff then appealed to the Village Zoning Board of Appeals, and a hearing was held before the Board on January 10, 1963, at which time evidence was heard by the Board as to whether the ready-mix concrete plant proposed by plaintiff would be offensive. In June 1963, plaintiff was advised by the Board that his application for relief was denied because the Board found that the ready-mix concrete plant would be "highly objectionable and offensive to the surrounding area by reason of the dust and noise that would result from such use."
On November 18, 1963, with leave of court, plaintiff filed a "Supplement to Complaint" in the instant cause. Defendant on December 5, 1963, then filed a "Motion to Dismiss Complaint." The motion was primarily based on the premise that the plaintiff was not entitled to judicial relief "until and unless he has first exhausted his administrative remedies." The trial court denied the motion, and defendant answered.
On January 5, 1965, the trial court referred the cause to a referee, who heard extensive evidence and rendered his report, in which he found the issues in favor of plaintiff. The report shows that plaintiff (Beaven) died on June 21, 1966, and the executor of his estate was substituted as plaintiff in this cause on October 13, 1966.
The referee's report states that three witnesses appeared on behalf of plaintiff and three for defendant. In arriving at his "Findings of Fact and Conclusions of Law," the referee examined and considered all the pleadings, the testimony, the exhibits, and the Appellate Court opinion. From the opinion the referee concluded that the principal issue to be determined by the additional proceedings was "if the use was such that it could become obnoxious or offensive by reason of the emission of odor, dust, smoke, gas or noise." The referee made fifty-eight findings, which included the following findings of fact:
"FIFTY-ONE: THE MASTER FINDS that the plaintiff and Claude L. Henney are both men who for many years had personal contact with the construction, maintenance and operation of ready-mix plants. Both of their testimony pointed to the following salient undisputed factors about the operation of such a plant:
"(f) . . . There is some noise connected with the movement of the ready-mix trucks, but not any more than the noise created by any three axle six wheel vehicle which can be found operating in any industrial district.
"FIFTY-SIX: THE MASTER FURTHER FINDS from the evidence that the operation of a ready-mix plant on the subject premises would not constitute a nuisance within the meaning of said Ordinance No. 555, as Amended, and would not be obnoxious or offensive by reason of the emission of odors, dust, smoke, gas or noise, and that said use is therefore a permitted use in an Industrial District under said Ordinance.
"FIFTY-SEVEN: The highest and best use of the subject property is for the establishment and maintenance of a ready-mix concrete plant of the type proposed by the plaintiff, and for such use plaintiff's premises have a value of $1.75 per square foot. If restricted against the use for a ready-mix concrete plant, ...