Appeal from the Circuit Court of Kane County, Sixteenth
Judicial Circuit; the Hon. NEIL J. MAHONEY, Judge, presiding.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT.
The defendant County and defendant property owners, as intervenors, appeal from the granting of a judgment which declared that plaintiff may use its property for the mining of gravel, sand and stone, including the erection, installation and use of necessary structures and equipment in that connection. The court found that the refusal of the County to issue a special permit for the use sought, and the pertinent zoning ordinance as applied to plaintiff's property, were invalid. The County was also ordered to issue the special-use permit.
Defendants attack the judgment order on the basis that it is not sustained by the manifest weight of the evidence. Plaintiff urges the sufficiency of the evidence to support the judgment, and additionally argues that the denial of the special-use permit was an unconstitutional deprivation of plaintiff's rights which the court properly recognized in ordering the issuance of the permit.
The Elmhurst-Chicago Stone Co. purchased approximately 400 acres of land in Kaneville Township in southwestern Kane County in the years 1963 and 1964. The original contract to purchase the property was contingent upon the owners being able to obtain a special-use permit from the County of Kane so that the purchasers could mine sand and gravel on the premises. This application was denied by the Zoning Board of Appeals of Kane County and by the Board of Supervisors of the County. Subsequently, the plaintiff company purchased the property, zoned in the "F-Farming" classification, paying $600 per acre for one parcel and $700 per acre for a second.
The property is located on both sides of the concrete county road, known as Main Street Road, which lies in a direct easterly-westerly direction, with Kaneville, Illinois, an unincorporated village on the west, and Batavia, Illinois, on the east. Main Street Road is the only road leading in an easterly direction from Kaneville, about two miles, to Illinois State Route 47, and Route 47 runs northerly-southerly seven to ten miles west of the main cities in the county, namely, Batavia, Geneva, St. Charles, Aurora and Elgin.
On January 21, 1966, the Company filed a petition with the County for a special-use permit under the "F-Farming" zoning classification to mine sand and gravel on the entire tract. The Zoning Board of Appeals recommended denial of the request and the County Board of Supervisors accepted the recommendation and denied the request for the special-use permit. This Declaratory Judgment suit followed.
Kaneville Township is a rural township. The soil on the subject property is characterized as upland prairie soil with a base of sand and gravel.
Plaintiff's position that the court properly ordered the issuance of the special-use permit, must first be considered. Plaintiff suggests in its brief that "the instant case is not one of a question of classification. The subject property is in a zoning classification which permits gravel mining"; that the county's right to exercise the special-use technique must be carefully circumscribed, and that in the absence of standards in the ordinance, the ad hoc determination by the legislative body presents an issue of "spot zoning."
To resolve the issues in this case, a review of the direction taken in the cases in Illinois which have considered the special-use technique in terms of judicial review is in order.
Kotrich v. The County of DuPage, 19 Ill.2d 181, 166 N.E.2d 601 (1960) involved the validity of a special use (a private country club in a single-family residential area) and such provisions were upheld. The court noted that the technique is a method for encompassing infrequent types of land use, potentially incompatible with uses usually allowed within customary categories, which may be desirable in a given case. The court stated, on page 185:
"It is true that the procedural restrictions prescribed for amendments and variations, as well as the standards prescribed for variations, evidence a legislative plan to guarantee property owners some protection from piecemeal changes in the general zoning scheme by ad hoc determinations with respect to particular pieces of property. And since granting a special use permit involves an ad hoc judgment which may affect surrounding property owners in the same way as a variation or an amendment, unlimited application of the special use technique to land uses that can readily be accommodated within the customary categories would undermine the protection contemplated by the statute. But unlimited application of the special use technique is not required to meet the problem it was designed to solve. Only those infrequent uses which are beneficial, but potentially inconsistent with normal uses in the various zones, need be included."
In Hartung v. Village of Skokie, 22 Ill.2d 485, 177 N.E.2d 328 (1961), the special-use technique was further defined. The trial court declaratory judgment was upheld. The decree declared the village zoning ordinance unconstitutional, as applied to the proposed motel in a commercial area, and directed that the property owner had the right to use the property for the requested purpose. The court stated, at page 498:
". . . our approval of the special use technique does not mean that a determination to permit or to deny a special use is beyond judicial review.
"Where, as here, the application for a special use has been rejected, plaintiffs have the right to challenge the constitutionality of the underlying zoning classification."
The application of basic rules governing the underlying zoning was also the approach taken in Camboni's, Inc. v. DuPage County, 26 Ill.2d 427, 187 N.E.2d 212 (1962), to affirm the action of the zoning board in its denial of a permit for a trailer park in a commercial ...